(Judgment of the Court was delivered by R.REGUPATHI, J.) Among three accused in the case, who are brothers; the appellant is A-1 and the accused were charged under Section 302 read with 34 IPC by the learned Additional Sessions Judge cum Chief Judicial Magistrate, Thoothukudi, in S.C.No.47/98 on the allegation that on 13.02.1996 at 5.30 p.m. A-1 to A-3, with an intention to finish off the deceased, attacked the deceased, in that, A-1 beat the deceased with wooden log on the chest and A-2 stamped him on the chest and stomach while A-3 beat him with wooden log on the thigh, hand and rear portion of head with the result, the deceased succumbed to the injuries at 8 p.m.
In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 15, marked Exs.P-1 to P-17 and produced M.Os.1 to 6.
The learned trial Judge, on conclusion of the trial, by order dated 07.11.2002, acquitted A-2 and A-3 however convicted A-1, the appellant herein, for an offence punishable under
Section 302 read with 34 IPC and sentenced him to undergo imprisonment for life. Aggrieved against the order of conviction and sentence, the present appeal has been preferred.
2.The prosecution case, as put forth by its witnesses, it concisely narrated below:-
a)P.Ws.1 and 2 are the wife and sister respectively of the deceased and they are eye-witnesses to the occurrence. P.W.1 deposed that the accused and the deceased belong to the same village and the deceased was working with the first accused for two months prior to the occurrence and since the salary given by the accused was insufficient, the deceased went for employment with some other person and on account of that, there was enmity between the first accused and the deceased and ten days prior to the occurrence, the deceased was arrested and sent to jail in a prohibition case. During the absence of the deceased, there was a wordy quarrel between P.W.1/wife of the deceased and the appellant and on the same being reported to the deceased on release from prison, the deceased questioned the accused and under such circumstances, on 13.02.1996 at 5.30 p.m. when P.W.1 was standing in the bus stand along with P.W.2 and the deceased, all the three accused came there, A-1 with wooden log assaulted the deceased on the chest and when the deceased fell down, A-2 stamped him on the chest while A-3 with wooden log assaulted the deceased on the head and backside of the neck. The accused, after threatening P.W.1, ran away from the scene of occurrence. Thereafter, with the help of a police jeep, the deceased was taken to the Medical College Hospital, Palayamkottai, and on examination of the deceased, the Medical Officer declared him dead. The Head Constable, who accompanied P.W.1 recorded her statement under Ex.P.1 attested by P.W.2.
b)P.W.2, in her evidence, corroborated the testimony of P.W.1.
c)P.W.3, brother of the deceased, in his evidence stated that on coming to know about the occurrence he reached the scene of occurrence and accompanied the deceased to the Hospital along with P.W.1.
d)P.W.5, Jeep driver deposed that on the request of P.W.1, he took the deceased to the Hospital.
e)P.Ws.4 and 6, who were examined to speak about motive part of the prosecution case and the enmity between the accused and the deceased did not support the case of the prosecution, therefore, they were treated as hostile.
f)P.W.12, Head Constable, in his evidence, stated that he was travelling in the Jeep driven by P.W.5, on 13.02.1996 and at Anandanambi Kurichi Bus stop on hearing the noise of P.W.1, he enquired P.W.1 and took the deceased who was in unconscious condition in the Jeep to the Medical College Hospital, Palayamkottai at 7 p.m. At 8 pm., the Medical Officer/P.W.14 on examination of the deceased, declared him dead, whereupon, P.W.12, received the complaint/Ex.P.1 from P.W.1 and it was attested by P.W.2. After reaching the police station, P.W.12 registered a case in Crime No.26 of 1996 for the offence punishable under
Section 302 IPC and forwarded the FIR/Ex.P.4 to the Court and copies thereof to the superior officials.
g)P.W.15, the Inspector of Police, on receipt of copy of Ex.P.4 at 7.00 a.m., took up investigation and reached the Medical College Hospital, Tirunelveli where he conducted inquest over the body of the deceased in the presence of panchayatars and witnesses. Ex.P.12 is the Inquest Report. At the scene of occurrence, he prepared observation mahazor and rough sketch Exs.P.2 and 13 respectively. He sent the dead body through the Head Constable P.W.11 with a requisition/Ex.P.9 to the Medical Officer to conduct post-mortem.
h)P.W.9, the Medical Officer, on receipt of the requisition from the Investigating Officer, conducted post-mortem at 1.15 a.m on 14.12.1996 and issued post-mortem certificate Ex.P.10, wherein, he noticed the following:-
"Injuries:
1.Abrasions: 2x1 cm on the left shoulder, 4x2cm on the front of right knee;
2.On dissection of Thorax:
Fracture of 5th to 8th rib on the left side in its back portion with bruising of surrounding tissues.
