Vellaiyan @ Subramani vs State

S. Nagamuthu, J.—The appellant is the sole accused in S.C. No.91 of 2011 on the file of the learned Principal Sessions Judge, Tiruchirapalli. He stood charged for the offences under Sections 341, 294(b) and 302 IPC. The trial Court, by judgment dated 06.03.2012, convicted him under all the charges and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 302 IPC; to undergo simple imprisonment for one month for the offence under Section 341 IPC and to undergo rigorous imprisonment for three months for the offence under Section 294(b) IPC. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.

The case of the prosecution in brief is as follows;

(a) The deceased in this case was one Mr. Albert Lawrence. He was the second son of PW1. They were residing at Puththur village in Tiruchirapalli District. PW2 is a friend of the deceased and the accused. PW5 is the sister of PW2. The accused was already married. As the friend of PW2, the accused used to visit his house. In course of time, he developed love for PW5. In drunken state, on few occasions, he expressed openly to PW5 his love for her. PW5 rejected the same. Then, he also tried to persuade her to agree for sex with him. That also she rejected. Since the conduct of the accused became unbearable, PW5 informed PW2 and also her mother about the above incidents. Thereafter, PW2 wanted the accused not to visit his house at all. Thus, PW2 disconnected all his relationship with the accused. The accused had a suspicion that it was only the deceased, who had informed PW2 about the above incidents and developed a rift between him and PW2. This is stated to be the motive for the occurrence.

(b) On 05.03.2011 at about 9.00 p.m., the deceased was standing in front of the idly shop run by PW6 - Mrs. Uma. PW1 and PW8 were also present somewhere near the place of occurrence. According to PW1, he had gone in search of the deceased to the place of occurrence. At that time, the accused suddenly emerged at the place of occurrence. He questioned the deceased as to why he developed rift between him and PW2. This resulted in a quarrel. It is on record that there are exchange of blows also. At the end, the accused took out a knife, cut the deceased and fled away from the scene of occurrence. The deceased had sustained two cut injuries on his body. PW1, immediately, took him to a private Hospital.

(c) PW13 - Dr. S. Sivamani, attached to Kavery Hospital, examined him at 1.00 a.m. on 06.03.2011. He found a long wound measuring 25 cm over the parieto occipital region. Ex.P4 is the accident register. At that time, the deceased was unconscious and his condition was serious. But, PW1 wanted to shift him to the Government Hospital, Tiruchirapalli. Therefore, he was discharged.

(d) On the same day, at 9.30 p.m. the deceased was brought to the Government Hospital, Tiruchirapalli. PW18 - Dr. Kamalam examined the deceased and found a cut injury measuring 15 x 2 x 2 cm on the parieto occipital region. Ex.P10 is the Accident Register. She immediately admitted him as inpatient. Then, she gave intimation to the Police about the same.

(e) On getting intimation from the hospital, PW17-the Sub Inspector of Police, attached to Uraiyur Police Station, went to the Government Hospital, Tiruchirapalli. Since the deceased was in unconscious state, PW17 recorded the statement of PW1 and recovered bloodstained clothes of the deceased. On returning to the Police Station at 10.45 p.m., she registered a case in Crime No. 243 of 2011 under Sections 294(b), 394 and 307 IPC. Ex.P9 is the FIR and Ex.P1 is the complaint. She forwarded Ex.P1 and Ex.P9 to the Court and handed over the Case Diary to the Inspector of Police for investigation.

(f) PW21, the then Inspector of Police, Uraiyur Police Station took up the case for investigation, on the same day, at 11.45 p.m. and rushed to the place of occurrence. He prepared an observation mahazar and a rough sketch at the place of occurrence, in the presence of PW14 and another witness. Then, he recovered bloodstained earth and sample earth from the place of occurrence. He examined PWs.1 to 8 and few more witnesses. On 06.03.2011, during the course of investigation, he arrested the accused near the Kasi Viswanathan Temple at Puththur Village in the presence of PW14 and another witness. On such arrest, he made a confession, in which he disclosed the place where he had hidden the knife. In pursuance of the same, he took PW21 and PW14 to his house and took out MO.1 - knife. PW21 recovered the same under a mahazar. 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.

(g) While the deceased was undergoing treatment at the Government Hospital, Tiruchirapalli, on getting intimation the Judicial Magistrate went to the hospital to record the dying declaration. PW12 - Dr. Hari was attending the deceased on 06.03.2011. On the same day, at 12.40 p.m. on 06.03.2011, when the learned Magistrate visited the hospital, on thoroughly examining the deceased, PW12 opined that the deceased was not in a fit state of mind to give any dying declaration as he was unconscious. Therefore, the learned Judicial Magistrate could not record the dying declaration.

(h) While so, on 09.03.2011 at 8.50 p.m. the deceased succumbed to the injuries in the hospital. On getting death intimation, PW21 altered the case into one under Section 302 IPC and forwarded Ex.P21 (Alteration Report) to the learned Judicial Magistrate. On 10.03.2011 at 10.30 a.m. PW21 conducted inquest on the body of the deceased in the presence of panchayators. Then, he forwarded the body for post-mortem.

