Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
05. 08.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR. JUSTICE V.S.RAVI Crl.A(MD)No.23 of 2009 1.Kalai @ Kalaikumar 2.Selvakumar 3.Kannan 4.Murugan @ Muruganandam .. Appellants/Accused 1 to 4 Vs. State rep. by the Inspector of Police, Suseendram Police Station, Kanyakumari District. (Crime No.797 of 2004) .. Respondent/Complainant PRAYER Criminal Appeal filed under Section 374(2) of Cr.P.C. against the conviction and sentence, dated 21.01.2009, made in S.C.No.155 of 2005, by the Sessions Court, Kanyakumari Division at Nageroil. For 1st appellant : Mr.M.R.Sreenivasan For appellants : Mr.V.Kathirvelu, 2 to 4 Senior Counsel for Mr.K.Prabhu For respondent : Mr.R.Ramachandran, Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was made by S.NAGAMUTHU, J.) The appellants are the accused 1 to 4 in S.C.No.155 of 2005 on file of the learned Sessions Judge, Kanyakumari Division at Nagercoil. The first accused stood charged for the offences under Sections 294(b), 506(ii) and 302 IPC and the accused 2 to 4 stood charged for the offences under Sections 342 and 302 r/w 34 IPC. By judgment dated 21.01.2009, the trial Court convicted the first accused under Section 302 IPC and the accused 2 to 4 under Sections 342 and 302 r/w 34 IPC, and acquitted the first accused from the charges under Sections 294(b) and 506(ii) IPC. The trial Court has sentenced the first accused to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one year for the offence under Section 302 IPC. The trial Court has also sentenced the accused 2 to 4 to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one year for the offence under Section 302 r/w 34 IPC and to undergo rigorous imprisonment for one year for the offence under Section 342 IPC. Challenging the conviction and sentence, the appellants are before this Court with this appeal. 2.The case of the prosecution in brief is as follows; (a) The deceased in this case is one Mr.Jayaraman. For the purpose of shop business, the first accused had borrowed a sum of Rs.10,000/- from the deceased. But, the accused did not return the said amount as promised. The deceased was demanding repayment of the same. On 25.12.2004 at about 7.30 p.m. the deceased came to the grocery shop of the second accused, who is the brother of the first accused and demanded the above amount. But, the first accused was evasive. The deceased repeatedly demanded the amount. At one point of time, the first accused said that he would not return the amount at all. This resulted in a quarrel. The first accused suddenly entered into the shop of the second accused and came back with an iron rod. It is alleged that the accused 2 & 3 caught hold the hands of the deceased to enable the first accused to attack. Similarly, the fourth accused caught hold both the legs of the deceased. With the said rod, the first accused stabbed on the head of the deceased. That rod broke the skull and pierced into the brain. The first accused attempted to remove the same. But, he could not remove. Therefore, leaving it in the same position, all the four accused fled away from the scene of occurrence. (b) The condition of the deceased was serious. Immediately, PWs.1 to 3, who witnessed the occurrence, took the deceased in a car to Aasaripallam Government Medical College Hospital. On examining him, the doctor (PW14) declared that he was already dead. On intimation from the hospital authority, the Sub Inspector of Police (PW12) went to the Hospital on 25.12.2004 at 8.30 p.m. and recorded the statement of PW1. On returning to the Police Station, he registered a case in Crime No.797 of 2004 under Sections 341, 302 and 506(ii) IPC. Ex.P1 is the complaint. Ex.P7 is the FIR. He forwarded both the documents to the Court and handed over the case diary to the Inspector of Police (PW15) for investigation. (c) On 25.12.2004 at 11.30 p.m. PW15 ?. the Inspector of Police took up the case for investigation, proceeded to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of PW4 and another witness. Then, he proceeded to the Government Hospital and conducted inquest on the body of the deceased. He examined PWs.1 to 6 and recorded their statements. He forwarded the body for post-mortem. (d) PW7 was the then Assistant Surgeon in the Government Medical College Hospital at Kanyakumari. On 26.12.2004 at 3.45 p.m. he conducted autopsy on the body of the deceased. He found that the rod piercing into the head. He removed the rod and found that the rod was measuring 58.5 c.m. long and it was made up of iron. He noticed that the said rod has caused a punctured lacerated wound measuring 2 