(Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. against the judgment, dated 30.12.2013, made in S.C.No.30 of 2012, by the learned IIIrd Additional District Judge (PCR), Madurai.)
1. The appellant is the first accused in S.C.No.30 of 2012 on the file of the learned IIIrd Additional District Judge (PCR), Madurai. There were two other accused by name Chinnasamy and Ramar. The trial Court framed as many as five charges against them as detailed below:
|Charge Nos.||Against||Offence U/s.|
|1||A1||3(1)(x) of SC/AT Act|
|2||A1||302 r/w 3(2)(V) of SC/ST Act|
|3||A2 and A3||302 r/w 34 IPC r/w 3(2)(V) ofSC/ST Act|
|4||A1||307 IPC r/w 3(2)(V) of SC/STAct|
|5||A2 and A3||307 r/w 34 IPC r/w 3(2)(V) ofSC/ST Act.|
3.The case of the prosecution in brief is as follows; (a) The deceased in this case was one Mr.Rajagopal. The deceased and the accused belong to the same village. They were all inimical terms. It is alleged that on 14.01.2012, around 05.30 p.m. at Seelanayakkanpatti Village, near a tea shop, the appellant/A1, along with two other accused, scolded the deceased by ridiculing his community and in that process, it is alleged that the first accused stabbed the deceased with a knife and when PW2 intercepted, he stabbed him also with the knife and then, all the three accused ran away from the scene of occurrence.
(b) PW1 and PW3, who witnessed the occurrence, immediately took the deceased and PW2 in an auto-rickshaw to the Government Hospital, Usilampatti. The doctor, who was on duty, after examining him declared the deceased dead. He forwarded PW2 to the Government Rajaji Hospital, Madurai for further treatment. In the meantime, PW1 went to Ezumalai Police Station and made a complaint at 07.00 p.m. on 14.01.2012. In the complaint, PW1 mentioned that the appellant/A1 herein, along with three others, came in drunken state, developed quarrel and scolded the deceased and that in the course of the same transaction, the appellant/A1 stabbed the deceased and PW2 with the knife. On the said complaint, a case was registered in Crime No.6 of 2012 under Sections 341, 324 and 307 IPC and Section 3(2)(V) of the SC/ST Act.
(c) The case was taken up for investigation by PW15, the then Deputy Superintendent of Police. He went to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of witnesses. Then, he recovered bloodstained earth and sample earth from the place of occurrence in the presence of the same witnesses. At that time, he received intimation from the hospital that the deceased had succumbed to the injuries. Therefore, he altered the case one under Section 302 IPC and forwarded the alteration report under Ex.P18. Then, he went to the hospital, conducted inquest on the body of the deceased and forwarded the body for post-mortem.
(d) PW12 ? Dr.Natarajan conducted autopsy on the body of the deceased on 15.01.2012 at 11.15 a.m. and he found the following injuries: ?Antemortem injury: An oblique stab injury measuring 3 cm x 0.5 cm x pleural cavity deep noted on the back of left side of chest 4 cm below the angle of scapula.
The wound passes obliquely downwards and forwards piercing the underlying muscles, vessels, nerves in the 8th inter costal space, piercing the underlying pleura and lower lobe of left lung measuring 2.5 c.m. X 0.5 cm x 1 cm and ends as a point. Left pleural cavity contains 350 ml of fluid blood with clots. Right pleural cavity empty.?
He gave opinion that the death of the deceased was due to shock and hemorrhage due to the injury. Ex.P13 is the Postmortem Certificate. He gave further opinion that the said injury could have been caused by a knife.
(e) PW15, during the course of investigation, arrested all the three accused on 15.01.2012 at 4.00 p.m. near Kallupatti Kaatralaimedu in the presence of the witnesses. On such arrest, the appellant/A1 gave a voluntary disclosure statement, in which he disclosed the place where he had hidden a bloodstained lungi, a shirt and also a motorcycle. Based on the same, PW15 recovered all these material objects from him. On the disclosure statement made by A2, yet another motorcycle was recovered. He obtained a certificate from the Thasildar about the community of the accused. Finally, on completing the investigation, he laid charge sheet against the accused.
4. Based on the above materials, the trial Court framed five 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 15 witnesses were examined and 20 documents and 11 material objects were marked.
5.0. Out of the said witnesses, PW1 and PW3, who claim to be the eyewitnesses, have spoken about the entire occurrence. They have stated that all the three accused came to the place of occurrence and developed quarrel with the deceased and in that process, the first accused stabbed the deceased as well as PW2. PW1 has spoken about the fact that he took the deceased and PW2 to the hospital and also about the complaint made by him to the Police. PW2 ? the injured has turned hostile. He has not supported the case of the prosecution in any manner. PW4 has turned hostile and he has not stated anything incriminating against the accused. PW5 has spoken about the preparation of the observation mahazar and rough sketch and also the recovery of material objects at the place of occurrence. PW6 ? the Tahsildar has spoken about the issuance of certificates indicating the community of the accused and the deceased by him. According to him, the deceased belonged to scheduled caste and all the three accused belong to a community which is neither a scheduled caste nor a scheduled tribe.
