Nammalwar vs State by: Inspector of Police, Valasaravakkam Police Station

C. Nagappan, J.—The accused Nammalwar in Sessions Case No. 37 of 1991 on the file of Sessions Judge, Chengalpattu, is the Appellant, who challenges the conviction and sentence of imprisonment for life imposed upon him for an offence of murder u/s 302 of I.P.C. in this appeal.

The charge u/s 302 of I.P.C. against the Appellant is on an allegation that on 24.8.1990 at about 1.15 p.m., the accused stabbed Kathirvelu on his left and right chest resulting in his death.

The learned Sessions Judge convicted the Appellant, who hereinafter will be referred to as the accused in this judgment for the sake of convenience, and sentenced him to undergo imprisonment for life on the charge of murder.

To prove its case, the prosecution has examined P.Ws. 1 to 12 and marked Exs.P-1 to P-21 as well as M.Os. 1 to 3.

The case of the prosecution as discerned from oral and documentary evidence can be summarised as follows:

P.W. 1 Arumugham is the younger brother of the deceased Kathirvelu and P.W.2 Damodharan is his elder brother. The accused was residing in Royala Nagar. The deceased Kathirvelu built 10 shops in Valluvar Street and in two shops he was running a provision store. PWs. 1 and 2 were assisting him in his business. Kathirvelu had rented out the other shops and one Marimuthu, who was working in AUDCO Company, had taken the last shop on rent and was running a bunk shop in it with the help of P.W.5 Siva. 10 days prior to occurrence, accused Nammalvar was standing before P.W.5 Siva''s shop and was making fun of ladies passing through the street and the deceased Kathirvelu called Marimuthu and P.W.5 Siva and complained about the above act of the accused to them on the ground that this would result in bad name to him and he further directed them not to allow the accused near their shop, failing which, they would have to vacate the shop. On the next day, when the accused came to the shop at 10.30 a.m., and Marimuthu and P.W.5 asked the accused not to visit the shop and they also informed him about the warning of Kathirvelu in this regard.

On 24.8.1990, Friday, at 11.00 a.m., when P.W.1 Arumugham was in the shop, accused Nammalwar came there and enquired Kathirvelu as to why he asked Marimuthu and P.W.5 Siva to vacate the shop and Kathirvelu asked him as to why he is supporting P.W.5 Siva. Accused Nammalvar asked Kathirvelu as to whether he and his brother are men of good behaviour and Kathirvelu slapped him the cheek of the accused. Accused left the place. At about 1.15 p.m., P.W.1 Arumugham was in the provision store and Kathirvelu was standing outside the shop and P.W.2 Damodharan brought meals from the house. P.W.3 Mohan also came there. At that time, the accused Nammalwar, who was going on the road, went to Kathirvelu and told him when I was unarmed you slapped me, I will not leave you alive'' and took M.O. 1 knife from his waist and stabbed Kathirvelu on both sides of his chest and threatened P.Ws.1 to 3 and ran away with M.O.1 knife. P.Ws.1 to 3 and P.W.7 took the injured Kathirvelu to Vijaya Hospital, Chennai and admitted him by 2.00 p.m.

P.W.1 went to Valasaravakkam Police Station and gave Ex.P-1 complaint about the occurrence to the Sub-Inspector of Police, who registered a case and prepared Ex.P-15 First Information Report and despatched the same. P.W.12 Inspector Janardhanam obtained the report at 3.30 p.m. and took up the investigation.

P.W.12 Inspector Janardhanam reached the occurrence place at about 5.00 p.m. and prepared Ex.P-16 Observation Mahazar in the presence of witnesses and he also prepared Ex.P-17 Rough Sketch. He reached Vijaya Hospital at about 7.00 p.m. and found Kathirvelu in an unconscious stage. He examined P.Ws. 1 to 3 and P.W.7 and recorded their statements. Vijaya Hospital gave Ex.P-20 Intimation about the admission of Kathirvelu in the hospital. P.W. 12 Inspector examined some witnesses on 25.8.1990 and recorded their statement. He examined P.W.4 and some other witnesses on the same day and recorded their statements. He seized M.Os. 2 and 3 clothes worn by the deceased under Ex.P-14 Mahazar in the presence of witnesses.

