(Judgment of the Court was delivered by R.REGUPATHI, J) The appellant/sole accused faced trial before the learned Principal Sessions Judge, Madurai, in S.C.No.376 of 2007 on the allegation that the deceased conducted Panchayat to settle the matrimonial dispute between his grand daughter and her husband viz., brother of the accused, since there were frequent quarrels between them and the accused, who felt that the deceased was the root- cause for the confusion in the family, with an intention to eliminate him, came to the residence of the deceased on 02.12.2006 at 8 a.m. and indulged in quarrel with the deceased and by stating that unless the deceased was finished off, there would not be peaceful atmosphere in the family, took out a knife from the suitcase he was holding and cut the deceased on the front right and back portion of the neck and the deceased succumbed to the injuries, while undergoing treatment in the hospital on 04.12.2006, at 11.25 a.m; and by judgment of the trial Court, dated 28.11.2008, he was found guilty under Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.5,000/- in default, to undergo rigorous imprisonment for six months. Aggrieved against the said order of conviction and sentence, the present appeal has been filed.
2.The prosecution, in order to bring home the guilt of the accused, examined P.Ws.1 to 19, marked Exs.P1 to P20 and produced MOs.1 to 4.
3. The case of the prosecution, as spoken to by its witnesses, is briefly narrated hereunder;-
a) PW1, the son of the deceased, deposed that PW8, the grand daughter of the deceased was married to the brother of the accused and one month after the marriage, the brother of the accused indulged in quarrel with PW8, resulting in a Panchayat, in which the accused intervened and threatened the deceased by saying that it was only because of the intervention by the deceased, there was confusion in the family and that if again the deceased would come to his place, he would not return alive. Under such circumstances, on the date of occurrence, i.e. on 02.12.2006 at 8 a.m. the accused came to the residence of the deceased, while he was talking with PWs-1 and 2, with a suitcase and on the deceased questioning him, the accused by stating that he had come there only to finish him off took out a knife from the suitcase and attacked the deceased on the right cheek, right chin, back and front portion of the neck and the left chest. On seeing the attack, PW-1 shouted at the accused, whereupon, PWs-3 and 4, who are neighbours and others came to the scene of occurrence and the deceased ran away from there. The deceased was taken to the Government Rajaji Hospital, Madurai, in a car driven by PW-9. In their evidence, PWs-2 to 4 corroborated the version of PW-1. PW-8, the grand daughter of the deceased, examined for the purpose of motive, did not support the prosecution case, hence, she was treated as hostile.
b) On 02.12.2006 at 9.15 a.m. PW1 admitted the deceased in Madurai Rajaji Government Hospital and to the Medical Officer, PW-11, the deceased informed that at about 8 a.m. he was assaulted by a known person at Vikkiramangalam. After examining the injured, PW11 issued Accident Register, Ex.P5, wherein it has been stated as follows;
"1.Cut injury on the right side neck, below Mandible 4 x 2 x 2 cm clots present.
2.Cut injury behind neck 2 x 1/2 x 1/2 Admit 99 ward."
c) After admitting the deceased in the hospital, PW-1 went to Vikramangalam Police Station at about 12 p.m. and lodged a complaint under Ex.P1 while producing bloodstained dhoti and towel M.Os.3 and 4.
d) PW17, Sub Inspector of Police, on 02.12.2006, received the complaint (Ex.P1) at 12.30 p.m. and registered a case as per Ex.P18 in Cr.No.100 of 2006 for an offence under
Section 307 IPC. The FIR was despatched to the learned Judicial Magistrate through a police constable.
e) PW18, Inspector of Police, took over the investigation on receipt of the copy of the First Information Report at 1.30 p.m., reached the scene of occurrence at 2.30 p.m. and prepared Ex.P2, observation mahazar and Ex.P19 rough sketch, attested by PW6. He also examined PW1 and other witnesses and recorded their statements. On the same day at 5.30 p.m., he arrested the accused in the presence of PW7, recorded his voluntary statement and subsequent thereto, recovered MO-2 bloodstained knife and MO-1 green colour suitcase under Ex.P3 Athatchi attested by PW7.
f) On 02.12.2006, PW15, Judicial Magistrate No.II, Madurai on receipt of requisition under Ex.P7 for recording dying declaration, reached the Government Rajaji Hospital, Madurai and recorded the dying declaration in the presence of medical officer after ascertaining that the deceased was in a fit and conscious state of mind to give statement. Ex.P10 is the medical certificate issued regarding fitness of the deceased to give statement. PW15, informed that he was the Magistrate and he came there for the purpose of recording dying declaration and after putting formal questions and receiving the answers and on arriving at a satisfaction that the deceased was in a conscious state of mind, recorded the statement. After recording the statement, he again obtained a certificate from the medical officer. Ex.P16 is dying declaration recorded and Ex.P.17 is the letter sent by the Judicial Magistrate.
