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Madras High Court · body

2014 DIGILAW 3300 (MAD)

Kamaraj v. State Rep. by, Inspector of Police

2014-09-12

M.VENUGOPAL

body2014
Judgment 1. The conviction and sentence dated 04.12.2007 passed by the Learned Additional District and Sessions Judge (Fast Track Court No.I), Ranipet in S.C.No.274 of 2006 are now under challenge in the present Appeal filed by the Appellant/Accused. 2. The Appellant/Accused was found guilty by the trial Court in respect of an offence under Section 326 of IPC and was awarded with a punishment of three years Rigorous Imprisonment and further he was directed to pay a fine of Rs.10,000/- and in default of payment of fine, he was also directed to undergo one month Rigorous Imprisonment. He was acquitted in respect of the offence under Section 294 (b). In as much as he was found guilty under Section 326 of IPC, the trial Court came to the conclusion that the charge under Section 323 of IPC was an unnecessary one. That apart, the trial Court, out of the fine amount of Rs.10,000/- imposed by it, directed a sum of Rs.9,000/- to be paid to P.W.1/victim as compensation. 3. The case of the prosecution is that on 13.04.2006, in Edaiyanthangal Village, at about 5.00 p.m. in the evening, the complainant Ramakrishnan went alongwith his father to take part in the function obsequies of Valliammal and at that time, P.W.2 (Settu) had informed already four days (before the occurrence) that the Appellant/Accused should not run the JCB machine during day time as a result of which a dispute arose based on prior enemity and that while P.W.2 was standing in the land belonging to Pandithar, near Harichandran temple, the Appellant/Accused went near P.W.2 and by uttering the ......(filthy words) took a hidden knife from his hip and by uttering (by now you get finished) stabbed him on his stomach as a result of which his stomach was torn and consequently, the Inspector of Police, Kaveripakkam had laid a charge sheet against the Appellant/Accused under Section 294(b), 323 and 307 of Indian Penal Code. 4. On the basis of the accusation levelled against the Appellant/Accused, the trial Court framed necessary charges in respect of the offences under Section 294(b), 323 and 307 of IPC and the same were read over and explained to him. The Appellant/Accused denied the charges framed against him. 5. Before the trial Court, on the side of prosecution witnesses, P.Ws.1 to 12 were examined and Exs.P1 to P8 were marked. Also M.O.1. knife was marked. The Appellant/Accused denied the charges framed against him. 5. Before the trial Court, on the side of prosecution witnesses, P.Ws.1 to 12 were examined and Exs.P1 to P8 were marked. Also M.O.1. knife was marked. On the side of the Appellant/Accused, D.W.1 was examined as a witness. No exhibits were marked on his side. When the Appellant/Accused was questioned under Section 313 of Cr.P.C. in regard to the incriminating circumstances appearing in the evidence against him, he denied his complicity in the crime. 6. The Learned Counsel for the Appellant/Accused contends that the trial Court had not applied its mind in proper and real prospective while convicting the Appellant/Accused in a mechanical fashion. According to the Learned Counsel for the Appellant/Accused, the trial Court failed to appreciate that all the prosecution witnesses No.1 to 6 were all blood relatives and further they were all interested witnesses. Further, the trial Court placed reliance on the evidence of such interested witnesses and convicted the Appellant/Accused in respect of an offence under Section 326 of IPC and imposed him a punishment of three years Rigorous Imprisonment. 7. Advancing his argument, the Learned Counsel for the Appellant/Accused vehemently projected an argument that the trial Court should have taken note of the contradiction in the evidence of P.W.1/Defacto Complainant and P.W.2, the injured witness. 8. The Learned Counsel for the Appellant/Accused contends that P.W.7 and P.W.8 (Doctors) had deposed in their evidence that if a person falls down accidentally on materials like sharp knife and hit by it, the injuries mentioned in Ex.P3 – A.R. copy might occur. 9. The main contention advanced on behalf of the Appellant/Accused is that D.W.1 (Jothiramalingam) who was examined was left out by the prosecution as a witness on its side. In fact, he was examined as D.W.1 and he deposed that no such incident took place and also there was no seizure of M.O.1 – knife. 10. The Learned Counsel for the Appellant/Accused submits that the trial Court had miserably failed to take note that the Appellant's wife was forced and threatened to prepare and give a knife as Ex.M.O.1 with a view to implicate the Appellant in the above case and these vitals facts were unfortunately omitted by the trial Court in considering the same in a real fashion. 