Seenivasa Thevar vs State

M. Karpagavinayagam, J.—In Sessions Case No. 128 of 1986 on the file of the Additional Sessions Judge Ramanathapuram, the Appellant Seenivasa Thevar, the 1st accused was tried for an offence punishable u/s 302 of the Indian Penal Code, on the allegation that on 18-12-1985 at about 3.00 a.m., at Ayyavu Thevar punjai land, Kallipatti village, the Appellant (1st accused) stabbed one Raja Thevar alias Subbiah Thevar, the deceased, on the left clavicular area of his body, by means of a knife (M.O.3), and thereby caused his death, while his wife, the 2nd accused Kuruvammal caught hold of the deceased from behind him.

The trial Court, after an elaborate trial, though acquitted the second accused Kuruvammal, wife of the Appellant, found the Appellant (1st accused) guilty of the charge u/s 302, I.P.C. and sentenced him to undergo imprisonment for life. The sustainability of the verdict of the learned trial Judge is challenged in this appeal by the 1st accused/appellant.

The case of the prosecution as can be seen from the evidence brought on record is as follows:

P.W.I Pal Thevar is the younger brother of the deceased Raja Thevar @ Subbiah Thevar. P.W.2 Chinna Krishnasamy is the son of the deceased. P.W.3 Lingavel is the son of P.W.1 Pal Thevar. The Appellant/1st accused Seenivasa Thevar is the husband of the second accused Kuruvammal. All of them are residing at Kallipatti village.

On 18-10-1985 at 2.00 p.m., there was a wordy quarrel between the 2nd accused Kuruvammal and her son-in-law in front of her house. A crowd of children gathered there. P.W.3 Lingavel, the son of P.W.1 aged about 10 years was also one among the children in the crowd, watching the scene. One Lingammal, the daughter of 2nd accused, questioned P.W.3 Lingavel, as to why he came there and was watching the quarrel. She also mocked at him by lifting her leg. P.W.3 Lingavel replied that he was seeing the scene like the other children. In retaliation, he also lifted his leg and showed it to Lingammal. On getting enraged at this, 2nd accused Kuruvammal forcibly took P.W.3 Lingavel in side her house and beat him with a broom stick indiscriminately. Then P.W.3 Lingavel, came weeping. On the way, the deceased Raja Thevar who was sitting on the pial of his house asked P.W.3, as to why he was weeping. P.W.3 narrated the incident. Then, the deceased Raja Thevar went to the house of the accused and questioned the 2nd accused Kuruvammal, as to why she beat P.W.3 with a broom stick, merely for the reason that he was standing and watching the incident in front of her house like the other children. After a brief quarrel with 2nd accused, deceased came back home.

At about 3.00 p.m. on the same day, deceased Raja Thevar was coming near Ayyavu Thevar punjai land, on his way to a well to take his bath. From the opposite side, P.W.2 Chinna Krishnasamy, the son of the deceased was coming along with a bull, after finishing his ploughing work. P.W.I Pal Thevar was also coming along with his bull to his filed. At that time, the 2nd accused Kuruvammal came and caught hold of the deceased from behind him and the 1st accused/appellant Seenivasa Thevar also came and stood behind the 2nd accused Kuruvammal and stabbed on the left clavicular area of the deceased with M.O.3 soori knife. Then both the accused ran towards the western side. P.W.1 Pal Thevar and P.W.2 Chinna Krishnasamy went near the injured Raja Thevar and took him in a bullock cart and straight away went to the Pudupatti police station. It was 4 p.m., then. When they reached police station, Raja Thevar was found dead.

P.W. 10 Vardharajan, Police Constable who was then in charge of Pudupatti police station, obtained the statement from P.W.1 Pal Thevar, which was reduced into writing and signed by P.W.1, attested by P.W.2 Chinna Krishnasamy. This is Ex.P.l. He then registered the case in Cr. No. 88/85 under Sections 341 and 302 I.P.C., against the Appellant and his wife Kuruvammal (2nd accused). The printed F.I.R. is Ex.P12. He then sent the complaint Ex.PI and the copy of F.I.R. Ex.P12 to the concerned Magistrate and superior police officers. P.W.1 Pal Thevar produced his blood stained dothi M.O.I before P.W.10.

