Muthuvel vs State by Inspector of Police

Prabha Sridevan, J.—This criminal appeal is filed against the judgment dated 23.04.1998 of the learned Additional Sessions Judge, Dindigul

in S.C. No. 73 of 2005, by which the appellant was found guilty of the offence punishable under Sections 302 I.P.C and sentenced to undergo life

imprisonment.

The case of the prosecution is as follows: The appellant had mortgaged his property to the deceased. The deceased asked the appellant to

repay the mortgage amount. But, the appellant attempted to resume the land without paying the mortgage amount, so there was enmity between the

two. On 24.11.1995, at about 04.30 p.m., near Pattalammal Koil, Puduputhur road, the appellant with an aruval approached the deceased. The

deceased tried to escape. But, the appellant cut the deceased near the left ankle, which resulted in his death. P.W.1, the eye witness is the brother

of the deceased. The wife of the deceased and the wife of the accused are sisters. P.W.1 has spoken about the motive viz., the enmity between the

parties on account of appellant''s refusal to return the mortgage amount. According to P.W.1, the deceased gave a complaint to the police and the

police warned the appellant/accused and sent him away. Consequently, there was enmity between the deceased and the appellant. On

24.11.2005, P.Ws. 1, 2 and 3 and the deceased went to work in their lands. They were returning at 04.30 p.m., after planting wheat and carrot.

Near Pattalammal Koil the deceased was going ahead of P.Ws.1 to 3. The appellant approached with an aruval and threatened the deceased. The

deceased immediately dropped the agricultural implements and attempted to run away. But, the accused cut the deceased in his left ankle with a

hard blow. The deceased fell down. The appellant ran away with the aruval. There was heavy blood flow from the wound. P.W.1 raised a hue and

cry. Thereafter, one Vellaiyan, Suppan and others came there and all of them took the injured person to the house. They informed the wife of the

deceased and tied a cloth on the ankle to arrest the blood flow. Thereafter, they decided to take the deceased to the hospital and to go to the

police station, with the help of P.W.5 and another. When they reached the place at Kollamanam, the deceased asked for water. They gave him

some water and soon after he died. At that time, it was 05.00 p.m. Thereafter, they took the dead body back to the house. Since there was no bus

facility in the night, they took the first bus in the morning and at 08.30 a.m., P.W.1 gave the complaint Ex.P.1 to the Kodaikanal Police Station.

P.W.10, who was the Sub-Inspector of Police at Kodaikanal Police Station received the complaint and registered a case u/s 302 I.P.C in Crime

No. 434 of 1995. The printed copy of F.I.R is Ex.P.12. P.W.10 forwarded the printed copy of F.I.R to the higher authorities viz., the Inspector

and the Court. P.W.11 is the Head Constable in Kodaikanal Police Station to whom the printed F.I.R was handed over by P.W.10. P.W.11

handed over the same to the D.S.P at 10.30 a.m. Since Judicial Magistrate, Kodaikanal was not in station, P.W.11 went to Judicial Magistrate,

Nilakottai and handed over the same. P.W.12, the Inspector of Police in Kodaikanal Police Station at the relevant point of time, on receipt of the

F.I.R at 09.00 a.m., rushed to the scene of occurrence at 11.00 a.m. In the presence of witnesses, he prepared Observation Mahazar (Ex.P.2)

and Rough Sketch (Ex.P.13). He also seized blood stained earth and sample earth under Ex.P.3 at 02.00 p.m. P.W.12 in the presence of

witnesses, conducted inquest over the dead body of the deceased at about 02.45 p.m., and the Inquest Report is Ex.P.14. He recorded the

statement of witnesses at 05.30 p.m., On conclusion of the inquest, he sent the dead body of the deceased with a requisition for conducting Post

Mortem. P.W.7 was the duty doctor at Kodaikanal Government Hospital. On 26.11.1995, P.W.7 conducted autopsy on the body of the

deceased and found the following injuries:

A deep cut wound of 6� length x 2 �� depth x 2� width over dorsum of the left lower leg just below the propliteal fossa. Edges of the

wound are retraded and are deeply blood stained. The gastrocheniuis muscles are severed and are deeply blood stained. Blood clots are seen

within the muscle fibres, fracture of the upper one third of fibula present. Popliteal A and V are severed and adjoining nerves are severed.

