Research › Search › Judgment

Madras High Court · body

2006 DIGILAW 3032 (MAD)

Karuppannan v. State

2006-11-08

K.N.BASHA, S.R.SINGHARAVELU

body2006
Judgement K. N. BASHA, J. :- This appeal is directed against the Judgment dated 6-10-1998 in S. C. No. 3 of 1997, passed by the IV Additional Sessions Judge, Madurai District, convicting both the appellants under Section 302 read with 34 IPC and sentencing them to undergo life imprisonment. The learned Judge also found A-2 guilty for the offence under Section 341 IPC, but no separate sentence was awarded. 2. The brief facts, which are essential for the purpose of disposal of the appeal, are as follows : (i) P. W. 1 is the brother-in-law of the deceased Muthu. P. W. 2 is the wife of the deceased and both of them have been examined in this case as eye witnesses. It is the case of the prosecution that both deceased and the accused belonged to the same village by name Perungudi near Thirumogur. It is stated that there was a dispute between the first accused and the deceased on the ground that the deceased was responsible for expelling the brother of the first accused from the Community Association. This is the motive attributed by the prosecution against the first accused. As far as the second accused is concerned, even at the outset, we have to state that there is no motive attributed against him and that there is no materials available that even the second accused is the friend of the first accused. (ii) On the fateful day of occurrence i.e. on 20-4-1996 at 4 p.m., there was a quarrel between the deceased and the first accused and the people gathered there, pacified and separated them. It is stated that the quarrel is only on the ground of expelling of the brother of the first accused from the Community Association. It is further stated that accused No.1 threatened the deceased with dire consequences before leaving the place at that time. It is also further alleged that there was also a dispute in respect of collection of funds from the villagers for the association. (iii) On the same day at about 8.15 p.m., while first and second accused gathered in front of the house of the deceased, the second accused said to have caught hold of the deceased and the first accused stabbed the deceased on his left chest with a knife M. O. 1. The deceased swooned and fell down. (iii) On the same day at about 8.15 p.m., while first and second accused gathered in front of the house of the deceased, the second accused said to have caught hold of the deceased and the first accused stabbed the deceased on his left chest with a knife M. O. 1. The deceased swooned and fell down. Thereafter P. W. 1 went about 1½ K. M. away from the scene to Othakkadai to bring the taxi. He brought a taxi and took the injured to Madurai Rajaji Government Hospital. (iv) The Doctor- P. W. 6 who examined the deceased declared that the deceased already died. On information, Othakkadai Police Officials came to Government Hospital at 11.00 p. m. (v) P. W. 9-Sub Inspector of Police attached to Othakkadai Police Station on receipt of the message reached the Madurai Rajaji Government Hospital and recorded the statement from P. W. 1 under Ex. P1. He registered the case in Crime No. 248 of 1996 under Sections 341 and 302 IPC. He has sent the express F. I. R. to the higher officials and to the Magistrate Court through the constable P. W. 8. He also gave the information to the Inspector of Police, Othakkadai Police Station. Ex. P.9 is the Express F. I. R., Ex. P. 8 is the death intimation. (vi) P. W. 11- Inspector of Police received the message about the occurrence on 21-4-1996. Upon receipt of the information at 2.00 a. m., he went to the scene of occurrence at 3.00 a.m. and prepared the observation Mahazar Ex. P.2 and the rough sketch-Ex. P. 16. He examined the witnesses at 6.30 p. m. at Perungudi. He also recovered the bloodstained earth and sample earth under Ex. P3, but they were not marked as material objects in this case. Thereafter, he went to the Government Hospital and held inquest on the dead body from 7.15 a.m. to 10.00 a.m. Ex. P. 17 is the Inquest Report. Thereafter, he has sent the body of the deceased for post-mortem. (vii) As per the request Ex. P6, Doctor-P. W. 6 attached to Madurai Rajaji Government Hospital conducted post-mortem on the dead body of the deceased on 21-4-1996 at 12.05 noon and he found the following injuries : "1. P. 17 is the Inquest Report. Thereafter, he has sent the body of the deceased for post-mortem. (vii) As per the request Ex. P6, Doctor-P. W. 6 attached to Madurai Rajaji Government Hospital conducted post-mortem on the dead body of the deceased on 21-4-1996 at 12.05 noon and he found the following injuries : "1. A transversely oblique stab wound on the front of chest left side 6 cms below and medial to left nipple in the 7th intercostal space 2.5 cm x .5 cm x entering the left thoracic cavity; upper end pointed, lower end curved, margins regular. On dissection, the wound passed obliquely backwards and laterally piercing the underlying lower lobe of