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2018 DIGILAW 3858 (MAD)

Karal Marks v. State Rep by Inspector of Police

2018-10-23

N.ANAND VENKATESH, V.K.TAHILRAMANI

body2018
JUDGMENT V.K. TAHILRAMANI, J. 1. This appeal is directed by the appellant-original accused against the Judgment and order dated 19th March 2013 passed by the learned Principal Sessions Judge, Tuticorin District, in Sessions Case No.245 of 2012. By the said Judgment and order, the learned Principal Sessions Judge convicted the appellant under Section 302 IPC. For the offence under Section 302 IPC, the learned Principal Sessions Judge sentenced the appellant to undergo life imprisonment and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for a further period of three months. 2. The case of the prosecution, briefly stated, is as under:- 2.1. The appellant was the husband of Nagalakshmi [deceased]. The marriage between the appellant and deceased Nagalakshmi took place about six years prior to the incident. The appellant and deceased Nagalakshmi had one son. PW-1-Nagalingam was the father of deceased Nagalakshmi. The appellant and his wife-Nagalakshmi were residing at Boothalapuram Village. There used to be frequent quarrels between the appellant and his wife-Nagalakshmi. The incident took place on 20.02.2012, at about 06.30 p.m. At that time, PW-1-Nagalingam along with PW-3-Dharmar had gone to the house of his daughter-Nagalakshmi to see his grandson. At that time, Nagalakshmi was preparing food. The appellant came home and stated that he is hungry and she is cooking for herself. Saying so, the appellant assaulted Nagalakshmi on the back of the neck with sickle. Nagalakshmi fell down. PW-1-Nagalingam went to catch the appellant. However, the appellant pushed him down and ran away. PW-1-Nagalingam found that his daughter was dead. Thereafter, PW-1-Nagalingam along with his son-PW-2 Chinna Nagaraj went to the Police Station and Nagalingam lodged his complaint, which is at EX-P1. The same was registered as EX-P11. Thereafter, the investigation commenced. The dead body of Nagalakshmi was sent for postmortem. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Session. 2.2. Charges came to be framed against the appellant under Sections 302 and 323 IPC. The appellant pleaded not guilty to the said charges and claimed to be tried. His defence is of total denial and false implication. To support their case, the prosecution examined PW-1 to PW-18 and marked EX-P1 to EX-P17 and seven material objects. 2.2. Charges came to be framed against the appellant under Sections 302 and 323 IPC. The appellant pleaded not guilty to the said charges and claimed to be tried. His defence is of total denial and false implication. To support their case, the prosecution examined PW-1 to PW-18 and marked EX-P1 to EX-P17 and seven material objects. After going through the evidence adduced in this case, the learned Principal Sessions Judge acquitted the appellant of the offence under Section 323 IPC, however, the learned Sessions Judge convicted and sentenced the appellant, as stated in Paragraph No.1, above, hence, this appeal. 3. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the State. After giving our anxious consideration to the facts and circumstances of the case, the arguments advanced by the learned counsel for the appellant and the learned Additional Public Prosecutor for the State, the evidence on record and the judgment delivered by the learned Sessions Judge for the reasons stated herein-below, we are of the opinion that the appellant has assaulted his wife-Nagalakshmi with sickle on the neck which led to her death. 4. The conviction of the appellant is mainly founded on the evidence of PW-1-Nagalingam and PW-3-Dharmar, who are eyewitnesses to the incident. PW-1-Nagalingam was the father of deceased Nagalakshmi. He has stated that he was residing at Boothalapuram Village. His daughter Nagalakshmi was married to the appellant six years prior to the incident. The appellant was the son of his elder sister. The appellant and deceased Nagalakshmi did not lead a good marital life and there used to be frequent quarrels between the appellant and his wife-Nagalakshmi. PW-1-Nagalingam has further stated that he used to frequently go to the house of his daugher-Nagalakshmi. In relation to the incident, PW-1-Nagalingam has stated that on 20.02.2012, at about 06.30 p.m., he along with PW-3-Dharmar, went to the house of the appellant in order to see his grandson. At that