Sampath @ Palani vs State

K.N. Basha, J.—Sampath @ Palani, appellant, who is the sole accused in S.C.No.187 of 1999. on the file of learned Additional District

Sessions Judge (Fast Tract Court). Kanchcepuram, challenges his conviction and sentence of life imprisonment u/s 302 I.P.C. in this appeal.

The prosecution case in a nutshell is as follows:

The accused is the brother''s son of the deceased. The deceased is having two brothers P.Ws.11 and 12. The accused is the son of P.W.12

through his first wife, Chokkammal. The accused was residing at Door No.58, Kilandai Raja Street, Kancheepuram along with his father -

P.W.12, mother and his wife and children. Originally, the deceased was also having a share in the above said Door No.58 house along with his

two brothers, P.Ws.11 and 12. Thereafter, there was a partition among the brothers the deceased and P. Ws. 11 and 12. The house bearing Door

No.58 which was allotted to P.W.I 2, father of the accused, was sold to P.W.11, brother of the deceased and P.W.12. Thereafter, P.W.12 was

requested by his brothers, the deceased and P.W.11 to vacate the house and P.W.12, shifted his residence to Maduranthottam. The accused

continued to reside at the same house bearing Door No.58. P. W. 11 and his brother, the deceased, insisted the accused to vacate the house and

since the accused did not vacate the above said house, there were frequent problems between the accused and the deceased family.

There was a municipal water pipe connection in the house bearing Door No. 58 where the accused was residing along with his family. The pipe

connection was used by both the families of the accused and the deceased. After the family partition, the portion where the municipal water pipe

connection was located was allotted to the deceased and the deceased thereafter, shifted the municipal water connection to his house bearing

Door No.57.

On the fateful day, on 08.11.1998 at 9.00 a.m., the accused was digging near the water pipe connection given to the house of the deceased.

The deceased, after taking bath came out and saw the accused digging near the water pipe connection and told him that he can take water from his

house and requested him not to create any problem. After saying so, the deceased turned and at that time, suddenly the accused took the knife and

stabbed the deceased on his right rib. The injured fell down with bleeding injuries. At that time, P.Ws.1 and 3 to 7 were present at the scene.

P.W.I is the daughter of the deceased, P.W.3 is the sister of P.W.4, P.W.4 is the wife of the deceased, P.W.5 is a neighbour, P.W.6 is the co-

brother of the deceased and P.W.7 is the son of the deceased. P.Ws.1 and 3 to 7 raised a hue and cry. The accused ran away from the scene. P.

Ws. 1, 3, 4, 6 and 7 took the deceased to Kancheepuram Government Hospital.

The Doctor, P.W.15, attached to Government Hospital, Kancheepuram, examined the injured Ganapathy on 08.11.1998 at 9.25 a.m. and

found one stab injury on the right side rib. Thereafter, the wound was sutured by the Surgeon attached to that hospital, Chest X-Ray was taken

and thereafter, the deceased was referred to the General Hospital, Chennai. Ex.P. 10 is the Accident Register issued by the Doctor, P.W.15.

Thereafter, the deceased was taken through the hospital vehicle to the General Hospital, Chennai accompanied by P.Ws.4. 6 and 7.

Thereafter, P.W.I along with his neighbour, P.W.2 went to Siva Kanchi Police Station and gave the report, Ex.P. 1, to the Sub-Inspector of

Police, P.W. 17, at 11 a.m. on 08.11.1998. P.W. 17 on receipt of the report, Ex.P.1, registered a case in Crime No. 1120 of 1998 u/s 307

I.P.C. Ex.P.13 is the printed F.I.R. P.W.I also produced M.O.2-blood stained towel used by the deceased and M.0.1 nighty used by her and the

same were recovered under Form 95

Meanwhile, the Doctor, P.W.18, attached to Kilpauk Government Hospital, examined the deceased on 08.11.1998 at 12.55 p.m and took the

deceased to the operation theatre. But due to low pressure and profused bleeding, the deceased died. The Doctor sent the death intimation to the

police station under Ex.P.16.

