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2014 DIGILAW 4531 (MAD)

Saravanan v. State rep. By Inspector of Police

2014-12-05

S.TAMILVANAN, T.MATHIVANAN

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JUDGMENT : T. MATHIVANAN, J. Challenge is made in this Memorandum of Criminal Appeal to the order of conviction and sentence dated 27.7.2011 and made in the Sessions Case in S.C.No.56 of 2010 on the file of the learned Principal Sessions Judge, Salem (Sessions Division), convicting and sentencing the appellant/accused under Sections 302 and 323 IPC and to suffer life imprisonment and to pay a fine of Rs.1,000/- in default to suffer a further period of Rigorous Imprisonment for one month for the offence under section 302 IPC and to suffer Rigorous Imprisonment for 6 months for the offence under section 323 IPC. Both the sentences were ordered to run concurrently. 2. The appellant/accused being the sole accused was tried before the learned Principal Sessions Judge, Salem (Sessions Division) for the following two charges: (a) under section 326 IPC (b) under section 302 IPC. After the conclusion of trial, the learned Trial Judge has found the appellant/accused guilty under section 323 IPC instead of 326 IPC and also found guilty under section 302 IPC and convicted and sentenced as aforestated. 3. Heard Mr. Ashok Kumar, learned senior counsel appearing for the appellant/accused and Mr. V.M. R.Rajendran, learned Additional Public Prosecutor appearing for the respondent State. 4. Mr. Ashok Kumar, learned senior counsel has mainly projected his arguments only on the conversion of conviction and sentence. He has adverted to that if at all, it is presumed that the appellant had committed an offence, as concluded by the learned trial Judge, his conduct could not be brought under the amplitude of Section 302 IPC, because it was not amounting to murder, as the main ingredient, viz., the criminal intention to constitute the offence of murder was absent in this case. While conceding the finding of the learned trial Judge that the appellant/accused was found guilty under Section 323 IPC as he had caused simple injury to P.W.2, the learned senior counsel has vehemently challenged the finding of the learned trial Judge that "the appellant/accused had committed the offence of murder under Section 302 IPC". 5. With reference to homicide, we would like to place it on record that it is the killing of human being by a human being, which is either lawful or unlawful. 6. Lawful homicide or simple homicide includes several cases falling under the general exceptions as contemplated under Chapter IV of the Indian Penal Code. 7. 5. With reference to homicide, we would like to place it on record that it is the killing of human being by a human being, which is either lawful or unlawful. 6. Lawful homicide or simple homicide includes several cases falling under the general exceptions as contemplated under Chapter IV of the Indian Penal Code. 7. Unlawful homicide includes culpable homicide not amounting to murder as envisaged under Section 299 of the Indian Penal Code. Section 299 of IPC enacts that "whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide". Explanation 1:- A person who causes bodily injury, to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2: Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3: ... 8. The provisions of Section 300 IPC which defines the term of murder assume more importance. It contemplates that except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused done with the intention of causing death; (ii) Secondly if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (iii) Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or (iv) Fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 9. 9. Insofar as this case is concerned, we consider that the exception 4 to Section 300 IPC is very relevant Exception: 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's having taken undue advantage or acted in a cruel or unusual manner. Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault. 10. In the given case on hand, it is manifested from the records that the Inspector of Police attached to Edappadi Police Station, Salem District had laid a final report as against the appellant/accused on the file of the learned Judicial Magistrate No.2, Sankari alleging that he had committed the offences under sections 326 and 302 of IPC. After taking cognizance of the offences and after the completion of preliminary enquiry, the case was committed to the Court of Sessions (Principal Sessions Judge, Salem (Sessions division)) and he had in turn taken up the case on his file in S.C.No.56 of 2010. 11. After the appearance of the appellant/accused, the learned Sessions Judge has framed two charges, viz., (1) 326 IPC (2) 302 IPC as against the appellant/accused. When the ingredients of the charges were explained and questioned, the appellant/accused has pleaded innocent and therefore he was put on trial. The prosecution in order to establish his case has totally examined 15 witnesses and during the course of their examination, Ex.P.1 to Ex.P.15 and M.O 1 to M.O.8 were marked. 