Sappani vs State

Janarthanam, J.—The appellant was the accused in S.C.No. 84/94, on the file of Court of Sessions, Tiruchirappalli Division. He was found guilty for offences under Sections 323, 324 and 302 of the Indian Penal Code, convicted thereunder and sentenced to R.I for six months for an offence u/s 323 I.P.C., as relatable to the causation of certain injuries to P.W. 4, R.I. for one year for an offence u/s 324 I.P.C. for causing of certain injuries as relatable to P.W. 5, and imprisonment for life u/s 302 I.P.C for causing the murder of the deceased Gandhi.

Aggrieved by the said conviction and sentence, the present action had been resorted to.

Brief facts are:-

(i) The deceased Gandhi and accused are neighbours, of Vamadam village situate within the Jurisdiction of Woraiyur Police Station. P.W. 1 is the wife of the deceased. It appears that for some reason or other, mere was want of cordial atmosphere between the accused and the deceased for about three months, prior to the occurrence, which event happened on 13-02-1983.

(ii) On the day of occurrence at about 4:00 p.m., the deceased was taking food in his house being served by his wife P.W. I. Adjacent to the house of the deceased one Alangayee, and another Sankarammal were weaving baskets by means of iron rod. The accused was having one sister by name Vanaja. The said Vanaja was stated to be present near the place, where the iron rod baskets were woven. The accused was stated to have beaten his sister Vanaja, then a teenage girl. On receipt of beating at the hands of the accused, she obviously unable to bear such beating, raised a hut and cry. The deceased who was taking food in his house, then attracted by the noise emerging from outside, came out of the house and questioned the propriety of the accused beating his sister. The enraged accused, questioned the property of the deceased questioning him as to the beating inflicted by him upon his own sister. The accused all of a sudden picked up a stone and hurled the same aimed at the deceased. The stone so hurled did not however hit the deceased.

(iii) Immediately thereafter, the accused rushed to his house, which is nearby, took out M.O.I, iron and came to the scene again. With the aid of the said M.O.1 iron rod, he aimed a stab on the deceased, which landed on his left chest, causing bleeding injury. On receipt of the injury, the victim deceased cried and before he fell down on the ground, his wife P.W. 1 came to his rescue and took him to her house.

(iv) Apart from P.W. I, P.Ws. 2 to 5, it is said were present in the scene and had the fortuitous opportunity of witnessing the occurrence, P.Ws. 4 and 5 were stated to have chased the accused, in rather a bid to catch him. The accused in turn, in order to prevent them from catching him, took out mud and hurled the same towards them. The attempt made by P.Ws. 4 and 5 to catch him did not fructify. However, the accused, with the aid of M.O.I was stated to have stabbed P.W. 5 on his left thigh and left cheek, as a consequence of which he sustained certain injuries on his person. As a consequence of throwing mud and stone by the accused, P.W. 4 was stated to have sustained certain injuries on his head. The accused, however ran away from the scene.

(v) P.W. 1 thereafter went to outpost Police Station, Thillainagar, for lodging a complaint. The time was then 4:30 p.m. At that time, P.W. 14, the Sub Inspector of Police was in charge of the outpost Police Station. P.W. 1, gave Ex. P.1 complaint to P.W. 14. She then returned to her house took her husband, the victim deceased to the Government Headquarters Hospital, Trichy, in rather a bid to save his life, thinking that life was still ingering in him.

(vi) One Dr. Thirunavukkarasu, attached to the Government Headquarters Hospital, Trichirappalli, happened to examine the victim deceased. On examining him, he found him dead. Ex. P.5 is the death intimation. The prosecution had been handicapped in not examining the said Dr. Thirunavukkarasu. P.W. 7. Dr. Natarajan, Asst. Surgeon, attached to Government Headquarters Hospital, Trichirappalli, acquainted with the handwriting and the signature of said Thirunavukkarasu, had been examined and the death intimation Ex. P.5 had been marked through him.