The opinion of the doctor as to the cause of the death is as follows:

The deceased would appear to have died of acute external Haemorrhage and shock caused by the injury.

The Post Mortem Report is Ex. P.8.

Continuing the investigation, P.W.12 seized blood stained blanket, shawl, three blood stained white cloth and one cloth from the scene of

occurrence. He also recorded statements from the witnesses. On 26.11.1995, he recorded the statements of some more witnesses. On

27.11.1995, at about 05.00 a.m., accompanied by one Alagar, he went in search of the appellant and near Poombarai bus stop, he arrested the

appellant in the presence of P.W.6 � Village Administrative Officer. The appellant came forward with a voluntary confession and the admissible

portion of the same is Ex.P.5. On the basis of the information given by the appellant, he recovered Aruval (M.O.1) and Polythene bag (M.O.11)

from the bushes. At about 10.30 a.m., he returned to the Police Station. He seized the blood stained lungi worn by the appellant and gave him

another lungi to wear. He recorded the statement of witnesses. On 28.11.1995 he forwarded the seized Material Objects for Chemical Analysis.

P.W.2 is an acquaintance of the deceased. He also spoke of the enmity between the deceased and the accused and his evidence is along the

same lines of P.W.1. P.W.3 is also an acquaintance of the deceased and the accused and his evidence is also along the same lines of P.W.1.

P.W.4 was in the house of one Vellaiyan on the date of occurrence. When he heard the hue and cry raised by P.Ws. 1 to 3, he and Vellaiyan

rushed there and they saw the deceased with his injured leg and according to his evidence, P.Ws. 1 to 3 were standing there and when he

enquired, he was informed that the appellant had cut the deceased and fled. Therefore, his evidence supports the evidence of P.W.1. P.W.5 is a

Mahazar Witness. P.W.6 is the witness to Ex.P.5. P.W.8 is the Head Clerk. P.W.9 is the constable. P.W.12, the Investigating Officer received

Exs.P.10, the Chemical Report and Ex.P.11, the Serology Report. After concluding the investigation, on 28.11.1995, P.W.12 framed the charges

and filed the Report.

Before the Trial Court, the Prosecution examined P.Ws. 1 to 12, marked Exs.P.1 to P.14 and produced M.Os. 1 to 12. On the side of the

defence, no evidence was adduced. The appellant/accused in his examination u/s 313 Cr.P.C., denied his guilt.

Notice sent to the appellant/accused was returned unserved and the Village Administrative Officer has also filed a certificate that the

appellant/accused, who was enlarged on bail, has not been residing in the given address. Therefore, this Court, by an order dated 29.10.2007

appointed Mr. S. Subaharan as an amicus curiae.

Learned Counsel for the appellant submitted that the prosecution case suffers from serious infirmities. According to the Prosecution, the

occurrence had taken place at 04.30 in the evening and therefore, the lodging of the complaint at 08.30 a.m., on the next day suffers from

unexplained delay. According to the learned Counsel, because of the enmity between the deceased and the accused, the prosecution witnesses

had implicated the accused.

Learned Counsel for the appellant/accused next submitted that though the F.I.R was lodged on 25.11.1995, it has been elicited in the cross-

examination of P.W.8 that the Judicial Magistrate, Kodaikanal has received the same on 28.11.1995 and the Court Seal is also of the same date.

According to the learned Counsel, the three days delay in forwarding the F.I.R to the Magistrate is also a serious infirmity in the prosecution case.

Next, learned Counsel for the appellant submitted that though P.Ws.1 to 3 speak of the enmity between the parties with regard to the Mortgage,

no documentary evidence has been produced to corroborate the same.

Learned Counsel for the appellant next submitted that though the Doctor opined that the deceased appear to have died of acute external

Haemorrhage and shock caused by the injury, it has not been elicited in the evidence that the injury by its very nature is likely to cause the death.

Learned Counsel further submitted that there is only one injury and that is also in the left ankle of the deceased, which is not a vital organ. Learned

Counsel finally submitted that if this Court believes the evidence of P.Ws.1 to 3, then the question as to whether the offence u/s 302 I.P.C. is made

out may be considered and consequently, reduction of sentence may be awarded.