left lung 2 x .5 cm x full thickness. Total length of the wound 9 cms. Left pleural cavity contains 1200 ml. of blood with clots." Ex. P7 is the Post-Mortem Report. The Doctor, P. W. 6 is of the opinion that the deceased would appear to have died of external stab injury No.1 and its corresponding internal injury to the lungs. (viii) P. W. 11 in continuation of his investigation arrested the first accused on 23-4-1996 at 6 a.m, and in pursuance of the admissible portion of his confession, recovered M. O.1-knife under Ex. P4. Thereafter he has examined other witnesses including the Doctor P. W. 6, P. W. 5 and others. He has sent the material objects to the Magistrate Court and after obtaining necessary sanction sent the same for chemical examination. He received the Post-Mortem Certificate Ex. P.7, Serologist's report Ex. P. 12 and the Chemical Examination Report Ex.P-13. He also received Ex. P14 Chemical Examination Report in respect of the earth said to have been taken from the scene of occurrence. After completion of the investigation, he filed the charge-sheet against the accused on 26-8-1996. 3. The prosecution, in order to substantiate its case, examined P. Ws. 1 to 11, filed Exs. P1 to P17 and marked M. Os. 1 to 5. 4. When the accused were examined under Section 313 of Cr. P. C., in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, they have come forward with the version of total denial and submitted that they have been falsely implicated in the case. They have also not chosen to examine any witness on their side. 5. Mr. P. C., in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, they have come forward with the version of total denial and submitted that they have been falsely implicated in the case. They have also not chosen to examine any witness on their side. 5. Mr. K. Jegannathan, learned counsel appearing for the appellants made two-fold contentions. The first contention of the learned counsel for the appellants is that the entire occurrence took place due to a sudden quarrel and there is absolutely no premeditation and further the first accused gave a single stab and the second accused said to have caught hold of the deceased. Therefore, it is submitted that even accepting the entire prosecution case, the offence under Section 302 IPC is not made out and the first accused is liable to be convicted only under Section 304 (2) IPC. 6. The second contention of the learned counsel for the appellants is that in so far as the second accused is concerned, the admitted version of the prosecution is that there is absolutely no motive for the second accused to attack the deceased. It is also pointed out by the learned counsel that even at the time of the actual occurrence, it was preceded by a wordy quarrel for ten minutes, the second accused was totally unaware about the first accused having a knife M. O. 1 in his waist and therefore, most probably the second accused caught hold of the deceased to prevent the attack of A-1 at the hands of the deceased. Therefore, it is contended by the learned counsel for the appellants that the second accused could not have been attributed with the sharing the common intention of attacking the deceased with the first accused. Therefore, he has contended that the second accused is entitled for acquittal. 7. Per contra, learned Additional Public Prosecutor contended that the prosecution has come forward with a clear and cogent version in respect of the actual occurrence. The evidence of the eye witnesses P. Ws. 1 and 2 are quite natural. There is no infirmity in their evidence. It is also contended that the evidence of P. Ws. 7. Per contra, learned Additional Public Prosecutor contended that the prosecution has come forward with a clear and cogent version in respect of the actual occurrence. The evidence of the eye witnesses P. Ws. 1 and 2 are quite natural. There is no infirmity in their evidence. It is also contended that the evidence of P. Ws. 1 and 2 is also corroborated by the evidence of the Doctor P. W. 6 who has conducted the post-mortem, as there is corresponding injury found by the Doctor as per the post-mortem certificate Ex. P7. The learned Additional Public Prosecutor further contended that the second accused is said to have caught hold of the deceased in order to facilitate the first accused to give a fatal stab on the deceased. Therefore, it is contended that the second accused is also liable to be convicted for the offence under Section 302 read with 34 IPC. 8. We have given our careful and anxious consideration to the rival submissions made by both sides. 9. The prosecution heavily placed reliance on the evidence of P. Ws. 1 and 2 who are the eye witnesses in this case. P. W. 1 is the brother in law of the deceased and P. W. 2 is the wife of the deceased. Therefore, both of them are closely related to the deceased and they are the interested witnesses in this case. That being the position, we have to scrutinize their evidence with great care and caution. 