(vii) P.W. 14, after receipt of Ex. P.1, went to the house of the victim deceased. After reaching there, he came to know that the victim deceased had been taken to the Government Headquarters Hospital, Tiruchirappalli. He went there and received Ex. P.5 death intimation. He returned to the Woraiyur Police Station, within whose jurisdiction the occurrence took place and registered Ex. P.1 as a case in Cr. No. 129/93 for an alleged offence u/s 302 I.P.C. He prepared express report and sent the same to the concerned officials.

(viii) In the meantime, P.W. 11, the Sub-Inspector of Police, in charge of patrol van happened to go to the scene of occurrence at 4:45 p.m. He found P.Ws. 4 and 5 having sustained certain injuries on their person in the occurrence. He made arrangements for their transport and admission at the Government Headquarters Hospital, Trichy for their treatment.

(ix) P.W. 15 was the then Inspector of Police. At 8:30 p.m. he received the express report of the First Information and took up further investigation of the case. He reached the scene of occurrence at 9:00 p.m. After inspecting the scene, he prepared Ex. P.7, observation mahazar. He also drew a rough sketch of the scene, Ex. P.21. At 9:30 p.m. he seized the blood stained earth M.O.2 from the pial of the house of the deceased, under Ex. P.8 mahazar. Exs. P.7 and P.8 were attested by P.W. 8 and another.

(x) On 14.2.1993, between 7:30 and 10 a.m. he held inquest on the body of the deceased at the Government Headquarters Hospital, Tirchy. During inquest, he examined P.Ws. 1 to S and others. Ex. P.22 is the inquest report.

(xi) After the inquest was over, he handed over the body Of the deceased to the Constable, P.W. 12 along with Ex. P.2 requisition, for the purpose of autopsy. At 11:00 a.m., he seized from P.W. , M.O.3 dhothi under Ex. P.9 mahazar. At 11:15 a.m. he seized from P.W. 4 M.O.3 dhothi under Ex. P.9 mahazar. At 11:15 a.m. he seized from P.W. 4, M.O.4 lungi under Ex. P.10 mahazar. Exs. P.9 and P. 10 were attested by P.W. 9.

(xii) P.W. 6 Dr. S.K. Palanisamy, was the then Asst. Surgeon, attached to Government Headquarters Hospital, Trichirappalli. On receipt of Ex. P.2 requisition 11:30 a.m. he commenced autopsy over the body of the deceased at 11:45 a.m. Ex. P.3 is the post mortem certificate he issued. He would opine that the deceased would appear to have died due to shock and hemorrhage, as a result of the injury sustained about 12 to 24 hours prior to post mortem examination. After the post mortem examination was over, P.W. 12 seized M.0.5 lungi and M.O.6 waist cord from the body of the deceased and handed over the same at the police station. He handed over the body to its relatives.

(xiii) The doctor W.7 examined and treated P.W. 4 for report as to certain injuries said to have been caused on 13.2.1983, due to alleged assault with a stone by a known person at 4:00 p.m. at Vamadam. Ex. P.4 is the wound certificate issued as respects P.W. 4.

(xiv) It appears that P.W. 5 had been examined by one Dr. Kulothungan, attached to the said hospital. The said doctor, it is said, treated P.W. 5 for injuries he sustained in the occurrence. Ex. P.6 is the wound certificate the said doctor issued to P.W. 5. Through doctor, P.W. 7, who had been acquainted with the hand writing and signature of Dr. Kulothungan, Ex. P.6, wound certificate had been marked.

(xv) P.W. 15 on the same day examined P.Ws. 6,7 and 11. Since the accused was absconding he made arrangements for his apprehension. On 15.2.1983, he sent the seized incriminating M.Os. to Court.

