(Prayer: Appeal is filed under Section 374 of the Code of Criminal Procedure against the Judgment and conviction dated 30.03.2015 made in S.C.No.9 of 2012, on the file of the learned Additional Sessions Judge, Theni @ Periyakulam.)
S. Nagamuthu, J
1. The appellant is the sole accused in S.C.No.9 of 2012, on the file of the learned Additional Sessions Judge, Theni @ Periyakulam. He stood charged for the offence punishable under Section 302 of the Indian Penal Code. By Judgment dated 30.03.2015, the Trial Court has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months. As against the said conviction and sentence, the appellant has come up with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The deceased, in this case, was one Mr.Chandran. The accused is his brother. PW-2 and PW-3 are the other brothers of the deceased and the accused. They were all residing at Thangammalpuram Village in Antipatti Taluk, Theni District. On account of a money transaction, there was a long standing enmity between the accused and the deceased. It is alleged that on 02.02.2011, around 07.30 PM, when the deceased was standing near a Tea Stall, known as Amman Tea Stall, on the Varusanadu Main Road, the deceased came to the place of occurrence. PW-1 was present. PW-2 and PW-3 were proceedings towards the place of occurrence. At that time, it is alleged that the accused developed quarrel with the deceased in respect of the above said money transaction. At the end of the quarrel, it is stated that the accused suddenly took out a knife and stabbed the deceased indiscriminately. PW-1 cried for help. The deceased fell down in a pool of blood. PW-2 and PW-3 rushed to the place of occurrence. By the time, the accused ran away from the scene of occurrence with the weapon. PW-1 to PW-3, with the help of PW-7 arranged to take the deceased to the hospital. PW-11, Dr.G.Lingappan, examined the deceased at 08.45 PM, on 02.02.2011. On examination, he found him dead. He noted the injuries in the Accident Register [EX-P8] and forwarded the dead body to the mortuary. He also gave intimation to the hospital.
2.1. Having known that the deceased was no more, PW-1, immediately, rushed to the Kadamalaikundu Police Station and made a complaint at 10.30 PM, on 02.02.2011. PW-16, the Sub-Inspector of Police, on receipt of the said complaint, registered a case in Crime No.302 of the Indian Penal Code. EX-P1 is the complaint and EX-P19 is the First Information Report. Then, he forwarded both the documents to the Court, which were received by the learned Judicial Magistrate at 02.15 AM, on 03.02.2011 and handed over the investigation to the Inspector of Police.
2.2. Taking up the case for investigation, at 01.30 AM, on 03.02.2011, PW-20 proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of the witnesses. He recovered bloodstained earth and sample earth from the place of occurrence. He examined PW-1 to PW-5 and few more witnesses and recorded their statements. Then, he conducted inquest on the body of the deceased. EX-P14 is the inquest report. Then, he forwarded the dead body for postmortem.
2.3. PW-19 Dr.Juliyana Jeyanthi conducted autopsy on the body of the deceased. She noticed the following injuries:-
1). A stab wound of size 3cms x lcms x 3cins. seen at the back 17cms, above the left nipple and 11 ems. from the suprasternal notch. seen over the epigastrium margins were regular, one end pointed and the other end rounded.
On dissection :-
The wound passes down wards and in wards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
2) A stab wound of size 3cms x 0.5cm x 3cms. seen 5cms below umbilicus. Margins were regular; one end pointed and the other end rounded.
On dissection :-
The wound passes downwards and wards injuring the underlying muscles, vessels, nerves, small bowel (2cms x 1 cm x through and through) and mesentry (1 cm x 0.5cms x through and through) with the surrounding bruise. Peritoneal cavity contains 1200m1 blood with colts.
