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2002 DIGILAW 1135 (SC)

VELUCHAMI v. STATE OF TAMIL NADU

2002-09-13

S.N.VARIAVA, S.S.M.QUADRI

body2002
ORDER 1. Leave is granted limited to the question as to the nature of offence committed by the appellant. 2. The appellant was convicted under Section 302 of the Penal Code, 1860 and was sentenced to imprisonment for life by the learned Sessions Judge, Madurai, in Sessions Case No. 264 of 1989 on 2-2-1990. On appeal, the High Court of Judicature of Madras confirmed the conviction and sentence passed by the learned Sessions Judge in Criminal Appeal No. 386 of 1990 on 1-10-1999. It is against that judgment that the present appeal is filed. 3. A propos the question that arises in this appeal, Mr R. Venkataramani, learned Senior Counsel appearing for the appellant, contends that the case falls under Section 300 Exception (4) of the Penal Code and at the most, it can be said to be an offence under Section 304 Part II of the Penal Code. Mr S. Balakrishnan, learned Senior Counsel appearing for the State of Tamil Nadu, on the other hand, submits that the appellant gave two blows with soori knife on vital part of the body of the deceased; one of them proved to be fatal; and even those who intervened also sustained injuries at the hands of the appellant. It cannot be said that there was no premeditation so the conviction of the appellant has to be sustained. 4. A perusal of the judgment of the trial court as also of the High Court shows that PWs 1 and 2, injured eyewitnesses are relied upon to hold that the appellant caused the death of the deceased Sivamurugan. The post-mortem report (Ext. P-8) was spoken to by PW 6, the doctor who conducted the postmortem examination. It shows that the following two injuries were found on the body of the deceased Sivamurugan: "J. An oval-shaped stab-wound over the left infra-axillary region measuring 3 cm x 2 cm entering into the left thoracic cayity between the 4th and 5th ribs. On dissection of the above wound, infiltration of blood with clots present under the skin around the wound. On dissection over the inter-costal region, a stab-wound 2.5 cm x 1.5 cm entering into the underlying muscles and other tissues passing backwards and inwards piercing the lower lobe of left lung and injuring the descending aorta measuring 0.5 cm x 0.25 cm entering into the aortic lumen. On dissection over the inter-costal region, a stab-wound 2.5 cm x 1.5 cm entering into the underlying muscles and other tissues passing backwards and inwards piercing the lower lobe of left lung and injuring the descending aorta measuring 0.5 cm x 0.25 cm entering into the aortic lumen. Injured area of left lung is black in colour and congested. About 2000 ml of blood collection present in the left pleural cavity. 2. An incised wound 1.5 cm x 1 cm x 1 cm over the back of the left elbow." 5. He opined that death was caused by shock and haemorrhage due to Injury 1. So far as the first injury is concerned, it is clear that it was a wound which pierced the lower lobe of left lung and injured the descending aorta measuring 0.5 cm x 0.25 cm entering into the aortic lumen. This injury cannot, in our view, be said to be an unintended one. The appellant intentionally caused the injury on the vital part of the body of the deceased and those who came to intervene also suffered injuries at his hands. The deceased was the son of the hotel-owner in which the appellant and some other person were fighting. The deceased requested both of them to go outside the hotel and fight, if they so desired. On this, the appellant got enraged and gave fatal blows with soori knife to the deceased. 6. To bring the offence under Section 304 Part II of the Penal Code, it must be first found that the act attributed to the appellant (1) does not amount to murder; and (2) it was done with the knowledge that it is likely to cause death but without any intention (a) to cause death, or (b) to cause such bodily injury as is likely to cause death. Having regard to the oral evidence of PWs 1 and 2 and nature of the injuries on the chest (vital part) of the body of the deceased, we are unable to hold that it was done without the intention of causing such bodily injury to the deceased. Once it is found that the appellant had the requisite intention Part II of Section 304 goes out of the picture, and that injury was sufficient in the ordinary course of nature to cause death and did cause death of the deceased. Once it is found that the appellant had the requisite intention Part II of Section 304 goes out of the picture, and that injury was sufficient in the ordinary course of nature to cause death and did cause death of the deceased. There was no quarrel with the deceased who was unarmed. The heat of passion was not due to sudden quarrel with the deceased. In the circumstances, the act cannot but be cruel. It was a premeditated act. Inasmuch as the appellant had the intention to cause bodily injury on the chest (lung) of the deceased which is likely to cause death and did in fact cause death, it is difficult to hold that Exception 4 to Section 300 applies. It follows that the offence committed by the appellant is nothing but murder punishable under Section 302 IPC. 7. In this view of the matter, we do not find any reason to interfere with the order under appeal. The criminal appeal is, accordingly, dismissed.