P.W.11 Deenadayalan, the Inspector of Police on receipt of the copy of F.I.R. at 8.30 p.m., came to the Pudupatti police station at 10.00 p.m. In front of the police station, where the body of deceased was kept, he prepared observation mahazar Ex.P13 and rough sketch Ex.P14 at 10.30 p.m. Between 11.30 p.m., on 18-10-1985 and 2.30 a.m. on 19-10-1985 he conducted inquest and examined P.W.1 Pal Thevar, P.W.2 Chinna Krishnasamy and another. Inquest report is Ex.P15. He recovered M.O.2 blood stained towel from P.W.2 Chinna Krishnasamy under Ex.P16 mahazar. After the inquest he sent the body with requisition Ex.P3 through P.W.6 Jayaraman, Police Constable to Sivakasi Government Hospital for postmortem, then at 2.45 a.m. he recovered blood stained earth M.O.7, sample earth M.O.8 under Ex.P17. On 19-10-1985 at 6.00 a.m. he went to Kallipatti village and prepared observation mahazar Ex. P18 with reference to the place of occurrence and rough sketch Ex.P19. At 7.00 a.m. he recovered M.O.9 blood stain earth and M.O.10 sample earth under Ex.P20.

On 19-10-1985 at 10.00 a.m. on receipt of Ex.P3 requisition from P.W.11 Inspector of Police, P.W.5 Doctor Saroja, at Sivakasi Government Hospital conducted post-mortem on the body of the deceased Raja Thevar and issued the post mortem certificate Ex.P4. She opined that the deceased would appear to have died due to loss of blood and shock and hemorrhage due to the injuries sustained. During the post-mortem she found the following injuries:

"An incised wound on the left supra clavicular area 2 cms. above the middle third of claricle 2 cm x 1 cm. On exploring the wound it runs downwards to the left lung. In the left lung there was an incised wound on the anterior aspect of upper lobe. It travels though the substance of lung piercing 3 cms. Injury corresponds to the external injury. There was collection of 2 liters of liquid blood in pleural cavity. No injury to great vessels".

After post-mortem P.W.6-Police constable recovered M.O.4 dothi from the body of the deceased and handed over the same in the police station.

On 20-10-1985 P.W.11 Inspector of Police examined P.W.3 Lingavel. As P.W.3 was found with some injuries, P.W.11 Inspector of Police sent him to Sivakasi Government Hospital, with Ex.D2 memo. P.W.4 Doctor Thangavel, examined P.W.3 on 20-10-1985 at 5.15 p.m., and issued Ex.P2 wound certificate.

On 28-10-1985 at 7.15 a.m., P.W.11 Inspector of Police arrested Appellant near Pattatharasiamman kovil Mandapam at Srivilliputhur Madurai Road and recorded confession statement given by the Appellant, the admissible portion of which is Ex.P6, attested by P.W.7 Sri Rengarajan, Village Administrative Officer and another. P.W.11 recovered from the Appellant at 7.45 a.m., the blood stained dothi M.O.5 under Ex.P5 mahazar attested by P.W.7 and another. The Appellant then escorted P.W.11 Inspector of Police and Ors. at 9.00 a.m. to the place near Madurai road and took out a blood stained knife M.O.3 and leather sheath M.O.6 from the bush and produced before P.W.11 Inspector of Police, these M. Os. 3 and 6 were recovered under Ex.P7 mahazar, attested by P.W.7 and another. On 29-10-1985, the 2nd accused Kuruvammal surrendered before the Judl. Magistrate at Virudhunagar.

On 14-11-1985, P.W.11, sent the requisition Ex.P8 to Court for sending the M Os. to chemical analysis. On receipt of Ex.P8 requisition, P.W.8 Hariram, the Head Clerk of the concerned court sent the M. Os. through Magistrate''s requisition Ex.P9 for chemical analysis. Ex.P10 is the report of the chemical analyst. Ex.P11 is the seriologist'' report.

P.W.9 Vasudevan, Sub-Inspector of Police, while he was working in Pudupatti police station on 16-4-1985 some people of Kallipatti village presented a memorandum Ex.Dl, accusing that the Appellant/1st accused Seenivasa Thevar and the 2nd accused Kuruvammal, stealthily removed the food articles from the Noon meal organization centre of the village. This complaint was treated as a petition and P.W.9 conducted an enquiry on 20-4-1985 and finally he directed the Appellant and his wife, the 2nd accused to return the articles removed to the public, and then he closed the petition.

M.O.7 blood stained earth, M.O.4 dothi recovered from the deceased and M.O.5 dothi recovered from the Appellant were found to contain ''B'' group human blood. M.O.3 knife, which was recovered from the accused was found to contain human blood. On 27-12-85, after the completion of investigation, P.W.11, the Inspector of Police filed the charge sheet against the accused.

Against the Appellant the charge was framed u/s 302, I.P.C., and as against the 2nd accused, the wife of the Appellant, Kuruvammal u/s 302 r/w 34, I.P.C.

