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2000 DIGILAW 431 (CAL)

S. P. Arunachalam v. State

2000-08-21

PRADYOT KUMAR SEN, SATYABRATA SINHA

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JUDGMENT Sinha, J. This appeal is directed against a judgment of conviction and sentence passed by the learned Sessions Judge, A & N Islands, Port Blair in Sessions Case No.6 of 1999 whereby and whereunder the Appellant was convicted of an offence under Section 304, Part-I of the I.P.C. and sentenced him to rigorous imprisonment for 8 years and also to fine of Rs. 3,000/- i. d. to R. 1. for 6 months more. 2. The case at hand shows how some people commit an offence upon being suddenly provoked and without having any mensrea therefore. 3. The Appellant herein was tried for commission of an offence of committing murder on M. Kasinathan, the brother of P.W.-1 (informant) on 18.11.1997. The prosecution story shortly stated is as follows :- Then informant used to sell groundnut at Mohanpura. His brother, the deceased aged about 40 years at the relevant time used to sell vegetables from stall No. 2l of Mohanpura market. Allegedly, the informant at about 3 p.m. on 18.11.1997, was selling groundnuts in a push cart by the side of the road near the second gate of the Bus Terminus at Mohanpura. At that time the Appellant herein was allegedly selling 'Sarbat'. The deceased went to him and ordered for Sarbat and started some 'funny gossiping' with him wherefore the Appellant became infuriated and started telling that he had always been teasing him and he would not spare him on that day. So stating, the Appellant allegedly lifted a bottle of Sarbat and tried to hit the deceased therewith. The bottle, however, fell down on the road and broke. Whereafter the Appellant, having become more infuriated, lifted a knife meant for cutting lemon and tried to hit the victim but he stepped back. Allegedly, the informant also rushed to the spot to save him but by that time the Appellant had already rushed to his brother and penetrated the knife on his chest and pulled the same out, as a result of whereof he fell down on the road and started bleeding profously. The deceased died as a result of the said injury. 4. The learned Sessions Judge while framing the charge does not appear to have mentioned the time at which the alleged offence was committed as was required under Section 212 of Cr. P.C. 5. In support of the prosecution case, 16 witnesses were examined. P.Ws. The deceased died as a result of the said injury. 4. The learned Sessions Judge while framing the charge does not appear to have mentioned the time at which the alleged offence was committed as was required under Section 212 of Cr. P.C. 5. In support of the prosecution case, 16 witnesses were examined. P.Ws. 1, 2, 5 and 9 are said to be the eye witnesses. P.W. 8, Dr. Wajid Ali Shah conducted the post mortem examination, whereas P.W. 15, B. Saigal was the Investigating Officer. Other witnesses are formal. 6. The learned Sessions Judge, inter alia, held that although the Appellant was guilty of commission of the crime as alleged but he had neither any motive nor mensrea therefore. The Appellant was found guilty of commission of an offence under Section 304, Part-I of the I.P.C. The learned Sessions Judge while considering the question as to whether the offence was committed upon sudden provocation by the deceased held :- . "If the prosecution story through the mouth of the P. Ws. is to be believed, it is found that most of them has stated that the accused was subjected to some funny comments from the deceased which infuriated him and some of the witnesses have stated that they heard the accused to say that the deceased used to make funny comments al ways to the accused persons and that on that day the accused would not spare the deceased. The first act of the accused was to lift a bottle of Sarbat and to try to hit the deceased with the same and as it missed, it fell down on the street and broken. The act of the accused then more voluminised as he did not pick up the second bottle of Sarbat, but lifted the knife meant for cutting for lemons and tried to hit the deceased with the same, although the first one missed as the accused slided away. The next act of the accused person directly again to hurt him, but he chose the middle of the chest of the deceased for giving the second blow with such force with the knife, which penetrated into the chest of the deceased entirely. The next act of the accused person directly again to hurt him, but he chose the middle of the chest of the deceased for giving the second blow with such force with the knife, which penetrated into the chest of the deceased entirely. Here the provocation was not a sudden since it was the practice prevalent in between the accused and the deceased as per comments of the accused person, which is revealed through the mouth of different eye witnesses. It may be that being a subject to a consistent funny comments from the deceased, anger in the mind of the accused fermented day-to-day and it was a sudden outburst on his part on the date of incident and committed the crime of giving a fatal assault on the accused to cause the grievous injury on the person of the accused, and, according to the doctor who conducted the post mortem examination, death was instantaneous as the penetrating injury No.1 bisected a portion of the left Lung and lower portion of the ventricle of the heart. Though it is not from the doctor's mouth, it might be that if the injury would have been a straight one that might have saved the life of the deceased by proper treatment immediately after the occurrence. The defence put a suggestion to P.W. 8, the doctor that if the injury No.1 would have been a straight one, whether the period of time of death would have varied. To that question, the doctor answered that in that case the period of time of death would have varied on difference circumstances, depending upon the giving out of the blow or other severity of the wound itself. "The act of the accused person immediately after the said blow on injury No.1 is to be noticed here, since he made no other blow again with the knife, which might have been an evidence of cruelty on the part of the accused person to get himself assured or ascertained that his acts were to kill the deceased. He gave one blow and stopped and when he found the deceased person to fall down on the road by holding his wound, he decided to go to the police station straight with the weapon of injury and to surrender there. He gave one blow and stopped and when he found the deceased person to fall down on the road by holding his wound, he decided to go to the police station straight with the weapon of injury and to surrender there. This act on the part of the accused immediately after the occurrence gives a sing of repercussion in the mind of the accused that he has committed a crime and that drove him straight to the police station to surrender before the keeper of the law and order and to admit his guilt before them. If he had an intention to kill the accused person, he would have been stationed at the P.O. for dealing successive blows with the knife on the victim." 