Sathiyaraj vs The Inspector of Police, Kulasekharam Police Station

S. Nagamuthu, J.—The appellant is the sole accused in S.C. No. 184 of 2007 on the file of the learned Sessions Judge, Kanyakumari Division at Nagercoil. He stood charged for offences under Sections 294(b), 341 and 302 IPC. The trial Court convicted him under Sections 341 and 302 IPC alone and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for one year for the offence under Section 302 IPC and to undergo simple imprisonment for one month for the offence under Section 341 IPC. The trial Court acquitted the accused from the charge under Section 294(b) IPC. Challenging the said conviction and sentence, the appellant is before this Court with the appeal.

The case of the prosecution in brief is as follows:

The deceased in this case was one Mr. Rajendran. P.W. 3 is his friend. On 25.12.2006, a gold ring belonging to one Athan was found missing. Mr. Aththan made a complaint against the deceased and P.W. 3 alleging that they had committed theft of the same. But no case was registered on the said complaint, instead, an enquiry was held in the police station. At the end, the matter was amicably settled. Athan is none else than the brother-in-law of the accused. In such a view the accused had also enmity with the deceased and P.W. 3. This is stated to be the motive for the occurrence.

2.1. On 26.03.2007, the deceased and P.W. 1, namely, the wife had gone to Kulasekaram shandy. After purchasing some goods there, they were returning to their house. When they were passing through the house of one Mr. Anil kumar, the accused suddenly emerged there. At that place, there was enough light. The accused started quarreling with the deceased referring to the above incident, in which, the gold ring was missing. At the end of the quarrel, it is stated that the accused took out a knife from his waist and stabbed the deceased on the right side of the head. Then, the accused fled away from the scene of occurrence. The deceased fell down and died instantaneously. The occurrence was witnessed by P.Ws. 2 and 3 also.

2.2. Immediately, P.W. 1 went to the police station and made a complaint. P.W. 10 was the then Sub Inspector of Police at Kulasekaram Police Station. He received the complaint of P.W. 1 at 10.00 p.m. on 26.03.2007 and registered a case in Crime No. 67 of 2007 under Sections 341, 294(b) and 302 IPC. Ex. P14 is the FIR. Then, he forwarded the complaint (Ex. P1) and the FIR (Ex. P14) to the Court and handed over the investigation to the Inspector of Police.

2.3. P.W. 11 took up the case for investigation at 11.00 p.m. on 26.03.2007. He proceeded to the place of occurrence and prepared an observation mahazar in the presence of P.W. 4 and another witness. He also prepared a rough sketch showing the place of occurrence. Then, he recovered bloodstained earth and sample earth from the place of occurrence (M.Os. 2 and 3) under Ex. P3 mahazar. Then, he conducted inquest on the body of the deceased and forwarded the body for postmortem.

2.4. P.W. 7 - Dr. Rajaian conducted autopsy on the body of the deceased on 27.03.2007 at 12 noon. He found the following injuries:

A stab wound of 2.5 cms. x 1/2 c.m. x 7 c.m. present over the right temple. External wound is horizontal and clean cut. Direction of the wound is from right to left, slightly oblique and downwards. Discharge of the blood present from the wound.

Ex. P9 is the postmortem certificate. According to him, the single injury found on the deceased would have been caused by a wooden log M.O. 1. He gave opinion that the deceased would appear to have died of head injury 12 to 24 hours prior to postmortem.

2.5. In the course of investigation, P.W. 11 arrested the accused on 27.03.2007 at 1.00 p.m. at Kalladimamoodu bus stop in the presence of P.W. 6 and another witness. On such arrest, he made a voluntary confession, in which, he disclosed the place, where he had hidden the knife. The same was reduced to writing. In pursuance of the said disclosure statement, he took the police and witnesses to his house and from the backyard, he produced M.O. 1 - knife. The same was recovered under Ex. P7 - mahazar. Then, he forwarded the accused for judicial remand and handed over the material objects to the Court.

2.6. The investigation was later taken up by P.W. 12 - the succeeding Inspector of Police. He collected the medical records, examined the Doctor, examined many more witnesses and finally laid charge sheet against the accused.

2.7. Based on the above materials, the trial Court framed the charges as detailed in the first paragraph of the judgment. The accused denied the same. In order to prove the case of the prosecution, as many as 12 witnesses were examined, 17 documents and 10 material objects were marked.