On 26.8.1990, at 3.00 p.m., he arrested the accused near the bus stop in Ramavaram and examined the accused and recorded the statement given by him and the admissible portion of the same is Ex.P-6. The accused took the police party and he produced M.O.1 knife and P.W.12 Inspector recovered the same under Ex.P-7 Mahazar in the presence of P.W.8 Vasu and another. P.W.12 gave P-8 requisition to send the material objects for chemical examination. P.W.9 Srinivasa Varadhan, Head Clerk of Judicial Magistrate Court No. 1, Poonamallee sent the material objects for chemical examination through Ex.P-9 letter of the court. Ex.P-10 Chemical Examiner Report and Ex.P-11 Serologist Report were received in the court, P.W.12 Inspector examined P.W.5 and some other witnesses on 30.8.1990 and recorded their statements.

P.W. 12 Inspector received intimation that Kathirvelu died in the hospital at 1.40 p.m. on 1.9.1990 and he altered the case u/s 302 of I.P.C. and prepared Ex.P-18 Express Report and despatched it. He conducted inquest on the body of Kathirvelu and prepared of Ex.P-9 Inquest Report. At the time of inquest, he examined P.Ws. 1 to 3 and P.W.7 and recorded their statements. He sent the body for post-mortem with Ex.P-12 requisition through P.W.11 Constable.

P.W.10 Dr. Angayarkanni conducted post-mortem on the body of the deceased Kathirvelu at 11.05 a.m. on 2.9.1990 and found the following external injuries on the body.

1) A sutured wound with 4 stitches over the 2nd right intercostal space at the level of mid-clavicular line measuring 2 cms in length. On removing the stitches the wound was found upto the depth of subcutaneous tissues.

2) A sutured wound obliquely placed with 5 stitches from above downwards over the 2nd left intercostal space just below the anterior auxiliary fold. On removing the stitches the wound was seen entering into thoracic cavity cutting the third Rib to a length of 0.5 cm at its lower border. On further dissection the left thoracic cavity contained 250 ml. of dark fluid blood and 60 gms. of blood clots attached to the thoracic wall, and posterolateral surface of the lower lobe of the left lung. On removing the blood clots there was nervous of the lateral aspect of the lower lobe of the left lung.

3) The sutured wound with three stitches at its anterior and the posterior 1 cm of the wound was seen gaping over the 5th left intercostal space transversely placed. On further dissection it was entering into the thoracic cavity.

P.W.10 Dr. Angayarkanni issued Ex.P-13 Post-mortem Certificate and has opined that the deceased would appear to have died of complication following the stab injury of the left side of chest and death could have occurred 18 to 20 hours prior to post-mortem. P.W. 12 Inspector examined P.W. 10 post-mortem Doctor and recorded her statement.

P.W. 12 Inspector gave Ex.P-2 requisition to Chief Judicial Magistrate, Chengalpattu, for recording the confession of the accused. P.W.6 Judicial Magistrate Durai Shanmugham directed that the accused to be produced before him on 10.9.1990 and accordingly the accused was produced before him. Ex.P-3 is the proceedings on that day. The accused was directed to be produced on the next day at 4.00 p.m. and accordingly he was produced at 4.00 p.m. and P.W.6 recorded Ex. P-5 confession given by the accused and the proceedings are Ex.P-4.

P.W. 12 Inspector completed the investigation and filed the final report on 12.9.1990.

The accused was questioned u/s 313 of Code of Criminal Procedure and he denied complicity. He stated that on threat he gave the confession to the Judicial Magistrate.

The learned Sessions Judge convicted and sentenced the accused for the charge as stated earlier and the accused has preferred the present appeal.

