N. Ramu vs The State

S. Nagamuthu, J.—The appellant is the sole accused in S.C. No. 188 of 2012, on the file of the learned Sessions Judge, Trichy District. He stood charged for the offences punishable under Sections 294(b) and 302 of the Indian Penal Code. By Judgment dated 30.01.2013, the Trial Court has acquitted the appellant from the charge under Section 294(b) of the Indian Penal Code, but convicted him under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months. As against the said conviction and sentence, the appellant has come up with this Criminal Appeal.

The case of the prosecution, in brief, is as follows:--

"The deceased, in this case, was one Mr. Ezhil Mannan. PW-3 -Mrs. R. Priya is a divorcee. Her former husband was one Mr. Rajakumaran. He is none else than the sister''s son of the accused. It is alleged that few years prior to the occurrence, Mr. Rajakumaran was murdered. In the said murder case, Mrs. R. Priya and her family members were arrayed as the accused. The said case ended in acquittal. However, the accused developed grudge against the family members of Mrs. R. Priya, as he believed that Mr. Rajakumaran was killed only by Mrs. R. Priya and her family members. This is stated to be the motive for the occurrence."

2.1. Mrs. R. Priya [PW-3] is a postgraduate, having M.Com degree to her credit. She was residing at Palakkarai in Trichy Town. Her son was undergoing a tuition class in the same area under a private teacher. On 11.06.2012, at about 07.30 PM, PW-3 was proceeding towards the tuition centre to pick up her son. When she was passing through a water tank, the accused suddenly emerged there. He shouted at PW-3, pulled her tuft and dragged her. PW-3 cried for help. On hearing the same, the deceased, viz., the brother of PW-3 rushed to the place of occurrence. He questioned the accused as to why he was behaving towards her in such a manner. The accused shouted at him stating that the deceased, PW-3 and their family members were responsible for the death of her sister''s son-Mr. Rajakumaran. So shouting, the accused took out a knife from her waist and stabbed the deceased on the left side of his chest, right side of the stomach and the other parts of the body. The deceased fell down. PW-3 continued to cry for help. Though the neighbours witnessed the occurrence, out of fear for the accused, they did not come forward to help them. Thereafter, the mother of PW-3 came to the place of occurrence. Then, PW-3 called 108 Ambulance Service for help. As soon as the Ambulance came, she took the deceased to the Government Hospital at Trichy.

2.2. PW-16, Dr. K. Uma Kalyani examined the deceased, at 08.35 PM, on 11.06.2012. PW-3, who took the deceased to the Hospital, told PW-16 that the deceased was stabbed by a known person with a knife at 07.30 PM near her house. PW-16 found the deceased unconscious. She found the odor of alcohol in his breath. She found the following injuries:--

"1. A cut injury measuring 6 X 1/2 cm on the left side of the neck.

A cut injury measuring 3 X 1 cm on the left side of the chest.

A cut injury measuring 3 X 1 cm on the left side of the stomach."

EX-P20 is the Accident Register. PW-16 admitted the deceased in the hospital as an inpatient. PW-16, then, gave intimation to the police.

2.3. PW-14, was the then Special Sub-Inspector of Police and PW-15 was the Sub-Inspector of Police, attached to the Palakkarai Police Station. PW-15 received intimation from the hospital and instructed PW-14 to go over to the hospital and obtain a complaint. Accordingly, PW-14 went to the hospital and recorded the statement of the deceased. PW-3 was by his side. As orally said by the deceased, it was reduced to writing by one Mr. Ramesh, the Head Constable, [CW-1], who accompanied PW-14. On returning to the Police Station, he handed over the said statement to PW-15. On receiving the same, PW-15 registered a case in Crime No. 481 of 2012 under Sections 294(b), 341 and 307 of the Indian Penal Code. EX-P19 is the First Information Report. Then, he forwarded the complaint and the First Information Report [EX-P19] to the Court and handed over the case diary to the Inspector of Police.