2.8. Out of the said witnesses, P.Ws. 1 to 3 are the eye witnesses to the occurrence, who have vividly spoken about the entire occurrence. P.W. 4 has spoken about the preparation of observation mahazar. P.W. 5 has turned hostile and he has not supported the case of the prosecution in any manner. P.W. 6 has spoken about the arrest of the accused on 27.03.2007 and the consequential discovery of M.O. 1 weapon. P.W. 7 - Dr. Rajaian has spoken about the autopsy conducted by him and his final opinion regarding the cause of death. P.W. 8 is the Head Clerk of the Court of Judicial Magistrate, who forwarded the material objects for chemical examination on the orders of the Magistrate. According to the reports, Exs. P11 and P12, human blood of ''B'' Group was found on all the material objects including M.O. 1 - knife. P.W. 9 is the Photographer, who has spoken about the photographs taken at the place of occurrence. P.W. 10 - the then Sub Inspector of Police has spoken about the complaint made by P.W. 1 and registration of the case made by him. P.Ws. 11 and 12 has spoken about the investigation done.

2.9. When the incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witnesses nor to mark any documents on his side. Having considered all the above, the trial Court convicted him under Sections 302 and 341 IPC and accordingly, punished him. That is how, he is before this Court with this appeal.

We have heard the learned senior counsel for the appellant, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully.

The learned senior counsel for the appellant would submit that the presence of P.Ws. 1 to 3 cannot be believed. According to him, even according to P.Ws. 2 and 3, they were present at the place of occurrence by chance. He would further add that unless their presence is probabilized and proved beyond reasonable doubts, their evidences cannot be believed. So far as P.W. 1 is concerned, according to the learned senior counsel, though she had stated that when they were returning after purchasing vegetables, the occurrence had taken place, the vegetables were not found at the place of occurrence, which is evidenced from the observation mahazar and rough sketch. Thus, according to the learned senior counsel, the evidence of P.W. 1 is also doubtful. He would further submit that the medical evidence does not corroborate the eye witness account. He would say that it is the case of P.W. 1 that the accused stabbed the deceased on his left side of the head, whereas the injury was found on the right side of the head. The learned senior counsel would further submit that in the alternative, even assuming that it was this accused, who caused the injuries, the act of the accused would fall only under Section 304(i) IPC.

The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, there are no reasons to reject the evidences of P.Ws. 1 to 3 at all. They are the eye witnesses, who have vividly spoken about the occurrence. As far as the delay in FIR is concerned, he would submit that absolutely, there is no delay in despatching the same to the Court, which would also go to vouch for the truth of the contents of the FIR. He would further submit that the recovery of M.O. 1, at the instance of the accused, would further strengthened the evidences of P.Ws. 1 to 3. From these evidences, according to the learned counsel, the prosecution has proved that it was this accused, who caused the injury on the deceased. He would further submit that going by the injury and situs of the injury, it could be inferred that the accused had the intention to cause the death and he is liable to be convicted under Section 302 IPC.

We have considered the above submissions.

Admittedly, P.W. 1 is the wife and P.W. 2 is the brother of the deceased and thus, they are not only related, but also inimical towards the accused. P.W. 3 is the one against whom complaint was made by the brother-in-law of the accused along with the deceased. Thus, admittedly, P.W. 3 is also an inimical witness. But, at the same time, on that score, we cannot reject out right the evidences of P.Ws. 1 to 3. Prudence requires that their evidences should be closely scrutinised. On such scrutiny, if it is found that their evidences inspire the confidence of this Court, there can be no impediment either legally or factually to act upon their evidences. Here, in this case, P.W. 1 had stated that she was returning with the deceased from the market and at that time, the occurrence had taken place. The only argument advanced by the learned senior counsel to assail the evidence of P.W. 1 is that the vegetables were not found at the place of occurrence. We find it difficult to attach any importance to the absence of vegetables at the scene of occurrence. Though P.W. 1 had been cross examined at length, nothing had been elicited to make even as a slightest doubt regarding the veracity of the evidence of P.W. 1. Thus, we do not find any reason to reject the evidence of P.W. 1 at all.

Similarly, P.Ws. 2 and 3 are interested witnesses. Their presence, however, has been duly spoken to by them. They have stated that after finishing their day work, they started returning and at that time, they saw the occurrence. Though they happened to be chance witnesses, they are clearly evidenced to explain their presence at the place of crucial occurrence. Therefore, we do not find any reason to reject the evidences of P.Ws. 2 and 3 also.