After an elaborate trial, when the accused were questioned u/s 313, Code of Criminal Procedure, on the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime. In the written statement filed by the accused before the Court below the Appellant has stated that on the date of occurrence, he saw both Lingammal, his daughter and Lingavel (P.W.3) the son of P.W.1 quarrelling with each other and that the 2nd accused beat both of them and thereafter when the Appellant went inside the house to take food, the family members of the deceased and P.W.1 came and stood in front of the house of the accused and shouted at them and asked them to come out, saying as to how the 2nd accused being a female dog could beat their son P.W.3 and that when both the accused were about to come out, P.W.1 Pal Thevar instigated others by saying "tamil words", and immediately thereafter all the persons joined together, beat both of them and that when the Appellant, finding it very difficult to escape from their brutal assault, went inside the house, took out a knife and by showing the knife, both the Appellant and his wife came out of the house and ran away from the place and that the Appellant sent his wife towards western side and since he was unable to walk for a long distance he took bed under a tree and there the Inspector of police came and took him to the police station and obtained some signatures from him and then in the morning a village doctor was brought and treatment was given to him and that he was illegally detained till 28-10-1985 and then he was produced before court remand and that they were innocent.

On appreciation of the oral and documentary evidence, the learned trial Judge arrived at the conclusion that the guilt of the Appellant alone had been established by the prosecution beyond reasonable doubt, but acquitted 2nd accused, as the offence was not established against her.

The prosecution chooses to rely upon the ocular version of this incident spoken to by P.W.1 Pal Thevar, the brother of the deceased and P.W.2 Chinna Krishnasamy, the son of the deceased. It is quite true that these witnesses are closely related to the deceased. But they are the most natural witnesses to speak to this occurrence. We cannot over look that thee was no animosity between the family of the Appellant and the deceased prior to this occurrence. Once we arrive at a conclusion that the presence of P. Ws. 1 and 2 at the time and place of occurrence is natural, we have to scrutinize their evidence with care and caution inasmuch as they are relations of the deceased.

The occurrence had taken place due to a wordly quarrel, between the deceased and the 2nd accused Kuruvammal, arising out of the earlier beating of P.W.3 Lingavel, the son of P.W.1 by the accused with broom stick. In fact, the Appellant himself had admitted, while he was questioned u/s 313 Code of Criminal Procedure, that 2nd accused Kuruvammal beat P.W.3 Lingavel, prior to the above said quarrel. The fact remains that the deceased had gone towards the house of the accused for the purpose of scolding the 2nd accused who beat P.W.3, the brother''s son of the deceased with a broom stick. So, naturally it will not be farfetched to infer that there was a quarrel fight between the deceased and both the accused and as a consequence of this, the stabbing incident must have been taken place.

It is important to note, that even according to the prosecution the Appellant, standing behind the deceased Raja Thevar, gave a single stab on the clavicular region. The Appellant did not attempt to make a further stab or attack, on the deceased but he ran away immediately. The presence of P. Ws.1 and 2 at the scene of occurrence is quite acceptable. After the occurrence, they both took the injured Raja Thevar in a bullock cart and reached the Pudupatti police station. P.W.1 is the author of the complaint Ex.Pl and P.W.2 is the attestor. The complaint has been given to the police at 4.00 p.m. on 18-10-1985 within an hour from the time of occurrence. The distance between the place of occurrence and the Pudupatti police station is 1 1/2 miles. Ex.Pl statement of P.W.1 and the printed F.I.R. Ex.Pl2 have reached the concerned Magistrate at 8.00 p.m., on 18-10-1985 itself, thus the sanctity of the first information report gets strengthened by the fact that it had reached the Magistrate within a reasonable time. The evidence of P. Ws.1 and 2 is so cogent and consistent, emanating fragrance of truth.

Though P.W.3 is also related to the deceased, his evidence relating to the first incident, in which he was beaten by the 2nd accused Kuruvammal is supported by the Appellant himself when he was questioned u/s 313 Code of Criminal Procedure As a matter of fact, P.W. 11, the Inspector of Police of seeing some injuries on P.W.3-Lingavel has sent him to the Sivakasi Government Hospital, where P.W.4 Doctor Thangavelu treated him and gave wound certificate Ex.P2. We have been taken though the evidence of these three witnesses and we do not find any infirmity brought out in the cross-examination of these witnesses to even remotely doubt the credibility of their case. Without hesitation we accept the evidence of P. Ws.1 to 3.