(xvi) On 21.2.1983, he sent Ex. P.13 requisition to Court for forwarding the seized incriminating M.Os. to the Chemical Examiner for the purpose of examination. On 1.3.1983, at 5:00 a.m. he apprehended the accused near the bus stop at Kollidam Toll Gate, Lalgudi Road. On interrogation, the accused gave a voluntary confession statement. The same has been recorded in the presence of P.W. 10. Ex. P. 11. is the admissible portion of the said statement. Pursuant to the said confession statement, the accused took P.Ws. 10 and 15 to his house. He took out and produced M.O.I, kept concealed in the roof of his house and the same has been recovered under Ex. 12 mahazar. Exs. P.11 and P. 12 had been attested by P.W. 10 and an other. On 2.3.1983, he examined the doctor, P.W. 6 with reference to M.O.I. On the same day, he sent the accused to Court for remand. On 4.3.1983, he sent M.O.I to Court. On 11.3.1983, he sent Ex. P.17 requisition to Court for forwarding M.O.I to the chemical examiner for the purpose of examination.

(xvii) P.W. 13 was the then Head Clerk, attached to Judicial Second Class Magistrate No. 1 Court, Trichirappalli. On receipt of Ex. P.13 requisition, under the direction of the Magistrate he despatched blood stained incriminating articles, excluding M.O.I, to the chemical examiner for the purpose of examination under the original of Ex. 14, office copy of the letter. Exs. P.15 and P. 16 are the respective reports of the chemical examiner and Serologist. On receipt of Ex. P. 17 requisition, as directed by the Magistrate, he despatched M.O.I to the Chemical Examiner for the purpose of examination under the original of Ex. P.18, office copy of the letter. Exs. P.19 and P.20 are the respective reports of the chemical examiner and the Serologist as relatable to M.O.I.

(xviii) After completion of investigation, P.W. 15 laid final report u/s 173(2) of the Code of Criminal Procedure, against the accused on 18.5.1983 before the Judicial Sessions Class Magistrate No. 1, Trichy for alleged offences u/s 323, 324 and 302 I.P.C.

On committal, learned Sessions Judge, Trichirappalli, framed charges under Sections 323, 324 and 302 I.P.C. as, against the accused, when questioned as respects the charges so framed denied the same and claimed to be tried.

The prosecution, in proof of the charges so framed against the accused, examined P.Ws. 1 to 15, filed Exs. P.1 to P.22 and marked M.Os.1 to 6.

The accused, when questioned u/s 313 Cr.P.C., as respects the incriminating circumstances appearing in evidence against him, denied his complicity in the crime. He did not however choose to examine any witness on his behalf.

On consideration of the materials placed and after hearing the arguments of Learned Counsel for the accused and learned Public Prosecutor, learned Sessions Judge, Trichirappalli, recorded the verdict as stated above.

8 Mr. T. Sudanthiram, Learned Counsel appearing for the appellant/accused would press into service the following two point for our consideration.

(i) The materials available on record in the shape of evidence, oral and documentary are not sufficient and adequate enough to mulct any criminal liability upon the appellant/accused for any offence whatever.

(ii) In any event, the overtact attributed to the accused as relatable to the deceased, even if taken for granted, had been proved, can be no stretch of imagination be stated to be one coming under any one of the four clauses of Section 300 I.P.C. Punishable u/s 302 I.P.C. and it at all it may come u/s 304 (Part II) I.P.C.

Mr. B. Sriramulu, learned Public Prosecutor would however repel such submissions.

The occurrence took place at about 4:00 p.m., on 13-02-1983, near a place at Vamadam, where one Alangayee and Sankarammal were weaving iron baskets. It so happened that one Vanaja, a grown up girl sister of the accused was present there and the accused, for no reason whatever beat his sister-Vanaja and consequently, she obviously unable to hear the agony of such beating, raised a hue and cry. The deceased was then taking food in his house, which is very near to the scene of occurrence. Behaving like a good Samaritan, he rushed to the same, in a bid to render help, if any, to the victim-Vanaja and in such process, he questioned the accused, whether it was proper for him to beat in public, his sister, a grown up girls, for nothing. With such conduct of the deceased, the accused got enraged, who probably thought that it was none of the business of the deceased to question him, when especially he was beating his own sister. In such a situation, the accused was stated to have picked up a stone and hurled its on the deceased. Somehow or other, the stone so hurled did not hurt or injure him. Not satisfied with such hurling of the stone, the accused was stated to have rushed to his house and returned to the scene arming with M.O.I iron rod and with the aid of the same, he was stated to have inflicted a stab on the person of the deceased, which, in turn, landed on his left chest. The moment he inflicted the stab, he attempted to run away from the scene and he was chased by P.Ws. 4 and 5 and in such process, in order to escape from their clutches, he also accused certain injuries on the person of P.Ws. 4 and 5 and escaped from there.