The deceased Kathirvelu found fault with the conduct of the accused making fun of ladies passing through the street in front of his shops and his warning to his tenant Marimuthu to vacate the shop is stated to be the motive for the occurrence. Admittedly, the deceased Kathirvelu built 10 shops in Valluvar Street and in two shops he was running a provision store and he had rented out the last shop to Marimuthu who was running a bunk shop there with the help of P.W.5. P.Ws.1 and 2, who were helping the deceased Kathirvelu in running his provision store, have stated that the accused used to come to Marimuthu''s bunk shop which was looked after by P.W.5 Siva and the accused and his friends were making fun of ladies passing through the street and a few days before the occurrence, their brother Kathirvelu, who was the owner of the shops, called Marimuthu and P.W.5 and condemned the above act of the accused to them on the ground that it would result in bad name to him and he further directed them not to allow the accused to visit the shop, failing which, they would have to vacate the shop. P.W.5 Siva, who was actually running the bunk shop, has stated that the accused along with his friends used to come to his shop and used to make fun of the ladies passing through the street and the owner of the shops, the deceased Kathirvelu, called him and his uncle Marimuthu and found fault with the conduct of the accused in making fun of the ladies before the shop and he further directed them not to allow the accused near the shop, failing which, they would have to vacate the shop and his uncle Marimuthu gave assurance that it would not recur in future and accordingly they conveyed this to the accused and asked him not to visit their shop. According to P.W.1 on the occurrence day, by 11.00 a.m. the accused came to their provision shop and asked Kathirvelu as to why he told Marimuthu and P.W.5 Siva to vacate their bunk shop and Kathirvelu enquired him as to why he was supporting P.W.5 Siva and the accused further asked Kathirvelu as to whether he and his brother were men of good behaviour and Kathirvelu slapped the accused on his cheek and the accused left the place. P.W.5 also has stated that he witnessed the above scene in the morning. In the afternoon the accused had come to the shop of Kathirvelu and the occurrence had happened. So, it is established that there is motive for the occurrence.

In so far as the occurrence is concerned, we have the ocular evidence of P.Ws. 1 to 3. P.Ws. 1 and 2, of course, are the brothers of the deceased and P.W.3 is the brother-in-law of the deceased. Law is settled that the testimony of interested witnesses, cannot be rejected on that ground alone, but the court is bound to scrutinise their version with great care and caution. The deceased Kathirvelu was running a provision store and P.Ws. 1 and 2, who are his brothers, were helping him in the business and their presence in the shop at the time of occurrence is only natural. P.W.3 after his work, had come to Kathirvelu shop in the afternoon and claim to have witnessed the occurrence. According to P.Ws. 1 to 3, at 1.15 p.m. in the afternoon, Kathirvelu was standing in front of the shop and the accused Nammalwar, who was going on the road, went to Kathirvelu and pulled out a knife from his waist and stating " ." stabbed Kathirvelu on both sides of his chest and threatening P.Ws. 1 to 3 with the knife he ran away from the scene with it and they also chased the accused but he speed away. P.W.4 who is a resident of that locality who happened to pass through the street at the time of occurrence, had seen the accused Nammalvar running with a knife chased by P.Ws. 1 to 3. P.Ws. 1 to 3 and P.W.7 took the injured Kathirvelu to Vijaya Hospital, Chennai and admitted him by 2.00 p.m. P.W.1 had gone to Valasaravakkam Police Station at 3.30 p.m. and gave Ex.P-1 complaint to the Sub-Inspector of Police who had registered the case. P.W.1 in his Ex.P-1 complaint has clearly stated about the motive, occurrence and their witnessing the occurrence and the above complaint was lodged immediately after the occurrence, the versions of P.Ws. 1 to 3, who had witnessed the occurrence, is natural, cogent and trustworthy and their presence in the occurrence place also cannot be doubted. From their version, it is clear that the accused stabbed Kathirvelu with knife at the time of occurrence.

