AI Structured Summary
Not yet generated for this judgment
Judgment
M. Karpagavinayagam, J.—Challenging the conviction for the offence u/s 302 I.P.C. and sentence to undergo life imprisonment,
Ramachandran the appellant herein who is arrayed as A1 has filed this appeal before this Court.
The minimal facts which are required for the disposal of this appeal are as follows:
(a) The deceased Ganesan is a Civil Engineer. P.W.4 Kannan is the younger brother of the deceased. He was working as an Assistant in a private
nursing home of Dr. Karunakaran at Sencottai. One Sivakami the sister of the appellant/accused was married to the said Dr. Karunakaran. One
Karuppayee the mother of the appellant did not like P.W.4 Kannan working in the nursing home of her son-in-law. Therefore, she used to scold
the family'' members of P.W.4. The deceased, witnesses and accused all were residing in the village Viswanathaperi. The deceased Ganesan went
to the house of the accused and questioned Karupayee as to why she scolded P.W.4 and his family members. At that time, also the said
Karupayee scolded the deceased and his relatives.
(b) From that day onwards, there was a wordy quarrel between the family members of the deceased and the family members of the said
Karupayee. On the date of occurrence, that is, on 9.1.87 at about 8.00 a.m. the said Karupayee came near the house of P.W.1, who is the
brother of the deceased, in order to throw out the unwanted things into the dustbin and began to scold P.W.1. However, P.W.1 kept quiet. At
about 5.30 P.M. when the said Karupayee was standing near the house of one Meera, P.W.1 went near her and questioned as to why she was
scolding his family members all the time. In retaliation, Karupayee by putting her hand at his chest pushed him on the floor. P.W.1 got up and
threatened that at about 8.00 P.M. his brother, the deceased Ganesan, would come to the village and that they would definitely give a police
complaint against her. This is the motive alleged by the prosecution for the main occurrence that took place at about 8.30 P.M. on the same day.
(c) On 9.1.87, at about 8.30 P.M. near the bus stop at Viswanathperi, the deceased Ganesan after getting down from the bus was talking with
P.W.2 Muniyandi. At that point of time the appellant Ramachandran and his father (A2) suddenly appeared in the scene with a stick and attacked
the deceased. The appellant gave a single blow on the head and A2, father of the appellant attacked on the left shoulder.
(d) After hitting him, they ran away from the place of occurrence. P.W.1 came to the scene at that time. He chased after the appellant and
managed to snatch the stick from him. However, wriggling out of the grip, from P.W.1, A1 and A2 took to their heels and escaped.
(e) The victim Ganesan went to the Police station at Sivagiri and gave a complaint to P.W. 11 Head Constable and the same was registered by
P.W. 13 in Crime No. 16/87 for the offence u/s 325 I.P.C. The printed FIR is Ex.P-12.
(f) Then the victim was sent to the Government Hospital Sivagiri along with the police memo, after arranging for the sending of the documents
Exs.P-11 and P-12 to the court and the higher officials. P.W.7 Doctor attached to the Sivarigi Government Hospital on seeing those injuries on the
victim referred him to Sankarankoil hospital, since there was no proper facility in the hospital.
(g) Thereafter, the victim accompanied by P.W.1 went to the Sankarankoil hospital and met Doctor P.W. 8. P.W. 8 after examining the victim
issued the accident Register Ex.P-3.
(h) From the said hospital, he was again referred to the Tirunelveli Medical College Hospital, since he found that the injuries sustained by the victim
were of grievous in nature. The victim thereafter, came to the Tirunelveli Hospital and he was admitted in the casualty ward. In spite of the
treatment, on 10.1.87 at about 4.10 a.m. he died at the hospital. Therefore P.W.9 Dr. Murugesan sent the death intimation Ex.P-4 to the police.
(i) In the meantime, P.W. 13 after registering the FIR for the offence u/s 325 I.P.C. went to the scene on the same night and prepared the
observation mahazar, rough sketch, etc.
(j) on 10.1.87 at about 8.00 a.m. P.W. 13 received the death intimation and altered the FIR into the offence u/s 302 I.P.C. Ex.P-14 is the express
report. P.W. 15 the Inspector of Police, on getting the news about alteration of the FIR into 302 I.P.C. went to the hospital and took up further
investigation. He conducted inquest between 12.45 and 4.00 P.M. Ex.P-15 is the inquest report. He examined P.Ws.1 to 3 during the inquest.