11. 11. Yet another argument projected on the side of the Appellant/Accused before this Court is that D.W.1 had deposed that no arrest was made in the instant case and that the Appellant/Accused had not given any confession before him. That apart, the trial Court failed to appreciate that all the mahazar witnesses had turned hostile and also not supported the prosecution case. 12. In response, the Learned Additional Public Prosecutor for the respondent submits that the trial Court had appreciated the evidence of P.Ws.1 to 6, looked into the exhibits P.1 to P.8, M.O.1, etc. and ultimately found the Appellant/Accused guilty in respect of the offence under Section 326 of IPC and imposed him the necessary punishment (including the imposition of fine amount). 13. For full and better appreciation of the merits of the matter, at this stage this Court, makes a useful and appropriate reference to the evidence of prosecution witnesses P.W.1 to 12. 14. It is the evidence of P.W.1 that the Appellant/Accused is in possession of a land and four days prior to the date of occurrence in their land , he alongwith his father and mother with the assistance of coolie workers were engaged in agricultural work and approximately 20 coolie workers were doing the work and in their work, they had raised Sugarcane and Ragi and at that time, the Appellant/Accused brought to his land a JCB machine and he was levelling his land with the said machine and at that time, he pushed the sand in their land. 15. It is the further evidence of P.W.1 that the sand dust fell on the women workers who were employed in the land and were doing the work and this was questioned by their coolie workers and in this connection, his father went to the Appellant/Accused who was driving the JCB machine and his father further informed him that women workers were doing their work and sand dust was coming and falling down and carry out the work in the land at a different place and finally come to this place and drive / run the JCB machine as he likes and before that, the women coolie workers would complete their work and they would leave away from that place and now there was hindrance and if necessary, he can drive / run the JCB machine during night time. At that time, when P.W.1's father informed the aforesaid details to the Appellant/Accused, P.W.1 was also with his father. 16. Apart from the above, it is the evidence of P.W.1 that on 13.04.2006, in their village, four days after the quarrel that took place, an old lady Valliammal died and on 13.04.2006, they took her body to the burial ground for burying the same in the evening and her body was kept in Harichandran's land and as per procedure, with the help of Harichandran, songs were sung and at that time, it was 5.00 p.m. in the evening and at that time, his father was standing in the land of Pandithar Narayanan who belong to their village and at that time, he was standing at a distance of 25 feet (P.W.1) and alongwith P.W.1, Vinayagam, Ethiraj belonging to the village and others were also standing and talking. At that time, the Appellant/Accused went near his father and uttered the following words PAGE 107 and slapped his father on his face for two times. On seeing his father being slapped on his face, P.W.1 ran near his father and the Appellant/Accused, by uttering some indecent/vulgar words by addressing his father, stabbed his father on his stomach with the hidden knife kept by him. Further, the Appellant/Accused had attacked/stabbed P.W.1's father two times and his father caught hold of the knife with which the Appellant/Accused attacked with his right hand. While doing so, his father's three fingers on right hand were cut and the Appellant/Accused ran away after seeing him. Moreover, P.W.1, in his evidence had also proceeded to state that he caught hold of his father and his father fell on him and at that time, Vinayagam and Ethiraj came running and finally, one Vijayan came near him and also they tied the intestines which came from the stomach of P.W.1's father. 17. Moreover, P.W.1 with the help of Vijayan took his father in TVS 50 and admitted him at Wallajah Government Hospital. Since in the said Hospital, they refused to admit his father, they took him to the Vellore CMC Hospital and admitted there. After admitting his father in Vellore CMC Hospital at 12.00 in the midnight, P.W.1, caught hold of a lorry and gave a complaint in the Kaveripakkam Police station that the complaint written by him and his written complaint was Ex.P.1 18. After admitting his father in Vellore CMC Hospital at 12.00 in the midnight, P.W.1, caught hold of a lorry and gave a complaint in the Kaveripakkam Police station that the complaint written by him and his written complaint was Ex.P.1 18. Continuing further, it is the evidence of P.W.1 that he does not know to read and write and complaint was written by one person based on his dictation and he had written the complaint at the Vellore CMC Hospital and that he was examined by the police. 