5.1. PW7 ? the Village Assistant has spoken about the arrest of the accused and the recoveries made out of the disclosure statements. PW8 ? the Head Clerk of the Magistrate Court has stated that he forwarded the material objects for chemical examination, as directed by the learned Magistrate. PW9 ? the Head Constable attached to the said Police Station has spoken about the fact that he handed over the dead body to the doctor for post-mortem. PW10 ? another Head Constable has spoken about handing over the material objects to the forensic laboratory for chemical examination, as directed by the learned Magistrate. PW11 ? the Sub Inspector of Police has spoken about the registration of the case and the complaint made by PW1. PW12 ? Dr.Natarajan has spoken about the postmortem conducted on the body of the deceased and his final opinion regarding the cause of death.
5.2. PW13 ? Dr.Jeganmohan has stated that on 14.01.2012, when he was on duty at the Government Hospital, Usilampatti, at 7.45 p.m., PW2 Balamurugan was brought to the hospital for treatment and he was informed by him that he was stabbed by a known person. He found a stab injury on his chest. Then, he and forwarded him to the Government Rajaji Hospital, Madurai for further treatment. PW14 ? the Forensic Expert has stated that he examined the material objects and found human blood on all the material objects. PW15 has spoken about the investigation done and final report filed by him.
6. When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same as false. However, they did not choose to examine any witness on their side. They marked five documents as Exs.D1 to D5 on their side. Ex.D1 is the signature of PW3 in Ex.P19; Ex.D2 is the signature of Mayan in Ex.P19; Ex.D3 is the signature of one Nagaraj; Ex.D4 is a copy of the Accident Register of the deceased; and Ex.D5 is the medical report of PW2. Their defence was a total denial. Considering all the above, the trial Court has acquitted the accused 2 and 3 and convicted the appellant/A1 alone for the offence under Section 302 IPC and that is how, he is before this Court with this appeal.
7. We have heard the learned senior counsel for the appellant/A1 and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully.
8. The learned senior counsel for the appellant/A1 would submit that at the earliest point of time, when the deceased was taken to the Hospital, the Doctor was informed that the deceased was attacked by three unknown persons at 6.45 p.m. on 14.01.2012. Referring to Ex.D4, the learned senior counsel appearing for the appellant would submit that the earliest information was not against the appellant/A1 herein, but against three unknown persons. This needs to be given weightage, the learned senior counsel contended.
9. We are not impressed by the said argument. The statement that the deceased was attacked by three unknown persons as recorded in Ex.D4 was not made by the deceased so as to treat the same as a dying declaration. It was made by one Mr.Prabhu, who is stated to be a relative of the deceased. That being a former statement of Prabu, the same can be used either to contradict Mr.Prabhu or to corroborate his evidence, if he is examined in the Court. Unfortunately, he was neither examined by the prosecution nor by the defence. When that be so, a former statement of a living person cannot be treated as evidence at all and therefore, we are unable to give any weightage for the said statement recorded inEx.D4.
10. The learned senior counsel appearing for the appellant/A1 would next contend that there is inordinate delay in forwarding the FIR to the Court, which, according to him, creates doubt in the case of the prosectuon. He would further submit that the alleged occurrence in this case was at 05.30 p.m. on 14.01.2012; the FIR was registered at 07.00 p.m. On 14.01.2012 and the same reached the hands of the learned Magistrate at 10.00 a.m. on 15.01.2012 and absolutely, there is no explanation for the said inordinate delay in the FIR reaching the hands of the learned Magistrate.
11. Of-course, it is true that in the instant case, the delay has been caused by the respondent Police in forwarding the FIR to the learned Magistrate and the same has not been explained by them. But, in our considered view, for the delay caused by the Police, PW1 cannot be faulted with. Since the FIR came to be registered at 7.00 p.m. on 14.01.2012, on the ground of delay in forwarding the FIR to the Court, we cannot doubt the veracity of PWs.1 and 3 as the evidences of Pws.1 and 3 inspire the confidence of the Court fully.
