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2003 DIGILAW 1836 (MAD)

Ponnusami v. The State by Inspector of Police

2003-11-12

M.THANIKACHALAM, P.SATHASIVAM

body2003
Judgment :- M. Thanikachalam, J. The first accused, who is convicted and sentenced to undergo life imprisonment for the offence under section 302 I.P.C., in addition to pay a sum of Rs.5,000/- with usual default sentence, is the appellant. 2. The accused appellant and another accused by name Azhagammal were brought before the trial Court viz., the Ist Addl. Sessions Judge, Salem, to face the trial for the offence under Section 302 r/w 34 I.P.C. on the allegations that the first accused stabbed the deceased Kandasamy by a sphere, M.O.1 over his abdomen, that the second accused squeezed the testicles of the deceased, on 1.6.93 at about 5.30 p.m., just opposite to the house of the accused, with an intention to commit murder, due to the previous enmity and therefore, they should be dealt with accordingly, under Section 302 r/w 34 I.P.C. 3. The learned Ist Additional Sessions Judge, Salem upon consideration of the materials placed before him, came to the conclusion that the offence under Section 302 I.P.C. is made out against the first accused/appellant, whereas no offence is made out against the second accused. Thus concluding, he slapped the conviction as aforementioned only upon the first accused/appellant and acquitted the second accused. 4. The first accused aggrieved by the reasoning assigned by the trial Court, questioned the same before this Court, whereas the acquittal has not caused any grievance to the prosecution and therefore, no appeal is preferred against the acquittal. 5. The prosecution case in brief, leading to the conviction: Tmt. Sampoornam and Thiru Chinnusamy, P.Ws.1 & 2 respectively are the wife and husband. The deceased in the alleged incident by name Kandasamy is the son of P.W.1's elder sister. P.W.1's brother is one Chellamuthu. The second accused is the wife of the said Chellamuthu. After the death of Chellamuthu, though A1 is married and having children, he developed illicit intimacy with A2, which was questioned by P.Ws.1 and 2 as well as the deceased Kandasamy. Despite their conduct is questioned, they continued to do so. Prior to the incident narrated in the final report, P.Ws.1 and 2 along with the deceased Kandasamy went to the house of the accused not only to question their conduct, but also to advice them to behave properly. Aggrieved by the advice, the first accused/appellant slapped Kandasamy with chappal. Apprehending further untoward incident, P.Ws.1 & 2 took Kandasamy to their home. Aggrieved by the advice, the first accused/appellant slapped Kandasamy with chappal. Apprehending further untoward incident, P.Ws.1 & 2 took Kandasamy to their home. The deceased Kandasamy unable to reconcile himself about the conduct of the second accused and the slapping by Chappal on 1.6.93, once again went to the house of the accused, in order to question why they have slapped him, just because of his advice to them to behave properly, leaving the illicit intimacy. P.Ws.1 & 2 apprehending some danger, followed the deceased Kandasamy. At about 5.30 p.m. in front of the house of the accused, when deceased Kandasamy questioned the conduct of Ponnusamy, Ponnusamy pushed him, which was supported by the second accused. The second accused squeezed the testicles of Kandasamy and in order to escape from the effect, Kandasamy pushed the second accused, Azhagammal. On seeing this incident, the first accused went inside the house, took M.O.1 and stabbed Kandasamy on the right side of the stomach, thereby causing injury. This incident was not only witnessed by P.Ws.1 and 2, but also by P.W.3, who came there on the way for the purpose of purchasing some provisions. The first accused after stabbing the deceased, ran away with the weapon. P.Ws.1 and 2 with the help of P.W.4 took the injured to a private hospital, where he was given first aid treatment by P.W.7. Thereafter, the injured was shifted to Athur Hospital and then to Salem Hospital. In spite of the treatment given by P.Ws.7, 13, 14 and 15, the injured succumbed to the injury and met his end on 3.6.93 at 2.00 a.m., which was informed by P.W.15, under Ex.P.10. When the injured Kandasamy was in Athur Hospital as an inpatient, the same was informed to the police and on information, the Head Constable of Athur Police Station, P.W.10 rushed to the hospital, examined Kandasamy and recorded his statement under Ex.P.6. Since the incident had taken place within the jurisdiction of Veeraganoor Police Station, the same was sent to Veeraganoor Police Station, where it was received by P.W.12, who registered a case under Ex.P.8. Commencing investigation, P.W.12 examined some of the witnesses and recovered some of the material objects also. After the death of Kandasamy, the Inspector of Police, P.W.18 took the case for further investigation on 3.6.93. He conducted inquest, prepared Ex.P.20 in the presence of the panchayatdars and recorded their statements also. Commencing investigation, P.W.12 examined some of the witnesses and recovered some of the material objects also. After the death of Kandasamy, the Inspector of Police, P.W.18 took the case for further investigation on 3.6.93. He conducted inquest, prepared Ex.P.20 in the presence of the panchayatdars and recorded their statements also. In order to ascertain the real cause of the death, scientifically, he sent the body for autopsy with