x 1 x 11.5 c.m. on the left parietal temporal region. On exploration of the wound, the track of the wound was found backwards, downwards and towards the right side. It had protruded into the left temporal bone, left temporal lobe of brain, left parietal lobe of brain, right cerebellum and fractured the base of the skull, postenor cranial fosser on the right side to a length of 3 cms. The wound track was burised and lacerated. The cut section of the brain revealed that there were congestions. He opined that the deceased would appear to have died of Cranio Cerebral Injuries. (e) Continuing the investigation, PW15 examined the Doctors and collected the material records. The second accused had, in the meanwhile, surrendered before the Court. PW15 took the custody of him through Court. On 18.01.2005, while in custody, at 7.00 a.m., he made a voluntary confession. But, no discovery was made out of the same. Finally, he laid charge sheet against all the accused under Sections 341, 506(ii) and 302 r/w 34 IPC. (f) Based on the above materials, the trial Court framed charges as detailed in the first paragraph of the judgment and the accused denied the same. In order to prove the case, on the side of the prosecution, as many as 15 witnesses were examined, 10 documents were exhibited and three material objects were marked. (g)Out of the said witnesses, PWs.1 to 3 are the eyewitnesses. They have stated that the accused 2 to 4 caught hold the deceased and the first accused stabbed him on his head with the iron rod. PW4 has spoken about the confession made by the third accused at the Police Station. PW5 has spoken about the recovery of the iron rod which removed from the head of the deceased and the dress materials found on the deceased. PW6 has spoken about the observation mahazar and the rough sketch prepared. PW7 ?. Dr.Thangappan has spoken about the post-mortem conducted on the body of the deceased and his final opinion. PW8 was a Taxi Driver, who took the deceased to the Government Hospital at Aasaripallam, from the place of occurrence. (h) PW9 is the employee of the Tamil Nadu Electricity Board. He has stated that at the time of occurrence, there was no electricity failure at the place of occurrence. PW10 is the Head Constable, who carried the FIR from the Police Station and handed over the same to the learned Magistrate at 6.00 a.m. on 26.12.2004. According to him, the FIR was handed over to him at 00.30 a.m. on 26.12.2004. PW11 is a Constable, who carried the dead body to the hospital for post-mortem. PW12 is the Sub Inspector of Police, who registered the case. PW13 is a Head Constable, one who gave intimation from the hospital to the Police. PW14 - Dr.Ratheesh has stated that on 25.12.2004 at 9.10 p.m. when he was in the hospital, the deceased was brought dead to the hospital and he declared him as dead and then, he gave intimation to the Police (vide Ex.P8). PW15 has spoken about the investigation done by him. (i) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same as false. On their side, they marked Ex.D1 and examined one Ramu, the Station Fire Officer of the Fire and Rescue Department. He has stated that on 25.12.2004, when he was in his Fire Station, he received an intimation that the house and the shop of the first accused was burnt. At 10.25 p.m. On 25.12.2004, he rushed to the spot with his crew for extinguishing the fire. The fire was, accordingly, extinguished. In respect of the same, he submitted a report. That report is Ex.D1. The defence of the accused is a total denial. (j) Having considered all the above materials, the trial Court convicted all the accused, as detailed in the first paragraph of the judgment and accordingly, punished them. That is how they are before this Court with this appeal. 3.We have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully. 4.The learned senior counsel appearing for the appellants would submit that PWs.1 to 3 are inimical and interested witnesses and therefore, their evidences should be rejected. He would further submit that the FIR in this case is doubtful, as, according to PW1, he orally made a complaint and the same was reduced in writing by the Police in which he made his signature, but PW12 has stated that a written complaint was given upon which a case was registered. He would further submit that the deceased has come to the shop of the second accused and developed quarrel. Thus, the deceased was the aggressor and the true version of the occurrences has been suppressed by the prosecution. At any rate, according to the learned senior counsel, it is highly unbelievable that three persons caught hold the deceased enabling the first accused to cause the injury. The learned senior counsel would next contend that even according to the case of the prosecution, since the occurrence had taken place at the spur of the moment, there is no scope for sharing of common intention between the accused. Thus, according to the learned senior counsel, the accused 2 to 4 are entitled for acquittal from the charges. 