(i) PW19 - Dr. R.V.S. Renugadevi conducted autopsy on the body of the deceased at 11.00 a.m. on 10.03.2011. She found the following injuries:

"1. A curved sutured wound, 17 cm in length, on the left frontal region of the scalp. On removal of the sutures, edges are regular, 3 cm in breadth and bone deep. L/E cut fracture of left frontal bone present.

A transverse sutured wound, 2 cm in length, on the front of right index finger. On removal of sutures, edges are regular, 0.5 cm in breadth and muscle deep.

Bruising of frontal, temporal and parietal regions of scalp and both temporalis muscle - Dark red.

Cut fracture of left frontal and left parietal bones present.

Sub dural haemorrhage and sub arachnoid haemorrhage on both cerebral and cerebellar hemispheres.

Laceration of frontal lobe of left cerebral hemisphere.

Fracture base of skull - left anterior and left middle cranial fosse present."

Ex.P13 is the Postmortem Certificate and Ex.P14 is the serology report. According to her, the deceased would appear to have died of head injury.

(j) PW21 gave a requisition letter to the Court to forward the material objects for chemical examination. The report revealed that there were human blood found on all the material objects, including the knife. He collected the medical records and examined the Doctors. On completing the investigation, PW21 laid charge sheet against the accused.

(k) Based on the above materials, the trial Court framed the charges, as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 21 witnesses were examined and 27 documents and 6 material objects were marked.

(l) Out of the said witnesses, PWs.1 to 8 are the eyewitnesses. They have vividly spoken about the entire occurrence. PW9 is the relative of the deceased, who has stated that he was present at the time when the inquest was conducted by the Inspector of Police. PW10 is the Scientific Assistant. She has spoken about the analysis conducted by her on the material objects and she has stated that there were bloodstains found on all the material objects, including the knife. PW11 - Dr. P.R. Raja Ezlilko has stated about the treatment given to the deceased at the Government Hospital, Tiruchirapalli. According to him, the deceased was unconscious through out. PW12 has stated that when the learned Magistrate came to the hospital to record dying declaration on 06.03.2011 at 12.40 p.m., he examined the deceased and told that the deceased was unconscious and he is not in a position to speak. PW13 has spoken about the examination conducted by her on the deceased on 06.03.2011, when he was brought to the hospital for admission. She has also stated about the injuries found on the deceased.

(m) PW14 - the Village Administrative Officer of the Puththur Village has stated about the preparation of the observation mahazar and rough sketch, and recovery of bloodstained earth and sample earth from the place of occurrence. The arrest of the accused and consequential recovery of MO.1 - knife at his instance. PW15 is the Head Constable, who has stated that he carried the FIR to the Court and handed over the same to the learned Judicial Magistrate. PW16 has stated that he carried the dead body to the hospital for postmortem. PW17 has spoken about the complaint made by PW1 and the case registered by her. PW18 - Dr. Kamalam has stated that on 05.03.2011 at 9.30 p.m. when she was in the Government Hospital, Tiruchirapalli, the deceased was brought for admission and the deceased was conscious. She was told by PW3 that he had met with a motor vehicle accident. PW19 has spoken about the postmortem conducted by her and her final opinion regarding the cause the death. PW20 has spoken about the serology report. PW21 has spoken about the investigation done and the final report filed by him.

(n) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. However, he did not choose to examine any witness. He marked Ex. D1 the Doctor''s signature in the copy of the Accident Register. Ex.X1 is the xerox copy of manuscript for overwriting. The defence of the accused was total denial.

(o) Having considered all the above materials, the trial Court has convicted him under all the charges and accordingly, punished him. That is how he is before this Court with this appeal.

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

The learned counsel appearing for the appellant would submit that PWs.1 to 8 would not have witnessed the occurrence at all. According to him, most of the witnesses during the chief examination have stated that they found the deceased lying dead. Thus, according to him, the so called eyewitnesses are to be disbelieved. He would further submit that the deceased was taken to the hospital by PW3 and one Mr. Balaji. But, Mr. Balaji has not been examined. This, according to the learned counsel, is a flaw in the case of the prosecution. The learned counsel would further submit that PW17 has stated that she received a phone call that there was an occurrence at the place of occurrence and thereafter, only she went to the hospital. The learned counsel would point out that the said information being the earliest information has been suppressed by the prosecution. The learned counsel would further submit that according to PW18, at the time when he was brought to the hospital, he was conscious and she was told that he sustained injury in a road accident. The learned counsel would make reliance on Ex.D1, the chit given by PW18 - Dr. Kamalam, wherein it is stated that the deceased sustained injury in a road accident. Thus, according to the learned counsel, the earliest information was that the deceased sustained injury only in the road accident. But, later on, the same has been changed with ulterior motive to implicate the accused. For these reasons, according to the learned counsel, the accused is entitled for acquittal.