10. The fact remains that there was a dispute between the first accused and the deceased on the ground that the deceased was responsible for the expulsion of the brother of the first accused from the post of Treasurer of the Community Association. It is also evident from the evidence of P. W. 1 that even prior to the occurrence at 4.00 p.m., there was a quarrel between the first accused and the deceased and at that time, the second accused was evidently not present. However, at the actual time of occurrence namely at 8.15 p. m., the first accused is said to have come to the scene along with the second accused and second accused said to have caught hold of the accused and the first accused gave a single stab on the left chest of the deceased. This aspect was categorically spoken to by both P. Ws. 1 and 2. This aspect was categorically spoken to by both P. Ws. 1 and 2. In view of the specific overt act attributed against both the accused, there is no contradictions between the evidence of P. Ws. 1 and 2. The evidences of P. Ws. 1 and 2 was also corroborated by the medical evidence. As rightly contended by the learned Additional Public Prosecutor, the Doctor-P. W. 6 who has conducted post- mortem has found the corresponding injury on the left chest of the deceased. It is also opined by the Doctor-P. W. 6 that the deceased died due to the injury caused to the left side chest. Therefore, there is absolutely no doubt that the deceased died due to homicidal violence and the first accused is responsible for giving the stab to the deceased which proved fatal. 11. Now, we are concerned about the nature of the offence said to have been committed by the first accused as well as the second accused. It is rightly pointed out by the learned counsel for the appellants that it was categorically admitted by P. W. 1 in his cross-examination that there was a wordy quarrel between the deceased and the first accused, even in front of the house of P. W. 1 and the quarrel started from a school nearby. It is also categorically admitted by P. W. 1 that wordy quarrel was going on for ten minutes. P. W. 1 also admitted in the cross that both abused each other in a filthy language. Thereafter, the first accused said to have taken a knife-M. O. 1 from his waist and gave a single stab on the left side of the chest, while the second accused said to have caught hold of the deceased. 12. The sequence of events makes it crystal clear that the first accused has absolutely no pre-plan or premeditation to cause the death of the deceased. The entire occurrence took place due to a sudden quarrel without any premeditation and only after the exchange of abusive and filthy language, the first accused said to have given a single stab on the left side chest of the deceased, which unfortunately proved fatal. It is also pertinent to be noted that the first accused has not given any further stab which also makes it crystal clear that he had no intention to cause the death. It is also pertinent to be noted that the first accused has not given any further stab which also makes it crystal clear that he had no intention to cause the death. The first accused cannot be imputed with the intention to cause the death. 13. The Hon'ble Supreme Court of India has held in Bunnilal Chaudhary, reported in 2006 AIR SCW 3419 : (2006 Cri LJ 3297) that, "10. We have given our thoughtful and anxious consideration to the rival contentions of the learned counsel. The next question is what is the offence which is brought home to Bunnilal Chaudhary (A-1)? It is not in dispute that the injury inflicted on the left sides of the chest of the deceased is single one. On examination, Dr. Vijay Kumar found the injury situated above nipple on the left side of the chest extending 1" x ½" penetrating wound. On dissection, left lung was found penetrated. Dr. Vijay Kumar has not opined that the injury was sufficient in the ordinary course of nature to cause death. That was not even stated to be likely to cause death. No attempt was made by Bunnilal Chaudhary to cause serious injury on any vital part of the body of the deceased. There was no motive or intention of Bunnilal Chaudhary to have murdered Shambhu Raut. Therefore, the question is whether the offence can be said to be covered by Clause (iii) of Section 300 of the I. P. C. 11. That Section required that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts :- the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in the looking at the injury intended to be caused, the Court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. In other words, looking at the matter objectively, the injury, which Bunnilal Chaudhary intended to cause, did not include specifically the cutting of the left lungs but to wound Shambhu Raut in the neighbourhood of the nipple on left side of chest. Therefore, we are of the opinion that Clause (iii) of Section 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Bunnilal Chaudhary did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Bunnilal Chaudhary. The matter, therefore, comes within the third part. The Act which was done with the knowledge that Bunnilal