time, Nagalakshmi was preparing food. The appellant came home and stated that he is hungry and she is cooking for herself. Saying so, the appellant assaulted Nagalakshmi on the back of the neck with sickle. Nagalakshmi fell down. PW-1-Nagalingam went to catch the appellant. However, the appellant pushed him down and ran away. At that time, Nagalakshmi was preparing food. The appellant came home and stated that he is hungry and she is cooking for herself. Saying so, the appellant assaulted Nagalakshmi on the back of the neck with sickle. Nagalakshmi fell down. PW-1-Nagalingam went to catch the appellant. However, the appellant pushed him down and ran away. Thereafter, PW-1-Nagalingam along with his son-PW-2-Chinna Nagaraj went to the Police Station and lodged his complaint, which is at EX-P1 and the same was registered as EX-P11. Nothing has been elicited in the cross- examination of PW-1-Nagalingam so as to cause us to disbelieve his evidence. We find that his evidence inspires implicit confidence, hence, we have no hesitation in relying on the same. 5. The second eyewitness is PW-3-Dharmar, who had accompanied PW-1-Nagalingam, when Nagalingam went to the house of the appellant and deceased Nagalakshmi. PW-3-Dharmar has also stated that there used to be constant quarrels between the appellant and his wife-Nagalakshmi. He has further stated that on 20.02.2012, at about 06.00 p.m, he and PW-1-Nagalingam went to the house of the appellant and deceased Nagalakshmi. At that time, Nagalakshmi was preparing food. The appellant came home and stated that he is hungry and she is cooking for herself. The appellant, after uttering these words, immediately assaulted Nagalakshmi with sickle on the back of the neck. They tried to catch the appellant, but, the appellant ran away from the place of occurrence. Thereafter, PW-2-Chinna Nagaraj, who is the son of PW-1-Nagalingam, came to the spot and PW-1-Nagalingam and PW-2-Chinna Nagaraj went to the Police Station to lodge complaint. Nothing has been elicited in the cross-examination of PW-3-Dharmar so as to discredit his evidence. 6. It is the case of the prosecution that the appellant assaulted his wife-Nagalakshmi with a sickle. The fact of assault by sickle is supported by the medical evidence. PW-9-Dr.Nishanth conducted postmortem on the dead body of Nagalakshmi. On external examination, the Doctor found the following injuries: ""Deep cut injury present in the right side of neck, extending upto the upper border of sternum in the anterior aspect and to the middle of the posterior aspect of neck in back, extending above upto the right side of chin and extending below upto the right clavicle of about 15 X 8 X 10 CM. The muscles, blood vessels, neck, bone, bronchial and spinal cord were fully found cut." According to PW-9-Dr.Nishanth, the death of Nagalakshmi was caused on account of shock and haemorrhage due to injuries sustained. PW-9-Dr.Nishanth has categorically stated that the wounds, which he had noticed on the dead body of Nagalakshmi, are likely to be caused by sickle. Thus, in this manner, the evidence of PW-9-Dr.Nishanth supports the case of the prosecution. 7. In addition to the evidence of the two eyewitnesses, the prosecution is relying on the evidence of PW-12-Alagarsamy, who is the recovery witness. He has stated that on 29.02.2012, at about 08.00 a.m., the appellant made a statement in the presence of police, in which the appellant stated that he had hidden the weapon and will produce the same. Accordingly, the appellant produced TVS 50, [MO-4] and a sickle [MO-1] from the black babul thorny bush at Kandasamipuram road. This weapon was sent for forensic analysis. PW-17-Vijayalatha conducted the forensic analysis. The Forensic Analysis Report is at EX-P14. The report shows that the sickle [billhook] was stained with human blood. It may also be stated that the gunny bag seized from the house of the appellant and deceased was also stained with human blood. The finding of human blood on the gunny bag found in the house of the appellant clearly fortifies the case of the prosecution that the incident took place in the house of the appellant and deceased. 