Learned Additional Public Prosecutor submitted that none of the infirmities pointed out on the side of the appellant deserves consideration. He

submitted that it is the specific case of P.W.1 that they did not go to the Police Station immediately since they did not get any bus. In the cross-

examination, it has been elicited from P.W.1 that there is no bus service at night in Kodaikanal. Therefore, learned Additional Public Prosecutor

submitted that actually there is no delay in lodging the complaint. The occurrence had taken place at 04.30 p.m., and they attempted to take the

injured person to the hospital and to the Police Station immediately, but on the way, the death occurred and therefore, they returned to the house

of the deceased and could not take further action on account of lack of bus service.

As regards the delayed receipt of F.I.R by the learned Magistrate, learned Additional Public Prosecutor pointed out the evidence of P.W.11

which shows that on the relevant date, the Judicial Magistrate, Kodaikanal was not in station and therefore, he had to take it to Judicial Magistrate,

Nilakkottai, who had received it on the very same day. Learned Additional Public Prosecutor pointed out Ex.P.12 � Express F.I.R which shows

that it has been received at Judicial Magistrate Court, Nilakkottai on 25.11.1995 itself.

As regards the lack of documentary evidence with regard to the motive, learned Additional Public Prosecutor submitted that when the

evidence of eye witnesses are credible and trust worthy with regard to the manner in which the occurrence took place, the importance of motive

recedes to the background. In any event, the evidence of P.Ws.1 to 3 is consisting with regard to the motive and there is no reason to reject the

same. Finally, learned Additional Public Prosecutor submitted that there was heavy blood flow on account of the injury and the Doctor''s evidence

clearly shows that the deceased died on account of acute external Haemorrhage and shock and therefore, even it is a single cut, since it was

sufficient in its nature to cause the death, the prosecution case stands proved to the full.

We have carefully considered the rival submissions of the learned Counsel for the appellant and the learned Additional Public Prosecutor for

the State.

As regards the events that took place on the fateful day, the evidence of P.Ws.1 to 3 is consistent. They were all working in their own lands on

24.11.1995 and were returning at 04.30 p.m., When the deceased was going ahead, the appellant came with an aruval and threatened the

deceased. The deceased immediately dropped the agricultural implements and attempted to run away. But, the appellant cut the left ankle of the

deceased with hard blow. Nothing has been elicited in the cross-examination to reject the evidence of the eye witnesses. Therefore, the case of the

prosecution that there was enmity between the parties on account of mortgage had been proved by documentary evidence. The evidence of eye

witnesses is credible and believable. Even with regard to the enmity on account of the mortgage, the evidence of P.Ws. 1 to 3 is consistent and we

have no reason to disbelieve the same.

There is actually no delay in lodging the complaint. The circumstances under which the complaint came to be lodged only at 08.30 a.m., on

25.11.1995 has been satisfactorily explained and even in the cross-examination, P.W.1 has stated clearly that it is because of lack of bus service,

they could not proceed further and it must be remembered that they made an attempt to take the injured immediately to the Hospital and to the

Police Station to lodge the complaint. It is only because the death occurred on the way, they had returned to the house and could not take any

action during night. Therefore, this ground that there was delay in lodging the F.I.R is rejected.

As regards the belated receipt of the F.I.R by Judicial Magistrate, Kodaikanal, that has also been explained in the evidence of P.W.11 and

Ex.P.12 also shows that without any delay, Judicial Magistrate Court, Nilakottai received the Express F.I.R on 25.11.1995. Therefore, this

ground is also rejected.

As regards the last ground raised by the learned Counsel for the appellant, it is seen that the medical evidence does not show that the injury by

its very nature is sufficient to cause the death and that has not been elicited in the evidence of the Doctor. The opinion of the doctor is to the effect

that the death could have occurred on account of acute external Haemorrhage and shock and excessive blood flow. It has been elicited in the

cross-examination that if medical treatment has been given, the life of the deceased may be saved. There is only one injury and that too on the left

ankle of the deceased, which is not a vital organ.