3) A stab wound of size 1.5cms x 0.5cm x 1.5cms seen over the right shoulder 6cms away from the right of side of the neck. Margins were regular, one end pointed and the other end rounded.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
4) A stab wound of size 05cms. x 0.5cms x 0.5cms with tailing of 5cms seen over the right hip, 14cms lateral to the umbilicus. Margins were regular, one end pointed and the other end rounded.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
5) A stab wound of size 2.5cms x 0.5cms x 0.5cms seen 0.5cms lateral to injury No.04. Margins were regular; one end pointed and the other end rounded.
On dissection : -
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, withsthe surrounding bruise.
6). A stab wound of size 2.5cms x 1cm x 1cm seen 1cm below injury No.05. Margins were regular, one end pointed and the other end rounded.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
7). Incised wound of size 10cms x 0.5cms. seen over the lateral aspect of the right thigh. Margins were regular.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
8). A stab wound, of size 0.5cms. x 0.5cms. x 0.5cms. seen at the over the front of the right thigh, 14.5.cms below injury No.02. Margins were regular; one end pointed and the other end rounded.
On dissection :
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
9). Incised wound of size locms x 0.25cms. x 3cms seen below injury No:08. Margins were regular; Both ends pointed.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
10). Incised wound of size 16cms. x 0.25cms seen 7cms below injury No:03, Margins were regular; Both ends pointed.
On dissection :-
The wound passes downwards and inwards injuring the underlying3 muscles, vessels and nerves, with the surrounding bruise.
11). Multiple punctuate abrasions of sizes 0.25cms. x 0.25cms. seen over the lower aspect of the right of the neck.
12). A stab wound of size 3cms x 1 cans x 1 cm seen over left side of the back llcms below left scapula and 4cms. lateral to spine. Margins were regular; one end pointed and the other end rounded.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
13). A stab wound of size 3cms x 0.5cms. x 3cins seen at the below, injury No:12. Margins were regular ; one end pointed and the other end rounded.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
14). Incised wound of size 6cms x 0.5cms. seen 14cms below injury No:13, Margins were regular ; Both ends pointed.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
15). Cut injury of size 6cms. x 2cms. x 1.5cms seen over the back of the left of the side of the neck 12cms from of the root of the neck. Margins were regular.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise.
16). A lacerated wound of size 1 cms x 1 ems x bone depth seen over the left side of the parietal region.
17). Abrasion of size 3cms x 2cms seen over the left side of the back 17cms from left axilla.
18). Abrasions of sizes 6cms x 4cms.. 5cms x 2cms seen over the 6cms below injury No:17.
19). Incised wound of size 3cms. x 0.5cms. seen over the left side of the left eye 3cms away from left eye. Margins were regular.
On dissection :-
The wound passes downwards and inwards injuring the underlying muscles, vessels and nerves, with the surrounding bruise".
EX-P10 is the postmortem certificate and EX-P11 is her final opinion. She gave opinion that the deceased would appear to have died of shock and hemorrhage due to injuries. According to her, the death of the deceased could have been caused by a weapon, like knife.
2.4. PW-20 arrested the accused at 12.00 noon, on 03.02.2011 in the presence of the witnesses. On such arrest, he gave a voluntary confession, in which he disclosed the place, where he had hidden the knife. In pursuance of the same, the accused took the police and the witnesses to the hide out and produced MO-1, knife. PW-20 recovered the same under a mahazer. 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 with a request to forward the same for chemical examination. The report revealed that there was human blood on all the material objects, including the knife. On completing the investigation, he laid charge sheet against the accused.
2.5. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, on the side of the prosecution, 20 witnesses were examined, 18 documents and five material objects were marked. Out of the said 20 witnesses, PW-1, the wife of the deceased, who is an eye-witness to the occurrence, has spoken about the occurrence in a vivid manner. She has categorically stated that it was this accused, who stabbed the deceased with knife repeatedly, at the end of the quarrel between the accused and the deceased. She has also spoken about the complaint made by her to the police. PW-2 and PW-3 have stated that they were walking towards the place of occurrence, namely, the Tea Stall. At that time, they heard a hue and cry raised by PW-1 and rushed to the place of occurrence. The deceased was found lying in a pool of blood. The accused was found running away from the scene of occurrence.
