Thangavel, Life Convict No. 55140, C/o, Supdt., Central Prison, Coimbatore-641018 vs State

Arunachalam, J.—In S.C. No. 11 of 1985 on the file of the Principal Sessions Judge, Periyar District at Erode, the Appellant was tried for

an offence punishable u/s 302 Indian Penal Code, on the allegation that at or about 8.30 p.m. on 6.10.1984 at Sanarmedu in Ilakkapuram Village,

he caused the death of Subramani, his neighbour, by stabbing him with M.O.1, the spear.

The trial Court, after an elaborate trial, found the Appellant guilty of the charge and sentenced him to undergo imprisonment for life. The

sustainability of the verdict of the learned trial Judge is challenged in this appeal.

The prosecution case is as follows. P.W.1. Palanisamy @ Mani is the son of the deceased. P.W.5 Muthayee is the wife of the deceased and

mother of P.W.1. P.W.6 Papathy is the wife of P.W.1. The deceased was living along with P.Ws.1, 5 and 6 at Ilakkapuram village. All of them

were coolies by profession. The Appellant was a neighbour of the deceased. Prior to this occurrence, there was no animosity between the

neighbours, the Appellant and the deceased. At or about 5 p.m. on 6.10.1984, the goat reared by the family of P.W.1. entered into the

neighbouring house of the Appellant and graced bottle-gourd plant. The infuriated Appellant abused and shouted at the family members of P.W.1.

The deceased came out and admitted that it was their mistake, not to have carefully tied the goat and so saying, caught hold of the goat and tied it

securely. However at 8 p.m. the Appellant again started abusing P.W.1 and his family members in vulgar language. Nachammal, the youngest sister

of P.W.5 is the mother of the mother-in-law of the Appellant. The Appellant and Nachammal were residing together. In the course of abuses

hurled at them by the Appellant, P.W.1 along with his father, the deceased proceeded to the house of Nachammal and attempted to pacify the

Appellant. The Appellant, in spite of persuasion, could not get out of the clutches of anger and stating came to the front yard of Nachammal''s

house and further stating stabbed with a spear he possessed, on the left abdomen portion of the deceased. On seeing this attack on the deceased,

P.W.1 caught hold of the Appellant. Both of them rolled down on the ground. Blood from the spear M.O.1, stained the shirt of P.W.1. Thereafter

the Appellant threw away the spear at the scene and made good his escape. P.W.1 neared his father and to his dismay found him dead. When

P.W.1 and the Appellant rolled on the ground, P.W.1 accidently sustained an injury on his right check.

P.W.1 proceeded to Modakkurichi police station situated 10 k.m. away from the scene and narrated the incident to P.W.14 Hari Murugan,

Sub Inspector of Police. The narration of P.W.1 was reduced into writing by P.W.14. Ex.P.1 is the statement recorded from P.W.1. P.W.14

obtained the signature of P.W.1 in Ex.P.1 and later registered crime No. 126 of 1984 u/s 302 Indian Penal Code on the said complaint. P.W.14

forwarded the printed form of the first information report to the Additional Judicial II Class Magistrate, Erode, who had received it at 1 a.m. on

6/7.10.1984. M.O.2 the blood stained shirt of P.W.1 was seized at the police station under Ex.P.2 (For, 95). M.O.2 was also forwarded by

P.W.14 to Court. Copies of the first information report were forwarded by P.W.14 to his superior officers.

After an unsuccessful attempt to get in touch with P.W.15 Mailsamy, Inspector of Police, who was on other duty, P.W.14 proceeded to the

scene of occurrence and reached the venue at or about 11 p.m. He prepared the observation Mahazar Ex.P.9 at 11.30 p.m, attested by P.W.10,

the Village Administrative Officer and another. He commenced inquest at 1.30 a.m. on 6/7.10.1984 and completed it by 4.a.m, during the course

of which he examined P.Ws.1, 5, 6 and others. Ex.P.15 is the inquest report.Ex.P.15 had reached the Magistrate at 9 a.m. on 7.10.1984. On the

request of P.W.14, P.W.12 Durai, a photographer, took photographs in 3 different angles of the deceased, at Sanarmedu. M.Os. 8 and 9 series

are the photographs and negatives respectively.