12. The gravamen of the prosecution case is this: (i) The deceased Sarasa @ Saroja is none other than the mother of P.Ws.1 and 2. P.W.3 is the daughter of P.W.2. The appellant/accused Saravanan is the junior paternal uncle's son of P.W.1. They are the residents of Edappadi Alachampalayam Village. P.W.4 and 5 are also the residents of the same village. (ii) That on 18.12.2009 at about 7.15 p.m., the appellant/accused came to the frontage of the house of P.W.1. When P.W.1 to P.W.3 and the deceased Sarasa @ Saroja were sitting there. No sooner than his arrival, the appellant/accused had abused P.W.1 in filthy language ""njtoah igad;". When P.W.2 had questioned his authority of abusing of her brother, the appellant/accused had picked up a stone, which was found lying there and assaulted P.W.2 over her head. When P.W.1 to P.W.3 and the deceased Sarasa @ Saroja were sitting there. No sooner than his arrival, the appellant/accused had abused P.W.1 in filthy language ""njtoah igad;". When P.W.2 had questioned his authority of abusing of her brother, the appellant/accused had picked up a stone, which was found lying there and assaulted P.W.2 over her head. Thereafter he had also picked up a wooden cot frame, which was also found lying there and assaulted over her right back. When the deceased being the mother of P.Ws.1 and 2 had intervened and asked the appellant/accused as to why he had given so much of problem to their family, the appellant/accused had immediately reacted and declared that " eP jhd; vy;yhtw;wpw;Fk; fhuzk; cd;id Koj;jhy;; rhpahfptpLk;. (iii) By saying so, he had assaulted the deceased with the same wooden cot frame over her back. When the deceased had fallen on her back, the appellant/accused had picked up the stone, which was used to assault P.W.2 and hit the deceased over her chest. On hearing the incident, the neighbouring residents of the village had rushed there. P.W.4 had also witnessed the occurrence. On seeing them, the appellant/accused had started running from the scene of occurrence. (iv) Thereafter, P.W.2 and the deceased were taken to Edappadi Government Hospital with the help of P.W.5/A.S.Mani and one Mahendran. At about 7.45 p.m, P.W.11 Dr.K.Malarvizhi, Assistant Surgeon attached to Government Hospital, Edappadi had examined the deceased Sarasa @ Saroja and declared "brought dead". She had also found abrasions on the chest of the deceased. To that effect, P.W.11 had issued Ex.P.7, a copy of the Accident Register. (v) At about 8 p.m., she had also examined P.W.2 Chitra and found (i) laceration measuring 6 x 4 cm bone deep over her right parieto temporal region and (ii) complaining of pain over her right shoulder. With regard to the death of the deceased Sarasa @ Saroja, P.W.11 had given an intimation under Ex.P.9 to the Station House Officer attached to Edappadi Police Station. With reference to the injury sustained by P.W.2 Chitra, P.W.11 had also given an intimation under Ex.P.10 to the Station House Officer attached to Edappadi Police Station. (vi) At about 10.30 p.m., P.W.1 had gone to Edappadi Police Station and lodged a written complaint (Ex.P.1) before P.W.10, Sub Inspector of Police. With reference to the injury sustained by P.W.2 Chitra, P.W.11 had also given an intimation under Ex.P.10 to the Station House Officer attached to Edappadi Police Station. (vi) At about 10.30 p.m., P.W.1 had gone to Edappadi Police Station and lodged a written complaint (Ex.P.1) before P.W.10, Sub Inspector of Police. On receipt of the complaint (Ex.P.1), P.W.10 had registered a case in crime No.920/2009 u/s 294(b), 324 and 302 IPC. The Printed First Information Report has been marked as Ex.P.6. Subsequently, the complaint (Ex.P.1) and the printed FIR (Ex.P.6) were sent to the learned Judicial Magistrate No.2, Sankari through P.W.9, Head Constable. P.W.10 had also sent the copies of the complaint as well as the FIR to P.W.15, Inspector of Police attached to Magudanchavadi Police Station, who was also placed in additional charge of Edappadi Police Station. After receiving the copies of the complaint and the FIR, he had forthwith taken up the case for investigation. (vii) On the next day i.e. on 19.12.2009 at about 6 a.m., he had been to the place of occurrence i.e., Alachampalayam Kattur, inspected the same in the presence of P.W.6, Village Administrative Officer and one Velayutham and prepared an Observation Mahazar under Ex.P.2. He had also drawn a Rough Sketch in respect of the place of occurrence under Ex.P.14. At the time of his inspection, he had seized the incriminating materials, viz., 2 stones under the cover of a Seizure Mahazar Ex.P.3. Then he had gone to the Government Hospital, Edappadi and conducted inquest on the dead body of the deceased Sarasa @ Saroja and after the completion of the inquest, he had prepared a report to that effect under Ex.P.15. Thereafter, he had sent the dead body through P.W.14, Head Constable for being examined to find out the cause of death. (viii) At about 1.05 pm. on the same day, i.e., on 19.12.2009, P.W.13 Dr. G.Panneer Selvam attached to Salem Government Mohan Kumaramangalam