Then he sent the dead body for post mortem along with Ex.P-5 requisition.
(k) P.W 10 Dr. Balakrishnan conducted autopsy over the dead body of the deceased on 11.1.87 at about 10.30 a.m. and noted two injuries. One
injury was found on the right parietal region and another injury was lacerated injury on the back side of the left knee joint. He issued post mortem
Certificate Ex.P.6.
(l) P.W. 15 the Inspector of Police seized M.O.1 stick from P.W.1''s house on 11.1.87. Thereafter, he came to know that the appellant and A2
surrendered before the Judicial Magistrate at Usilampatti. He sent M.Os. for chemical analysis through court. After completing investigation, he
filed charge sheet before the Judicial Magistrate, Sankarankoil on 18.2.87 who in turn committed the case to the Sessions Court.
During the course of trial, the prosecution examined P.Ws. 1 to 15, filed Exs.P-1 to P-15 and marked M.Os. 1 to 5 on the side of the
prosecution. After the prosecution side is closed, the appellant and the second accused were questioned u/s 313 Cr.P.C. Both of them denied
their complicity in the offence and stated that a false case was foisted against them in order to spoil the life of the first accused, who was studying at
the law college at that time.
On consideration of the entire materials, the trial court concluded that the offence was not proved as against A2 and acquitted him in respect of
the offence u/s 302 read with 34 I.P.C. However, the appellant is found guilty for the offence u/s 302 I.P.C. and he was sentenced to undergo life
imprisonment. As against this verdict, the present appeal has been preferred before this Court.
Mr. Shanmugavelayutham the learned counsel for the appellant would submit that the prosecution has not placed the acceptable materials so as
to base the conviction on the appellant for the offence u/s 302 I.P.C. and that the trial court ought to have acquitted the appellant, in view of the
fact that the materials as against A2 were disbelieved by the trial court.
Per contra, Mr. N.R. Elango, the learned Government Advocate, would submit that the evidence of P.W.1 and 2 which is amply corroborated
by the medical evidence let in through P.W. 7, 8, 9 and 10, would clearly prove the case of the prosecution and apart from these materials, the
complaint given by the deceased which has to be treated as a dying declaration after the death of the victim, since the victim, who had given the
statement, died thereafter, also would give clear details in consonance with the evidence of P.W.1 and 2, at least in respect of the appellant.
To put it briefly, the learned Government Advocate would submit that the finding given by the trial court is perfectly justified and proper and it
does not warrant any interference by this court.
In the instant case, there are two eye witnesses. P.W.1 is none other than the brother of the deceased. P.W.2 is an independent witness who is
the local resident. Both of them would uniformly say that at the time of occurrence, the appellant came to the scene with stick and gave a blow on
the head of the deceased and ran away. According to the counsel for the appellant, there is no direct motive for the accused to attack the
deceased, since the material placed by the prosecution would only go to show that there was a misunderstanding between one Karupayee and
P.W. 1 and as such, in the absence of clear details about the motive, the evidence of P.Ws. 1 and 2 cannot be accepted.
We are not able to accept this contention because the real motive is that on the date of occurrence in the morning as well as in the evening there
was a quarrel between P.W.1 and the mother of the appellant. When the mother of the appellant manhandled P.W.1, he challenged that the
deceased Ganesan would come to the village at about 8.00 P.M. and that both of them would give a police complaint against her. This occurrence
had taken place at 5.00 P.M. whereas the main occurrence has taken place at the bus stop at 8.30 P.M.
According to the evidence of witnesses, the deceased went to Madras and came back to the village and he was just getting down from the bus
and talking to P.W.2. P.W. 1 went to the bus stop in order to receive the deceased. At that time, it is stated that A1 and A2 came to the place of
occurrence and assaulted the deceased. Therefore, the aspect of the motive, in our view, is established, since the appellant had come to the scene
in order to attack the deceased because of the earlier quarrel between P.W.1, the brother of the deceased and the mother of the appellant.
On going through the evidence of P.Ws. 1 and 2 coupled with Ex.P. 11 the statement given by the deceased to the police, we are of the view
that the prosecution has proved its case by placing the materials through the ocular testimony corroborated by the medical testimony that the injury
was inflicted on the head of the deceased only at the hands of the appellant. The mere acquittal of A2 would not absolve the appellant from the
charge for the offence u/s 302 I.P.O.