P.W.20, Inspector of Police. Siva Kanchi Police Station, took up further investigation in the case at 12.30 p.m. on 08.11.1998, He examined

the witnesses at 10.00 a.m. on 9.11.1998. He prepared the Observation Mahazar, Ex.P. 14 and examined P.Ws.1 to 7 on that day. On receipt of

the death intimation, Ex.P.16, from the Government Hospital, Chennai he altered the offence into one u/s 302 I.P.C. Thereafter, he sent the

Express F.I.R., Ex.P. 19, to the Court and to the higher officials. From 12.30 to 4.30 p.m., P.W.20 conducted inquest on the dead body of the

deceased and during the inquest, he examined P.Ws. 1,4,6 and 7.Ex.P.20 is the Inquest Report. On 11.1 1.1998 at 6.00 a.m.. P.W.20, arrested

the accused near Annai Anjukam Grounds in the presence of P.W.10 and another. In pursuance of the admissible portion of the confession

statement given by the accused, Ex.P.21, P.W.20 recovered the knife, M.0.3, as produced by the accused from his tiffin shop under Ex.P.22 -

seizure mahazar in the presence of P.W.10 and another. Thereafter, he remanded the accused to Judicial custody. On 12.11.1998, Inspector of

Police - P.W.20, examined the doctors, P.Ws.15 and 19. The Doctor, P.W.19, conducted autopsy on the dead body on 10.11.1998 at 10.30

a.m. The following injuries were found by him.

Abrasions:

a) On left side of neck 5 X 2 cm.

b) On front of lower part of neck 2 X 2 cm.

c) On front of upper part of right side abdomen 6 X 4 cm.

A vertical sutured wound 32 cms in length containing 22 sutures with black silk over front of midline of abdomen.

An oblique ''T'' shaped sutured wound 19 cms long containing 14 sutures with black silk on front of upper part of right side abdomen.

Oblique sutured wound 6 cms long containing 5 sutures with black silk in front of upper part of abdomen & lower part of chest. The upper

outer end of wound was 10 cms from the midline of chest. Lower and inner end of wound was 6 cms from midline of abdomen.

On dissection, a stab wound 5 cms in length over 11th intercostal space and cutting the 11th intercostal muscles and upper part of the 12th rib. On

dissection, sutured wound 8 cms long on the anterior surface of right lobe of liver containing 7 sutures with hylon. Sutured wound 28 cms long

containing 27 sutures with black silk on inferior surface of both lobes of liver.

An oblique sutured wound containing 1 suture with black silk on the front of lower part of right side of abdomen. An oblique sutured wound 1

cm long containing 1 suture with black silk in front of upper part of left side abdomen.

Sutured wound 2 cms in length containing 1 suture with silk over inner side of right ankle. The Doctor was of the opinion that the deceased died

due to stab injury to the liver. Ex.P. 17 is the Post-mortem Certificate.

P.W.20 further made arrangements to record the statements of the witnesses u/s 164 of Cr.P.C. P. W. 14. the Judicial Magistrate No.11,

Kancheepuram. examined and recorded the statements of P.Ws.1 and 4 to 7 on 25.11.1998. Ex.P.9 is the file containing the above said

statements recorded u/s 164, Cr.P.C. On 25.11.1998, P.W.20 examined some more witnesses. After completing the investigation, P.W.20 filed

the charge sheet on 18.01.1999 against the accused u/s 302 I.P.C.

The prosecution in order to prove its case examined P.Ws.1 to 20 and filed Exs.P.1 to 22 and marked M.Os.1 to 3.

When the accused was questioned u/s 313 of Cr.P.C. regarding the incriminating materials appearing against him, he denied the same and

pleaded not guilty.

The learned Trial Judge accepted the case of the prosecution and held that the guilt against the appellant/accused has been made out u/s 302

and accordingly convicted and sentenced him to undergo imprisonment for life.

The learned counsel for the appellant made the following contentions that:

Even if the entire facts, as projected by the prosecution, are taken to be true, from the facts and circumstances of the case and the evidence

available on record, it could be stated that the appellant had no intention to cause the death of the deceased, as the occurrence took place without

any premeditation in the heat of passion upon a sudden quarrel and therefore, he may be given the benefit of Exception ""4"" to Section 300 I.P.C.