Ex.P.7, requisition. Dr. Karthikeyan, P.W.16 on receipt of the requisition and on identification of the body, conducted autopsy, which revealed the following injuries as incorporated in Ex.P.15, postmortem certificate. "An obliquely placed sutured wound present, on the right side epigastric region 4 cm in length, 3 cms right lateral to midline. On dissection the wound was gapping the margin were edematous, irregular, bluish red in colour 2 cms in breadth, deep to the abdominal cavity. The upper lateral end was blunt, the lower medial end was acute. On further examination of the abdominal cavity there was an 'U' shaped sutured wound on the ante mesenteric surface, encircling the lumen of the ileum except mesenteric region, to a length of 9 cms. All the layers of the lumen of the intestine were sutured perfectly. The lumen was distended with gas. The sutured wound was 17 cms away from the ileocaceal valve. Multiple interdigitting arcades of the branches of the superior mesenteric ortery were all intact. On further examination the internal surface close to the wound was found contused over an area of 4 cms x 2 cms it was superficial. The adjacent part of mesentery close to the distal part of ileum was found contused. It was dark blue in colour. A similar colour of contusion seen on the anteromedial surface of lower end of caecum above the level of ileocaocal valve over an area of 5 cm x 2 cm, it was superficial in nature. Contusion of the proximal part of the external surface of the ascending colon, over an area of 3 cm x 2 cm, it was blue in colour. - Sutured stab wound" He opined that the deceased would have died due to the punctured wound on the abdomen. P.W.18, in continuation of the investigation, on information, arrested the accused on 4.6.93 at about 5.00 a.m. in the presence of Chellapillai and Palanimuthu. - Sutured stab wound" He opined that the deceased would have died due to the punctured wound on the abdomen. P.W.18, in continuation of the investigation, on information, arrested the accused on 4.6.93 at about 5.00 a.m. in the presence of Chellapillai and Palanimuthu. At the time of examination, A1 gave confession statement Ex.P.3, voluntarily and in pursuance of the same, it seems he took out M.O.1 from the place of concealment, which was recovered by the Inspector, under the cover of Ex.P4, in the presence of the same witnesses. The further investigation and the statements recorded by P.W.18 brought to surface not only the guilt of the appellant accused, but also the guilt of the second accused and therefore, he laid the final report. The trial Court after framing the charges, questioned the accused and on their denial, examined 18 witnesses, exhibited 20 documents and 8 material objects. Considering the evidentiary value of the above materials, as well as the facts brought to surface by the evidence, as aforementioned, the trial Judge has come to the conclusion that the offence against the first accused alone is proved, whereas no offence is made out against A2. The first accused impugned the above conviction and sentence. 6. Heard the learned counsel Mr. C. Selvaraj for the appellant and the learned Additional Public Prosecutor. 7. The learned counsel for the appellant has submitted that on three grounds, the conviction and sentence are unsustainable and therefore, the appellant is entitled to an acquittal. As per the submission of the learned counsel, there is change of scene of crime, which was not taken note of by the trial Court, which should give the benefit of doubt, thereby entitling the accused to an acquittal. The further submission of the learned counsel for the appellant that the weapon said to have been recovered, does not contain blood stain and therefore, the story of the prosecution that the same was used for stabbing the accused must go. The conviction is assailed on further submission that there is no motive or intention to commit the murder of Kandasamy, which was not properly considered and appreciated by the learned trial Judge. In addition he has submitted that all the eye witnesses are interested, in one way or other and not only that there are inconsistency also in their oral testimony, and therefore, relying on their testimony, is unsafe. 8. In addition he has submitted that all the eye witnesses are interested, in one way or other and not only that there are inconsistency also in their oral testimony, and therefore, relying on their testimony, is unsafe. 8. The learned Additional Public Prosecutor would contend that the motive for the murder is well established, supported by untainted cogent evidence and therefore, on any ground, the conviction could not be assailed and in this view, he would support the findings of the trial Court. 9. The learned Ist Additional Judge after analysing the evidence, came to the conclusion that the incident had taken place only in front of the accused house, but the police in order to help the accused, changed the scene of crime and the same should be ignored. It is the further conclusion of the learned trial Judge that the shabby investigation alone should not be taken into account, in order to screen the offence, thereby allowing the accused to go scot-free from the commission of offence. He has further concluded that it is proved beyond all reasonable doubt that the death of Kandasamy was due to the injury inflicted by the first accused and therefore, ignoring the lapses committed by the police, punishment should visit upon the accused. The doctors have given evidence during the cross examination, that if better treatment had been given, there might have been possibility for the injured to survive. Taking into account this evidence, the trial Court observed that the injured might have succumbed to the injury, due to the careless acts of the doctors also, which cannot be the ground for the accused to escape from the offence committed by him. Thus, ignoring the lapses and explaining the omissions and commissions, the trial Court has slapped the conviction upon the first accused, which is under challenge, as aforementioned. 