7. The learned Session Judge, however, held that although he did not intend to cause death to the deceased, he caused such bodily injury as a result whereof he died and as such Part-I of Section 304 of the I.P.C. would be attracted in this case. The learned Session Judge, with dismay, noticed that there had been no attempt on the part of anybody to remove the deceased to the hospital immediately for medical attendance. 8. We may notice that P.W.-8 in his evidence categorically stated that the death of the deceased took place about 14 hours prior to the post mortem examination i.e. about 9.00 p.m. on 18.11.1997 and not 3.00 p.m. as alleged by the eye witnesses. 9. It appears to us that P.W.1, the informant and brother of the deceased was not a truthful witness. He had tried to improve the prosecution case to a great extent as would appear, from his statements made under Section 161 of the Cr. P. C., P. W.-15 when confronted with the statements of the P.W.-l admitted omissions of great significance in his statement under Section 161 of the Cr.P.C., as would appear from a large number of suggestions given to him which although had been denied but accepted by the Investigating Officer. P. W.-2 who is also said to be an eye witness stated in examination-in-chief that he noticed that there had been a hot discussion between the Appellant and the deceased and there had been a scuffle whereafter the Appellant lifted the bottle and tried to hit the deceased. 10. P.W.-3 is a chance witness. P. W.-2 who is also said to be an eye witness stated in examination-in-chief that he noticed that there had been a hot discussion between the Appellant and the deceased and there had been a scuffle whereafter the Appellant lifted the bottle and tried to hit the deceased. 10. P.W.-3 is a chance witness. He allegedly was talking at the relevant time with one Kalaiselvam and while so talking, he allegedly noticed the exchange of talks in between the Appellant and the deceased. 11. Admittedly, the Appellant himself had gone to the police station immediately after the occurrence with the knife. P.W.-4 M. K. Neelavanam stated that before the alleged commission of the offence he noticed exchange of funny comments in between the Appellant and the deceased. 12. P. W.-5 is Kalai Rathinam. At the time of the incident, he met one N. K. Neelavanam and while he was having conversation with him he noticed that the Appellant and the deceased were making conversations. P. W.-9, who is also said to be an eye witness, at the time of the alleged occurrence was sitting in his shop. He heard sounds of breaking of glass bottle and found that two Tamil persons were alternating in between themselves. He knew Arunachalam-the Appellant only. He did not know the deceased. 13. From the evidences on records as discussed hereinbefore, the following facts clearly emerge :- (1) That the deceased was in the habit of teasing the Appellant. (2) On the fateful day he had again been teased as a result whereof he lost his temper. (3) There had been a hot discussion between them followed by a scuffle. (4) The Appellant wanted to hit the deceased with a bottle but he missed his target. (5) His attempt to hit the deceased with a bottle failed, whereafter only he gave the knife blow. (6) The knife was a small one as it was meant for cutting the lemons. (7) The Appellant immediately after the occurrence must have realised his fault and thus went straightaway to the police station with the knife. 14. The acts of the deceased having regard to his previous conduct for a long time appear to be the cause of sudden provocation. (7) The Appellant immediately after the occurrence must have realised his fault and thus went straightaway to the police station with the knife. 14. The acts of the deceased having regard to his previous conduct for a long time appear to be the cause of sudden provocation. The Appellant even as per the findings of the learned Session Judge, has neither any motive nor mensrea to cause the death of the deceased but held that his intention was to cause such bodily injury which might have resulted in his death. 15. We, however, do not agree. Had he any such intention he could have used the knife at the first instance and there was absolutely no reason as to why he should have tried to assault the deceased with a bottle at the first instance. The failure on his part to hit the deceased with the bottle might have infuriated him further. Even his first attempt to hit the deceased with knife did not succeed. He could do so only in his second attempt and in all probability, he had hit him with the knife on the chest without fully understanding the consequences therefore. The very fact that he went to the police station straightaway is indicative of the fact that he immediately realised his mistake. 16. It may also be noticed that there exists a contradiction as regard the number of injuries in the inquest report vis-a-vis P.M.E. Report, whereas in the inquest report mentioned two injuries had been made; in the P.M.E. report only one injury has been mentioned. 17. The injury caused by the Appellant does not appear to be such, as a result whereof deceased would have died instantaneously. As noticed hereinbefore, if the autopsy report is to be believed, he died at 9.00 p. m. i. e. 6 long hours after the incident took place. It stands admitted that no medical and was given to him. The death thus, might have been caused because of the negligence on the part of his brother, the police authorities and hospital authorities. The learned Session Judge had also taken due notice of the said fact. 18. It stands admitted that no medical and was given to him. The death thus, might have been caused because of the negligence on the part of his brother, the police authorities and hospital authorities. The learned Session Judge had also taken due notice of the said fact. 18. Having analysed the materials-on-record, we are of the opinion that the peculiar facts and circumstances of this case lead to the conclusion that the Appellant was guilty of commission of offence under Part-II of Section 304 of the I.P.C. The sentence of conviction is altered accordingly. 19. It is stated at the bar that the Appellant is in custody for more than three years. Having regard to his conduct immediately after the occurrence we are of the opinion, that interest of Justice will be sub-served if his sentence is reduced to suffer R.I. for the period already undergone by him. It is so directed. For the reasons aforementioned this appeals is allowed in part and the judgment of conviction and sentence is modified to the aforementioned extent. The Appellant is hereby directed to be set at liberty forthwith unless wanted in connection with any other case. Sen, J.: I agree.