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2003 DIGILAW 934 (MAD)

Perumal v. State By Inspector Of Police

2003-06-30

M.KARPAGAVINAYAGAM, S.ASHOK KUMAR

body2003
Judgment :- M.Karpagavinayagam, J. The appellant is the accused in S.C.No.10 of 2000 on the file of the learned Principal Sessions Judge, Dindigul. He was convicted and sentenced to undergo life imprisonment for the offence punishable under Section 302 IPC. Challenging the same, he has filed this appeal. 2. The short facts leading to the conviction are as follows: i) P.W.1 Revathy married the deceased Raja some years back. Out of the wedlock, two children were born to them. P.W.2 Mookiah is the father of P.W.1. The accused Perumal is a resident of Sirumalai Nondipannai where P.W.1 along with her deceased husband and P.W.2 were residing. ii) There was a previous enmity between the deceased Raja and the accused Perumal in respect of the pathway and grazing of horse belonging to the deceased in the land of the accused. A panchayat was convened to solve the dispute. After the panchayat decision, no problem arose between the parties. iii. The fateful occurrence took place on 01.10.1999 at 8.00am. When the deceased Raja and his wife P.W.1 Revathy were proceeding to Vinayagar Temple for worship by placing pongal, they found the accused Perumal driving their horse, which was grazing in the land of the accused. On noticing the deceased and P.W.1, the accused questioned the deceased as to how he could allow his horse to graze in his land. There was a verbal encounter between them. Consequently there was scuffling between the accused and the deceased. In that process, the accused fell down. The accused, having aggrieved that he was beaten by the deceased, got up and challenged the deceased stating that the deceased is always giving trouble to him and, therefore, he would kill him and then only, he could lead a peaceful life. By saying so, the accused ran towards his house, which is situated near the place of occurrence, brought a velstick M.O.1 and attacked the deceased by inflicting injuries on the right chest. When the deceased fell down, the accused again attacked him over his left eye as well as over his back. On witnessing this, P.W.1 raised a hue and cry. On noticing that the villagers also, rushing to the scene of occurrence, the accused ran away with the weapon. Immediately, P.W.1 and P.W.2 went near Raja and found him dead. iv. When the deceased fell down, the accused again attacked him over his left eye as well as over his back. On witnessing this, P.W.1 raised a hue and cry. On noticing that the villagers also, rushing to the scene of occurrence, the accused ran away with the weapon. Immediately, P.W.1 and P.W.2 went near Raja and found him dead. iv. Then, both P.Ws.1 and 2 went to Dindigul Police Station and gave a complaint to P.W.12, the Sub Inspector of Police at 4.00 p.m. P.W.12 registered the case in Crime No.841 of 1999 against the accused under Section 302 IPC. Ex.P.1 is the F.I.R. v. On receipt of the message, P.W.13, the Inspector of Police rushed to the place of occurrence and reached the spot at about 9.00 p.m. He prepared observation mahazar Ex.P.5 and drew rough sketch Ex.P.15. He collected bloodstained earth M.O.2 and sample earth M.O.3 and thereupon made inquest over the dead body between 10.00 p.m. and 1.00a.m. On 02.10.1999, the body was sent for postmortem. vi. P.W.3 Dr.Prabhakaran conducted autopsy on the dead body at 12,00 am on 02.10.1999 and found as many as four injuries on the body of the deceased. In Ex.P.4 postmortem certificate, P.W.3 gave opinion that the deceased would appear to have died of heamorrhagic shock due to lung injury. vii. P.W.13 continued the investigation by examining other witnesses. He took steps to arrest the accused. viii. He came to know that the accused surrendered before the Court on 4.10.1999. On the application filed by him, police custody was granted on 09.10.1999. P.W.13 took the accused into custody obtained his confession. In pursuance of the confession, Ex.P.19, M.O.1 velstick was recovered at Sirumalai Nandipannai. Thereafter, the accused was sent for remand. In the meantime, P.W.13 arranged to send the material objects for chemical analysis. After completion of the investigation, he filed the charge sheet against the accused under Section 302 IPC. ix. During the course of trial, on the side of the prosecution, P.Ws.1 to 13 were examined, Exs.P1 to P.18 were filed and M.Os.1 to 6 were marked. In the meantime, P.W.13 arranged to send the material objects for chemical analysis. After completion of the investigation, he filed the charge sheet against the accused under Section 302 IPC. ix. During the course of trial, on the side of the prosecution, P.Ws.1 to 13 were examined, Exs.P1 to P.18 were filed and M.Os.1 to 6 were marked. x. When the accused was questioned under Section 313 of Cr.PC about his complicity in the crime, he denied the same He would state that on the date of occurrence, he was not available in the scene and he had gone to Sodaiyandipuram, since his wife gave birth to a child and on seeing the newspaper that a case was foisted against him under Section 302 IPC, he surrendered before the Court. However, no evidence was adduced on the side of the defence. xi. The trial Court after appraisal of the evidence available on record, found the accused guilty under Section 302 IPC and convicted him as referred to above. Hence, this appeal. 