g) PW16, the Medical Officer deposed that in spite of the treatment given to the deceased, he died on 04.12.2006 at 11.25 p.m. PW-10, Head constable on receipt of the death intimation on 04.12.2006 at 12.30 p.m. altered the offence as one under
Section 302 IPC and forwarded the alteration report Ex.P4 to the learned Judicial Magistrate.
h) On receipt of the death intimation, PW18 reached the hospital and conducted inquest over the dead body at 12.30 p.m. and prepared Ex.P20, the inquest report. He made requisition under Ex.P8 to the medical officer to conduct postmortem.
i) PW12, the Medical Officer, conducted postmortem over the dead body of the deceased, on 04.12.2006, at 3.40 p.m. and issued Ex.P9 postmortem certificate, wherein, he noticed the following;-
1. Surgical sutured cut injury wound 8 x 1 cm x bone depth noted on right mandibular region.
On dissection - wound passes upwards, medially with partial injury to the right mandible. Rubber drain present in site. Laceration of muscles, vessels present.
2. Sutured cut injury 3 x 1 cm x muscle depth noted on right side upper neck.
on dissection would passes above downwards piercing muscles. C5 C6 vertebral fracture partially and upper airway injury.
3. Sutured cut injury 3.5 x 1 cm x muscle depth noted on middle of nape of neck.
On dissection - wound passes above x downwards piercing muscles.
4. Liner abrasion 8 x 0.5 cm, 6 x 0.5 cm noted over upper chest transversely passed.
Other findings.
Peritoneal and pleural cavities - empty. Pericardium - contains 15 ml of straw colour fluid. Heart - right side fluid blood. Left side empty. Coronary - paternt. Lungs, liver, spleen and kidneys - cut section congested. Larynx and traches - Normal. Hyoid bone - intact. Stomach - contains 100 ml of brown colour fluid. Nil specific smell. Mucosa normal. Small intestine - contains 20ml of bile stained fluid. Nil specific smell. Mucosa normal. Bladder - empty. Brain - surface vessel and cut section congested.
OPINION The deceased would appear to have died of neck injury and its complications thereof.
j) The material objects recovered were despatched to the Court with a request to send the same for chemical examination. PW14, the Head Clerk attached to Judicial Magistrate Court No.II, Usilampatti received Exs.P14 and 15, Biological and serological report respectively from the forensic lab.
k) PW19 took over the investigation from PW18, examined the witnesses, received medical and forensic opinions and collected other materials and, on conclusion of the investigation, filed final report on 29.12.2006 for the offence under
Section 302 IPC.
l) On conclusion of examination of prosecution witnesses, the accused was questioned under
Section 313 Cr.P.C. for which, he pleaded innocence. Neither oral nor documentary evidence was let in by the defence.
m). The learned Trial Judge, after hearing the arguments advanced by both sides and assessing the materials placed, passed the order of conviction and sentence as aforementioned against the appellant, resulting in the present appeal.
4. Learned counsel appearing for the appellant submits that PWs1 to 3 are closely related to the deceased and their evidence is highly interested. The deceased was aged about 85 years at the time of occurrence and the motive put forward by the prosecution is flimsy. Further, it is the case of the prosecution that it was only the brother of the accused i.e. the husband of PW8, the grand daughter of the deceased had matrimonial dispute resulting in a Panchayat and the accused has nothing to do with the dispute. Even accepting the case of the prosecution as true, the accused did not inflict any serious injury on the deceased. A perusal of Ex.P5, Accident Register extract, and Ex.P9, postmortem certificate, would go to show that the injuries sustained by the deceased were superficial and no injury was caused to the internal organs. From the evidence of PW16, the medical officer, who gave treatment to the deceased, it appears that the deceased died not due to the injury caused by the accused, but, on account of cardiac arrest. PW16, in his evidence, admitted that an entry has been made in the case sheet that the death was due to cardiac arrest, but unfortunately the case sheet has been suppressed by the prosecution. Since it is clear from the medical evidence that the death of the deceased was not on account of homicidal violence, but due to cardiac arrest, an offence under
Section 302 IPC is not made out. By pointing out that the accused was about 23 years at the time of occurrence and that he had no bad antecedents, learned counsel pleads that a lenient view may be taken.