12. The learned senior counsel would next point out that as the injured witness (PW2) has turned hostile, the presence of PWs.1 and 3 at the time of occurrence is doubtful and therefore, their evidences cannot be believed. We find no force at all in the said argument. PW2, though admittedly sustained injury in the very same occurrence, for his own reasons, he has turned hostile. But, on that score, we cannot reject the evidences of PWs.1 and 3, in whose presence the occurrence had taken place. Apart from that, the evidence of PW4 also assumes importance. He has stated that around 5.00 to 6.00 p.m. on the date of occurrence, he heard the hue and cry of the people that ?Kaluthaipandi had stabbed and run away?. The said Kaluthaipandi is none else than the appellant/A1 herein. He has further stated that on hearing the alarm raised, when he reached the place of occurrence, he found the deceased lying with stab injury. Though this witness has been treated as hostile, as he did not support the case of the prosecution as expected, on that score, his entire evidence cannot be rejected. His evidence that he heard the hue and cry of the people that Kaluthaipandi stabbed and ran away, squarely falls within Section 6 of the Indian Evidence Act and therefore, the same is admissible in evidence. Thus the evidence of PW4 duly corroborates the evidences of PWs.1 and 3.
13. The learned senior counsel would further submit that there was no independent witness examined. This argument also, in our considered view, is baseless, because PWs.3 and 4 are independent witnesses and they have got no grudge against the accused.
14. The learned senior counsel would further contend that PW3, during cross examinaion, has admitted that police arrived at the scene of occurrence around 07.00 p.m. and examined him. Referring to the said evidence, the learned senior counsel would submit that there should have been some other information first in point of time and the same has been suppressed by the Police. Admittedly, PW3 is not a literate. The perception of time, without reference to a watch, stated by PW3 cannot be given undue weightage of. At the most, it can only be taken as an approximate time. Here, in this case, the FIR was registered at 7.00 p.m. and thereafter, the police would have gone to the place of occurrence and then examined PW3. Therefore, it cannot be held that even before the registration of FIR, the Police had arrived at the scene of occurrence.
15. The learned senior counsel would next contend that PW1 has not stated that there was quarrel between the deceased and the first accused, whereas PW3 has stated that there was such quarrel preceding the occurrence. This, according to the learned senior counsel, is a contradiction which would make the evidences unbelievable. But, we do not believe so. This, in our considered view, is only a minor contradiction for which we cannot give any undue weightage.
16. The learned senior counsel would next submit that there is contraction in respect of place of occurrencce also. In this argument, we do not find any force at all. At the earliest point of time, it was informed to the Police through Ex.P1 that the occurrence had taken place only before a tea shop. The other contemporaneous records like, observation mahazar and rough sketch prepared at the place of occurrence would also duly corroborate the same. Thus, the argument of the learned senior counsel that there is contradiction about the place of occurrence is also liable to be rejected.
17. The learned senior counsel would further submit that the motive for the occurrence has not been established. If it ofcoursee true. But, failure to prove the motive in a case of this nature based on eyewitness account would not materially affect the ccase of the prosecution.
18. As rightly contended by the learned Additional Public Prosecutor, the medical evidence also duly corroborates the eyewitnesses account. From the evidences of PWs.1, 3 and 4 and from the medical evidence, it has also been clearly established by the prosecution that the death of the deceased was caused only by the appellant/A1.
19. The learned senior counsel would lastly contend that the act of the accused would not fall within the ambit of Section 302 IPC as the same would fall under the First Exception to Section 300 IPC. This argument made by the learned senior counsel is based on the evidence of PW3, who has stated that there was wordy quarrel between the appellant/A1 and the deceased preceding the occurrence. From the evidences available, it is crystal clear that there was no premeditation on the part of the accused. There was also no motive. The accused was provoked only by the deceased and such provocation was sudden, which, in our considered view, was grave enough to make the accused to lose his self-control. Having lost his self-control, the accused had taken the knife and made a single stab on the deceased. Thus, the act of the appellant, in our considered view, would squarely fall within the ambit of the First Exception to Section 300 of the Indian Penal Code. Since it falls within the ambit of the third limb of Section 300 of the Indian Penal Code and also to the first exception to Section 300 IPC, the offence committed by the accused is not murder and it is only a culpable homicide and thus, he is liable to be punished under Section 304(I) of the Indian Penal Code.
20. Now, turning to the quantum of punishment, the learned senior counsel for the appellant/A1 would submit that the appellant/A1 is an young man and he is poor and he has got the burden of maintaining the entire family. Having regard to the age, social background, financial status, family circumstances, gravity of the offence and all other mitigating as well as aggravating circumstances, we are of the view that sentencing the appellant/A1 to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- for the offence under Section 304 (I) IPC would meet the ends of justice.
21. In the result, this Criminal Appeal is partly allowed in the following terms:-
The conviction and sentence imposed by the Trial Court on the appellant/A1 under Section 302 of the Indian Penal Code is set aside and instead, the appellant/A1 is convicted under Section 304(I) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month. The period of sentence already undergone by the appellant/A1 shall be set off under Section 428 of the Code of Criminal Procedure. The fine amount already paid by the appellant/A1 shall be adjusted and the balance amount, if any, shall be refunded to him.
22. Consequently, connected miscellaneous petition is closed.