Syed Moosa vs State of Tamil Nadu

T. Jayarama Choutam, J.—The appellant Syed Moosa was tried for an offence punishable u/s 302 of Indian Penal Code for committing the

murder of one Salim, by the learned Second Additional Sessions Judge in Sessions Case No. 69 of 1989 and the learned Sessions Judge found

him guilty for the said offence and sentenced him to undergo imprisonment for life. The said conviction and sentence have been challenged in this

Criminal Appeal.

The prosecution case in brief is as follows:

P.Ws. 1, 2, 3, 7 accused and deceased are residents of Madras City. P.W. 1 is an auto driver. On 22.10.88 at about 3.45 p.m. P.W.1 went to

the Maternity Hospital at Pantheon Road to see his relative who has been admitted in the said hospital. He was accompanied by one Simon. When

they went to the hospital, they came to know that P.W.1''s relative has not been admitted. Both of them had tea in front of the said hospital. When

they were standing, they saw an auto rickshaw, which was coming from the side of Ashoka Hotel and it was parked in the sandy place opposite to

the hospital. They heard a cry ""Ayyo, Ayyo, Don''t assault me"". When they looked into the auto, they saw the accused who caused an injury in the

abdomen of one Saleem. The accused after hitting him, threw him down from the auto and the said auto went in the same direction from which side

it came. P.W. 1 and Simon went near the injured. At mat time, P.W. 14/Inspector of Police, F-2 Police Station came and enquired P.W.1 as to

what has happened. P.W. 1 narrated the incident which was recorded by P.W. 14 and he obtained the signature of P.W. 1 in Ex.P 1. P.W. 14

after going to the police station, registered a case in Crime No. 3308 of 1988 for an offence u/s 302 I.P.C. He prepared the F.I.R. and forwarded

the same to the learned Metropolitan Magistrate, which was received by him at 5.45 p.m. in his residence. P.W. 14 prepared the Observation

Mahazar in the presence of P.W.5. He also prepared the sketch Ex.P. 15. He also conducted inquest over the dead body as per Ex.P. 16. During

the course of inquest, he recorded the statements of some of the witnesses. He sent the dead body for postmortem. The Doctor/P.W.13 held the

postmortem on 24.08.88 at 12 noon and found the dead body was having 11 injuries which are as follows:

Abrasion 11/2 � 1/2 cms on upper part of left side of back.

Horizontal abrasion on front of right side of chest 4 � 1/4 cm long.

Oblique abrasion 3 � 1/4 cms. on front of right elbow.

2 cms. below injury No. 3 linear abrasion I � 1/4 cms. long on front of right elbow.

6 cms above injury No. 3 a linear abrasion 3 � 1/4 cms long.

Two abrasions 11/2 cms � 1/2 cm on front and inner aspect of left elbow.

Oblique abrasion 5 cms long on outer Aspect of upper of left forearm.

Two oblique scratch marks 9 cms long on inner aspect of upper part of left forearm.

An oblique incised wound 1 � 1/4 � 1/4 cms on parmar aspect of left thumb over the distal phalanx.

An oblique wedge shaped incised wound 6 � 2 � 3 cms on left side of front of chest over the left costal arch. The inner end is 3 cms away

from the midline. The outer end is 28 cms below the left mid clavicular point with a surrounding contusion 6 � 1 cms over the inner end of the

incised wound. On dissection : Bruising of underlying tissues 9 � 7 � 1/2 cms with a cut 2.5 � 1/2 cms over the left dome of diaphragm.

Oblique wedge shaped stab wound 4 � 2 cms on upper part of front of right side of chest. The upper end is 1/2 cms above the right mid

clavicular point and the lower end is 4 cms from the midline. On dissection: Bruising of underlying tissues 7 � 6 � 1/4 cms with a oblique cut 2

� 1/2 cms on 1st right intercostal muscle. On further dissection; Right thoracic cavity contained 1100 e.e. of fluid blood and there is a cut 2 cms.

long on the upper lobe of right lung over the inner border. The cut in the lung is through and through involving the anterior and posterior surfaces.