6. Per contra, learned Additional Public Prosecutor submits that the occurrence was witnessed by PWs-1 to 3. PWs-4 and 5 reached the scene of occurrence soon after the occurrence. The evidence of PWs-1 to 5 is cogent and convincing. Immediately after the occurrence, the deceased was taken to the hospital by PW1 in a car driven by PW9 and subsequently treatment was given by PW16. In the meantime, dying declaration of the deceased was recorded by PW15, in the presence of PW13, the medical officer, by strictly adhering to the procedure prescribed. The medical officer issued a certificate to the effect that while recording the dying declaration, the physical and mental condition of the deceased was stable. The learned Magistrate also questioned the deceased and after ascertaining about his conscious state of mind proceeded to record the dying declaration. It is specifically stated in the dying declaration that it was the accused, due to animosity, attacked the deceased. The contents of the dying declaration are consistent with the evidence of eye witnesses PWs1 to 3 and other witnesses. The postmortem doctor opined that the deceased would appear to have died of neck injury and its complications thereof and submitted that the injuries sustained by the deceased were serious in nature. Since the accused pre-planned and committed the crime, the trial Court rightly convicted him for the offence as charged and the reasonings assigned by the learned Trial Judge are well founded and the conclusion arrived at does not call for any interference.
7. We have carefully considered the rival submissions and also perused the materials available on record.
8. PW8, the grand daughter of the deceased was married to the brother of the accused. The deceased was admittedly aged about 85 years at the time of occurrence and the accused was aged 23 years. The motive part of the case of the prosecution has been spoken to by PWs-1 to 5 and 8. As per the case of the prosecution, the accused entertaining animosity against the deceased, since he was under the impression that the deceased was responsible for the quarrel between his brother and PW8 and because of him the dispute could not be settled, went to the residence of the deceased and attacked him. The deceased was immediately taken to the hospital on 02.12.2006 and on perusal of the evidence of medical officer, it is clear that he was conscious on 02.12.2006 and 03.12.2006. On 04.12.2006, the deceased was declared dead. Having regard to the dying declaration, and the testimonies of the eye-witnesses, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt, in so far as the actual occurrence is concerned.
9. In Ex.P5, Accident Register, the injuries noted are, "1.Cut injury on the right side neck, below Mandible 4 x 2 x 2 cm clots present.
2. Cut injury behind neck 2 x 1/2 x 1/2"
PW1, in his evidence deposed that the accused caused four injuries, namely on the right chin, front and back portion of the neck, and right chest. In the dying declaration, the deceased stated that the accused inflicted 4 or 5 injuries. From the postmortem certificate, we find that injury No.1 measuring 8 x 1 cm x bone depth is a superficial injury. Injury Nos.2 and 3 though shown to have pierced the muscle, did not go deep into the neck. The fourth injury is linear abrasion measuring 8 x 0.5 cm, 6 x 0.5 cm noted over chest transversely. Therefore, none of the injuries pierced into the neck or chest and no internal organ was injured. Under such circumstances, the evidence of PW16 has to be carefully scrutinised. In his evidence, he deposed that the deceased was fully conscious on 02.12.2006 and 03.12.2006 and pain alleviating injection was administered to him and treatment was also given for the superficial injury sustained. However, on 04.12.2006, he suffered breathing problem at 11 a.m. and due to that he died at 11.25 a.m. In the cross examination, he positively admitted that due to non-functioning of the heart, the deceased died and it was found in the case sheet that it may be a case of natural death. In such a situation, with all seriousness, the prosecution should have marked the case sheet. Further, it is the contention of the defence that such noting is made in the death intimation and the said document is purposely suppressed. Seemingly, the prosecution could not come out with proper explanation in this regard. Since the injuries sustain were superficial in nature and the opinion of PW16 is also to the effect that cardiac arrest could not be ruled out, thereby it was natural death, we are of the view that an offence under
Section 302 IPC is not made out. However, there are positive materials produced on the side of the prosecution regarding the involvement of the accused in the crime. It was the accused, who went to the residence of the deceased with knife concealed in his suitcase and inflicted injuries on the front and back portion of the neck of the deceased. Looking at the nature of the injuries sustained, we can presume that the accused had no intention to cause the death of the deceased. Under such circumstances, we are of the considered opinion that the offence committed by the appellant will come under
Section 326 IPC; therefore, while setting aside the order of conviction of sentence under
Section 302 IPC passed by the lower Court, the appellant is convicted under
Section 326 IPC and sentenced to undergo rigorous imprisonment for two years
10. In the result, the criminal appeal is partly allowed.
JIKR To
1.The Principal Sessions Judge, Madurai.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
3.The Inspector of Police, Vikkiramangalam Police Station, in Cr.No.100 of 2006, Madurai District.