This sort of an incident had been witnessed, apart from P.W. I, the wife of the deceased, P.Ws. 2 to also. Unfortunately, P.Ws. 3 to 5 turned hostile wholesale to the prosecution. No doubt, the prosecution brought on record their earlier statements before the investigating officer on record in the manner allowed by law. But nonetheless, the evidentiary value that could be attached to their testimony is practically "nil" and therefore it is, the Court below rightly rejected their testimony, in the sense of not placing any reliance upon them.

However, the Court below with regard to the overtact of the accused, as relatable to the deceased as well as P.Ws. 4 and 5 placed implicit reliance upon the evidence of P.W. 1 and also P.W. 2, a witness of the locality, who happened to be at the scene, while returning to her house taking water from a well. We have perused the evidence of P.Ws. 1 and 2. We are unable to trace out any sort of infirmity in their evidence, as respects the manner and methodology of the occurrence, despite their evidence having been put to arduous test by hurling questions in cross examination by the defence. This apart even according to the defence, the presence of the accused in the scene had not at all been denied and that is evident from the trend of questions, hurled during the course of cross examination of P.Ws. 1 and 2. According to the defence, as revealed by the suggestions thrown to them, it is patently clear that the occurrence did not at all take place in the manner as projected by the prosecution thought the mouth of the P.Ws. 1 and 2, but took place in a different way. That is to say, the deceased was given a stab by means of an iron rod, which was lying near the place, where the iron baskets were woven, when the deceased beat him with his hands and to say further that the accused took the iron rod from his house was shorn of reality of the situation. Of course, this sort of defence theory developed during the course of cross examination had been categorically denied by P.W. 1 and 2. Further it was also abandoned during the course of questioning u/s 313 Cr.P.C. To put it otherwise, he never made a whisper, as respects such a theory then. In such state of affairs, the lower court was not far wrong in rejection such a theory and placing reliance upon the version, as projected by P.Ws. 1 and 2 without any sort of contradiction, as respects the occurrence as a whole.

The medical testimony available on records, as relatable to the deceased, in the shape of testimony of P.W. 6 Doctor, coupled with Ex. P.3 post mortem certificate and the testimony of the Doctor P.W. 7 as relatable to the causation of injuries to P.Ws. 4 and 5 coupled with Exs. P.4 and P.6, corroborates in an ample measure, the direct testimony of P.Ws. 1 and 2 and serves as a lending assurance factor which gives credibility and face lift to the case of the prosecution.

Even the confession u/s 27 of the Evidence Act and consequent recovery, pursuant to such a confession, of M.O.I iron rod from the house of the accused lends credibility to the case of the prosecution, when especially the accused himself, in the course of section 313 Cr.P.C., statement has candidly admitted as to his having voluntarily given such a confession statement. Ex. P.11 and P. 12 were attested by P.W. 10, an independent witness. The weapon so recovered was also found blood stained though the same group of blood as that of deceased was not found there in as disclosed by Ex. P.20, Serologist''s report. No doubt true it is that it was not possible to decipher the group of blood found on M.O.I. Admittedly, the blood group of the deceased is "O" group, as revealed from the Serologist''s report, Ex. P.16. The fact that the group of the blood as that of the deceased was not found deciphered on M.O.I is of no consequence, on the facts and in the circumstances of the case, when especially P.Ws. 1 and 2 had identified M.O.I as the weapon wielded by the accused at the time of the attack on the deceased as well as P.Ws. 4 and 5.

For the reasons stated above, we are of the opinion that the accused was responsible in causing injuries on the person of the deceased as well as P.Ws. 4 and 5. In this view of the matter, the first point as urged by Learned Counsel for the appellant/accused bristles next to nothing.