The learned Additional Public Prosecutor would, vehemently, oppose this appeal. According to him, the presence of PWs.1 to 8 is quite natural and there are no reasons to reject their eyewitness account. The learned Additional Public Prosecutor would further submit that the information passed on over phone to PW17 was only a cryptic information and that is the reason why, it was not placed before the Court. He would further submit that the information recorded by PW18 in Ex.D1 is not the earliest information. He would further submit that Ex.D1 cannot be given any weightage, because the said document has not been born out by any Government record. The learned Additional Public Prosecutor would further submit that the injuries sustained by the deceased would not have been caused by any motor vehicle accident. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond all reasonable doubts.

We have considered the above submissions. PWs.1 to 8 are the eyewitnesses to the occurrence. The occurrence had taken place just in front of the shop of PW6. PW6 was at that time in her shop doing idly business. Therefore, PW6 is an independent eyewitness. Her presence cannot be doubted at all. Similarly, PW3 to 5, 7 & 8 are also independent witnesses and their presence also cannot be doubted, because they have explained the reasons for their being present at the time of the occurrence. The occurrence was in a busy bazaar and therefore, the presence of PWs.1 to 8 at the time of occurrence would have been quite natural. So far as PWs.1 and 2 are concerned, they have spoken about the motive and they have also spoken about the entire occurrence. Though these eight witnesses were cross examined at length, nothing could be elicited by the accused to doubt their credibility. From the evidences of PWs.1 to 8, coupled with the medical evidence, we have no hesitation to hold that the deceased was stabbed only by the accused.

The main argument of the learned counsel for the appellant is that at the earliest point of time, PW18 was informed that the deceased had met with a motor vehicle accident. For that, the accused relies on Ex.D1. In our considered view, Ex.D1 is a doubtful document, because no corresponding document from the Government record to extend support to this document has been produced before the Court. It is not known as to how the accused came to possess the same and used it at the time of cross examination. The deceased was brought to PW18 for treatment only on 06.03.2011 at 9.30 p.m. whereas on 06.03.2011 at 1.00 pm. when the deceased was brought to the Kavery Hospital, he was told that the deceased was attacked by a known person. Above all, from the medical records, it is seen that there were only two injuries on the deceased. Both were stab injuries. Had it been true that the deceased had met with a motor vehicle accident, then these two injuries would not have been caused in such an accident at all. Even assuming that these two injuries would have been caused in a motor vehicle accident, definitely, there would have been some other injuries like, abrasions on the body of the deceased. But, it is in the medical evidence that there are no other external injuries found on the body of the deceased. Therefore, we find it difficult to believe the theory that the deceased had met with an accident. Therefore, this argument is rejected.

The learned counsel for the appellant would next submit that the earliest information is suppressed. But, we are not persuaded by the said argument. According to PW17, some unidentified persons gave message over phone that there was an occurrence and the deceased was taken to the hospital. This cannot be considered as an information in terms of Section 154 Cr.P.C. so as to register a case. PW17 has rightly gone to the hospital and obtained a statement from PW1 and recorded the same. The FIR reached the hands of the learned Magistrate without any delay. Therefore, the argument that the original information has been suppressed is only liable to be rejected. Apart from that, the recovery of MO.1 which contains human blood also adds strength to the case of the prosecution. In view of the eyewitness account, coupled with medical evidence and recovery of MO.1 at the instance of the accused, we hold that the prosecution has proved that it was this accused who caused the injuries on the deceased, which resulted in the death of the deceased.

Now, the next question is as to what is the offence that the accused had committed by his act? PW3 has stated that at the time of occurrence, there was a quarrel between the accused and the deceased PW6, an independent witness and idly shop owner, in front of whose shop the occurrence had taken place, has stated that the accused and the deceased quarrelled with each other and then, exchanged blows. It was only at the end of the said quarrel and exchange of blows, the accused took out a knife and stabbed. This would give an inference that the accused was provoked by the deceased. The said provocation, in our considered view, is not only sudden but also sufficient to make him to lose his self control. Thus, the act of the accused would squarely fall within the third limb of Section 300 IPC and in turn, it will fall under first exception to Section 300 IPC. Therefore, the appellant is liable to be punished under Section 304(i) IPC.

Now, turning to the quantum of punishment, the accused is an young man and he has got a wife and big family to look after. He is a poor man doing coolie work. He has got no bad antecedent. After the occurrence also, he has not committed any crime. Having regard to all these mitigating and aggravating circumstances, we deem it appropriate to impose rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for four weeks for the offence under Section 304(i) IPC. So far as the conviction and sentence imposed on the accused under Sections 341 and 294(b) IPC are concerned, they are only liable to be confirmed.

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

(a) The conviction and sentence imposed by the trial Court on the appellant/accused under Section 302 IPC is set aside, instead he is convicted under Section 304(i) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for four weeks.

(b)The conviction and sentence imposed by the trial Court on the appellant/accused under Sections 294(b) and 341 IPC are confirmed.

(c) The sentences shall run concurrently. The bail bond, if any, executed by him shall stand cancelled. The fine amount, if any, already paid shall be adjusted.

The trial Court is directed to take steps to secure the appellant/accused and to incarcerate him in prison so as to serve out the remaining period of sentence.