10. The incident had taken place on 1.6.93 at about 5.30 p.m. On 2.6.93, Ex.P.6 complaint was received by the police. It appears, the deceased had reported to the constable, who recorded the statement, that the incident had taken place near the bus stop, as seen from Ex.P.6. But as per the final report and as per the evidence, the incident had taken place only in front of the accused's house. It appears, the deceased had reported to the constable, who recorded the statement, that the incident had taken place near the bus stop, as seen from Ex.P.6. But as per the final report and as per the evidence, the incident had taken place only in front of the accused's house. Because of this contradiction, the learned counsel for the appellant would contend, that there is change of scene of crime and this creates a doubt. We are unable to agree. Abundant and unchallenged evidence are available on record, undeniably also, that the incident should have taken place only in front of the accused's house and not near the bus stop. It seems the house of the accused is near the bus stop or so. Therefore, probably to identify the place of incident, the deceased might have stated near bus stop and that could not be taken as such, that the incident itself had taken place opposite to bus stop or near the bus stop, as the case may be. Ex.P.2 mahazar was prepared on 2.6.93 at about 8.45 p.m., which shows that the incident had taken place in front of the house of the accused. The sketch, mahazar and the evidence given by the Head Constable regarding the place of the incident are not effectively erased, which is also further supported by oral evidence. Therefore, we have no hesitation to accept the evidence of P.Ws.1 to 3 and other documents and hold that the incident had not taken place near the bus stop and it had taken place only in front of the house of the accused. Hence the above defence is liable to be rejected and the same is accordingly rejected. 11. The submission of the learned counsel for the appellant that the motive or intention for the incident is not made out, is also not acceptable to us, since we find satisfactory evidence in this regard. It is the specific case of the prosecution that A2 is living with A1 having illicit intimacy. A2 is the wife of maternal uncle of the deceased Kandasamy. In the villages, if this kind of illicit intimacy is noticed, it is viewed seriously. Therefore, the deceased had every reason to question the conduct of the second accused and when questioned, the accused might have objected the same, thereby entertaining some kind of animosity. A2 is the wife of maternal uncle of the deceased Kandasamy. In the villages, if this kind of illicit intimacy is noticed, it is viewed seriously. Therefore, the deceased had every reason to question the conduct of the second accused and when questioned, the accused might have objected the same, thereby entertaining some kind of animosity. P.Ws.1 and 2 have categorically spoken about the illicit intimacy between the accused and their joint living, in addition their questioning of the conduct of the accused. When the evidence of P.Ws.1 & 2 in this regard was put to the accused, at the time of the examination under 313 Cr.P.C. enabling them to explain, they have categorically admitted as correct. Therefore, there is a motive to commit the offence, when the deceased questioned the conduct of the accused. Whether the accused had the intention to commit murder with mens rea or not, we will deal it separately at later point of time. Thus we conclude, unhesitatingly that the motive projected by the prosecution is proved, to our satisfaction, which may be the cause for the subsequent incident. 12. As evidenced by Ex.P.15 and spoken by P.W.16, at the time of Autopsy, an obliquely placed wound on the right side of the stomach was noticed. This injury went inside causing damage to the organs also. Therefore, the doctor opined that the deceased would have died due to punctured wound on the abdomen. When the doctor has given opinion about the cause of death, it is not seriously challenged, though an attempt was made to say, that the injury would not have been caused by using M.O.1. Therefore, we conclude as did by the trial Court, that the injury might have been caused by a weapon like M.O.1 and that injury alone had caused the death of Kandasamy. No other alternative case is projected for the death of Kandasamy on behalf of the defence, though it is not mandatory. Thus, fixing the cause of death and the motive for the incident, as well as fixing the scene of crime, then we have to see what is the evidence available on record to establish the guilt. 13. The deceased Kandasamy narrated the incident in Ex.P.6, the actual involvement of the first accused, his taking sphere and stabbing over his right stomach. 