2.6. PW-4 to PW-6, PW-8 and PW-9 have turned hostile and they have not supported the case of the prosecution in any manner. PW-7 has stated that he made arrangements for the deceased being taken to the hospital. PW-10 has spoken about the arrest of the accused and the consequential recovery of MO-1 from his possession. PW-11 has spoken about the fact that the deceased was brought to the hospital and on examining him, he found him dead. PW-12, the Head Clerk of the Court of learned Judicial Magistrate has spoken about the forwarding of the material objects to the Forensic Lab for examination. PW-13, a Head Constable, has stated that he handed over the complaint and the First Information Report to the learned Judicial Magistrate, at 02.15 AM, on 03.02.2011. PW-14 has stated that he handed over the dead body to the hospital for postmortem, as directed by the Investigating Officer. PW-15 and PW-17 were examined as eye-witnesses, who have turned hostile and they have not supported the case of the prosecution in any manner. PW-16 has spoken about the registration of the case, on complaint of PW-1. PW-18 has stated that he took the deceased to the hospital along with PW-1. PW-19 has spoken about the autopsy conducted by her and her final opinion. PW-20 has spoken about the investigation conducted by him and the filing of final report.
2.7. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. On his side, two witnesses were examined, by name, DW-1 and DW-2. DW-1 , an official from Vodafone Cellphone Office, has stated that he was examined to speak about the call details of Mobile No. 9943907196 to 04554227221, 9445494876 and to 9486496259. He has stated that since it was only a retail shop, the information, as sought for, could not be furnished. DW-2 is the Area Sales Manager of Vodafone Cellular Limited. He has stated that he was called upon to produce the call details of Cellphone Number 9943907196. He has further stated that since the information relating to call details was sought for after one year, it cannot be furnished. However, the accused did not choose to exhibit any document. Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.
3. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
4. At the outset, we should say that PW-1 to PW-3 have not stated anything about the motive between the accused and the deceased, on account of some money transaction, though it is stated that there was a long standing enmity between them. Now, turning to the occurrence, according to PW-1, on the day of occurrence, around 06.30 PM, when the deceased was standing near the Tea Stall, there was a quarrel between the deceased and the accused. The cause for the quarrel was not known. At that time, it is alleged that on hearing about the occurrence, PW-1 rushed to the Tea Stall. She persuaded her husband and brought her back to her house. This has been spoken by PW-2 and PW-3 also. After returned home, the deceased told PW-1 that he would go to the Tea Stall. Accordingly, he went out of the home. PW-1 also followed him. When both of them were nearing the Tea Stall, the accused was also coming from the opposite direction. On reaching the deceased, the accused developed quarrel. Here again, the cause for the quarrel has not been stated by PW-1. The quarrel between them went on for sometime. At that time, PW-2 and PW-3 were proceeding towards the Tea Stall. At the end of the quarrel, it is stated that the accused took out a knife and stabbed the deceased repeatedly. On hearing the alarm raised, PW-2 and PW-3 reached the place of occurrence. By the time, the accused fled away from the scene of occurrence with knife.