After inquest P.W.14 forwarded the corpse of Subramaniam through Police Constable P.W.11 with a requisition Ex.P.3 to Government

Headquarters Hospital, Erode for the conduct of postmortem.

At the scene P.W.14 seized blood stained earth M.0.5; sample earth M.O.6 and spear M.O.1 under a mahazar Ex.P.10 attested by P.W.10

and another.

P.W. 15 Mailsamy, Inspector of Police, Kodumudi Circle, reached the scene of occurrence at 6 a.m. on 7.10.1984. P.W.15 examined P.Ws.

2,3 and 4, who were put up in the witness-box as ocular witnesses, but, who however, did not choose to support the prosecution case,

necessitating in their being treated hostile.

P.W.15 arrested the Appellant at or about 2.p.m. on 7.10.1984 at the junction of Ilakkapuram and Sanarmedu. Since P.W.15 noticed an injury

on the Appellant, he forwarded the latter to the Government headquarters hospital, Erode with a requisition Ex.P.7 for examination and treatment.

The Appellant was later remanded.

P.W.17, Dr. Velmurugan conducted autopsy on the dead body of Subramaniam at 10 a.m. on 7.10.1984 and found the following internal and

external injuries.

External injury: A punctured injury with sharp margins over the left side of the abdomen 4 1/2"" above and lateral to the umbilicus and 2 1/2"" lateral

to the midline of the abdomen. The wound was measuring 1 1/2"" in length and 1"" in breadth and the course of the injury was oblique in direction

and passing downwards and medially to the posterior abdominal wall penetrating the facia, external oblique, internal oblique and transverse

abdominal muscle, peritoneum, omentum, small intestine and the abdominal aorta.

2) The ileum is perforated demonstrating a hole measuring 1"" in circumference both in the anterior and posterior wall of the gut.

3) A punctured wound measuring 1"" in circumference was found in the abdominal aorta.

4) Peritoneal cavity contained clots weighing about 250 grams and 450 CC of blood.

He noticed that momentum and jejunum were protruding through an incised wound on the left side of the abdomen. Ex.P.4 is the postmortem

certificate. In the opinion of the doctor the deceased would appear to have died of shock and haemorrhage due to injury to abdominal aorta,

caused by sharp edged weapon. The injuries found on the deceased could have been caused by a weapon like M.O.1. Those injuries were

sufficient to cause death in the ordinary course of nature. The death should have been instantaneous.

P.W.8 Dr. A.L. Ramanathan examined P.W.1 at 10.50 a.m. on 7.10.1984 and found on him a contusion below the right eye about 1"" x 1

reddish in colour. The doctor was informed that P.W.1 had sustained the said injury at 8.30 p.m. on 6.10.1984, when a known person attacked

him with a spear. Ex.P.6 is the wound certificate. The injury noticed on P.W.1 was simple in nature. The said injury was possible due to a fall in the

course of a fight between two persons.

P.W.9 Dr. Subramaniam on receipt of Ex.P.7 examined the Appellant at 4 p.m. on 7.10.1984 for injuries stated to have been sustained at or

about 8.p.m. on 6.10.1984, due to a fall, in the course of a quarrel with two persons. The following injuries were noticed on the Appellant.

1) Lacerated injury 1/2 cm x 1 1/2 cm x skin deep on the upper anterior portion of left ear lobe.

2) Abrasion over left shoulder blade, 3 cm x 3 cm.

3) Abrasion, left posterior aspect of hip 2 cm x 1 cm.

Ex.P.8 is the wound certificate. The injuries noticed on the Appellant were simple in nature and in the opinion of the doctor, they could have been

sustained at the time and in the manner alleged.