Medical College and Hospital had an occasion to conduct post-mortem examination on the dead body of the deceased. After the completion of his examination, he had issued a certificate to that effect under Ex.P.13, wherein he had opined that the deceased would appear to have died of shock and hemorrhage due to blunt injuries on chest. After the completion of his examination, he had issued a certificate to that effect under Ex.P.13, wherein he had opined that the deceased would appear to have died of shock and hemorrhage due to blunt injuries on chest. (ix) On the same day, i.e., on 19.12.2009, P.W.12 Dr.S.Rajamanickam had examined P.W.2 in respect of the injuries sustained by her and issued an Accident Register under Ex.P.11. (x) P.W.15, the Investigating Officer after examining the other witnesses including the Doctors P.Ws.11 to 13, had also recorded their respective statements. At about 2.15 p.m., on 19.12.2009, he had also arrested the appellant/accused in the presence of P.W.7 Kandasamy and one Mohanraj and based on his disclosure statement, he had recovered a wooden cot frame at 5.15 p.m. in the presence of the same witnesses. Thereafter, the appellant/accused was sent to Court along with incriminating materials for being remanded to judicial custody and after completion of investigation, he had laid a final report against the appellant/accused on 21.12.2009 u/s 326, 302 IPC before the learned Judicial Magistrate, Sankari. (xi) When the incriminating circumstances arising out of the testimonies of the prosecution witnesses were put to the appellant/accused seeking his explanation during the course of the proceedings under section 313(1)(b) of the Code of Criminal Procedure, he had replied that this case was foisted against him. Though he had stated that he was going to examine witnesses on his part, nobody was examined excepting the marking of Ex.D.1, Arrest Report of the appellant dated 19.12.2009. 13. On appreciation of the evidences both oral and documentary, the learned trial Judge has found that the appellant/accused is guilty under Section 323 IPC instead of Section 326 IPC for having assaulted P.W.2 and also guilty under section 302 IPC, convicting and sentencing him as afore stated. 14. Mr. Ashok Kumar, learned senior counsel has pointed out that insofar as the case of the prosecution is concerned, as discussed in the opening of paragraphs, the "criminal intention" for the commission of the crime was totally absent in this case. He has maintained that when the appellant/accused came to the place of occurrence, he had brought nothing and even as per the case of the prosecution, he had picked up verbal altercation with the witnesses, i.e. P.W.1 and P.W.2. He has maintained that when the appellant/accused came to the place of occurrence, he had brought nothing and even as per the case of the prosecution, he had picked up verbal altercation with the witnesses, i.e. P.W.1 and P.W.2. He had also added that if he was having premeditation to commit the murder of the deceased, he would have brought any other weapon (or) some incriminating materials along with him. But it is manifested from the testimonies of prosecution witnesses that he had picked upon the stone which was found lying there and assaulted P.W.2. Subsequently, he had also picked up a wooden cot frame, which was also found lying there and assaulted P.W.2 as well as the deceased. 15. Mr. Ashok Kumar, the learned senior counsel has also adverted to that the presence of P.W.1 in the place of occurrence was moonshine as he did not even try to make an attempt to rescue his sister as well as his mother when they were attacked by the appellant/accused. The learned senior counsel has also pointed out that when the prosecution had miserably failed to establish the criminal intention, which was said to have been hatched in the mind of the appellant/accused, the question of applicability of Section 300 did not arise, and that the finding of the trial court under section 302 IPC also seems to be groundless and without any vestiges. 16. As stated supra, the learned senior counsel has confined his argument only on the reduction of the sentence. Though he has not commented upon the finding of the trial court under section 323 IPC as against the appellant/accused, he has vehemently argued on the finding of the trial court under section 302 IPC. He has therefore urged this Court for the conversion of the conviction and sentence imposed on the appellant/accused by the trial court. 