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Judgment
A.S. Venkatachalamoorthy, J.—The Appellant / Accused has preferred the above appeal, being aggrieved by the learned Sessions Judge, Dirdigul, in Sessions Case No. 4 of 1993, holding him guilty u/s 302 IPC for causing the death of one Krishnanat about 1.30 p.m. on 17.5.1992 at the village called Punnapatti and sentencing him to life imprisonment.
According to the prosecution the deceased Krishna, his wife Backiam PW 1 and one Azhagan PW 4 were employed under a land owner in the village called Punnapatti. The said land is situated, adjoining the river known as Thiumanimutharu. In view of that location the said land owner by name Balasubramani was particular that the sand is not removed in the said river. On the date of occurrence, the deceased Krishnan and his wife PW 1 were doing some farm work in the land of the said Balasubramani. At about 1.30 p.m. a lorry came with some workers for the purpose of taking sand from the river, just close to the land where they were working. As directed by the land owner, the deceased Krishnan told them not to remove the sand and prevented them. The cleaner of the lorry (the Accused) questioned the authority of the deceased in asking them not to remove the sand and in the meantime, the other workers, who came in the lorry started removing the sand. The deceased questioned the accused as to why he was shouting and talking in that manner. The accused then took MO-I stone lying on the floor and threw it on the chest of the deceased and ran away.
The workers, who came in the lorry also left. The deceased, who sustained the injury because of the stone throw, fell down. PW 1, the wife of the deceased and PW 4, a co-worker of the deceased went near and found the deceased dead. Thereafter, both of the them proceeded to the house of the land owner Balasubramani, and after informing him. went to Natham Police Station, where PW 1 gave the complaint Ex. P1. In the said complaint, PW 4 has also signed. The complaint given by PW 1 was received by the sub-inspector PW 9, who registered Cr. No. 176/92 and prepared Express F.I.R. Ex. P6. Thereafter, the sub-inspector dispatched the same to the court of Judicial Magistrate and also informed his superiors. PW 10, the Inspector of Police, who received information by wireless went to the police station and after receiving a copy of the F.I.R. proceeded to the scene of occurrence and reached there at about 4.30 p.m. The Inspector prepared Ex. P4 observation mahazar and Ex. P7 sketch in the presence of PW 7 and another. M Os 1 and 2 stones that were found at the scene of occurrence were seized under Ex. P5.
He conducted inquest between 5.30 and 9.30 p.m.
In the presence of Panchayatdars viz. Raman Chettiar, Backiam PW 1, Ramasamy. Rathinam, Ponnan and others and Ex. P8 is inquest report. During inquest the examined PWs 1, 2, 4 and 7. Balasubramanian. Mayazhagan and others. Thereafter, the body was sent through a constable to the Government Hospital along with a requisition Ex. P2 for the purpose of conducting post-mortem.
The Doctor PW 6 at the Government Hospital Dindigul on receipt of the requisition, conducted post mortem on the body of the deceased on 18.5.1992 at about 12.55 p.m. Ex. P3 is the post mortem certificate. In the said certificate, the doctor has noted the following:
(1) Very superficial abrasion over the front of left side of chest 2" x 1/4" in size 11/2" below the left nipple. On dissection Contusion of subcutaneous tissues 2" x 1/4" over the region of left 6th rib and fracture of left 6th rib in the anterior aspect was found.
Internal Examination: Opening the chest: Fracture of left 6th rib in the anterior aspect present contusion of lower part of upper lobe of left lung 2" diameter found 100 CCS of liquid and clotted blood present in the left pleural cavity contusion of 1/2" diameter over the upper part of left dome of diaphragm found. Contusion of 1/2" diameter over the pericardium in the apex and 150 CS of liquid and clotted blood in the pericardial cavity, contusion 1" diameter over the apex of the heart-present. At the centre of contusion of heart a perforation 1/4" diameter entering into the left ventricle present chambers empty. Weight of heart 200 gms left lung 300 gms. Right lung 350 gms. Hyoid bone intact. No foreign body in larynx Trachea.