Depth of the injury inside the lung is 1 cm the depth of the stab wound is 7.5 cms. Right lung collapsed.

He furnished his opinion that the deceased would have died due to shock and haemorrhage and due to stab injury on his right lung. He issued a

certificate Ex.P. 12. P.W.14 arrested the accused on 26.10.88 at about 8 a.m. in the presence of P.W.6 and recorded his confession statement as

per Ex.P.4. On the basis of the said statement, he seized M.O.3 knife under mahazar Ex.P5. After receiving the report from the chemical examiner

as per Ex.P. 10 and Ex.P.13 and after completing the investigation, he filed the charge sheet.

Learned Sessions Judge framed charges u/s 302 I.P.C. The accused pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 14 were

examined. Exs.P1 to P17 were marked and M.Os.1 to 9 were produced before the Court. On behalf of the defence. D.W.1 was examined. The

defence of the accused was one of total denial. Learned Sessions Judge after conclusion of trial and after examining the accused u/s 313 Cr.P.C.

by putting all the incriminating circumstances which were against him, convicted and sentenced him as mentioned above.

We heard, Mr. Duraiswamy, learned advocate on behalf of the appellant and the learned Additional Public Prosecutor on behalf of the

respondent. They took us through the material evidence and the relevant documents in the case. Learned advocate for the appellant submitted that

the Court below was not justified in placing reliance on the evidence of P.Ws. 1, 2 and 7 to convict the accused. He has further pointed out that all

these witnesses are auto drivers, who were under threat of police and just to oblige the police, have given false evidence against the accused. He

further stated that there is no motive to commit the murder of the deceased Saleem. He further pointed out that there was an inordinate delay in

recording the statement of P.W.7 and the Trial Court was not justified in placing reliance on the evidence of P.W.7. In the alternative, he argued

before us that the act committed by the accused would not amount to an offence of murder in view of the fact that there was scuffle and exchange

of wordy quarrel between the accused and the deceased due to which the said offence has been committed by the accused. On these points, he

prayed that the accused is entitled either for acquittal or for lesser conviction.

We heard the learned Additional Public Prosecutor, on these points. He submitted before us that the learned Sessions Judge was justified in

placing reliance on the evidence of P.Ws. 1. 2 and 7. He also pointed out that the complaint has been given immediately after the incident and the

said complaint was received by the Court without any delay. In the complaint, P.W. 1 who was an eye witness to the incident has clearly stated

how the accused attacked the deceased. He further submitted that, there is material through P.W.3 regarding motive for the commission of

offence. He also pointed out that the delay in recording the statement of P.W.7 does not in any way affect the prosecution case in view of the fact

that other co-witnesses i.e. P.Ws. 1 and 2 have been examined without any delay and their evidence is fully corroborated by the evidence of

P.W.2. As far as alternative stand is concerned, learned Additional Public Prosecutor pointed out that there are some materials to show that there

was exchange of words and scuffle between the deceased and the accused.

It was not disputed before the Trial Court that Saleem, the deceased met with an homicidal death in view of the evidence of P.W. 13 and the

certificate Ex.P. 12 in which the Doctor has clearly stated that the deceased died due to the injuries sustained on the lungs.