17. With regard to the conversion of conviction and sentence from Section 302 IPC to one under section 304 either part I or part II, we would like to place reliance upon the following three judgments: (A) State of Rajasthan v. Satyanarayan, 1998 Crl.L.J 2911. In this case, the respondent was convicted by the trial court for the offence punishable under section 302 IPC and sentenced to suffer imprisonment for life. In this case, the respondent was convicted by the trial court for the offence punishable under section 302 IPC and sentenced to suffer imprisonment for life. On appeal, the High Court of Rajasthan had acquitted the respondent of the charge under section 302 IPC and the sentence was also suspended. Challenging the order of acquittal recorded by the High Court of Rajasthan, the State of Rajasthan preferred an appeal before the Hon'ble Apex Court in Criminal Appeal No.614 of 1990. While speaking for the Division Bench of the Apex Court, the Hon'ble Mr. Justice Nanavati, in paragraph 8, has observed as under: "8. In our opinion, the prosecution had established beyond doubt that the respondent had given a knife blow to Kesar Lal and that he died as a result of the injuries caused by that blow. Though the injury was sufficient in the ordinary cause of nature to cause death, the evidence discloses that the respondent had not aimed the blow on any vital part of Ram Gopal or Kesar Lal. The blow was aimed at Ram Gopal but as he moved aside, it landed on the stomach of Kesar Lal. The dispute was not such which would have prompted the accused to cause the death of Kesar Lal, particularly when he had no dispute with Kesar Lal. The dispute was with Bhima, the brother of Kesar Lal. This aspect was not at all considered by the trial court or by the High Court. In our opinion, in view of the facts and circumstances of the case, the appellant should have been convicted under section 304, Part I IPC and not under section 302." (B) In Narendra Kumar and another vs. State of U.P, 1989 (2) Crimes 386, the trial was held by the learned Sessions Judge, Moradabad and he ultimately came to the conclusion that there can be no inference of common intention from the conduct of the assailants. He therefore recorded the finding of not guilty against Shiv Dutt and acquitted him. Insofar as the accused Smt.Raj Rani is concerned, it was held that she was guilty only under section 323 IPC. Considering that she was a lady and also in view of the circumstances of the case, she was punished with a sentence of Rs.100/- as fine. He therefore recorded the finding of not guilty against Shiv Dutt and acquitted him. Insofar as the accused Smt.Raj Rani is concerned, it was held that she was guilty only under section 323 IPC. Considering that she was a lady and also in view of the circumstances of the case, she was punished with a sentence of Rs.100/- as fine. The appellant Narendra Kumar @ Babu was however held to be guilty under section 302 IPC, convicted accordingly and sentenced to imprisonment for life. (i) The Division bench of Allahabad High Court while penning down the judgment has made a reference of two decisions, viz., Hari Ram v. State of Haryana, AIR 1983 SC 185 and Jagtar Singh v. State of Punjab, AIR 1983 SC 463 . In Hari Ram's case the injry had been caused by a single blow dealt in heat of altercation. The intention to kill was not apparent and the offence was held to be one under section 304 IPC and not under section 302 IPC. In Jagtar Singh's case, there was a sudden quarrel on the spur of the moment arising out of trivial reason on chance meeting of the parties. There was no premeditation or malice. The accused was a young man who had caused single blow by the knife on the chest, which has pierced deep and damaged the heart and the victim died. It was held that the intention to cause death or that particular injury could not be imputed to the accused, who could not be credited with the knowledge that he was likely to cause an injury, which was likely to cause the death. The offence was held to have been committed under section 304 Part II and not paras 1 and 2 of Section 300 IPC. (emphasis supplied) (ii) In Narendra Kumar's case, the Division Bench of Allahabad High Court held that there was no previous enmity between Chandra Prakash or for the matter between Narendra Kumar first informant and Narendra Kumar @ Babbu-accused-appellant -persistent demand of the paltry amount of Rs.5/- was being made by the first informant and that on particular day also, some demand was made, which suddenly infuriated the accused. There was an exchange of hot words between them. As a result of this, the appellant with the help of iron short lathi assaulted the deceased and caused a single blow. There was an exchange of hot words between them. As a result of this, the appellant with the help of iron short lathi assaulted the deceased and caused a single blow. The evidence shows that Smt. Raj Rani at that time was armed with an iron rod and on the side of the prosecution, there was no weapon at all. Under these circumstances, persistent blows could have been made upon the deceased and also upon the first informant, if the intention was to cause death. There is no evidence of any malice or premeditation. Everything took place at the spur of moment as a result of a sudden quarrel. The intention to cause that particular injury to Chandra Prakash cannot be imputed to Narendra Kumar @ Babbu and it will be a case to be covered under section 304 Part II of the Indian Penal Code and sentence of five years rigorous imprisonment will serve the ends of justice. (emphasis supplied) (C) In another case in Gurudev Singh and others v. State of Rajasthan, 2003 Crl.L.J. 552, on the basis of the report, the police had registered