The accused was arrested on 26.8.1990 at 3.00 p.m. near the bus shop in Ramavaram and he was questioned in the presence of P.W.8 Vasu and another and he came out with a statement and the admissible portion of the same is Ex.P-6. In pursuance of the said statement, the accused took the police party to the river bank and took M.O.1 knife from the bush nearby and produced the same and P.W.12 Inspector recovered the same under Ex.P-7 Mahazar attested by P.W.8 Vasu and another. Kathirvelu died in Vijaya Hospital on 1.9.1990. According to post-mortem Doctor P.W.10 Dr. Angayarkanhi, the injuries found on the body of Kathirvelu could have been caused with a knife like M.O.1. M.O.1 knife was sent to Chemical Examination and human ''O'' group blood was detected in it as per Ex.P-10 Chemical Examiner Report and Ex.P-11 Serologist Report. The clothes of the deceased M.Os. 2 and 3 also contained ''O'' group human blood as per the above reports. Hence, it is clear that the accused used M.O.1 knife to stab the deceased.

The accused is said to have given a confession before the judicial magistrate, but, the accused when questioned u/s 313 of Code of Criminal Procedure had retracted the same and told that on threat he had given it. P.W.6 Judicial Magistrate Durai Shanmugam has stated that pursuant to Ex.P-2 Requisition to record the confession of the accused, he directed the accused to be produced before him on 10.9.1990 and accordingly he was produced on that day and he conducted first day his proceedings. It was marked as Ex.P-3. P.W.6 Judicial Magistrate has further stated that he directed the accused to be produced on the next day at 4.00 p.m. and accordingly the accused was produced before him on the next day and he recorded Ex.P-5 confession given by the accused on that day. Ex.P-4 are the proceedings of the Magistrate on the second day. The accused in Ex.P-5 confession has stated that he used to go to the shop of P.W.5 Siva and the owner of the shop beat P.W.5 and when he enquired about the same, the owner beat him also by scolding him in filthy language and the owner took out a knife from the shop and tried to stab him and he pulled the knife from owner''s hand and stabbed him. The confession must be true, voluntary and trustworthy for acceptance. In the present case, the accused himself has stated that he did not voluntarily give the confession to the judicial magistrate. Further, the confession does not appear to be true in view of the version of the eye witnesses as discussed earlier and it does not inspire confidence. Hence, Ex.P-5 confession deserves to be rejected and accordingly rejected.

Immediately after the occurrence, P.Ws.1 to 3 and P.W.7 took the injured Kathirvelu to Vijaya Hospital, Chennai and admitted him at 2.00 p.m. on 24.8.1990. Ex.P-20 is the Intimation sent by the Vijaya Hospital to the Inspector of Police and in it the duty Medical Officer has informed that injured Kathirvelu was brought by Damodaran to the hospital and Kathirvelu was allegedly stabbed in the chest twice around 1.15 p.m. at Raja''s Store and one stab injury was found above the right nipple and another stab injury was found above lateral nipple and the injuries were grievous. P.W.12 Inspector had stated that he went to Vijaya Hospital at 7.00 p.m. on the occurrence day and found Kathirvelu unconscious and examined P.Ws. 1 to 3 and P.W.7 and recorded their statements. Kathirvelu died on 1.9.1990 and Ex.P-21 is the death certificate issued by Vijaya Hospital and the cause of death is mentioned in it as Qudirespiratory arrest secondary to stab injury chest. P.W.12 Inspector had sent the body for post-mortem with Ex.P-12 requisition and P.W.10 Dr. Angayarkanni had conducted autopsy and she had stated that she had seen a sutured wound over the right intercostal space and on removing, the stitches the wound was found upto the depth of sub-cutaneous tissues and she had found another sutured wound over the left intercostal space and on removing the stitches the wound was seen entering into thoracic cavity cutting the third rib and on further dissection 250 ml. of dark fluid blood was found in the left thoracic cavity and she has also found a wound over the left 5th intercostal space entering into thoracic cavity and she had stated that the injuries found on the left chest over the second left and fifth left intercostal space were sufficient to cause death in the ordinary course of nature and she had opined in Ex.P-13 postmortem certificate that the deceased would appear to have died of complication following the stab injury on the left side of chest. So, it is clear that the stab injury found on the left side of chest was sufficient to cause death in the ordinary course of nature and P.W. 10 postmortem Doctor has concluded that the complication following the stab injury on the left side of chest had caused the death of Kathirvelu. From the above, it can be concluded that Kathirvelu died of homicidal violence.