P.W.15 forwarded the material objects seized during investigation to the Laboratory, through Court. Ex.P.13 and P.14 are the reports of the

Chemical Analyst and Serologist. M.O.1, M.O.2 and M.O.3 were found to contain ''O'' group human blood. After completion of investigation,

P.W.15 filed the final report against the Appellant before the Committal Court on 9.11.1984, charging him with the capital crime.

When the Appellant was questioned u/s 313 Code of Criminal Procedure, on the incriminating circumstances appearing, against him in

evidence, he chose to deny his complicity in the crime. However he admitted that it was a fact that the goat of the deceased had graced the bottle

gourd plant situated in his house. He would claim that he had not abused the prosecution party, but is was P.Ws.1, 5, 6 and the deceased

Subramaniam who picked up a quarrel with him. P.W.5 vowed vengeance. According to the Appellant, he did not notice the death of

Subramaniam. He disclaimed having rolled on the ground with P.W.1, during the course of occurrence. He did not use a spear or throw it away at

the scene. He had sustained injuries when he hit against a thorny fence while running away from the scene at or about 5 p.m. on the occurrence

evening. He also claimed, that at or about 8.30 p.m. when he came near his house, the deceased was standing in the front yard of the house of

Nachammal. The deceased, who was armed with a spear attempted to attack him and when he tried to catch hold of the deceased, he and P.W.1.

rolled on the ground. Soon thereafter he reached the police station and reported about the incident. He was sent for remand at 3 p.m. after being

examined by the medical officer.

On appreciation of the oral and documentary evidence, the learned trial judge arrived at the conclusion that the guilt of the Appellant had been

established by the prosecution, beyond reasonable doubt and in that view dealt with him as stated earlier.

The prosecution choses to rely upon the ocular version of this incident spoken to by P.Ws.1, 5 and 6. Unfortunately for the prosecution,

P.Ws.2, 3 and 4 have not supported its case. It is quite true that P.Ws.1, 5 and 6 are closely related to the deceased, in that the former two are

the son and wife of the deceased while the last witness is the wife of P.W.1. However, being neighbours of the Appellant, they are the most natural

witnesses to this occurrence. We cannot overlook that there was no animosity between the family of the Appellant and the deceased prior to this

occurrence. Once we arrive at the conclusion that the presence of P.Ws.1, 5 and 6 at the time of occurrence is natural, we have to scrutinise their

evidence with care and caution, to find out if the complicity of the Appellant in the crime has been established by their versions. The occurrence

had taken place due to a petty quarrel, arising out of goat gracing, which is not an uncommon incident in villages. The goat of the deceased, since it

was not tethered securely, had slipped into the house of the Appellant and grazed the bottle gourd plant. The deceased appears to have admitted

his mistake, when the Appellant shouted at him and took back the goat to fasten it securely, to avoid repetition. It appears during this incident, the

Appellant was armed with a spear. It is not as though the Appellant had purposely brought this spear, with a view to attack the deceased.

However the quarrel at or about 5.p.m. got itself terminated only to be unfortunately revived at or about 8 p.m. over again. When the Appellant

had initiated the further quarrel, naturally the deceased and his kin, who had already attempted to pacify the Appellant at or about 5.p.m. again

thought of apologizing for a second time and with that view had proceeded towards the house of the accused/Appellant. We can safely take it, that

the deceased was abused over again by the Appellant regarding the incident which had a comfortable termination, three hours earlier. The fact

remains that the prosecution party had gone towards the house of the accused and naturally it will not be far-fetched to infer that there must have

been a quarrel or at any rate a wordy altercation between the deceased and the Appellant. It is at this point of time that the Appellant had inflicted

one stab on the left abdomen portion of the deceased with a spear he had possessed. There was no premeditation as such and in the course of an

altercation, a single stab had been inflicted with a weapon already in the possession of the Appellant. Naturally P.W.1 had attempted to apprehend

the Appellant and in the process rolled on the ground with the latter and sustained an injury near his eye. The presence of P.W.1 at the scene