No doubt, it is true that in Ex.P-11 the statement given by the victim, it is stated that both A1 and A2 attacked. But, the later portion of Ex.P-
11 would reveal that the appellant alone caused the injuries on the deceased by hitting upon the head by means of stick. Moreover, P.W.2 who is
an independent witness, who belongs to some other caste, would categorically state that the appellant came to the place of occurrence with the
stick and caused a single blow on the head of the deceased and ran away.
Therefore, in view of lack of sufficient materials as against A2, the trial court has correctly acquitted him and that acquittal will not in any way
help the appellant inasmuch as there are ample materials through these witnesses that the appellant alone was the perpetrator of the offence with
which he was charged. Therefore, there is no difficulty in coming to the conclusion that the materials placed by the prosecution are acceptable arid
believable, in order to hold that the appellant alone inflicted injury on the head of the deceased, which resulted in his death.
Now, the question which remains to be considered is, whether the act committed by the appellant would come under any of the clause of
Section 300 I.P.C., so as to attract the punishment u/s 302 I.P.C.
The contention of the learned counsel for the appellant is that the entire materials even though accepted to be true, would not certainly attract
the offence u/s 302 I.P.C., since the prosecution has not let in adequate evidence to show that it would come under any of the clauses of Section
300 I.P.C.
On the other hand, Mr. Elango, the learned Government Advocate, would submit that the part played by the appellant would definitely cover
under clause (3) of Section 300 I.P.C. Clause thirdly of Section 300 is as follows:
Section 300, Murder:
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing
death, or�
Thirdly : If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death.
The clause thirdly of Section 300 I.P.C. postulates that the injury in question needs to satisfy two tests to attract the said clause and those tests
are:
(1) The injury must be sufficient in the ordinary course of nature to cause death;
(2) such injury must be intended to be caused by the culprit.
We have to see, whether the prosecution did satisfy these two tests in the present case?
According, to the learned counsel for the appellant, there is no material from the evidence of Doctor P.W.10 that this injury is sufficient in the
ordinary course of nature to cause death. The reading of the evidence of Doctor P.W. 10 would reveal that he only stated that the injury would be
sufficient to cause death. There is no wording with reference to the ordinary course of nature. As regards the second test, the prosecution has to
establish that the injury which is sufficient in the ordinary course of nature to cause death, had been intended by the accused, while inflicting that
injury.
In the instant case, the deceased was beaten by the appellant at about 8.30 P.M. From Viswanathaperi, the deceased had gone to the police
station at Sivagiri which is at a considerable distance, by bus. At about 9 P.M., the deceased reached the police station and he himself wrote the
complaint on a paper and handed it over to P.W. 13 and thereafter, he was sent to Sivagiri hospital where admittedly, no treatment w as given to
him and from there, he was sent to Sankarankoil hospital. There also, the evidence of P.W.8 would show that no treatment was given to the victim.
He was examined at about 23.20 mid-night at Sankarankoil hospital. Thereafter, he was sent to the hospital at Tirunelveli. In the casualty ward, he
died at 4.10 a.m. on 10.1.87.
The evidence of P.Ws.1 and 13 would show that he was conscious throughout till he came to Sankarankoil. Thereafter, he became
unconscious. From Sankarankoil, he was taken to Tirunelveli Medical College Hospital where he was admitted. In fact, the Doctor who admitted
him in the hospital had not been examined. There is no material as to whether any treatment had been given to the deceased. P.W. 10 the Post
mortem Doctor would clearly admit that the deceased would have been saved if immediate treatment had been given. This thing would show that
the deceased even-though sustained injury on the head at about 8.30 P.M. on 9.1.87, he died only next day early morning at 4.10 a.m. and there
is no material to show that any treatment was given to him in Tirunelveli hospital, wherein he was last admitted.
In the light of this factor, we have to consider whether the second test namely, the injury which is said to be sufficient to cause the death in the
ordinary course of nature was intended by the accused while causing such an injury as held by this court as well as the Apex Court. The intention
has to be gathered from various circumstances.
In order to find out the said intention, we have to see the nature of the weapon used the part of the body on which the injury was inflicted, the
nature of the injury and other circumstances leading to death.