3.On Dissection of head:
Bruising of inner aspect of tissue of scalp on the right side of occipital region. Fracture of posterior cranial fossa of base of skull on the right and left side Heart: All Chambers contained a little blood Lungs:Cut section congested Hyoid bone: Intact Stomach: Empty Mucosa: Normal Liver:Spleen and kidneys: Cut section congested Bladder: Empty Brain : Cut section congested and oedematous"
The doctor opined that the deceased would appear to have died of multiple injuries.
i)P.W.11, Head Constable, recovered M.Os.1 to 3, the bloodstained cloths of the deceased and handed over the same to the Inspector of Police.
j)P.W.15, the Investigating Officer, on coming to know about the surrender of the accused before Judicial Magistrate, Srivaikundam, took them into police custody on 04.03.1996. A-1 gave voluntary confession statement and the admissible portion thereof is marked as Ex.P.14. In pursuance of the same, the Investigating Officer recovered wooden logs M.Os.4 to 6 under Ex.P.15. Thereafter, the accused were sent to judicial custody.
k)The recovered material objects were despatched to the Court along with requisition under Ex.P.5 to send the same for forensic examination. Exs.P.7 and 8 are chemical analysis and serological reports respectively. The Investigating Officer, after examining the witnesses and receiving medical and forensic opinions, concluded the investigation and on 15.05.1996, laid final report against the accused for the offence punishable under
Section 302 IPC.
3.The learned trial Judge, with reference to the oral and documentary evidence adduced by the prosecution, questioned the accused under
Section 313 Cr.P.C., for which, they denied their complicity in the crime and pleaded innocence. No oral or documentary evidence was let in by the defence.
4.The learned trial Judge, after assessing the materials placed and considering the arguments advanced by both sides, convicted and sentenced the appellant/1st accused as stated supra; hence, he has come up with the present appeal.
5.Learned counsel for the appellant states that A-2 and A-3 were acquitted by the trial Court since there was no direct motive alleged as against them, though it has been stated that they are brothers of the appellant. He submits that there was no corresponding injury to the overt act attributed to A-1 by the eye witnesses P.Ws.1 and 2 and for the purpose of convicting the appellant, the trial Court relied on the evidence of those highly interested witnesses and their testimonies suffer from contradictions.
6.It is submitted that the motive put forth, viz., due to the quarrel between the appellant and the wife of the deceased, on release from jail, he questioned the appellant which resulted in the occurrence, seems to be very flimsy on the face of it and further, even if that be so, the role played by the deceased in reacting and quarreling with the accused has been totally suppressed. Further, the place where the occurrence is said to have taken place being Bus-stand, the prosecution did not take pains to examine any independent witness conveniently with a view to suit its case and project it through P.Ws.1 and 2 with their own version.
7.Learned counsel next submits that even if the testimonies of eye witnesses/P.Ws.1 and 2 are accepted and acted upon the offence alleged under
Section 302 IPC is not made out since, according to the prosecution, the appellant delivered only a single blow on the chest of the deceased. Though it is stated that another injury caused on the head of the deceased is also responsible for the death of the deceased, the co-accused in the case was acquitted by the trial Court. Ultimately, by submitting that the prosecution version that the appellant intentionally committed the offence is not proved, it is pleaded that he may be convicted for a lesser offence. In that regard, learned counsel relied on the following case laws:
"i)In Gokul Parashram Patil Vs. State of Maharastra reported in 1981 Crl.L.J 1033
ii)In Karam Singh Vs. State of Punjab reported in 1993 Crl.L.J 3673(1) and
iii)In Chuttan and others Vs. State of M.P. reported in AIR 1994 SC 1398"
8.Per contra, learned Additional Public Prosecutor, by pointing out that the occurrence took place at 5.30 p.m. and the deceased was taken to the hospital and declared dead at 8 p.m. and thereafter, the complaint lodged by P.W.1 and attested by P.W.2 was registered by the police at 8.15 p.m. would submit that the case was taken on file without any loss of time and delay. Further, the evidence of P.Ws.1 and 2 are consistent insofar as the overt acts attributed to the appellant is concerned. It was the appellant, who was inimically disposed of towards the deceased and, accompanied by other accused, caused fatal injury on the chest resulting in the death of the deceased. The ocular testimony of P.Ws.1 and 2 is well corroborated by medical evidence as well as other contemporaneous materials. Under such circumstances, the case of the prosecution is proved beyond reasonable doubts and this is not a fit case to interfere with the order passed by the trial Court.