therefore, comfortably gets fixed. As one would expect immediately thereafter P.W.1 has proceeded to the Madakkurichi police station and laid

the first information report before P.W.14, within an hour and half of the occurrence. We have to keep in mind that P.W.1 had travelled a distance

of 10 k.m. to reach the police station and Ex.P.1, P.W.1 had detailed the occurrence which had taken place at or about 5.p.m, the quarrel that

had ensued between the Appellant and the deceased and the revival of the incident over again at or about 8 p.m. The version stated in the first

information report at the earliest point of time is fully in conformity with the evidence of P.W.1 placed before Court. The sanctity of the first

information report gets strengthened in that it had reached the Magistrate even at or about 1 a.m. on the very same night. The evidence of P.Ws.1,

5 and 6 is so cogent and consistent, emanating fragrance of truth. We have been taken through 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, 5 and 6. The hostility of P.Ws.2, 3 and 4 cannot affect the truthful version of these eye witnesses. At the risk of

repetition we reiterate that these three ocular witnesses had no prior animosity to falsely implicate the Appellant in this grave crime.

The medical evidence furnished by P.W.7 Dr. Velmurugan completely corroborate the eye witness account projected through P.Ws.1, 5 and

this is one another circumstances which connects the Appellant with the crime. It does not stop there. The Appellant himself has sustained

injuries during the course of this very occurrence. He had stated to the doctor, that he had sustained the injuries found on him at or about 8.p.m. on

6.10.1984 in the course of a quarrel and rolling with two other persons. Not only the presence of P.W.1, but also the presence of the Appellant at

the scene during the course of this occurrence has been satisfactorily accounted for. The spear M.O.1 which was seized from the scene contained

''O'' group human blood and that is one another circumstance to connect the weapon of offence with the crime, as sought to be explained by the

prosecution. A perusal of the statement of the Appellant u/s 313 Code of Criminal Procedure would also show that he had practically admitted his

presence at the scene at the time of occurrence. We are satisfied that the evidence of P.Ws.1, 5 and 6 coupled with the medical evidence and the

recovery of the spear M.O.1 at the scene, would indisputably point out that the Appellant as 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 single stab not on

vital part inflicted in the course of a sudden quarrel without premeditation. It is not as though, there was any deep-seated enmity between the

Appellant and the deceased. They were friendly neighbours till 5 p.m. on the occurrence evening and unfortunately the goat of the deceased has

grazed some plant, inside the Appellant''s house. This petty quarrel had unexpectedly magnified itself leading to a second instalment of quarrel three

hours after goat grazing, resulting in the unfortunate death of Subramaniam. It appears more probable that there could not have been a time lag of

over three hours between the first and the second instances. Almost the incident must have been continuous separated only by a short interval and

in all probability, the occurrence could have taken place any time between 5 p.m. and 8 p.m. Otherwise it looks inexplicable as to how the

Appellant was always found armed with M.O.1 the spear be it 5 p.m. or 8 p.m. We should also immediately point out, that in the opinion of the

doctor the cause of death was shock and haemorrhage due to the injury to abdominal aorta. It will be difficult to presume that the Appellant would

have known that he would be piercing the abdominal aorta leading to the death of the victim.

Cases of this nature have come up for consideration quite often before Courts. It will be better to extract the observation of the Supreme

Court in its latest pronouncement in Jai Prakash Vs. State (Delhi Administration), It reads as hereunder:

It is fallacious to contend that when death is caused by a single blow, Clause Thirdly is not attracted and therefore it would not amount to murder.

This ingredient ''Intention'' in that Clause is very important and that gives the clue in a given case whether offence involved is murder or not. For the

purpose of considering the scope of Clause 3 it is not necessary for us to embark upon an examination of the entire scope of Section 299 and 300

Indian Penal Code. ''Intention'' is different from ''motive'' or ''ignorance'' or ''negligence''. It is the ''knowledge'' or ''intention'' with which the act is

done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore it is necessary to know the

meaning of these expressions as used in these provisions....