No doubt, it is true that according to the prosecution, the appellant came to the scene place with the weapon namely, the stick. But it shall be
noticed that the appellant gave a single hit on the head of the deceased and did run away. It is also seen from the evidence, as indicated earlier, that
after the injury being inflicted on the head the victim went to the police station alone in a bus and thereafter to the Sivagiri hospital and then to
Sankarankoil hospital. During all these hours, he was conscious.
In order to decide the point of issue that arises in this case, it is proper to quote the observation made by the Apex Court in the decision in
Kishore Singh - Vs State of M.P. (1977 S.C.C. (Cri) 656) . The following is the observation:
The distinction between culpable homicide (Section 299 I.P.C.) and murder (Section 300 I.P.C.) has always to be carefully borne in mind while
dealing with a charge u/s 302 I.P.C. Under the category of unlawful homicides fall both cases of culpable homicide amounting to murder and those
not amount to murder. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 I.P.C. But even though
none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still lie required under the
law to bring the case under any of the clauses of Section 300 I.P.C. to sustain the charge of murder. If the prosecution fails to discharge this onus
in establishing any one of the four clauses of Section 300 I.P.C., namely, firstly to fourthly, the charge of murder would not be made out and the
case may be one of culpable homicide not amounting to murder as described u/s 299 I.P.C.
Yet another observation made by the Apex Court in the decision in State of A.P.-Vs-Rayavarapu Punnayya 1976 S.C.C. (Cri) 659) is as
follows:
In clause (3) of Section 300, instead of the words likely to cause death occurring in the corresponding clause (b) of Section 299, the words
sufficient in the ordinary course of nature"" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily
injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and. if overlooked, may result in miscarriage of
justice The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from
the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is the
gravest, medium or the lowest degree. The word ""likely"" in clause (b) of Section 299 conveys the sense of ''probable'' as distinguished from a mere
possibility. The words ""bodily injury...sufficient in the ordinary course of nature to cause death"" mean that death will be the ""most probable"" result
of the injury, having regard to the ordinary course of nature.
In the light of these observation, we have to see whether the death that was caused in this case was the most probable result of the injury
intended and inflicted by the appellant. In view of the evidence of P.W. 10 Doctor stating that the deceased would have survived if timely treatment
was given and the lack of materials to show that at least any treatment was given to the deceased till his death and the failure to examine the Doctor
who admitted the deceased in the Tirunelveli Medical College Hospital would clearly show that it cannot be said that the death of the deceased at
4.10 a.m. on 10.1.87 was caused as a result of the single injury caused by means of a stick by the appellant at about 7.30 P.M. on the previous
day at the scene place.
The learned Government Advocate would vehemently contend on the strength of the above decision that if the stick has been used and the
deceased died out of the stick injuries, the offence would come u/s 302 I.P.C. But, in our view, the facts of that case would not apply to the
present case. That is the case where the accused beat the deceased repeatedly by stick all over the body and caused 19 injuries and out of the 19
injuries, 9 injuries were found to be grievous. Therefore, the intention which is the main ingredient for the offence u/s 302 I.P.C. is apparent from
the fact that the deceased was brutally attacked indiscriminately by the accused in that case.
That is not the case here. In this case, the appellant came with a stick and gave a hit on the head of the deceased and ran away from the place.
The deceased himself narrated the same in the complaint given to the police station and thereafter, he was taken to the different hospitals.
Ultimately, he died at 4.10 a.m. next day. These things would show that the appellant could not have intended to'' cause injury causing death. At
the most, he could have intended to cause the injury which is likely to cause death, in view of the fact that, he gave a strong hit on the head, it could
be held that he inflicted that the intention to cause death attracting Section 299(b) I.P.C.
The Doctor P.W.10 found while conducting post mortem that 2.2 � 1 cm lacerated injury right parietal region, bone deep. Therefore, it
could be inferred from the nature of this injury that the appellant had intended to cause injury which is likely to cause death. Therefore, in our view,
the appellant is liable to be convicted u/s 304 Part-I I.P.C. instead of u/s 302 I.P.C.
In the result, the conviction and sentence imposed upon the appellant u/s 302 I.P.C. are set aside. Instead, the appellant is convicted for the
offence u/s 304 Part-I I.P.C. and sentenced to undergo R.I. for 7 years. With this modification, the appeal is dismissed. The trial court is directed
to take steps to commit the accused to judicial custody to undergo the remaining period of sentence. The bail bond, if any, executed by the
appellant stands cancelled.