19. P.W.2, in his evidence had stated that P.W.1 is his father and that the Appellant/Accused admitted that his land had got merged with their land and in their land, they had raised sugarcane and ragi and further informed that after harvest of crops, with the help of surveyor, the land could be measured and if the Appellant/Accused land got merged with their land, it could be taken by the Appellant/Accused and he informed him accordingly. In fact, the evidence of P.W.2 is that the Appellant/Accused had informed about the excess land four days before the occurrence and two days later only, when the Appellant/Accused was levelling his land for the purpose of dividing the same as plots, brought the JCB Machine to his land and was doing the levelling work. 20. P.W.2 proceeded to state in his evidence about the oral quarrel that took place between him and the Appellant/Accused. Further, it is his evidence that the Appellant/Accused came to burial ground in regard to the death of old lady Valliammal in their village and at that time ,the Appellant/Accused gave two slaps to him on his cheek and also he gave a blow on his chin and at that time, the Appellant/Accused took his hidden knife and stabbed him on his stomach two times and pulled out the knife and in one hand, he caught hold of the knife and also caught hold of the Appellant/Accused but the Appellant/Accused pushed him away and ran away from the scene of occurrence. 21. 21. It is the further evidence of P.W.2 that since he caught hold of the knife, his three right hand fingers were cut in that process and his intestines was found hanging and the said intestine was caught hold of by P.W.2 and he fell down and later his son and one witness Vijayan came running and they lifted him and with the help of cloth, they pushed the intestines inside the stomach and tied the same and also immediately, they took him to the Government Hospital since they refused, he was taken to Vellore CMC Hospital for treatment and he remained as an inpatient for 25 days in the said Hospital. 22. It is the evidence of PW.3 that he was standing at a distance of 10 feet and that Settu (PW.2) was also standing at a distance of 10 feet and Ramakrishnan was also standing on his back and at that time, the Appellant stabbed PW.2 with knife on his stomach and because of the said stabbing PW.2's intestine came out and he along with PW.1 drenched the cloth and tied the intestine in PW.2's stomach and took him to the inside of the village and also took him in his TVS-50 and admitted him at the Walajah Government Hospital and where the Doctor after seeing PW.2 Settu, expressed his inability and advised them to take him to the CMC Hospital, and with them he went to the Vellore CMC Hospital and that in CMC Hospital, he received treatment. 23. It is also the evidence of PW.4 that at a distance of 20 feet, he along with Damodharan, Vinayagam, Ramakrishnan were standing and at that time PW.1 ran after witnessing the quarrel that took place between Kamaraj and Settu and they went behind them and before they could run there, the Appellant stabbed PW.2 two times on his stomach and ran away from the scene of occurrence. In fact, PW.2 deposed about the intestines of Settu coming out of his stomach and the intestines were tied in the stomach of PW.2 and with the help of Vijayan, they took him to Walajah Hospital by seating him in a TVS 50 vehicle. 24. In fact, PW.2 deposed about the intestines of Settu coming out of his stomach and the intestines were tied in the stomach of PW.2 and with the help of Vijayan, they took him to Walajah Hospital by seating him in a TVS 50 vehicle. 24. PW.5 in his evidence had deposed about the Appellant/Accused stabbing PW.2 on his stomach and at that point of time, PW.2 with his right hand, while catching hold of the knife suffered injury on his right hand and because of the stabbing attack PW.2's intestines came out and it was tied with the help of a cloth and in the TVS-50 vehicle belonging to Vijayan, they took him to Walajah hospital. 25. It is the evidence of PW.7 Doctor that he had examined PW.2 on 13.04.2006, who was brought before him along with Vijayan and he found out the wound stab injury on stomach portion, through which the intestine came out and he had issued Ex.P3 Accident Register Copy in respect of him and that he gave first aid treatment and advised him to be taken to Vellore Government Medical College Hospital. 