8. The learned counsel for the appellant tried to contend that the circumstance of recovery itself is not believable, because, the recovery witness was very well known to PW-1-Nagalingam-the father of deceased. To support this contention, he has placed reliance on the evidence of recovery witness PW-12-Alagarsamy to show that he was working as Village Assistant. The learned counsel for the appellant pointed out that PW-1-Nagalingam, the father of deceased, was also working as Village Assistant. Based on this, the learned counsel for the appellant contended that PW-1-Nagalingam, the father of deceased, was very well known to the recovery witness and hence, the recovery witness has to be held to be an interested witness and as such, the evidence of recovery witness cannot be relied upon. 9. Based on this, the learned counsel for the appellant contended that PW-1-Nagalingam, the father of deceased, was very well known to the recovery witness and hence, the recovery witness has to be held to be an interested witness and as such, the evidence of recovery witness cannot be relied upon. 9. In relation to the above contention, we have gone through the evidence of PW-12-Alagarsamy, who is the recovery witness as well as the evidence of PW-1-Nagalingam, who is the father of deceased. It is seen that PW-12 is from Mathalapuram Village and was working at D.Jegaveerapuram, whereas the father of the deceased-PW-1-Nagalingam was residing at Boothalapuram Village. It is well known that every village has only one Village Assistant. Therefore, PW-1-the father of deceased could not have been working as Village Assistant in the same village as PW-12. As both were residing in different villages and working as Village Assistants in different villages, there would be no opportunity for them to be well known to one another and there would be no opportunity for PW-1-Nagalingam to have any influence on the recovery witness. In such case, we do not agree with the contention of the learned counsel for the appellant that PW-12-Alagarsamy, is not an independent witness and is an interested witness. 10. The learned counsel for the appellant tried to make capital of the fact that the blood group found on the gunny bag and the weapon of assault was not identified, as the result of the test, as seen from the report is stated as "inconclusive". However, we have noticed that the gunny bag as well as the sickle were stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case of Gura Singh Vs. State of Rajasthan, reported in, (2001) 2 SCC 205 , wherein it has been observed as under:- "20. In view of the authoritative pronouncement of this Court in Teja Ram case, (1999) 3 SCC 507 , we do not find any substance in the submissions of the learned counsel for the appellant that in the absence of the report regarding the origin of the blood, the trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found that the chadar [sheet] seized in consequence of the disclosure statement made by the appellant was stained with human blood. The Serologist and Chemical Examiner has found that the chadar [sheet] seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time, the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The Trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant". 11. Similar view has been taken by the Supreme Court in the case of R.Shaji Vs. State of Kerala reported in, (2013) 14 SCC 266 ; Molai & another Vs State of Madhya Pradesh, reported in, (1999) 9 SCC 581 and Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, reported in, (1991) AIR SC 1853. It is pertinent to note that in the present case, the appellant has not given any explanation for the presence of human blood on the sickle as well as the gunny bag found in his house. 12. The learned counsel for the appellant, thereafter, submitted that there is delay in lodging the complaint as well as delay in despatching the First Information Report to the Magistrate, hence, according to him, this casts a serious shadow of doubt on the prosecution case. As far as this contention is concerned, it is noticed that the incident had taken place at 06.30 p.m and the complaint was lodged on the very same day at 08.00 p.m. As seen from the evidence, the distance between the place of occurrence and the Police Station can be covered in half an hour. In such case, it cannot be stated that there is delay in lodging the complaint. 13. In relation to the contention regarding the delay in despatching the First Information Report to the concerned Magistrate, as visualised by Section 157 of the Code of Criminal Procedure, we may make useful reference to a few decisions of the Supreme Court on this aspect. 13.1. In Balram Singh Vs State of Punjab, reported in, (2003) 11 SCC 286 : (2004) SCC (Crl) 149, the Supreme Court observed as under:- "10..... We notice that in reality there is no delay in preparing the FIR, but there was some delay in transmitting the said information to the jurisdictional Magistrate. 