Abdomen: Stomach 250 gms. contains liquid food partly digested. No specific smell. Liver 1100 gms. pale. Spleen 75 gms. pale Kidneys 100 gms. each pale. Small intestine empty. Large intestine contains faces 50 ccs of urine in the Unrinary bladder. No fracture-pelvis.
Skul: No fracture skull bone, membranes intact. Brain weight 1100 gms. Pale.
In the said certificate, the doctor had opined that the deceased would appear to have died of shock and hemorrhage due to injury to heart and chest and that death would have occurred about 22 to 24 hours prior to autopsy. It is also stated therein that external injury could have been caused by a stone like MO-1 and that the same is necessarily fatal. PW 10 the inspector of Police, on 17.5.1992 at about 10 p.m. near the bus stand in Natham Koilpatti arrested the accused and he was produced before the court on the next day. On 18.5.1992, he examined PW 5 Palayapan. The further investigation was continued by PW 11 from 1.6.1992. After completing the investigation, the inspector of police filed his report on 15.9.1992.
When questioned u/s 313 Code of Criminal. Procedure the accused denied having committed any offence. According to the accused, he was not employed as cleaner in the said lorry as claimed and further that he was not at all present in the scene of occurrence at the time alleged by the prosecution.
PW 6 is the Doctor, who conducted autopsy on the body of the deceased on 18.5.92 at about 12.55 p.m. and Ex. P3 is the post mortem certificate issued by him. According to the doctor, on internal examination, he found Fracture of left 6th rib in the anterior aspect, he also noted contusion of 1" diameter over the apex of the heart and at the center of contusion of heart, a perforation 1/4" diameter entering into the left ventricle. The Doctor had opined that the deceased would have died of shock and hemorrhage due to injury to the heart and chest. The Doctor has also deposed that the external injury could have been caused by a hit with a stone like MO-1 and that the injury is necessarily fatal. Of course, the doctor has stated in the cross-examination that if a person runs and falls in a pit with a depth of 9 feet on a rough stone, such an injury could be sustained. We may straight away point out that there are no materials before court which would substantiate such a case of the accused. We have no hesitation to hold that the deceased died only of homicidal violence.
According to the Prosecution the occurrence was witnessed by PW 1 the wife of the deceased as well as PW 4, a co-worker. Both the witnesses have categorically stated that on the fateful day that was on 17.5.1992, when the deceased PW 1 and 4 were engaged in some agricultural work in the land belonging to Balasubramani,...asked those people not to remove sand from the said river, as the same would cause damage to the land. Further, these witnesses have spoken to the effect that the accused replied roughly and questioned the authority of the deceased to object and whereupon, the deceased questioned the accused as to why he was behaving in such a manner. At that time, the accused took MO-1 stone and aiming at the deceased, threw the same, which fell on the chest and the deceased, who received the stone-hit fell down and died soon thereafter. According to the prosecution, the accused and the others, who came in the lorry left the scene immediately PW s-1 and 4 thereafter proceeded to see their master and after informing him went to the police station and PW 1 gave the complaint Ex. P1 to the sub-inspector of police.
We perused the testimonies of these two witnesses viz., PWs1 and 4 and straight away we may say that they infuse confidence in the minds of this Court. As referred supra the occurrence was at 13.30 hours on 17.5.92 and that complaint to the police was lodged at 15.00 hrs. on the same day, even though the police station was at a distance of 5 kms away from the scene of occurrence. Thus, there was an immediate complaint lodged by the wife of the deceased and in the said complaint all the details have been given. In the complaint the presence of PW 4 at the time of the occurrence has also been mentioned. We also find that this complaint was received by the Magistrate on the same day at 18.15 hours. Thus, we find that the complaint was given immediately and the same contains all the details. Secondly, as far as these witnesses viz., PWs 1 and 4 are concerned, their presence at the scene of occurrence is quiet acceptable. When that being so. if really the deceased was attacked by somebody else other than the accused, certainly they would not have left the real assailant and implicated the accused. In fact barring the brief quarrel between the deceased and the accused on that day, there was no previous ill feeling or enmity between them.
Learned Counsel appearing for the Appellant of course, would endeavor to convince this Court to reject the testimonies of PWs 1 and 2. As far as PW 1 is concerned it is submitted that her conduct in proceeding to the police station, leaving the deceased alone at the scene of occurrence, is quiet improbable. Secondly, it is contended that the deceased sustained the injury when ran and fell down.