The appellant in the course of a sudden quarrel gave only one single stab with a knife which accidentally landed on the vital part namely liver of

the deceased which proved fatal and in the above circumstances, the appellant could be imputed only with the intention to cause injury as is likely

to cause death.

In support of his contentions learned counsel for the appellant relied on the following judgments of the Hon''ble Supreme Court:

Kulwant Rai Vs. State of Punjab, ;

Jagtar Singh Vs. State of Punjab, ;

Tholan Vs. State of Tamil Nadu, ;

On these contentions we have heard the learned Additional Public Prosecutor.

We have given our anxious and careful consideration to the submissions made by the learned counsel for the parties and perused the entire

records.

The cause of death of the deceased - Ganapathy is not disputed by the defence and the same stands established through the evidence of the

Doctor, P.W.I 9, who conducted autopsy and issued post-mortem certificate, Ex.P. 17. The cause of the death was stated to be the stab injury to

the liver. The Doctor-P.W.19 further opined that M.O.3. knife could have caused the injuries sustained by the deceased and those injuries could

have resulted in the death of the deceased due to injury on the liver. Therefore, on the medial evidence, we hold that the deceased Ganapathy died

on account of the homicidal violence. This takes us to the next question whether the learned Trial Judge was correct in convicting the appellant u/s

302 I.P.C. and sentencing him to life imprisonment.

P.W.I is the daughter of the deceased. P.W.3 is the sister of P.W.4,P.W.4 is the wife of the deceased, P.W. 5 is a neighbour, P.W.6 is the

co-brother of the deceased and P.W.7 is the son of the deceased were examined by the prosecution as the eye-witnesses to the occurrence.

Among them P.W.5 turned hostile and he has not supported the prosecution case. Therefore, according to the categorical version of the eye-

witnesses, P.Ws. 1, 3, 4, 6 and 7, only after the wordy quarrel, the accused on the spur of the moment suddenly stabbed the deceased on his right

rib with the knife. M.O.3. All these witnesses have categorically stated that the accused was living in the house bearing Door No. 58 right from his

birth and that house was allotted to P.W.! 2. father of the accused after partition between the deceased and his brothers, P.Ws. 11 and 12.

Thereafter, P.W. 12 sold his house to his brother P.W.11 and shifted his residence to Maduranthottam and only the accused continued to stay in

that house along with his wife and children. P.W.11. brother of the deceased demanded the accused to vacate that house directly and also through

the deceased.

It is also the case of P.Ws. 1.4 and 7 that originally the municipal water pipe line connection was only given to the house bearing Door No.58

where the accused was residing and after partition, the deceased shifted the water pipe line connection to his house bearing Door No.57. P.W.4,

wife of the deceased, also stated in her cross-examination that the relationship between the accused and the deceased was very cordial and the

deceased only arranged the inter-caste marriage of the accused and both the family members were in talking terms. Therefore, it is very clear that

there was no serious animosity between the accused and the deceased and only the conduct of the deceased in shifting the water pipe line

connection from the house of the accused to his house bearing Door No.57 resulting in immediate provocation for the quarrel. P.Ws. 1,3,4,6 and

7 also categorically stated that the accused, on the fateful day of the occurrence, was digging near the water pipe line connection given to the house

of the deceased and at that time the deceased came out from the bath room and questioned the accused, which resulted in a wordy quarrel.

According to P.W.I, there was a wordy quarrel between the accused and the deceased for five minutes; according to P.W.3. there was a

wordy quarrel between the accused and the deceased for more than half an hour; and P.W.4, wife of the deceased also categorically stated in her

cross-examination that there was a wordy quarrel between the accused and deceased for about an hour and even during the wordy quarrel the

accused was found digging. Further P.W.3 has stated in her cross-examination that there was a wordy quarrel between the accused and the

deceased for half an hour and they were frequently separating them. But in spite of the same, they were quarreling with each other. It is also

relevant to note that according to P.W.4. the accused was digging only with a knife, M.O.3.