a case for the offence under section 302 r/w section 34 IPC as against the accused. On the conclusion of the trial, the learned trial Judge having found the prosecution case established beyond doubt to the extent that the accused-appellants caused death of deceased Jai Singh while beating him by stone, held them guilty under sections 299 or 299 r/w section 34 IPC and accordingly convicted the accused-appellant under section 304 Par II IPC and sentenced each of them to undergo rigorous imprisonment for 10 years with a fine of Rs.10,000/- each, in default thereof, each of the appellant was to further undergo imprisonment for two years. The trial court while granting the benefit of section 428 Cr.P.C also ordered that out of the amount of fine imposed on the appellants, a sum of Rs.25,000/- shall be paid to Tota Ram, father of the deceased Jai Singh, as a measure of compensation. While considering the appeal, the learned single Judge of Rajasthan High Court, (Jaipur Bench), in paragraph 46 has observed as under: "46. I have considered the above submission. It is true that if the offence committed falls under category second of section 304 IPC, maximum term of sentence provided is 10 years, or fine or both. While considering the appeal, the learned single Judge of Rajasthan High Court, (Jaipur Bench), in paragraph 46 has observed as under: "46. I have considered the above submission. It is true that if the offence committed falls under category second of section 304 IPC, maximum term of sentence provided is 10 years, or fine or both. Admittedly, the incident took place all of a sudden on a very trifle matter and the accused were unarmed. It is also an admitted fact that appellants Sajjan Singh and Gurdeo Singh picked a heavy stone and hit the same on the head of deceased Jai Singh and none of them repeated the blow. In this view of the matter, taking into consideration the fact that it was their first offence and the age of appellants Sajjan Singh and Gurdeo Singh being 19 and 35 years at the time of commission of offence, I am of the considered view that the sentence awarded to these two appellants is too excessive. The ends of justice would be met if each of the appellants is sentenced to a term of 5 years." 18. On coming to the given case on hand, as per the case of the prosecution, there was a longstanding enmity between the families of the appellant/accused and P.W.1 Palanivel. On the fateful day, i.e., on 18.12.2009 at about 7.15 p.m., when P.Ws.1 to 3 and the deceased Sarasa @ Saroja were sitting in front of their house, the appellant Saravanan came there and abused P.W1 with regard to the grazing of his flower plants by the goat belonging to P.W.1. In fact the dispute is on a trivial issue. However, the appellant/accused took the same as big one and abused P.W.1. As argued by Mr. Ashok Kumar, learned senior counsel appearing for the appellant, the prosecuting agency has failed to prove the existence of criminal intention in the mind of the appellant/accused. If he has an intention to commit the offence of death, he would have equipped himself with weapons for the commission of murder of the deceased. From the circumstances, it is presumed that his aim was to pick up quarrel with P.W.1. If he has an intention to commit the offence of death, he would have equipped himself with weapons for the commission of murder of the deceased. From the circumstances, it is presumed that his aim was to pick up quarrel with P.W.1. Therefore, he had scolded P.W.1, for which P.W.2 had reacted and out of sudden provocation, the appellant/accused had picked up a stone, which was found lying there, and assaulted over her head and further assaulted her with wooden cot frame, which was also found lying there. When the deceased had intervened, he had assaulted her with wooden cot frame and when she had fallen on her back, according to the case of the prosecution, he had picked up the stone and hit her over her chest and thereafter he run away from the place of occurrence, when other villagers rushed there. 19. Considering the conduct of the appellant/accused, as decided by the Hon'ble Apex Court as well as various High Courts in the decisions cited above, we are of the considered view that since no premeditation or malice is established by the prosecuting agency, the finding of the learned trial judge under section 302 of IPC as against the appellant/accused is erroneous and therefore the conviction and sentence recorded as against the appellant/accused under section 302 of IPC are required to be modified and we also find that this would meet the ends of justice. 20. Resultantly, the Criminal Appeal is partly allowed. While maintaining the conviction and sentence recorded as against the appellant/accused under section 323 of IPC, the conviction and sentence under section 302 IPC are set aside, instead, the appellant/accused is found guilty under section 304 Part II IPC and sentenced to suffer 5 years of rigorous imprisonment. The fine of Rs.1,000/- awarded by the trial court is maintained. The incarceration so far undergone by the appellant/accused is directed to be set off.