2.4. Taking up the case for investigation, PW-17 proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of PW-2 and another witness. He recovered bloodstained earth and sample earth from the place of occurrence. On going over to the hospital, he came to know that at 11.55 PM, on 11.06.2012, the deceased died. Therefore, at 12.15 AM, on 12.06.2012, he altered the case into one under Sections 294(b), 341 and 302 of the Indian Penal Code and forwarded the alteration report to the Court under EX-P24. Then, he recovered bloodstained clothes of the deceased under a mahazer. He conducted inquest on the body of the deceased. EX-P29 is the inquest report and forwarded the dead body for postmortem.

2.5. PW-11 - Dr. A. Ravikumar conducted autopsy on the body of the deceased, at 12.25 PM, on 12.06.2012. He noticed the following injuries:--

"1. A sutured wound 4 cm in length on the left side of neck on removal of the suture 1 cm in breadth and muscle deep.

A sutured wound 3 cm in length and 6 cm front midline on the front left side of chest, on removal of suture 1 cm in breadth and cavity deep. O/E. left anterior wall bruising - Dark red. A stab wound 3 X 2 cm and cavity deep on the 3rd intercostals space on further dislocation intercostal muscle blood vessels, nerves, pleura and peritoneum found cut. A stab wound present on the upper lobe of left lung and a stab wound on the right ventricle of heart 3 X 5 cm and muscle deep. Fluid blood present in thoracic cavity.

A sutured wound 3 cm in length, 13 cm front the midline on the side aspect of left side of chest on removal of the sutures 1 cm in breadth and cavity deep. O/E cut fracture of left side 8th rib with surrounding area bruising - dark red.

An incised wound on the right side of perineum 5 cm X 1 cm X muscle deep.

Intercostal drainage wound present on the front of both side of chest - surgical treatment."

EX-P12 is the postmortem certificate, EX-P13 is the serology certificate and EX-P14 is the final opinion. According to him, the deceased would appear to have died of multiple stab wounds.

2.6. During the course of investigation, on 12.06.2012, at 05.00 AM, PW-17 arrested the accused at the local bus stand in the presence of PW-6 and PW-7. On such arrest, he gave a voluntary confession, in which he disclosed the place, where he had hidden a knife [MO-1]. He also disclosed the place, where he had hidden a full hand shirt [MO-6]. In pursuance of the same, he took the police and the witnesses and produced MO-1 - knife and MO-6 - a shirt from the hide out. PW-17 recovered the same under a mahazer. On returning to the Police Station, he forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. Since PW-17 was transferred, he handed over the case diary to his successor.

2.7. PW-18 took up the case for investigation, on 22.07.2012, collected the medical records, examined the doctor and few more witnesses and finally, on completing the investigation, he laid charge sheet against the accused.

2.8. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, on the side of the prosecution, 18 witnesses were examined, 31 documents and 6 material objects were marked.

2.9. Out of the said 18 witnesses, PW-1 and PW-2 have turned hostile and they have not supported the case of the prosecution in any manner. PW-3 is the sister of the deceased, who has vividly spoken about the occurrence as an eye-witness. She has also spoken about the motive for the occurrence. PW-4 is the mother of PW-3. According to her, at about 07.30 PM, on the day of occurrence, since PW-3 had gone out to the tuition centre to pick up her son, she wanted the deceased to go and help her, as there was a threat to her at the hands of the accused. On hearing the alarm raised by PW-3, she went to the place of occurrence and witnessed the occurrence. PW-5 to PW-7 have turned hostile and they have not supported the case of the prosecution in any manner.