The prosecution relies mainly on the evidence of P.Ws. 1, 2 and 7. P.W.1 is an auto driver, who has deposed that on the date of incident i.e. on

22.10.88 at about 3.45 p.m., he along with his friend Simon went to the Maternity hospital at Pantheon Road and they were having a tea in the

hotel in front of the hospital. At that time, they saw one auto rickshaw which was coming from the side of Ashoka Hotel and heard a cry in the auto

Ayyo, Ayyo, do not assault me"". After hearing the cries, they went near the auto and saw the accused causing injury in the abdomen of the

deceased. The accused threw him down from the auto and immediately the auto returned in the same direction from which it came. When P.W. 1

and Simon went near the deceased P.W. 14 the Inspector, F-2 Police Station came there and P.W.1 narrated the incident which was recorded by

P.W.14 as per Ex.P1. In the complaint, Ex.P1, P.W.1 has clearly stated the act committed by the accused on the deceased and the complaint was

recorded by P.W. 14. The said complaint was received by the learned Magistrate in his residence at 5.45 p.m. on the same day. The version given

by P.W.1 is fully corroborated by the complaint which was recorded before P.W. 14. In the cross-examination of the prosecution witness, it was

suggested that he lifted the injured Salim, but his clothes were not seized by the police. The explanation given by the police is that since the clothes

of the witness did not contain any blood stain, the clothes were not seized.

Another suggestion put to the witness was that while signing, he signed merely Ravi instead of putting his father''s initial for which the witness has

stated that he has not mentioned his father''s initial before his name. Only when he remembers his father, he used to mention his father''s initial

before his name. Much importance cannot be given to this answer given by the witness in view of the fact that P.W. 14 went to the scene of

occurrence and recorded the statement from P.W. 1 on the spot. Hence the said answer given by the witness will not any way come in the way of

his evidence. No other useful answer has been elicited in the cross-examination of this witness.

He has denied the suggestion, that the police officials came to the scene of occurrence and started investigation before his arrival to the scene of

occurrence. He has also stated that no case has been registered against him by the traffic police and also denied the suggestion that he goes to

police station frequently to sign his name and he is only a stock witness and he is amenable to the police and the police compelled him to sign in the

complaint Ex.P.1. Learned Sessions Judge has placed reliance on this witness. Nothing useful has been elicited by the defence to discard his

evidence. Hence we also place reliance on the evidence of this witness.

P.W.2 is another eye witness who is also an auto driver and he has also spoken the same facts which has been deposed by P.W. 1. In the

cross examination the defence has not elicited anything which is favourable to the defence. He has admitted that he has got a licence for running the

auto and he knew the road where the occurrence had taken place. He had admitted that he has not gone to the police station to lodge the

complaint since the police inspector P.W. 14 has already come to the scene of occurrence and recorded the statement of P.W. 1. There was no

necessity for P.W.2 to go to police station and give a complaint. The version given by this witness is fully corroborated by the version of P.W.1.

Both the witnesses have clearly stated that it was the accused who stabbed the deceased.

P.W.7 is another eye witness in whose auto rickshaw the accused and deceased travelled. He has stated that on 22.10.88, he was waiting for

the passengers to go to Harrys Road. At that time the deceased Saleem came and sat in the auto. The accused also came with knife and got into

the auto. When he was driving, there was heated arguments and quarrel between the accused and the deceased. The deceased was asking the

accused to leave him to which the accused was telling he would not leave without assaulting. The deceased compelled him to stop the vehicle when

he was nearing the hospital. Then he suddenly stopped the vehicle near the heap of sand. At that time, the deceased was trying to get down from

the auto, but the accused prevented him and caused injury on the shoulder of the deceased and again one more injury on the abdomen. Then huge

crowd gathered. The accused pushed the deceased down from the auto. Then the accused by showing the same weapon asked this witness to

drive the auto. Merely fearing, he drove the auto in the same direction by which he came and the accused threatened him not to inform the matter

to anyone. Otherwise he will close his family. It is true this witness was examined by the police after 15 days. At the time of the accused stabbing

the deceased, he was not aware of the death of the deceased. Only later he came to know about the death. Even if we exclude his evidence, the

evidence of P. Ws. 1 and 2, is sufficient to hold that it was the accused who had committed the act on the deceased. The explanation offered by

the witness for his delayed statement was that he did not go to the police station since he was threatened by the accused. Mere delay of recording

statement will not be a ground to discard the evidence of this witness. Since the evidence of P.Ws. 1 and 2 is natural and cogent, even if the

evidence of P.W.7 is excluded, the prosecution case will not be weakened.