13.1. In Balram Singh Vs State of Punjab, reported in, (2003) 11 SCC 286 : (2004) SCC (Crl) 149, the Supreme Court observed as under:- "10..... We notice that in reality there is no delay in preparing the FIR, but there was some delay in transmitting the said information to the jurisdictional Magistrate. Having been satisfied with the fact that the FIR in question was registered in the morning of 06.05.1990, we do not think that the delay thereafter in communicating it to the jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document [FIR] was created after much deliberations. At any rate, while considering the complaint of the appellants in regard to the delay in the FIR reaching the jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case". 13.2. In Sarvesh Narain Shukla Vs. Daroga Singh, reported in, (2007) 13 SCC 360 : (2009) 1 SCC (Crl) 188, the Supreme Court held that delay in forwarding the special report to the Magistrate could not raise a suspicion that FIR had been written later and was ante-timed. Suspicion of manipulation of the documents prepared during the initial investigation would not dislodge the documentary and oral evidence on the spontaneity of the lodging of the FIR. 13.3. Similar view was taken by the Supreme Court in the case of Brahm Swaroop Vs. State of UP, reported in, (2011) 6 SCC 288 and it was observed as under:- "18....... However, no rule of universal application can be laid down that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. If there has been some lapse on the part of the Investigating Officer, that would not affect the credibility of the prosecution's witnesses. 21.In the instant case, the defence did not put any question in this regard to the Investigating Officer, thus, no explanation was required to be furnished by him on this issue. "..... 13.4. The Supreme Court in the case of State of Rajasthan Vs. 21.In the instant case, the defence did not put any question in this regard to the Investigating Officer, thus, no explanation was required to be furnished by him on this issue. "..... 13.4. The Supreme Court in the case of State of Rajasthan Vs. Daud Khan, reported in, (2016) 2 SCC 607 has observed that if there is no delay in lodging an FIR, then, any delay in communicating the special report to the Magistrate would really be of little consequence, since manipulation of the FIR would then get ruled out. In the present case, it cannot be said that there is any delay in lodging the complaint. The complaint has been lodged promptly in this case. Thus, even if there is a little delay in despatching the report to the Magistrate, it would not be fatal to the case of the prosecution. 14. Thereafter, the learned counsel for the appellant placed reliance on the evidence of PW-1-Nagalingam to show that the appellant came and argued with his wife-Nagalakshmi in relation to food and thereafter, the assault on Nagalakshmi by the appellant took place. The learned counsel for the appellant thus placed reliance on Exception 4 to Section 300 IPC to contend that as the incident took place during a sudden quarrel, the appellant would be entitled to the benefit of Exception 4 to Section 300 IPC and hence, the case of the appellant would not be covered by Section 302 IPC and would be covered by Section 304(ii) or at the most Section 304(i) IPC. 15. To bring a case within Exception 4 to Section 300 IPC, all the ingredients mentioned in it must be found. It is to be noted that the word 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Indian Penal Code. It takes two to make a fight. To invoke Exception 4 to Section 300 IPC, four requirements must be satisfied, viz., 1. It was a sudden fight; 2. There was no premeditation; 3. The act was done in the heat of passion and 4. The assailant had not taken undue advantage or acted in a cruel or unusual manner. 16. It takes two to make a fight. To invoke Exception 4 to Section 300 IPC, four requirements must be satisfied, viz., 1. It was a sudden fight; 2. There was no premeditation; 3. The act was done in the heat of passion and 4. The assailant had not taken undue advantage or acted in a cruel or unusual manner. 16. Thus, even if there is a sudden fight and there is no premeditation and the act was done in the heat of passion, to get the benefit of Exception 4 to Section 300 IPC, the fourth requirement has also to be satisfied that the assailant has not taken undue advantage or acted in a cruel or unusual manner. 