2.10. PW-8 is the Head Constable, who carried the dead body to the hospital for postmortem. PW-9, an official working in the Tamil Nadu Electricity Board, has stated that there was no electricity failure at or about at the time of occurrence. PW-10 is a chemical analyst, who has stated that in the internal organs of the deceased, there was no alcohol or poison noticed. PW-11 - Dr. A. Ravikumar has spoken about the autopsy conducted by him and his final opinion regarding the cause of death. PW-12 is the Head Constable, who carried the material objects from the Court to the Forensic Lab. PW-13, a Scientific Assistant in the Regional Forensic Lab, has stated that when he examined the material objects, he found human blood on the material objects and the blood group of the bloodstained found on the shirt was ''B'' group. PW-14 has spoken about the recording of the complaint from the deceased. PW-15 has spoken about the registration of the case. PW-16 has spoken about the treatment given to the deceased at the Government Hospital. PW-17 and PW-18 have spoken about the investigation conducted by them and the filing of the final report.

2.11. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.

We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.

The learned counsel for the appellant would submit that the presence of PW-3 and PW-4 at the place of occurrence is doubtful. He would further submit that PW-3 and PW-4 would not have witnessed the occurrence at all. He would also submit that there was delay in preferring the complaint. He would further submit that the deceased would not have been in a position to make any statement at all to PW-14 and therefore, EX-C1 is not believable. He would further submit that the evidence of CW-1 would not, in any manner, go to prove that the deceased made such a statement, because the said statement said to have been recorded by CW-1 has not been proved in evidence at all.

He would further submit that at the time when the deceased was taken to the hospital, according to the doctor, he was unconscious. This was at 08.30 PM and therefore, according to the learned counsel, at 09.20 PM, the deceased would not have been conscious so as to make such a statement and therefore, the same should be rejected. Thus, according to the learned counsel, the prosecution has failed to prove the case. In the alternative, the learned counsel would submit that assuming that the accused stabbed the deceased and caused injuries on his body, which resulted in his death, the said act of the accused would not fall within the ambit of Section 302 of the Indian Penal Code and the same would fall within the ambit of Section 304(i) of the Indian Penal Code.

The learned Additional Public Prosecutor would, however, oppose this Criminal Appeal. According to him, the evidences of PW-3 and PW-4 cannot be doubted, as the occurrence had taken place somewhere near the house of the deceased. He would further submit that the motive has been clearly established by the prosecution. He would further submit that the occurrence itself was because of the accused pulled the tuft of PW-3 and when she cried, the deceased came to the place of occurrence to help her. Thus, the evidence of PW-3 cannot be doubted at all. Similarly, PW-4 came to the place of occurrence on hearing the alarm raised by PW-3. Her presence at the time of occurrence also cannot be doubted, the learned Additional Public Prosecutor contended. At 07.30 PM, when the deceased was taken to the hospital, though he was unconscious, within a short while, he regained consciousness and that is how, the statement was recorded at 09.20 PM. The learned Additional Public Prosecutor would further submit that from the evidences of PW-3, PW-4 and the statement of the deceased, the prosecution has clearly established that it was this accused, who stabbed the deceased, which resulted in his death. Thus, the learned Additional Public Prosecutor would submit that the act of the accused would squarely fall within the ambit of Section 302 of the Indian Penal Code.

We have considered the above submissions.

So far as the motive is concerned, it is not in dispute that the nephew of the accused was killed some years before the occurrence. In the said case, PW-3 and her family members were the accused. PW-3 was none else than the wife of Mr. Rajakumaran, the nephew of the deceased. PW-3 was divorced. Admittedly, the case ended in acquittal few months prior to the occurrence. These facts are not at all in dispute. Thus, the prosecution has clearly established the motive.