26. It is the further evidence of PW.7 that PW.2 had taken further treatment at Vellore CMC Hospital and after seeing the records pertaining to Vellore CMC Hospital, he had issued Ex.P3-Certificate stating that the injury was a grievous one. 27. P.W.8 (Doctor) in his evidence has stated that on examining P.W.2 (Settu) on 13.04.2006 at 7.30 p.m., he found the following injuries - (i) A torn injury on the left side upper portion of the stomach measuring 6 x 3 cms. (ii) In first finger, ring finger and centre finger of right hand puncture injuries. (iii) A portion of small intestine was cut measuring 1 cm (iv) Two injuries in bigger intestine, each one at a length of 3 cms. (v) Blockade of blood circulation because of the injuries sustained in small intestine (vi) A cut injury between intestine and neck (vii) On the backside of 6th injury muscle portion left PSOAS Muscle was cut. 28. (v) Blockade of blood circulation because of the injuries sustained in small intestine (vi) A cut injury between intestine and neck (vii) On the backside of 6th injury muscle portion left PSOAS Muscle was cut. 28. PW.8 in his evidence had also stated that Ex.P4 was the wound certificate relating to PW.2 and PW.2 had informed him that a known person had attacked him with the knife on 13.04.2006 at about 5'o clock in the evening and he was admitted as an inpatient in the Vellore CMC Hospital, wherein he remained as inpatient from 13.04.2006 till 25.04.2006 and Ex.P4, certificate was issued by him. 29. PW.10 – Head Constable (in his evidence) had deposed that on 14.04.2006, when he was on duty at Police Station, PW.1 gave a complaint and on receipt of the same in Crime No.388 of 2006, he registered a case under Sections 294(b), 323 and 307 of Indian Penal Code and Ex.P7 was the First Information Report registered by him. 30. PW.11 – Inspector (in his evidence) had also stated that he received the registered First Information Report in Crime No.388 of 2006 registered under Section 307 of IPC, which was registered by Constable Ravichandran and soon after the receipt of the same, he went to CMC Hospital, at about 7'O clock in the morning on 14.04.2006 and at that point of time, PW.2 was not in talking terms and immediately, he recorded a statement from his son Ramakrishnan, who was with him and also he recorded the statement of one Vijayan, S/o.Gurusamy and also inspected the place of occurrence at Edaiyanthangal Village in the present of witnesses Vinayagam and Mani and at 5'O clock in the evening, he prepared an Observation Mahazar and the plan. 31. 31. It is the further evidence of PW.11 that Ex.P2 was the observation mahazar prepared by him and the Rough Sketch was Ex.P8 and also recorded the statements of Ethiraj, Damodaran, Vinayagam, Vijayan and another Vinayagam and Mani, after examining them and when he came to Ponnappathangal Junction Road, at about 11'O clock on 15.04.2006, and at that place, the Appellant was identified by witnesses Ramakrishnan, Dakshinamurthy, Jothilingam and in their presence arrested the Appellant at that time, the Appellant gave a confession statement and the admitted portion of the confession was marked as Ex.P5 and that the Appellant took him to his house and from the back portion of his house, he showed the roof place, from where he produced the knife, which was seized by him as per Ex.P6 and the said knife was marked as Ex.M.O.1 and also that after bringing the Appellant to the Police Station, he was sent to judicial custody. Later, on 16.04.2006, he enquired PW.2 at CMC Hospital (after he regained his conscience) and recorded his statement and that he examined the confession statement witnesses Jothilingam, Dakshinamoorthy and recorded their statements. 32. PW.12 in his evidence had deposed that he took up the case files on 23.06.2006 and later after perusing the file, he recorded the statement of Doctors PW.7 and PW.8 and also obtained the wound certificate and after obtaining the opinion from the Government Criminal Side Advocate, finally laid the charge sheet against the Appellant/Accused under Sections 323 and 307 of Indian Penal Code. 33. At the outset, in the instant case, this Court very relevantly points out that M.O.1 knife was a dangerous weapon and in view of the fact that PW.2 had sustained grievous injury, as spoken to by PW.7 and PW.8 (Doctors) coupled with the details mentioned in Exs.P3 and P4, it is quite evident that the injuries sustained by PW.2 were of grievous in nature. PW.2 in his evidence had clearly deposed about the manner in which he was attacked and stabbed by the Appellant/Accused and coupled with the evidence of PW.3, who took the injured/PW.2 in his TVS-50 and brought him to the Government Hospital, Walajah, where PW.2 was not admitted and he was advised to be taken for further treatment and accordingly, PW.2 was taken to the CMC Hospital, Vellore, wherein he was admitted as an inpatient and received treatment. In fact, PW.1 and other witnesses had spoken about the motive to the happening of the occurrence, viz. relating to the dispute of JCB Machine being pressed into service at the land of the Appellant/Accused, at which point of time, the sand dust and the sand were pushed to the land of the injured/PW2/Victim. 