...In Clause Thirdly the words ''intended to be inflicted'' are significant. As noted already, when a person commits an act, he is presumed to expect

the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death, it does not

necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that

particular injury. In such a situation the Court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption

and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.... That we are not concerned with

the intention to cause death in which case it will be a murder simplicitor unless exception is attracted. We are concerned under clause Thirdly with

the intention to cause that particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is

found objectively to be sufficient in the ordinary course of nature to cause death, clause Thirdly is attracted and it would be murder, unless one of

the exceptions to Section 300 is attracted. If on the other hand this ingredient of ''intention'' is not established or if a reasonable doubt arises in this

regard then only it would be reasonable to infer that Clause Thirdly is not attracted and that the accused must be attributed knowledge that in

inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable u/s 304, Part II Indian Penal Code.

On the law laid down by the Apex Court, if ''intention'' is not established or if a reasonable doubt arises in this regard, then only it would be

reasonable to infer that Clause Thirdly did not get attracted and necessarily the accused must be attributed knowledge that in inflicting the injury he

has likely to cause death. As succinctly observed by the Supreme Court, much depends on the facts and circumstances of each case and an

onerous duty is cast on the Court to carefully consider all the materials to find out if clause Thirdly u/s 300 Indian Penal Code would get attracted

or there was doubt regarding ''intention'' contemplated therein, pointing out a different mens rea, which would alter the nature of the offence. The

Supreme Court in its latest pronouncement has taken note of the law laid down by it earlier in Laxman Kalu Nikalje Vs. The State of Maharashtra,

In that case the injury was a single wound. The medical officer found an injury situated 2"" below the outer 1/3 of the right clavicle on the right side

of the chest, which had penetrated to the depth of 4"" into the chest cavity. As in this case, in the case decided by the Supreme Court, death was

caused mainly because the auxiliary artery and veins had been found cut, leading to resultant shock and haemorrhage. The Supreme Court

observed:

It must be remembered that the quarrel between Ramrao and Laxman was not such as would have prompted Lax-man to make a homicidal attack

upon his brother-in-law. The quarrel was only this much, whether Laxman''s wife should accompany him by the evening train or the morning train.

It may be that some abuses might have ensued as is common among these people, and Laxman having lost his temper whipped out his knife and

gave one blow. It must be remembered that he gave one blow and although it was given on the chest, it was not on a vital part of the chest and but

for the fact that the knife cut an artery inside, death might not have ensued.

The Supreme Court then went on to add:

Therefore the question is whether the offence can be said to be covered by thirdly of Section 300 of the Indian Penal Code.

That section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of

nature to cause death. This clause is in two parts the first part is a subjective one which indicates that the injury must be an intentional one and not

an accidental one, the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in

the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was

the one which was found on the person of Ramrao. But the second part in our opinion is not fulfilled because but for the fact that the injury caused

the severing of artery, death might not have ensued. In other words looking at the matter objectively, the injury which Laxman intended to cause

did not include specifically the cutting of the artery but to wound Ramrao in the neighbourhood of the clavicle. Therefore, we are of the opinion that

the Thirdly of Section 300 does not cover the case.

The law laid down by the Supreme Court will squarely be applicable to the facts of this case. In that view we set aside the conviction and sentence

imposed on the Appellant for an offence u/s 302 Indian Penal Code and instead find him guilty of an offence punishable u/s 304 Part II Indian

Penal Code.

Mr. R. Ragupathy learned Counsel appearing on behalf of the Appellant represents, that the Appellant is still in jail and had not chosen to get

himself released on bail. It is seen that the Appellant is in prison for over six years. We are satisfied that for the modified conviction, the period of

imprisonment already undergone by the Appellant would be sufficient to meet the ends of justice. The Appellant is directed to be set at liberty

forthwith unless he is required in some other case. Subject to the modification of the nature of the offence and the consequential sentence, this

appeal is dismissed.