It is also relevant to be noted that the Doctor, P.W.15, who had first seen the deceased at the Government Hospital. Kancheepuram on

08.11.1998 at 9.25 a.m. found only a single stab injury on the right infra axiliary. The Doctor. P.W. 18. attached to the Kilpauk Government

Hospital, Chennai. who had also treated the deceased in the intervening night of 08/09.11.1998 at 0.55 hours, found only a single stab on the right

side of the liver. The deceased died on the next day. The Doctor, P.W. 19. who had conducted autopsy on the dead body of the deceased found

six injuries, as mentioned in the post-mortem report, ExP.17. further, the Doctor, P.W. 19 stated in his evidence that injury Nos.2 to 5 are the

surgical injuries and injury No. 1 is only an abrasion. Therefore, it is quite clear that the accused gave only a single stab.

The learned counsel for the appellant in support of his contentions placed reliance on the decisions of the Apex Court viz.

Kulwant Rai Vs. State of Punjab, ;

Jagtar Singh Vs. State of Punjab, :

Tholan Vs. State of Tamil Nadu, ;

All the above three citations relied by the learned counsel for the appellant relate to the cases of single stab inflicted without any pre-meditation and

on the spur of the moment due to sudden quarrel. Single stab or solitary blow itself is not decisive factor in considering the nature of the offence

and it depends upon the facts and circumstances of each case. In the first case cited above viz.. Kulwant Rai Vs. State of Punjab, , the Hon''ble

Supreme Court has held that single blow was given by the accused with a dagger that landed in the epigastrium area resulting in the death of the

accused. The entire occurrence took place due to a sudden altercation and without any pre-meditation. Therefore, the Hon''ble Supreme Court

held that the accused has no intention to cause the death of the accused. In the second case viz., Jagtar Singh Vs. State of Punjab, . the Hon''ble

Supreme Court held that.

Undoubtedly. P.W.2 Dr. H.S. Gill opined that the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this

injury was sufficient in the ordinary course of nature to cause death. The question is whether in the circumstances in which the appellant gave a

blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury

which has proved fatal? The circumstances in which the incident occurred would clearly negative any suggestion of pre-meditation. It was in a

sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3 of Section

300 is attracted. We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant

intended to cause that particular injury which is shown to have caused death. There was no pre-meditation. There was no malice. The meeting was

a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He

could not be imputed with the intention to cause death.

In the third case viz., Tholan Vs. State of Tamil Nadu, the Hon''ble Supreme Court held that

The accused started remonstrations using filthy language against certain organisers of a chit fund who had no connection with the deceased in front

of the house of the deceased and the deceased came out of his house and asked the accused to go away, the accused on spur of moment gave

only one blow with knife to the deceased and pushed him to some distance.

Held, in the circumstances of the case that though requisite intention to commit murder could not be attributed to the accused, he wielded a

weapon like a knife and therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to ''cause death''.

In this case, the entire scenario of the prosecution story coupled with the sequences of events makes it crystal clear that the deceased only

picked up a quarrel and such wordy quarrel lasted for more than an hour in spite of P.W.3 and others tried to separate them and only as a last

resort the accused gave a single stab with the knife which he was using for digging at the time of occurrence on the spur of the moment without any

pre-meditation which landed on the vital part of the deceased resulting in his death.

The above principles laid down by the Hon''ble Supreme Court, in its decisions as cited supra, will apply with all force to the facts of this case.

On a consideration of the totality of the circumstances it is difficult to impute knowledge to the accused to put an end to the life of the deceased.

We are of the considered view that the accused had inflicted injury on the deceased with intention to cause injury as is likely to cause death.

Therefore, he is liable to be convicted for the offence u/s 304-I I.P.C.. instead of u/s 302 I.P.C.

The conviction imposed on the accused for the offence u/s 302 I.P.C., in S.C.No. 187 of 1999 by the Additional District Sessions Judge (Fast

Tract Court). Kancheepuram, is set aside. Instead, the accused is convicted for the offence u/s 304-1 I.P.C. and sentenced to undergo rigorous

imprisonment for a period of seven years.

Since the accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.

With the above modification in the conviction and sentence, the Criminal Appeal is partly allowed.