The version given by P.Ws.1 and 2 is fully corroborated by the medical evidence spoken to by the Doctor, P.W. 13, and the certificate Ex.P.

The Doctor has stated that the injuries 1 to 9 would have been caused during scuffle and injuries 10 and 11 found on the dead body would

have been caused by a double edged sharp weapon. The abrasions and scratches would have been caused i.e. injuries 1 to 9 during scuffling and

while falling down on the ground. He has stated that injury No. 11 which was found on the right lung of the body would have caused the death and

the said injury is fatal. The evidence of P.Ws. 1, 2 and medical evidence will go to show that the deceased was done to death by the accused.

In addition to the above evidence, we have got the evidence of P.W.3 who speaks about the motive for the commission of the said offence.

P.W.3 is the resident of Lubbai Street. He knew both the deceased and the accused. He is working as a servant under the deceased. The

deceased Saleem and his brother-in-law Shamsudeen were partners in Iron and Scrap business. He has further spoken that on 22.12.88 at about

2 p.m., himself, deceased and two other persons were in the shop. After sometime, two persons left the place and the accused came from the

lavatory and was talking with the deceased. The deceased asked the accused to pay the balance amount to which the accused told him, that he

was not having any money and he will pay it shortly after he gets it. Then the deceased told him that if he cannot give the money he can ask his

father to come to that place. Before the arrival of his father, there was a heated discussion between the deceased and accused and the deceased

removed his shirts and showed some physical exercises and asked the accused how he would feel if he gives a blow with a fist on his face to which

the accused retorted what would happen if he hits the deceased likewise. There was exchange of words between the deceased and the accused in

a high pitch. The deceased locked the door from inside. The accused asked this witness to leave the place as he was quarrelling with the deceased

only, but the deceased did not allow anybody to go away from the place. At that time accused''s father came, but the accused did not open the

door He advised not to quarrel. At that time the accused took the knife from his waist and threatened the deceased by showing the knife.

Afterwards the deceased ran away. In the cross examination the only suggestion put to this witness was that the deceased was a money lender arid

used to give money on interest. He denied the suggestion that he borrowed money from the deceased. Apart from the above suggestion no other

suggestion was put to this witness why he deposed falsely against the accused. From the evidence of this witness, it is clear that there was motive

for the accused to attack the deceased.

Coming to the alternative submission of the learned counsel for the appellant, there are some materials to show mat there was exchange of

words between the accused and the deceased and also they were quarrelling with each other in the auto rickshaw. Even in the shop of P.W.3, the

deceased and the accused had heated discussions and the deceased removed his shirt and was showing his physique and told the accused if he

gives a blow with a fist on his face, how he would feel for which the accused also retorted the same thing. It is quite clear that from the place of

shop till the accused attacked the deceased there was wordy quarrel between the accused and the deceased. P.W. 7 in whose auto these two

persons travelled also gave evidence that there was heated exchange and quarrel in his auto. In addition to this, the Doctor P.W. 13 has noted

while conducting the post-mortem examination over the deceased that he has consumed alcohol.

Under those circumstances, there is a possibility of heated quarrel and exchange of words between the accused and the deceased which made

the accused to stab the deceased, which cannot be ruled out. Under those circumstances, we are of the opinion that because of the quarrel

between the accused and the deceased, such an act of stabbing has taken place. Hence, we are of the clear opinion that the act committed by the

accused will amount to an offence punishable u/s 304(1) I.P.C.

Accordingly the conviction and sentence u/s 302 I.P.C. passed by the learned Sessions Judge is set aside. Instead the appellant is convicted

u/s 304(1) I.P.C. and sentenced to undergo R.I. for seven years. If the appellant is on bail, he has to surrender before the Trial Court to undergo

the remaining period of sentence.