3. Mr.Shanmughavelayutham, learned counsel appearing for the appellant, would take us through the entire evidence and strenuously contend that the evidence of P.Ws. 1 and 2, the eye witnesses, cannot be relied upon, in view of the vital discrepancies and that a false case had been foisted against the appellant in view of the fact that there was enmity between the deceased and the accused earlier in respect of the pathway as well as over the grazing of the horses belonging to the deceased in the land of the accused. 4. However, the learned counsel appearing for the appellant having perceived the difficulty in arguing for acquittal, would strenuously contend that even assuming that the entire case is true, the case would not fall under any one of the clauses under Section 300 IPC, thereby attracting Section 302 IPC and, it would come under Exception 4 to Section 300 IPC and consequently, the appellant would be liable to be convicted only for a lesser offence under Section 304 Part i or ii IPC. 5. On the above aspects, we have heard Mr.E.Raja, learned Additional Public Prosecutor. 6. We have given our thoughtful consideration to the contentions urged by the learned counsel for the parties and also gone through the records. 7. 5. On the above aspects, we have heard Mr.E.Raja, learned Additional Public Prosecutor. 6. We have given our thoughtful consideration to the contentions urged by the learned counsel for the parties and also gone through the records. 7. According to the prosectuion, when P.Ws.1 and 2 were proceeding to the Vinayagar Koil to worship at 8.00 a.m. on 01.10.1999, the accused on noticing that the horse belonging to the deceased was grazing in his land, shouted at the deceased and questioned him as to how he could allow the horse to graze in his land. There was a wordy quarrel ensued between them. There was a scuffle between them, with the result, the accused fell down. Then, the accused went inside his house, which is near to the scene of occurrence and brought the velstick M.O.1 and stabbed on the chest of the deceased and caused his instantaneous death. 8. With reference to the above incident, we have got eye witnesses, viz., P.Ws.1 and 2. Though the learned counsel appearing for the appellant would point out some discrepancies in the evidence of P.W.s 1 and 2, in our view, those discrapancies are not vital as they would not go to the root of the matter. As a matter of fact, a perusal of the evidence of P.Ws. 1 and 2 would make it clear that their testimony is cogent and consistent with reference to the occurrence. 9. According to P.Ws. 1 and 2, after noticing the deceased died in the place of occurrence itself, at about 9.00 a.m., they went to Palayur police station and from there, they went to Dindigul Police station and gave complaint Ex.P.12 to P.W.12 Sub Inspector of Police The said complaint reached the Magistrate at 7.00 pm. on the very same day. In the complaint, clear details have been given about the motive and the occurrence. Further, the medical testimony adduced by P.W.3, Doctor and Ex.P.4, post mortem certificate would also corroborate the occular testimony tendered by P.Ws. 1 and 2. 10. According to the defence, someone else had committed the murder of the deceased and a false case had been foisted against the accused, since there was an enmity between the deceased and the accused. However, no evidence was adduced to indicate the same. 1 and 2. 10. According to the defence, someone else had committed the murder of the deceased and a false case had been foisted against the accused, since there was an enmity between the deceased and the accused. However, no evidence was adduced to indicate the same. When questioned under Section 313 Cr.PC, the accused pleaded alibi by stating that he had been to his father-in-law's village for attending his wife's delivery. It is settled law that when the plea of alibi is made by the accused, it is for the accused to establish the same. Admittedly, this has not been done. Under those circumstances, there is no alternative except to accept the case of prosecution, as the evidence adduced by the eye witnesses do not suffer from any infirmity as indicated above. 11. Let us now consider the nature of the offence committed by the accused. 12. The main thrust of the argument advanced by the learned counsel for the appellant is that the offence would fall under Exception 4 to Section 300 IPC and as such, the act committed by the accused would not come under Section 300 IPC attracting Section 302 IPC. 13. It is contended by the learned counsel for the appellant that admittedly, it was a sudden quarrel and that the occurrence had taken place due to sudden provocation. The accused was not having any weapon, when the quarrel ensued and there is no dispute that the occurrence had taken place in the land belonging to the accused and the accused on sudden provocation, after he was pushed down by the deceased, went inside his house and took a velstick and caused an injury on the chest of the deceased and as such, it may attract the ingredients of Exception 4 to section 300 IPC. 14. Though this submission, at the first blush, looks attractive, on a thorough probe into the materials available on record, it would be noticed that the said contention is not tenable. Exception 4 to Section 300 IPC would provide as follows: "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken under undue advantage or acted in a cruel or unusual manner. 15. Exception 4 to Section 300 IPC would provide as follows: "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken under undue advantage or acted in a cruel or unusual manner. 