34. Based on the evidence projected on the side of the Prosecution, especially the evidence of injured/PW.2 and also the evidence of PW.1, PW.3 coupled with the evidence of PW.7 and PW.8 and taking note of the fact that PW.2 injured had sustained grievous injury as per Ex.P4, this Court holds that the Respondent/ Prosecution had not established its case under Section 307 of IPC against the Appellant/Accused. However, in view of the fact that in the instant case that PW.2 had sustained grievous injuries, which could not be disputed by any one, this Court, inevitably comes to a resultant conclusion that the offence under Section 326 of IPC against the Appellant/Accused was proved beyond all reasonable doubt by the Prosecution, in the considered opinion of this Court. 35. Insofar as the offence under Section 294(b) of IPC is concerned, since there was no evidence in the case in regard to the indecent/vulgar language employed by the Appellant/Accused at the time of occurrence, the finding of acquittal rendered by the trial Court in this regard does not suffer from any material irregularity or patent illegality in the eye of law, as opined by this Court. That apart, in view of the fact that this Court has held the Appellant/Accused guilty under Section 326 of Indian Penal Code, it opines that the charge under Section 323 of Indian Penal Code was an unnecessary one. 36. As such, this Court is in agreement with the view taken by the trial Court that the Appellant/Accused is guilty under Section 326 of Indian Penal Code instead of Section 307 of Indian Penal Code. 37. Coming to the aspect of quantum of sentence to be awarded to the Appellant/Accused, it is an established fact that the trial Court has wide discretion to award the just and necessary punishment in a given case by exercising its judicial discretion. In fact, it is within the domain of trial Court to impose a just, fair and proper punishment to an Accused in a given case. In fact, it is within the domain of trial Court to impose a just, fair and proper punishment to an Accused in a given case. However, if the judgment of the trial Court in regard to the imposition of punishment is an excessive, arbitrary or slightly on the higher side, then the Appellate Court to secure the ends of justice, may modify/alter the fine, based on the facts and circumstances of a given case, which float on the surface. A perusal of the judgment of the trial Court in the instant case shows that the Appellant was imposed with the punishment of three years Rigorous Imprisonment and further he was also imposed with the fine of Rs.10,000/-etc. Added further, out of the imposition of fine amount of Rs.10,000/-, the trial Court directed the Appellant to pay a sum of Rs.9,000/-as compensation to PW.2/injured/Victim, after the completion of 60 days appeal time was over or after the disposal of the appeal. The said compensation was directed to be paid to PW.2/injured/Victim in terms of ingredients of Section 357(3) of Cr.P.C. 38. Be that as it may, on a careful consideration of entire conspectus of the facts and circumstances of the present case, in an attendant fashion, this Court opines that the ends of justice would be met if the Appellant/Accused is imposed with the Rigorous Imprisonment for a period of two years and accordingly, imposes a punishment of two years Rigorous Imprisonment in respect of the proved offence under Section 326 of IPC. Also this Court to prevent an aberration of justice, directs that the remaining sum of Rs.1,000/- out of the fine of Rs.10,000/-awarded by the trial Court to be paid to PW.2/Victim by the Respondent/Complainant/Prosecution. In this regard, this Court directs the Respondent/Complainant to file necessary Miscellaneous Petition before the trial Court in S.C.No.274 of 2006 for payment out of the said money and to disburse the said sum of Rs.1,000/- to PW.2 without any loss of time. Resultantly, the Criminal Appeal succeeds in part. 39. In the result, the Criminal Appeal is allowed in part in the above terms. The trial Court is directed to take appropriate steps in furtherance of substantial cause of justice to immure the Appellant in prison so as serve the remaining period of sentence.