13. The deceased Kandasamy narrated the incident in Ex.P.6, the actual involvement of the first accused, his taking sphere and stabbing over his right stomach. He has further informed the police authority at the earliest point of time that Chinnusamy (P.W.2) and Kannusamy (P.W.3) were also present at the time of the incident, though no specific mention is made about the presence of P.W.1, which appears to be an ordinary omission. 14. Regarding the scene of crime, we have already explained, how it is not going to affect the case of the prosecution in any way. The entire statement regarding the actual involvement of the accused, as narrated in Ex.P.6, was spoken by P.W.1, corroborated by P.W.2 and confirmed by P.W.3. Nothing is elicited to discard their oral testimony, though they are interested. Interestedness should not come in the way of appreciating the evidence, when the oral testimony is worthy of acceptance, not quoted with any unnaturalness. Therefore, in our opinion, the oral evidence of P.Ws.1 to 3, is quite acceptable, safe to be relied upon to sustain the conviction. P.W.1 has also identified M.O.1 as the weapon, used by the first accused/appellant to stab the deceased, which is corroborated by P.W.2. 15. The learned counsel for the appellant, though made an attempt to persuade us, to label the evidence given by P.Ws.1 to 3, as not worthy of acceptance, we are unable to persuade ourselves, and in fact, we are fully satisfied that their evidence are sufficient to sustain a conviction. The subsequent event of taking the deceased from the scene of crime, to the hospital, spoken to by P.W.4 also confirms that the deceased sustained injury, just in front of the house of the first accused. Before the doctor also, the deceased had confirmed about the involvement of a known person, who had caused the stab injury, by using a sphere. The Investigating Officer, P.W.18 had spoken about the arrest of the accused and the confession statement, Ex.P.3 given by the accused leading to the recovery of M.O.1 under the cover of Mahazar Ex.P.4, in the presence of P.W.6 and one Palanimuthu. P.W.6 had also given a graphic picture regarding the arrest, confession, leading to recovery of M.O.1 under Ex.P.4. We find no reason to eschew the oral testimony of P.W.6 and P.18, in this regard, namely, arrest and recovery. P.W.6 had also given a graphic picture regarding the arrest, confession, leading to recovery of M.O.1 under Ex.P.4. We find no reason to eschew the oral testimony of P.W.6 and P.18, in this regard, namely, arrest and recovery. The weapon, so recovered, was shown to P.W.1 and she identified as the one used by the first accused, which stands reason to believe, even considering the nature of injury sustained by the deceased, as disclosed in the postmortem certificate. 16. The learned counsel for the appellant submits that when M.O.1 was sent for chemical examination, no blood was detected and therefore, it should be construed that this weapon was not used for committing the offence. True, as seen from Ex.P.18, scientific assistants had not detected blood on item No.5 i.e. M.O.1, though they had detected blood on other items viz., Lungi, Towel, Torn white silk dothi, white towel, etc. Because of the fact that no blood, much less human blood was detected on M.O.1, the learned counsel for the appellant would contend, that this weapon might not have been used for the commission of the offence. We are unable to agree. M.O.1 though does not contain the blood, when it was identified by the eyewitnesses, the accused had not seriously challenged to erase the effect of the evidence. The incident took place on 1.6.93 and the accused was arrested on 4.6.93. The material objects were sent for chemical examination elsewhere in the month of June 1993. Since the weapon was not immediately recovered, even the accused might have wiped out the blood, though it is not the case of the prosecution. When the weapon is identified, when the injury corresponds to the weapon; and there is every possibility to conclude, the injuries could have been caused by the same weapon, and we find no reason to say that M.O.1 is not the weapon, used by the first accused. In this view, we conclude that the first accused, by using M.O.1 had caused the fatal injury to the deceased on the right side of the stomach, thereby causing his death. 17. The observation of the trial Court that the deceased could have died due to the careless acts of the doctors, appears to be unwarranted, since it is not the positive case of the defence. Casually, it was elicited that if proper treatment had been given, the accused would have survived. 17. The observation of the trial Court that the deceased could have died due to the careless acts of the doctors, appears to be unwarranted, since it is not the positive case of the defence. Casually, it was elicited that if proper treatment had been given, the accused would have survived. That does not mean, that no proper treatment was given or the doctors have committed any mistake, while treating the deceased. In fact the deceased, at the first instance, went to homeopathy doctor, who found very difficult to give treatment and immediately, the accused was rushed to Government Hospital, Authur. Since no facility is available even there, to treat the deceased, he was shifted to Mohan Kumaramangalam Medical College Hospital, Salem. In spite of the efforts taken by the doctors, the end came to Kandasamy and for that, the doctors could not be blamed, as observed by the trial Court. The probability, if better treatment had been given, the