15. It may be true that the occurrence had taken place in a sudden quarrel and it is also not in dispute that there was a wordy quarrel ensued between them, since the horses belonging to the deceased were grazing in the land belonging to the accused and due to the sudden quarrel, there was a scuffle. But, it is the case of P.W.1 both in Ex.P.1 and in his deposition that the deceased pushed down the accused on the ground and only at that stage, the accused got up and challenged the deceased, stating that he would kill him as he is always giving trouble to him and by saying so, he went inside the house and brought a velstick M.O.1 and stabbed on the chest of the deceased. 16. Four requirements must be fulfilled under Exception 4 to Section 300 IPC. They are: i. sudden fight ii. there is no premeditation iii. acted in a heat of passion iv. the assailant had not taken any undue advantage or acted in a cruel manner; 17. On going through Exception 4 to Section300 IPC, it is clear that the cause of quarrel is not relevant nor is it relevant who offered provocation or started earlier. 18. The number of wounds caused during the occurrence is not a decisive factor, but what is important is that the occurrence must have been sudden and unpremeditated and should not have been taken place by any undue advantage or acted in a cruel manner. 19. As held by the Supreme Court in AIR 1989 SC 1094 (SURINDER KUMAR v. UNION TERRITORY, CHANDIGARH) in a sudden quarrel, a person in the heat of the moment picked up weapon which is handy and caused injuries one of which is fatal and he would be entitled to Exception 4 to Section 300 IPC. 20. But, in this case, as indicated above, the weapon is not handy. 20. But, in this case, as indicated above, the weapon is not handy. On the other hand, the accused crossing 120 feet went inside the house and brought a weapon, which is measuring about 5'7", blade portion -7", breadth - 1 « " as found in the post-mortem certificate, to the scene. The post-mortem certificate would show that the wound No.1 is the injury caused on the chest. According to the doctor, first injury on the chest is an elliptical punctured wound over the right side of the chest between the second and third ribs about 5cm x 3cm x14 cm in size. On exploration, the wound NO.1 passes vertically and pierces the lung through and not entering the posterior wall of thorax. A lacerated wound over left side of the lower eyelids on medial aspect of about 3x2cm in size. 21. In internal examination, it was found that in thorax, there was a fracture in the 2nd rib on right side and about 1000gms of clotted blood in right thoracic cavity and a punctured wound on right lung in the medial aspect of the right upper lobe which corresponds to wound No.1. 22. Thus, it is clear that though the occurrence had taken place without any premeditation and took place in the heat of passion, it cannot be said that the offender/accused had not taken undue advantage especially when the deceased, at that time, went in search of the horses which were grazing in the land of the accused. In view of the fact that fourth ingredient is absent in the case on hand, we are unable to accept the contention urged by the learned counsel for the appellant that the act committed by the appellant would fall under Exception 4 to Section 300 IPC. 23. In this context, it is worthwhile to summarise the observation made in 2003 (1) Supreme 342 (Suraj Bhan v. State of Haryana) wherein the Supreme Court has held as follows: "The doctor has opined that the injury was caused in such a manner as to cause the death of the deceased which on dissection found by the doctor, had caused a fracture of the left parietal bone causing extra dural haemotoma. The doctor has opined that the death was due to shock and haemorrhage and as a result of the head injury which was sufficient to cause death in the ordinary course of nature. We are of the opinion that the appellant must be attributed with the knowledge that when he used a lathi forcefully on the head of a person, he was likely to cause death of the said person, the prosecution has also proved that this appellant had the intention to kill the deceased, therefore, we have no hesitation in rejecting the argument of learned counsel on this count also". 24. This observation would squarely apply to the facts of this case since the doctor P.W.3 would opine that the deceased would appear to have died of haemorrhage and shock due to lung injury. Therefore, we reject the contention of the learned counsel appearing for the appellant. 25. On meticulous analysis of the materials available on record, we are of the view that the intention of the accused while committing the said act of causing death of the deceased was so apparent. The intention has to be gathered from the kind of weapon used, the amount of force employed, part of the body attacked and, nature of injury inflicted, and the other circumstances leading to death. In the above factual situation, we are constrainted to conclude that the act of causing injury by the accused by means of a dangerous weapon lengthy velstick on the chest of the deceased which pierced the lung, which made the deceased to die at the spot, would certainly come under Section 300 IPC attracting the punishment under Section 302 IPC. 26. Therefore, there is no merit in the appeal and the appeal is liable to be dismissed and accordingly, the same is dismissed confirming the conviction and sentence imposed on the appellant by the trial Court.