5.So far as the first accused is concerned, it is contended by the learned counsel that since the FIR itself is doubtful and since there are other contradictions, he is also entitled for acquittal. For any reason, according to the learned counsel, if it is found that the injury on the deceased was caused by the first accused, his act would not fall within the sweep of Section 302 IPC. It is his contention that at the most, the offence would fall only under Section 304(i) IPC, because there are materials to infer that the first accused had acted out of grave and sudden provocation. 6.The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, the presence of PWs.1 to 3 cannot be doubted at all. They have vividly spoken about the entire occurrence. Though there are some contradictions regarding the FIR, that would not in any manner cause a dent in the case of the prosecution. The learned Additional Public Prosecutor would further submit that there is absolutely no delay in preferring the complaint. The medical evidence also duly corroborates the eyewitness account. The learned Additional Public Prosecutor would further submit that the first accused has caused the fatal injury with such a dangerous weapon. The intention of the first accused was only to cause the death of the deceased. Thus, the first accused has committed the offence punishable under Section 302 IPC and so far as the other accused are concerned, they aided the first accused to commit the offence. Therefore, they committed the offence punishable under Section 302 r/w 34 IPC, the learned Additional Public Prosecutor contended. 7.We have considered the above submissions. As rightly pointed out by the learned Additional Public Prosecutor, the presence of PWs.1 to 3 cannot be doubted at all, as there are no reasons to have such a doubt. They have categorically stated that the single stab injury on the head of the deceased was caused only by the first accused. They have also stated that the first accused attempted to remove the weapon from the head but he failed. Therefore, he left the place of occurrence. PWs.1 to 3 had immediately rushed the deceased to Aasaripallam Medical College Hospital. PW14 - Dr.Ratheesh examined the deceased on 25.12.2004 at 9.10 p.m. itself and he found the deceased dead. At that time, he noticed the iron rod piercing into the head. It was only on his intimation, the Police rushed to the hospital and recorded the statement from PW1. The Police registered the case at 11.00 p.m. Thus, absolutely, there is no delay in the FIR. The FIR has reached the Court on 10.40 a.m. on 26.12.2004. Of-course, there is some delay in despatching FIR to the Court. This may create a doubt in the case of the prosecution. But, on that score, the entire case of the prosecution cannot be rejected. 8.The Doctor, who conducted post-mortem, had found the rod piercing into the head. On removing the same, he found that the depth of the injury was almost half foot. He has opined that the death was due to the said injury. Thus, the medical evidence also duly corroborates the eyewitness account. From these evidences, in our view, the prosecution has clearly proved that the single stab injury found on the head of the deceased was made only by the first accused. To that extent, in our view, the prosecution has proved the case beyond reasonable doubts.
9. So far as the accused 2 to 4 are concerned, it is the case that they caught hold the deceased to enable the first accused to cause the injury. The learned senior counsel would point out that this is nothing but an improvement made during the course of the evidence. But, during the investigation, they have made a very vague statement that these accused helped the first accused, whereas, now, they have stated that the accused Nos.2 & 3 caught hold the hands and the accused No.4 caught hold the legs of the deceased. Admittedly, the occurrence was not a premeditated one. Absolutely, there was no chance of sharing any common intention. Even the first accused himself would not have had any premeditation to cause the death of the deceased. Thus, it is crystal clear that the occurrence had happened in the spur of the moment. Therefore, there would have been no common intention between the accused.