There is no delay also in preferring the complaint and in despatching the same to the Court. It also goes to vouch for the truthfulness of the allegations to some extent. Thus, from the evidences of P.Ws. 1 to 3, in our considered view, the prosecution has clearly proved the case without any doubt that it was this accused, who caused the injury on the head of the deceased.

The learned senior counsel would submit that the medical evidence does not corroborate the evidences of P.Ws. 1 to 3. According to him, if really the accused was standing in front of the deceased and caused injury with his right hand, the injury would have been only on the left side, whereas the injury found on the left side of the deceased. P.W. 1, in chief examination, had stated that the injury was caused on the right side of the head, whereas the injury was found on the left side. In our considered view, there is no force in the argument of the learned senior counsel, in this respect, because at a time of occurrence, the deceased would not have been standing static, when an attempt was made to stab him. He would have been moving. In such an event, the blow would have fallen on the left side of the head. Similarly, the so called contradictions between the evidences of P.W. 1 and the FIR, as to where the single blow was caused is also immaterial, because at that juncture, P.W. 1 would not have been very minutely noticing, as to where the stab had fallen. Thus, in our considered view, the prosecution has proved that it was this accused and this accused alone, who had caused the injury on the left side of the head of the deceased, which resulted in his death.

Now, the next question is to what is the offence that the accused had committed by his act. The learned senior counsel would submit that the act of the accused would clearly fall under Exception (1) to Section 300 IPC. But the learned Additional Public Prosecutor opposed the same stating that the situs of the injury, the weapon used and the motive would all go to show that the accused had intention to kill the deceased.

We have considered these submissions.

Admittedly, this is a case of single stab. The injury was on the head of the deceased. It is not as though the accused had made any more attempts to cause any more injury. As soon as causing the single injury, the accused fled away from the scene of occurrence without even causing any more attempt to cause any more injury. This would go to show that he had no intention to cause the death. At the same time, it is inferable that the accused had intention to cause injury on the head, which is sufficient in the ordinary course of nature to cause death. Thus, the act of the accused would fall under the limb 3 of Section 300 IPC. At the same time, it is seen from the evidences of P.Ws. 1 to 3, that there was a quarrel between the accused and the deceased. It was only in culmination of the said quarrel, the accused had caused a single blow. The meeting of the accused and the deceased at the place of occurrence was by sheer chance. The accused would not have anticipated that the deceased would be come to that place and equally, the deceased also would not have anticipated that the accused would come to that place. Thus, their meeting was by chance and so there would have been no premeditation on the part of the accused to cause the death of the deceased. From the facts placed before us, we are able to presume under Section 114 of the Indian Evidence Act, 1872, there would have been provocation at the end of the quarrel emanating from the deceased and in our considered view, the said provocation was grave enough to make the accused to lose his self control. The absence of premeditation would also justify such presumption. It was only on account of the said provocation, the accused would have lost his mental balance and would have caused the single stab and ran away. Thus, the act of the accused, in our considered view, would fall clearly within the 1st exception to Section 300 IPC and therefore, he is liable to be convicted only under Section 304(i) IPC.

Now, turning to the quantum of punishment, the learned senior counsel would submit that the accused is aged 65 years. He has got a big family to take care of. He has reformed himself. The learned Additional Public Prosecutor would, however, oppose this. But he is not in a position to dispute the mitigating circumstances stated by the learned senior counsel for the appellant. As we have already pointed out, there is no premeditation and the weapon used was also an ordinary pen knife, which normally, the villagers used for domestic purposes. Having considered all the mitigating as well as aggravating circumstances, with a view to strike a balance, in our considered view, directing the appellant to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- would meet the ends of justice for the offence under Section 304(i) IPC. For the offence under Section 341 IPC, no interference is called for.

In the result, the criminal appeal is allowed in part, in the following terms:

(i) The conviction and sentence imposed on the appellant under Section 302 IPC is set aside and instead, he is convicted under Section 304(i) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- (Rupees five thousand only), in default, to undergo rigorous imprisonment for four weeks.

(ii) The conviction and sentence imposed on the appellant under Section 341 IPC is confirmed.

(iii) It is directed that the period of sentence already undergone by the accused shall be set off under Section 428 Cr.P.C.

(iv) The trial Court shall take steps to secure the accused/appellant to commit him in prison to serve out the remaining period of sentence.