deceased would have survived, does not mean that the death was not caused by the fatal injury, inflicted by the accused. Therefore, expunging the observation of the trial Court, we conclude that only because of the stab injury caused by the first accused, using M.O.1, the deceased Kandasmay succumbed to injury on 3.6.1993 at about 2.00 a.m. 18. The learned counsel for the appellant as a last submission would submit, even assuming that A1 had caused injury to the deceased, his act will not come within the meaning of Section 300 I.P.C. warranting punishment under Section 302 I.P.C. and if at all, it would come only under Section 304(ii) I.P.C. The said contention appears to be well founded, since it has the support of evidence, which is not seriously contradicted by the other side. As aforementioned, on the date of incident, the deceased as well as P.Ws.1 & 2, had been to the house of the accused and questioned their conduct of having illicit intimacy. Not satisfied with that, once again they went to the accused's house in the evening at 5.30 p.m. and questioned about the conduct of both the accused. In the wordy altercation, it seems, as seen from the evidence, the deceased pushed the second accused. On seeing this, the first accused got wild and provoked. Not satisfied with that, once again they went to the accused's house in the evening at 5.30 p.m. and questioned about the conduct of both the accused. In the wordy altercation, it seems, as seen from the evidence, the deceased pushed the second accused. On seeing this, the first accused got wild and provoked. Because of the emotion, unable to bear the activity of the deceased, when he pushed A2, the first accused went inside, picked up the sphere and unmindful of the consequences, stabbed the deceased. The above quoted facts, which are admitted or proved, would show that the first accused had no intention and mens rea to cause the death of the deceased Kandasamy. If at all, he would have acted violently, without an intention to commit murder, out of sudden provocation, induced by the deceased. Having settled this position, now we have to see under what provision, the act of the first accused would come. 19. Exception (1) to Section 300 I.P.C. says when culpable homicide is not murder: "Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave provocation or causes the death of any other person by mistake or accident" The act of the first accused should come within the above said explanation attracting Section 304 I.P.C. 20. Section 304 I.P.C. contemplates punishment for culpable homicide not amounting to murder, which has two parts. The first part applies, where the accused causes bodily injury with the intention to cause death or with the intention to cause such bodily injury, which is likely to cause death. As we have observed supra, the accused had no intention to cause the death or to cause such bodily injury, which is likely to cause death. He stabbed the deceased once and he has not made any attempt thereafter. If he had the intention to commit murder, then to make sure at least, he ought to have attempted to stab once again, which is admittedly absent in our case. In fact after realising the folly, he escaped from the place, is the case of the prosecution, which would indicate that the accused had no intention to cause death or to cause injury, which is likely to cause death. In fact after realising the folly, he escaped from the place, is the case of the prosecution, which would indicate that the accused had no intention to cause death or to cause injury, which is likely to cause death. In this view, in our opinion, the act of the accused would not come within the ambit of part-1 and if at all, it should come under the latter part. 21. The latter part of Section 304 I.P.C. contemplates punishment, when the death is caused by doing an act with the knowledge that it is likely to cause death, but there is no intention on the part of the accused, either to cause death or to cause bodily injury, which is likely to cause death. Because of the sudden provocation made by the deceased, the accused unmindful of the events and its consequences took the sphere and assaulted the deceased, thereby causing abdomen injury, which unfortunately proved to be fatal. Therefore, if at all, it could be said that he had the knowledge that the injury is likely to cause death, but without any intention or mens rea. 22. Under the above said circumstances, we are of the view that the act of the accused comes under the latter part of 304 I.P.C. which is normally referred as Part II. Hence we conclude that the accused is liable to be convicted and sentenced only under Section 304 (II) I.P.C. and not under Section 302 I.P.C. as did by the trial Court. For the foregoing reasons, we are constrained to allow the appeal in part and except the sentence to pay the fine amount, the conviction and the sentence of imprisonment imposed by the trial Court under Section 302 I.P.C. is modified as follows: As discussed above, the accused is found guilty under Section 304(ii) I.P.C. The incident had taken place 1.6.1993 and the accused was released on bail during the pendency of the appeal. Before the accused was released on bail, he has undergone more than three years of imprisonment. Having regard to the facts and circumstances of the case, we feel that the period already undergone by the accused would meet the ends of justice and in this view the Bail bond executed by the accused shall stand cancelled.