10. Above all, we find it difficult to accept the evidences of PWs.1 to 3 that the accused 2 to 4 caught hold the deceased. Going by the nature of the injury and the nature of the weapon used, in our view, the occurrence, as projected by the prosecution that the accused 2 to 4 caught hold the deceased, cannot be believed. Therefore, we are inclined to acquit the accused 2 to 4. We are also bound to state that the accused are all brothers. An attempt has been made to rope all of them in the case. This doubt is fortified by the delay in despatching the FIR. To this extent, the delay assumes much importance. In view of these facts, we hold that the prosecution has failed to prove the case against the accused 2 to 4, but has proved the case against the first accused that it was he who caused the fatal injury on the deceased.
11. Now, turning to the nature of the offence committed by the first accused, the learned counsel would submit that the first accused had acted out of grave and sudden provocation, and thus, his act would fall within the first exception to Section 300 IPC. But, it is too difficult to be accepted. According to the evidence available, the deceased simply came to the place of occurrence only to demand the money back from the first accused. The first accused refused to pay the same. This resulted in the quarrel. But, this clearly would not have caused grave provocation so suddenly so as to make the first accused to lose his mental balance. It is not every provocation which will bring the act of the accused within the sweep of first exception to Section 300 IPC. Only a provocation, which is grave enough, besides being sudden and capable of making the accused to lose his mental balance, alone would bring the act of the accused within the sweep of the first exception to Section 300 IPC. In this case, mere conversions between the first accused and the deceased regarding the repayment of the money would not be so grave to make the first accused to lose his mental balance so as to fall within the ambit of the first exception to Section 300 IPC.
12. Above all, the intention of the first accused can be gathered from the nature of the weapon, the nature of the injury, the force with which the weapon had been used and the situs of the injury. According to the doctor, who conducted autopsy, the iron rod had pierced the head and the length of the rod was 58.5 c.m. which is almost two feet length. The rod had pierced into the head to a depth of 11.5 c.m. which is almost a half foot. The skull is a very strong bone and piercing the same is not so easy, unless a great amount of force is used with a formidable weapon. The fact that the weapon had pierced the skull and gone 11.5 cm. depth into the skull would give a reasonable inference that greater amount of force would have been used by the first accused and it would have caused injury to the brain and caused instantaneous death. 13.Assuming for a moment, it was not a premeditated occurrence and there was no intention on the part of the first accused to cause the death of the deceased, certainly, it would fall within the limb 3 of Section 299 IPC or at least under limb 4 of Section 300 IPC. Thus, in our considered view, the act of the accused squarely falls within the ambit of Section 302 IPC and the same does not fall under any one of the exceptions to Section 300 IPC. Therefore, the first accused is liable to be punished for the offence under Section 302 IPC. Turning to the sentence, the trial Court has imposed the minimum sentence of imprisonment for life for the said offence and also fine of Rs.5,000/-. In our considered opinion, it does not require any interference at all.
14. In the result, this Criminal Appeal is partly allowed in the following terms: (a)The conviction and sentence imposed on the appellants 2 to 4 /accused 2 to 4 is set aside and they are acquitted. The bail bond, if any, executed by them shall stand terminated. The fine amount, if any, paid shall be refunded to them. (b) The conviction and sentence imposed on the first appellant/first accused is confirmed. To that extent, this Criminal Appeal shall stand dismissed. The bail bond, if any, executed by him shall stand terminated.
15. The trial Court is directed to take steps to secure the first accused and commit him in prison so as to serve out the remaining period of sentence. To 1.The Sessions Judge, Kanyakumari Division, at Nagercoil. 2.The Inspector of Police, Suseendram Police Station, Kanyakumari District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..