Finally, it is suggested that PW 1 was not aware as to who all came in the lorry and only by sheer guess, she had laid the compliant. We do not find any substance in any of these submissions. PW 1 immediately after the deceased falling down went near and after lifting him, realized that the deceased had already died and only thereafter, she left the deceased there and went to the police station. It is not as if that when she left the scene of occurrence, the deceased was alive and that she failed to give some first and or take steps to take him to the Hospital. As far as the second submission that the deceased ran and fell down only in that process, he sustained the injuries the same cannot be accepted because there was no reason for the deceased to run. No materials have been placed and not even a suggestion has been made to clarify that factual aspect. Thirdly, the contention that PW 1 gave complaint only out of guesswork cannot be accepted since it has not been substantiated.
As far as PW 4 is concerned, it is submitted that in the cross-examination, he has admitted that he came to know that the deceased sustained injuries only because of the stone throw by the accused when informed by PW 1, the wife of the deceased. Even Assuming for a moment that PW 4 did not actually see that fact remains that PW 4 was very much present at the scene of occurrence and in fact the presence of PW 4 also finds a place in the FIR The only suggestion put to this witness is that he was not aware of anything about the occurrence and that he has deposed only falsely.
Even assuming for a moment that PW 4 was not an actual eye witness to the occurrence, in as much as we are inclined to accept the testimony of PW 1, we come to the conclusion that it was the accused, who caused the death of the deceased.
Learned Counsel for the Appellant then contended that even assuming that it was the accused, who was responsible for causing the death of the deceased, even according to the prosecution, the accused took the stone that was there on the floor and threw it on the deceased and as to what was the distance between the accused and the deceased is not mentioned by PW 1 so also by PW 4. It cannot be said that the accused intended to cause the dead of the deceased and all that can be safely said is that the accused desired to attack the deceased with the stone.
We find considerable force in the submissions made by the learned Counsel. The case of the prosecution is that the accused threw a stone, aiming at the deceased, which fell on the chest of the deceased. As to what was the distance between the accused and the deceased the prosecution has not let in any evidence. A suggestion was put to PW 1 in the cross-examination that the distance was 60 feet but the same has been denied. Hence there is no evidence as to what was the distance between the deceased and the accused when the accused threw the stone. Secondly, two stones have been recovered viz. MOs 1 and 2. We do not understand as to why they seized M0 2 if really the accused attacked the deceased with M01. That apart the mahazar witness PW 7 has, in his cross-examination, categorically stated that the police seized two stones from the scene of occurrence, but none identified them, but however, PW 1 has stated in her cross-examination that she identified both the stones. Admittedly, MO l was not blood stained. From these circumstances, we deem it not safe to conclude that it was MO 1 stone with which the accused hit the deceased. Secondly, as rightly pointed out, barring that day''s quarrel, there was no previous enmity between the accused and the deceased. Moreover, that day''s occurrence was not so serious which would have prompted or induced the accused taking such an extreme decision of finishing off the deceased. The materials available on record would only show that the accused wanted to attack the deceased because he objected to the removal of sand therefore, took a stone available on the floor and threw it on the deceased. We do not know the size and weight of the stone but however, the stone hit had caused fracture of 6th rib and also caused some damage to the heart. Hence, that should be similar to MO 1. In these circumstances, this Court can only come to the conclusion that the accused had no intention to cause the said injury and that he could not have had knowledge that such a stone throwing would result in an injury that would be sufficient in the ordinary course of nature to cause death.
As already noted, the deceased sustained a fracture of left 6th rib in the anterior aspect and some injury to the heart. In these circumstances, we are of the view that the accused can be held guilty only u/s 326 IPC, and not u/s 302 IPC. In this view of the matter, we set aside the conviction and sentence as against the Appellant/accused u/s 302 IPC and instead convict him u/s 326 IPC and sentence him to undergo rigorous imprisonment for two years.
The appeal is allowed to the extent indicated above.
It is reported that the Appellant/accused is on bail. Hence, the learned sessions Judge, Dindigul, shall take steps to commit him to jail to undergo the remaining period of sentence.