Chaudhary was likely by such act to cause the death of Shambhu Raut. The case falls within the third part of Section 299 and will be punishable under the second part of Section 304 I. P. C. as culpable homicide not amounting to murder." The above said principle laid down by the Apex Court is squarely applicable to the facts of the instant case. Therefore, we have no hesitation to hold that the first accused is liable to be convicted only under Section 304 (ii) I. P. C. 14. As far as the second accused is concerned, it is categorically admitted by P. W1 that there was absolutely no enmity between the second accused and the deceased. There is also no materials available on record to show that accused No.2 was the friend of accused No. 1. As far as the second accused is concerned, it is categorically admitted by P. W1 that there was absolutely no enmity between the second accused and the deceased. There is also no materials available on record to show that accused No.2 was the friend of accused No. 1. Added to this, even at the first instance of the wordy quarrel between the first accused and the deceased, the second accused was not present. Further, it is pertinent to be noted that the second accused was keeping silent while the wordy quarrel was going on for ten minutes between the first accused and the deceased and both of them abused each other in a filthy language and only at the point of time the second accused is said to have caught hold of the deceased the first accused suddenly took out a knife from his waist and gave a single stab to the deceased. It cannot, therefore, be said by no stretch of imagination that neither the first accused nor the second accused had any pre-arranged plan to kill the deceased. We have already held that even A-1 had no intention to kill the deceased. On the evidence available on record and as per the sequence of events narrated above, no interference could be drawn that even the second accused shared the common intention of causing any bodily injury to the deceased. It is also pertinent to note at this juncture that A-1 was unarmed at the time of quarrel between himself and the deceased and therefore by merely holding the deceased the second accused could not have anticipated that A-1 may suddenly take the knife from his waist and stab the deceased. 15. The Hon'ble supreme Court has held in Ramashish Yadav and others v. State of Bihar, reported in 2000 SCC (Cri) 9 : (2000 Cri LJ 12) that, "3. Coming to the question of applicability of Section 34 for the murder of Tapeshwar, we find from the evidence of the three eyewitnesses that while Ram Pravesh Yadav and Ramanand Yadav caught hold of Tapeshwar, accused Samundar Yadav and Sheo Layak Yadav came with gandasa and gave blows on the head of Tapeshwar, as a result of which Tapeshwar died. Section 34 lays down a principle of joint liability in the doing of a criminal act. Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan in it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert. This being the requirement of law for applicability of Section 34 I. P. C., from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav. Consequently, accused Ram Pravesh Yadav and Ramanand Yadav cannot be held guilty of the charge under Section 302 r/w 34 I. P. C. ............ Accused Ram Pravesh and Ramanand are acquitted of the charges and be set at liberty forthwith." The Apex Court in the above decision acquitted two accused who have alleged to have caught hold of the deceased at the time of the occurrence holding that there is no pre-arranged plan and there is no prior meeting of minds and as such they have not shared the common intention of the other accused to cause the death of the deceased. The above said principle laid down by the Apex Court is squarely applicable to the facts of the instant case in respect of the second accused. In this case also there is absolutely no materials to show the existence of a pre-arranged plan or prior concert or meeting of minds between two accused, namely, A-1 and A-2. 16. The above said principle laid down by the Apex Court is squarely applicable to the facts of the instant case in respect of the second accused. In this case also there is absolutely no materials to show the existence of a pre-arranged plan or prior concert or meeting of minds between two accused, namely, A-1 and A-2. 16. Therefore, for the foregoing reasons, the conviction and sentence imposed on first accused under Section 302 read with 34 IPC is set aside and instead the first accused is convicted for the offence under Section 304 (ii) IPC and sentenced to undergo five years rigorous imprisonment. 17. As far second accused is concerned, the conviction under Section 302 r/w 34 I.P.C. is set aside and in view of the decision of the Apex Court, as cited supra, the conviction under Section 341 I. P. C. is also liable to be set aside and he is acquitted from the charges. 18. Therefore, the appeal is partly allowed in respect of the first accused and allowed in respect of the second accused. Appeal partly allowed.