17. As far as deceased Nagalakshmi is concerned, she was cooking food and was unarmed. The appellant was armed with a deadly weapon, with which he had assaulted his wife-Nagalakshmi on the back of the head with great force. The force used by the appellant was such that it caused a cut, which was 15 X 8 X 10 cm. All the muscles, blood vessels, neck bone, bronchial and spinal cord were found fully cut. The injury was such that the neck was almost severed from the body. Thus, looking to the nature of the weapon, the part of the body on which the injury was inflicted, the nature of the injury and the amount of force used by the appellant, it shows that the appellant has taken undue advantage of the situation and has acted in a cruel manner. In such case, the appellant would not be entitled to the benefit of Exception 4 to Section 300 IPC. 18. The learned counsel for the appellant thereafter submitted that the appellant gave only a single blow to his wife-Nagalakshmi and hence, his case would not fall under Section 300 IPC, but would fall under Section 304(ii) or at the most under Section 304(i) IPC. 19. As far as the above contention is concerned, the Supreme Court in the case of Pulicherla Nagaraju alias Nagaraja Reddy, Vs. State of AP,, (2007) 1 SCC(Criminal) 500 has observed as under:- "21. We cannot accept the contention that whenever the death is on account of a single blow, the offence is one under Section 304 and not Section 302" IPC. It was further observed in Pulicherla Nagaraju alias Nagaraja Reddy, cited supra, as under:- "26....... State of AP,, (2007) 1 SCC(Criminal) 500 has observed as under:- "21. We cannot accept the contention that whenever the death is on account of a single blow, the offence is one under Section 304 and not Section 302" IPC. It was further observed in Pulicherla Nagaraju alias Nagaraja Reddy, cited supra, as under:- "26....... The fact that the accused gave only one blow, by itself, would not mitigate the offence to one of culpable homicide not amounting to murder. There are several cases where single blow inflicted by the accused, resulting in death have been found to be sufficient for conviction under Section 302. We may refer to a few of them, namely, Virsa Singh v. State of Punjab, (1958) AIR SC 465, Gudar Dusadh v. State of Bihar, (1972) AIR SC 952, Vasanta v. State of Maharashtra, (1984) Supp1 SCC 648, Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32 and State of Karnataka v. Vedanayagam, (1995) 1 SCC 326 ". In Virsa Singh Vs. State of Punjab,, (1958) AIR SC 465, which is a decision of Five Hon'ble Judges of the Supreme Court. it was observed as under:- "27. ......... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended some consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question." In Jagrup Singh Vs. State of Haryana reported in, (1981) 3 SCC 616 : AIR 1981 SC 1552 , the legal position regarding the single blow injury was summed up:- "6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death." 20. Thus, in the present case, looking to the nature of the weapon, the nature and extent of the injury, the part of the body on which the injury was inflicted and the force used by the appellant to inflict the injury, clearly show that he cannot get the benefit of his case falling under Section 304(ii) IPC or even under Section 304(i) IPC. The weapon was so deadly and the blow was so forceful that the neck was almost severed from the body. As stated earlier, all the muscles, blood vessels, neck bone, bronchial and spinal cord were found fully cut and the injury on the neck was extensive and the dimension of the injury on the neck was 15 X 8 X 10 cm. As stated earlier, all the muscles, blood vessels, neck bone, bronchial and spinal cord were found fully cut and the injury on the neck was extensive and the dimension of the injury on the neck was 15 X 8 X 10 cm. Thus, looking to the weapon, the nature of the injury and the force used, we do not find any merit in the submission made by the learned counsel for the appellant. 21. On going through the evidence on record, we are of the opinion that the prosecution has proved its case against the appellant beyond reasonable doubt. Thus, we do not find any merit in this Criminal Appeal and the same is dismissed thereby confirming the Judgment dated 19.03.2013 passed by the learned Principal Sessions Judge, Tuticorin in S.C.No.245 of 2012.