The medical evidence furnished by P.W.5 Doctor Saroja completely corroborates the eye witness account projected through P. Ws.1 and 2. This is one another circumstance which connects the Appellant with the crime. It does not stop there. The Appellant himself admits his presence during the course of this occurrence. Not only the knife M.O.3, which was seized from the Appellant contained human blood, but the blood stained dothi M.O.4 recovered from the body of the deceased and the blood stained dothi M.O.5 recovered from the accused contained human ''B'' group blood. So we are satisfied that the evidence of P. Ws.l and 2 coupled with the medical evidence and the recovery of M.O.3 knife, wound indisputably point out that the Appellant was the author of this crime.

Having arrived at this conclusion, we have to still consider the nature of offence committed by the Appellant. This is a case of a single stab inflicted without any premeditation. It is not as though, there was any deep-seated enmity between the Appellant and the deceased. The petty quarrel between Lingammal and P.W.3 had magnified itself leading to a second installment of quarrel between the deceased and the 2nd accuse resulting in the unfortunate death of Raja Thevar. It appears more probable that there could not have been a time lag of one hour between the first and second instances. Almost the incident must have taken place in a continuous process separated only by a very short interval if at all. We should also point out, that in the opinion of the doctor the cause of death was due to shock and hemorrhage due to the injury inflicted on the clavicular area. So the onerous duty cast on the Court is to carefully consider all the materials to find out if clause thirdly u/s 300, I.P.C. would get attracted or there is doubt regarding ''intention'' contemplated therein, pointing out a different mens erea, which would alter the nature of the offence. On the law laid down by the Apex Court, if intention is not established or if a reasonable doubt arises in this regard, then it would be reasonable to infer that clause thirdly u/s 300, I.P.C. did not get attracted and necessarily the accused must be attributed with knowledge that in inflicting the injury, he was likely to cause death:

In this case, the occurrence had taken place in broad daylight in a public place, which was a sequal to the earlier occurrence, in which the deceased Raja Thevar went to the house of the accused and scolded the wife of the Appellant. Further more, the Appellant stood behind the deceased and stabbed without aiming at any-vital part of the body and then swiftly ran away. Therefore, no intention whatsoever to cause the death of the deceased can be attributed to the Appellant.

Learned Counsel for the Appellant does not seriously challenge and dispute the fact that the Appellant caused the death of the deceased. But his case is that the act of the Appellant does not fall u/s 302 I.P.C., but only punishable u/s 304 Part II I.P.C. Even before the trial Court, learned Counsel for the Appellant relied on the decision of the Supreme Court in the case of Gokul Parashram Patil v. State of Maharashtra (1981 SCC (Crl.) 731), to show that the act of the Appellant falls only under the exceptions of Section 300 I.P.C. and thereby it will constitute only an offence punishable u/s 304 Part II I.P.C. Unfortunately, learned trial Judge has not considered the dictum laid down by the Supreme Court in the above referred case, which is squarely applicable to this case. In the above referred case, the Supreme Court has observed as follows.

"The solitary blow given by the Appellant to the deceased was non the left clavicle-a non vital part and it would be too much to say that the Appellant knew that the superior venacava would be cut as a result of that wound. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of the type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstances".

For making an offence u/s 300 I.P.C. the prosecution has to show that the act committed by the Appellant comes under any one of the four clauses found in the opening portion of Section 300 I.P.C. As a matter of fact, there is no evidence to show that the accused had the intention to cause the specific injury, which was caused, so as to attract any of the four clauses of Section 300 I.P.C. In the facts and circumstances of the case, it cannot be said that the injury caused by the Appellant was with the intention to cause that injury, which led to the death of the deceased. The intention can be proved by a variety of circumstances like motive, seat and gravity of the injury, the weapon used, time and place of the occurrence, etc. In this case, the whole occurrence took place in the presence of several persons, including P. Ws.1 and 2. Only one single blow was given by the Appellant which landed on the left clavicular area of the body of the deceased. The more important aspect is that the Appellant stood behind the deceased and stabbed him. Therefore, we are of the opinion that the Appellant can be attributed only with knowledge that he was likely to cause the injury which was likely to cause death. In such a situation, he would be guilty of an offence u/s 304 Part II I.P.C, not u/s 302 I.P.C.

In the case of Thangavel v. State rep. by Public Prosecutor (1991 L.W. (Crl.) 333), while dealing with similar facts in issue, a Division Bench of this Court has set aside the conviction and sentence imposed on the Appellant u/s 302 I.P.C, and instead found him guilty u/s 304 Part II I.P.C.

In that view of the matter, we set aside the conviction and sentence imposed on the Appellant for an offence u/s 302 I.P.C. and instead find him guilty of an offence punishable u/s 304 Part II I.P.C.

The appeal is allowed in part. The conviction and sentence imposed on the Appellant u/s 302 I.P.C, are set aside. The Appellant is convicted for an offence u/s 304 Part II, I.P.C. and sentenced to undergo R.I. for five years.