After having arrived at this conclusion, we are still bound to consider the nature of offence committed by the accused. As already seen, injured Kathirvelu was admitted in Vijaya Hospital on 24.8.1990 and he was treated as inpatient there and he died only on 1.9.1990. The prosecution has failed to examine the doctor who admitted Kathirvelu and the doctors who gave treatment to him in the hospital. In fact, even the case sheet relating to the inpatient Kathirvelu was not marked and no steps seem to have been taken in this regard. P.W. 12 Inspector has stated that he examined Dr. Prabakaran Devaram and Dr. Latha Sri on 4.9.1990 in Vijaya Hospital and recorded their statements and they are now working in foreign countries and hence they could not be examined during the trial. This explanation given by the Investigation Officer can never be accepted. It is the duty of the prosecution to examine all the doctors who had treated injured persons in all medico-legal cases and in cases in which the presence of doctors could not be secured for some reason, the case sheets showing the treatment given to the inpatients can be marked through available doctors in the hospital and those doctors can testify the actual treatment that was given in the hospital. In the present case, the prosecution has miserably failed in this regard. When the injury sustained by the victim had not been connected as the primordeal or sole cause for the death of the victim and it has been made to appear that the cause for death included complication following, the injury and the death itself was after several days, we are bound to consider if it can be safely held that the accused had intended to cause the very injury which had ultimately ended in the death of the deceased. Almost in similar circumstances, the Apex Court had an occasion to consider this question in Inder Singh Bagga Singh Vs. State of Pepsu, , wherein the occurrence had taken place on 13.3.1952 and the victim expired at the hospital on 2.4.1952. The victim was attacked by the Appellant six times with a lathi. The blows were on the head and neck of the deceased. The medical opinion offered was that injury No. 1 which was on the right parietal region was sufficient in the ordinary course of nature of cause death. It was discerned from the medical evidence that even though the deceased expired after so many days, death was due to the haemorrhage gradually occurring on the side of the injury and gradually pressing the brain more and more leading ultimately to death. The Medical Officer further stated that no medicine could cure such a condition. The trial court and the High Court found the accused therein guilty of murder. The Supreme Court on such facts observed thus:

While agreeing with both the Courts below that it was the Appellant who was responsible for inflicting the injuries which ultimately resulted in the death of the deceased we are, however, of the opinion that even though the blows were inflicted by the Appellant on the head of the deceased with force, the lathi not being iron shod and the deceased being a young man and strongly built the Appellant could not under the circumstances be held to have been actuated with the intention of causing the death of the deceased, nor do we think despite the medical evidence, that the injury was sufficient in the ordinary course of nature to cause death, seeing that he survived for three works and seeing on the doctor''s admission that an injury of that kind is not incurable. But he no doubt know, that he would be causing such bodily injury as was likely to cause death and the offence committed by him would fall u/s 304 Part I and not u/s 302, Penal Code.

In the present case, we have already extracted the medical evidence which cannot be taken as a safe measure to conclude that the direct cause of the death of the deceased was only the stab injury found on the left side of the chest inflicted by the Appellant/accused on the victim. The medical evidence certainly does give room for doubt that in all probability the cause of death could not be solely connected with the injury inflicted by the accused on the left side of chest of the deceased. On the facts and circumstances of the case, we are satisfied that the accused had no intention but had knowledge that he would be causing such bodily injury as was likely to cause death.

For the reasons stated by us, the Appellant/accused will have to be necessarily excluded from the charge or murder. However, on the ocular evidence, we have accepted coupled with the medical evidence, it is clear that the accused by his act had the intention of causing such bodily injury as was likely to cause death. If that be so, the Appellant/accused will be liable to be convicted u/s 304 Part-I of I.P.C. and not u/s 302 of I.P.C. In that view, we set aside the conviction and sentence imposed on the Appellant/accused u/s 302 of I.P.C. and instead, convict him u/s 304 Part-I of I.P.C. For the modified conviction, we sentence the Appellant/accused to undergo rigorous imprisonment for seven years. The appeal is allowed to the extent indicated above.

It is reported that the accused is on bail. The Sessions Judge will take steps to secure and commit him to jail to undergo the remaining period of sentence.