16 We may now drive deep into the second point, as urged by Learned Counsel for the appellant/accused. For the sake of emphasis, we may recapitulate here the second point as urged by Learned Counsel for the appellant/accused. According to him, even the entirety of the evidence available on record, if it is taken for granted as truth and nothing but truth, the overtact of the appellant/accused, as relatable to the deceased, can, by no stretch of imagination, amount to an offence u/s 302 I.P.C., and if at all it may fall u/s 304 (Part II) I.P.C. Worthwhile it is to take into consideration, that there was no love lost between the accused and the deceased in such a way which gave cause for concern and what all available on record in a bad fashion is that they were not on talking terms for about three months prior to the occurrence. The occurrence happened at the spur of the moment, while the accused was beating his own beloved Sister Vanaja, in public. The deceased also could not have thought when he questioned :he accused, as to whether it was proper for him to beat his sister in public, that would be taken as an affront by the accused. Perhaps, contrary to the expectation of the deceased, the accused took it as an affront and wanted to chastise him for his being questioned by the deceased when he was beating his sister. Initially he hurled a stone aimed towards the deceased, which missed the target in the sense of the same not causing any injury to the deceased. The accused thereafter was stated to have rushed into his house and came back with M.O.1 iron rod. The iron rod M.O.I, we rather feel, is not a dangerous or a lethal weapon. With such an iron rod, M.O.I, the accused inflicted a stab, which unfortunately landed on the left chest of the deceased. After the infliction of such a stab, the accused did not attempt at all to inflict any further stab on the person of the deceased, but had thought of running away from the scene. It is more or less, a "hit and run" without premeditation or design. P.Ws. 4 and 5 would not have received any injury at the hands of the accused, tut for his being prevented from running away from the scene, and only to escape from either clutches, he appears to have inflicted certain injuries on the person of P.Ws.4 and 5, which were only simple in nature, according to the medical testimony available on record. In such a situation, it cannot at all be stated, that his act of stabbing by an iron rod like M.O.I on the person of the deceased had been done with any mens rea as prescribed under anyone of the clauses 1 to 4 of Section 300 I.P.C. thereby making him liable to be punished for such an offence u/s 302 I.P.C, and if at all, such an act could have been done with the knowledge that it was likely to cause death, but without any intention to cause death, or cause such bodily injury as is likely to cause death. In such a situation, the overt-act of the accused as relatable to the causation of injury on the deceased shall squarely fall u/s 304 (Part II) I.P.C., and not under any of the four clauses u/s 300 I.P.C., punishable u/s 302 I.P.C.

In this view of the matter, the conviction and sentence as had been imposed upon the accused/appellant by the lower court as relatable to the overtact on the deceased is not sustainable and consequently the same deserved to be set aside, and instead he has to be found guilty for an offence u/s 304 (Part II) I.P.C.

The conviction of the accused under Sections 323 and 324 I.P.C., as relatable to the causation of injuries to P.Ws.4 and 5 on the facts and in the circumstances of the case deserves to be upheld.

Coming to the question of sentence, as respects the offence under Sections 323 and 324 I.P.C., we rather feel, that the sentence for such offence, as had been imposed by the Court below upon the appellant/accused does not call for our interference, as being excessive.

So far as the sentence as relatable to Section 304 (Part II) I.P.C., is concerned, Learned Counsel for the appellant/accused would submit that though he was unable to give particulars as respects pre-trial detention yet, he would categorically state that ever since the conviction and sentence by the Court below, that is to say, on and from 8.10.94, he has been detained in prison, without being released either on bail or on parole at any point of time. He would further state that if such detention is taken into account, he would have suffered imprisonment for the prescribed maximum,. We rather feel, the imprisonment for the imprisonment suffered by him would be more than sufficient and adequate for the offence u/s 304 (Part II) I.P.C.

In fine, the criminal appeal is allowed in part. The convictions and sentence u/s 302 I.P.C, as had been imposed upon the accused/appellant by the Court below are set aside. Instead he is found guilty u/s 304 (Part II) I.P.C. convicted thereunder and sentenced to R.I. for ten years, which he had already undergone. Consequently, he is directed to be released forthwith from prison, unless liable to be detained for some other cause.