On the day of occurrence, it is the evidence of PW-3 that she was proceeding towards the tuition centre. When she reached the place of occurrence, the accused emerged there, pulled her tuft and dragged her. This was on account of the above motive. Quite naturally, she raised alarm. On hearing the alarm raised by PW-3, the deceased came to the place of occurrence. It is in evidence that there was some quarrel between the accused and the deceased. In the said quarrel, the accused stabbed the deceased, which resulted in his death. PW-3''s mother also came to the place of occurrence, on hearing the alarm raised and she witnessed the occurrence. Though PW-3 and PW-4 have been subjected to lengthy cross-examination, nothing has been brought on record so as to disbelieve their evidences. It is not as though the occurrence had taken place at a far off place. The occurrence had taken place just somewhere near the house of the deceased. Thus, the presence of PW-3 and PW-4 at the time of occurrence cannot be doubted at all. The deceased was taken to the hospital only by PW-3, which is evident from the entry made in the Accident Register, [EX-P20]. At the earliest point of time, PW-3 told PW-16 that at 07.30 PM, on 11.06.2012, the deceased was attacked by a known person. Thus, we find no reason to reject the evidences of PW-3 and PW-4. Their evidences are fully corroborated by the medical evidence also. Thus, the prosecution has clearly proved that it was this accused, who alone stabbed the deceased, which resulted in his death.

The learned counsel would submit that PW-1 did not make any complaint to the police immediately. This argument does not persuade us at all, for the simple reason that PW-3 would have been anxious only to take the deceased to the hospital to save him, which she had promptly done. When she was in the hospital, on getting intimation, PW-14 had gone there along with CW-1. Though it is stated that at 08.35 PM, when the deceased was brought to the hospital, he was unconscious, it was possible for the deceased to regain consciousness subsequently and thus, he would have made such a statement, which was reduced to writing by CW-1. But, unfortunately, the prosecution has failed to prove the said statement, which was spoken by the deceased and reduced to writing by CW-1 in the presence of PW-14. We are unable to understand the logic behind the suppression of this document. The Trial Court has also failed to get the said statement received in evidence. Thus, the prosecution, as of now, does not have the benefit of the said statement made by the deceased. In our considered view, even in the absence of the said statement made by the deceased, which amounts to dying declaration, the evidences of PW-3 and PW-4 would be sufficient, which have clearly established the guilt of the accused. Thus, we hold that the prosecution has proved the case beyond any doubt that it was this accused, who alone caused the death of the deceased.

Now, the immediate next question, which arises for consideration, is by the said act, what is the offence, that the accused had committed. It is in evidence that at the time of occurrence, the accused was aged about 75 years. On seeing PW-3, according to her, the accused quarreled with her and pulled her tuft. On hearing the alarm raised by PW-3, the deceased came there. This resulted in a quarrel between the accused and the deceased. Though the prosecution has not clearly placed the entire conversation between the parties, it is inferable that the deceased would have used some provocative words. This presumption is possible under Section 114 of the Indian Evidence Act, 1872, going by the entire facts and circumstances of the case. Due to the said provocation, having lost his self-control, the accused would have stabbed the deceased. The occurrence was not a premeditated one. The accused would not have anticipated the deceased to come to the place of occurrence. Similarly, he would not have anticipated PW-3 also to come to the place of occurrence. Likewise, he would not have anticipated the mother of PW-3 to come to the place of occurrence. In such a situation, without any premeditation, having lost his self control, the accused stabbed the deceased. In our considered view, this act of the accused would squarely fall within the third limb of Section 300 of the Indian Penal Code and in turn it would fall within the ambit of First Exception to Section 300 of the Indian Penal Code and so, he is liable to be punished under Section 304(i) IPC.

Now, turning to the quantum of punishment, the accused is aged about 78 years and he is not maintaining good health. As a matter of fact, he is in the evening of his life. There is no history of the accused having bad antecedents. The occurrence was not a premeditated one. Having regard to all the above mitigating and the aggravating circumstances, we are of the considered view that sentencing the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for four weeks would meet the ends of justice.

In the result, this Criminal Appeal is partly allowed in the following terms:--

"� The conviction and sentence imposed by the Trial Court on the accused/appellant under Section 302 of the Indian Penal Code is set aside and instead, the accused/appellant is convicted under Section 304(i) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for four weeks.

� The period of sentence already undergone by the appellant shall be set off under Section 428 of the Code of Criminal Procedure."