5. Though it is stated by the learned counsel for the appellant that PW-1 to PW-3 would not have been present at the place of occurrence, we find no force in the said argument. It is not as though the Tea Stall is situated far away from the house of the deceased. It is situated in the very same village, viz., somewhere near the house of the deceased. The presence of PW-2 and PW-3 cannot be doubted at all. They have got no specific overt acts against the accused. From the evidences of PW-2 and PW-3, coupled with the evidence of PW-1, it is crystal clear that it was this accused, who alone stabbed the deceased with knife, which resulted in his death. Though these witnesses have been subjected to lengthy cross-examination, nothing has been brought on record so as to disbelieve their evidences. In fact, it was PW-1, who, after the doctor declared him dead, immediately, went to the Police Station and made a complaint. Thus, there was no delay in making complaint to the police. Likewise, there is also no delay in forwarding the complaint and the First Information Report to the Court. Thus, we find no reason to reject the evidence of PW-1, which duly corroborated by the evidences of PW-2 and PW-3. It is stated that they heard the alarm raised by PW-1 and on hearing the same, they rushed to the place of occurrence and found the deceased lying in a pool of blood. From these evidences, it is crystal clear that the prosecution has clearly proved the case that it was this accused, who stabbed the deceased repeatedly.
6. Next comes the medical evidence. PW-19, who conducted autopsy on the body of the deceased, found that the death of the deceased was due to shock and hemorrhage due to injuries and the death of the deceased could have been caused by a weapon, like knife. We find no reason to reject the said opinion offered by the doctor. Thus, the evidence of PW-19 duly corroborates the eye-witness account of PW-1.
7. Then, comes the recovery of MO-1 from the possession of the accused. The accused was arrested in the presence of PW-10, who is an independent witness, working as Village Administrative Officer. On such arrest, he gave a voluntary confession, out of which, MO-1 was recovered from the house of the accused. The chemical examination conducted revealed that there was human blood on all the material objects, including the knife. From these facts, the prosecution has clearly proved the case beyond all reasonable doubts that it was this accused, who alone stabbed the deceased with a knife, which resulted in his death.
8. Having come to the said conclusion, now, the next immediate question is as to what was the offence, that the accused had committed by his act. As we have already narrated, it is in evidence that the cause for the quarrel was not known. The occurrence was not a premeditated one. The arrival of the deceased at the place of occurrence was by chance. Similarly, the arrival of the accused at the place of occurrence was also incidental. From the above, it is inferable that there is every possibility that the deceased would have provoked the accused. Thus, on account of the said provocation, the accused would have stabbed the deceased. Thus, in our considered view, though the act of the accused would squarely fall within the ambit of Third limb of Section 300 of the Indian Penal Code, it would squarely fall within the ambit of First Exception to Section 300 of the Indian Penal Code. Therefore, the appellant is liable to be punished under Section 304(i) of the Indian Penal Code.
9. Now, turning to the quantum of punishment, the accused, at the time of occurrence, was hardly aged about 49 years. Either prior to the occurrence or subsequent to the occurrence, he was not involved in any crime. The occurrence was not a premeditated one. At the same time, the plight of PW-1, who lost her husband during the time of pregnant cannot be ignored. Having regard to all these facts and circumstances and having regard to the mitigating as well as the aggravating circumstances, we are of the considered view that sentencing the appellant to undergo rigorous imprisonment for seven years with fine of Rs.75,000/-, in default to undergo rigorous imprisonment for one year would meet the ends of justice. To know the economic status of the accused, we invited the learned counsel for the appellant to submit his arguments in this regard. He would submit that the appellant does not have any extensive source. But, the accused would pay a sum of Rs.75,000/- [Rupees Seventy Five Thousand only] as compensation to the wife of the deceased. Therefore, considering all the facts, we impose a fine of Rs.75,000/- also.
10. In the result, the Criminal Appeal is partly allowed in the following terms:-
The conviction and sentence imposed by the Trial Court on the accused/appellant under Section 302 of the Indian Penal Code is set aside and instead, the accused/appellant is convicted under Section 304(i) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.75,000/- [Rupees Seventy Five Thousand only], in default to undergo rigorous imprisonment for one year. The said amount of Rs.75,000/- [Rupees Seventy Five Thousand only], shall be paid to the wife of the deceased towards compensation. It is directed that the period of sentence already undergone by the appellant/accused shall be set off under Section 428 of the Code of Criminal Procedure. Fine amount, if any paid by the appellant/accused, shall be adjusted.