As regards the above ground raised by the learned Counsel for the appellant, it is seen from the evidence of P.W.7, who conducted autopsy,

that there was only one injury over dorsum of the left lower leg just below the propliteal fossa. No opinion has been obtained from the Doctor by

the prosecution as to whether the injury would be sufficient to cause the death in an ordinary course of nature or atleast the same is likely to cause

the death. The Doctor only opined that the death could have occurred on account of acute haemorrhage and the resultant shock. It is in evidence

that the deceased sustained injury at 4.30 p.m. and he breathed his last at 5.00 p.m. Thus, the deceased was not given any medical treatment.

P.W.7 further opined that the deceased would have been saved provided that he had been given medical treatment immediately. Thus, in the

absence of any positive evidence from the Doctor that the injury found on the deceased would be sufficient to cause the death in ordinary course of

nature, it cannot be stated that the offence would fall within the ambit of the third clause of Section 300 IPC''.

It also cannot be stated that the act of the accused causing injury to the left ankle is so imminently dangerous and that it must in all probabilities

cause the death or atleast such injury is likely to cause death. In the absence of positive evidence in respect of these aspects, it cannot be held that

the offence would fall within the ambit of the fourth clause of Section 300 IPC also.

Admittedly, the deceased and the accused were co brothers. The motive alleged is also not a very strong motive. There is also no evidence to

show that there is any premeditation on the part of the appellant to indulge in this violent act. The accused is an agriculturist and not a seasoned or

regular criminal. The weapon, an aruval, is also an implement that an agriculturist may carry, with him, to carry out his agriculturist activities.

Considering all the above aspects and also the fact that the accused has chosen to cause only one injury, that too on a non vital part of the

body and also the fact that the deceased would have been saved had there been immediate medical attention, we are of the considered opinion

that the accused is not guilty of the offence u/s 302 IPC, but only u/s 326 IPC for having voluntarily caused grievous hurt.

In Parasuraman v. State of T.N. reported in 1992 SCC (Cri) 292 a similar view has been expressed in para 2 of the judgment which is as

follows:

...We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this

case the offence committed by the appellants comes within the mischief of Section 325 read with 34 IPC. Thirteen external injuries were found on

the dead body of Jawahar. Out of those 11 were on lower legs and arms. The High Court while considering the nature of offence observes as

under:

These accused and their associates who beset themselves on Jawahar could never have intended to cause the death of Jawahar for, if such was

their intention, they could have certainly killed him especially after carrying him into the cholam field and left him dead there instead of merely

causing simple and grievous injuries to him. Even with reference to the aspect whether the accused persons could have, intended to cause such

injuries as would be sufficient, in the ordinary course of nature, to cause death, we are not able to give a finding in favour of the prosecution. Even

according to Jawahar''s statement (Ex.P6) all that A-1 had remarked was that the attack on him was in retaliation for the injuries Jawahar had

caused on A-1 a few weeks earlier.

Agreeing with the above observations of the High Court we are of the opinion that the intention of the appellants was to cause grievous hurt and

as such the offence committed by them comes within the parameters of Section 325 IPC....

Similar view has been taken by the Karnataka High Court in a case reported in State of Karnataka Vs. Shivaraj and Others, .

In the above circumstances, we are inclined to accept the submission of the learned Counsel for the appellant that no offence u/s 302 I.P.C is

made out. Therefore, we partly allow this appeal and modify the conviction into one u/s 326 I.P.C. and sentence the appellant/accused to undergo

three years Rigorous Imprisonment.

In the result, this Criminal Appeal is allowed in part and the Judgment dated 23.04.1998 of the learned Additional Sessions Judge, Dindigul in

S.C. No. 73 of 1996 is modified and the appellant/accused is convicted u/s 326 I.P.C. and sentenced to undergo three years Rigorous

Imprisonment.

This Court, by an order dated 24.08.2007 cancelled the bail already granted to the appellant/accused in Crl.M.P. No. 4256 of 1999 dated

30.07.1999 and directed to issue non-bailable warrant to the appellant/accused. Learned Judicial Magistrate, Kodaikanal was also directed to

take action against the sureties also. The appellant/accused must surrender forthwith to serve out the remainder of the sentence, failing which, the

learned Additional Sessions Judge, Dindigul must take steps to apprehend him and send him to custody.

We record our appreciation of the assistance given by Mr. Subaharan. The Secretary, Legal Services Committee, Madurai Bench of Madras

High Court is directed to pay appropriate fee to Mr. Subaharan appointed as amicus curiae by this Court.