9.We have meticulously perused the materials available on record in the light of the rival submissions made on either side.
10.The deceased was working as an employee with the appellant/first accused. There arose quarrel and dispute between the appellant and the deceased since the deceased refused to work with him. When the deceased was in Prison, there was a wordy quarrel between A-1 and P.W.1/wife of the deceased. When P.W.1, informed the same to the deceased on his release on bail, the deceased told her that he would question A-1 for his conduct. Under such circumstances, the occurrence is said to have taken place. It is stated that A-1 and A-3 were armed with wooden log and A-1 caused injury on the chest of the deceased. On perusal of the evidence of P.Ws.1 and 2, it appears that the appellant delivered a single blow and he did not attempt further. The injuries inflicted by another accused, who was acquitted by the trial Court also was fatal to cause the death of the deceased, for, the positive medical opinion is that the death was due to multiple injuries. In view of the admitted case of the prosecution that the appellant inflicted a single blow, we could discern that the appellant did not intend to cause the death of the deceased. However, having regard to the medical evidence especially about the nature of injury caused on the chest of the deceased with wooden log we could find that the appellant was having sufficient knowledge, that such injury may result in the death of the deceased.
11.The Hon'ble Supreme Court in Gokul Parashram Patil Vs. State of Maharastra reported in 1981 Crl.L.J 1033, held as follows:
"When the solitary blow given by the accused to the deceased was on the left clavicle a non vital part and the accused did not know that the superior venacava would be cut as a result of that wound, the injury though sufficient in the ordinary course of nature to cause death was not one intended by the accused. Thus, to such a case illustration (c) to
Section 300. Thirdly was not attracted. Accordingly, accused could be convicted not under S.302 but under S.304 Part II. A sentence of 5 years' R.I. held, would meet the ends of justice under the circumstances of the case".
12.In yet another decision, the Hon'ble Supreme Court in Karam Singh Vs. State of Punjab reported in 1993 Crl.L.J 3673(1), ruled thus:
"The contusions on the chest and Injuries Nos.5 to 7 resulted in the fracture of the ribs which caused his death. The doctor in his evidence has admitted that the fracture of the ribs could have in turn caused the rupture of the liver and the spleen. Under these circumstances, it is difficult to hold that the appellant intended to cause the injuries to the liver and the spleen which unfortunately proved to be fatal. Having regard to the nature of the weapon used and the parts of the body on which blows were dealt, it is difficult to hold that he intended in cause the death or intended to cause that particular injuries to the liver and the spleen. However, under the circumstances he must be attributed to have the knowledge that by dealing such blows he was likely to cause the death of the deceased in which case the offence is one punishable under Section 304 Part II, I.P.C. In the result the conviction under
Section 302, I.P.C and the sentence of life imprisonment awarded against the appellant by the High Court are set aside. Instead the appellant is convicted u/S.304".
13.In Chuttan and others Vs. State of M.P. reported in AIR 1994 SC 1398, wherein, it was observed, "Out of these injuries only one injury appears to be serious and that could have been caused with a stick. What is more, even according to the prosecution, the injured deceased was left unattended for nearly 20 hours at the site itself. No doubt the explanation is that the witnesses were afraid but in judging the intention, the main requirements of Clause I or Clause III of S.300, IPC of these aspects become relevant. Having given our earnest consideration to the manner in which the blows were dealt and the parts of the body on which they were dealt and the manner in which the weapons were used, we find it difficult to conclude that the intention of the appellants was to cause death or to cause such injuries which were sufficient in the ordinary course of nature to cause death. But they can be attributed the knowledge that by causing such injuries they were likely to cause death of the deceased. Accordingly, the conviction of the appellants under S.302, IPC and the sentence of imprisonment for life awarded thereunder are set aside. Instead they are convicted under S.304, Part II IPC and sentenced to undergo R.I. For five years. Their conviction under S.325, IPC and the sentence of three years R.I. are however, confirmed. The sentences are directed to run concurrently. In the result, the appeal is partly allowed to the extent indicated above".
14.In the light of the observations of the Hon'ble Supreme Court made in similar cases having relevance to the facts of the present case, the conviction under
Section 302 IPC is modified as one under
Section 304, Part II, I.P.C and the appellant/first accused is sentenced to undergo rigorous imprisonment for five years.
15.Appeal is allowed in part as observed above. It is reported that the appellant/first accused is on bail. The trial Court is directed to take immediate steps to secure the accused and commit him to Prison so as to undergo the remaining period of sentence, if any.
sms To:
The Inspector of Police, Morappanadu Police Station Thoothukudi District.