IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 01.07.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.755 OF 2007 G.Raj Kumar .. Appellant/Sole Accused Vs State by the Inspector of Police R-4 Pondy Bazaar Police Station. Chennai 600 083. .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., against the Judgment and sentence passed by the learned Principal District and Sessions Judge, Chennai on 26.04.2007 in SC.No.487/2006. For Appellant : Mr.M.Muthusami, SC Amicus Curiae for Mr.E.Martin Jeyakumar For Respondent : Mr.N.R.Elango,APP JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The sole accused Raj Kumar has come forward with this appeal challenging the Judgment passed by the learned Principal District and Sessions Judge, Chennai dated 26.04.2007 in S.C.No.487/2006 convicting the appellant for the offence under section 302 IPC and sentencing him to life imprisonment and also imposing a fine of Rs.1,000/- carrying with the default sentence of three months simple imprisonment. 2. The brief facts of the case as projected by the prosecution are as follows:- [a] P.W.1 is the father and P.W.2 is the brother of the deceased Raj Kumar. The deceased was a B.Com., Graduate and he was not having any regular employment. He was residing along with his https://hcservices.ecourts.gov.in/hcservices/ father, P.W.1 and brother, P.W.2 and other family members at Flat No.20, Agalya Apartments, 2/55, Mambalam High Road, T.Nagar, Chennai- 17. P.W.3 was the Security Guard of that apartment. The accused was having a petty shop nearer to the apartment. [b] On the fateful day of occurrence, i.e., 16/05/2006 at 9.30 p.m. P.W.1 was reading newspaper in his flat. P.W.3 came there and pressed the calling bell and on opening the door, P.W.3 informed P.W.1 that there was a quarrel between his son, the deceased and the accused. Thereafter, P.W.1 along with another son, P.W.2 rushed to the scene from the upstairs flat. At that time, they found the accused shouting at the deceased stating that he was in due of Rs.2,000/- and further the deceased has taken the groundnut sweet bottle. By saying so, the accused immediately stabbed the deceased with M.O.1-knife on his left side of the head, shoulder, left hand and chest. P.W.1 tried to prevent the accused from stabbing the deceased. But the accused ran away from the scene. The deceased fell down with bleeding injuries. P.W.1 took the injured deceased in an auto to Apollo Hospital along with P.W.2. [c] P.W.7, the doctor attached to Apollo Hospital, examined the injured on 14.05.2006 at 10.00 p.m. brought by P.Ws.1 and 2. On examination, she found the deceased was already dead and declared the death at 10.30 p.m. Ex.P.4 is the Accident Register and Ex.P.5 is the Death Certificate. [d] Thereafter P.W.1 went to the respondent Police Station and gave the report Ex.P.1 to P.W.14 the Inspector of Police at 11.30 p.m. on 14.05.2006. P.W.14 registered the case in Crime No.357/2006 for the offence under section 302 IPC. Ex.P.12 is the Express First Information Report [FIR]. [e] P.W.14 took up investigation and went to the scene of occurrence and prepared Ex.P.2-Observation Mahazar and Ex.P.13-rough sketch. He recovered M.O.6-groundnut sweet bottle from the scene under Ex.P.3. Thereafter, P.W.14 went to the hospital and held inquest on the dead body of the deceased. Ex.P.14 is the Inquest Report. He sent the body for postmortem through the constable to the Government Hospital, Royapettah. [f] Dr.Bhaskar, P.W.12, attached to the Government Hospital, Royapettah, conducted Post-Mortem on the dead body of the deceased on 15.05.2006 at 2.40 p.m. He found the following injuries:- "ABRASIONS:- 1] 2x1.5cms over back of right shoulder. 2] 5.5x3.5cms over back of right elbow. https://hcservices.ecourts.gov.in/hcservices/ CUT INJURIES- 3] Transverse cut injury 5.5x2.5x1 cm over left side of head, 8 cms above to the front of left ear. 4] Stab injury 3.5x1.5x2.5 cms over left side of face over the region of cheek 1.5 cms below left ear. 5] Laceration 3x2x1cm over left side of lower jaw over the region of left angle of mandible. 6] Stab injury 3.5x1.5cmsxcavity deep over left side of chest transversely across the upper part of anterior axillary fold directed obliquely inwards and backwards. 7] Transverse stab injury over left side of chest at the level of 5th rib and 5th intercostal space measuring 3.5x1.5cmsxcavity deep directed downwards, backwards and inwards. 8] Cut injury 7x2 to 3x2.5cms over outer aspect of left elbow. 9] Cut injury 2.5x1x1cm over outer aspect of lower third of left arm. 10] Oblique, cut injury 5x1.5 to 2x1 cm over back of distal part of left hand exposing the 2nd metacarpo phalangeal joint. 11] Cut injury 7x2 to 3x1.5cms over back of middle one third of left forearm. 12] Superficial cut injury over front of right shoulder 1.5x1x0.5 cms. 13] Superficial incised wound over upper part of right side of chest 5x0.5x0.5cms. The injuries are ante-mortem in nature." Ex.P.10 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died of shock and haemorrhage due to stab injuries sustained over left side of chest and left lung and the deceased would appear to have died 12 to 16 hours prior to postmortem examination. [g] P.W.14, the Inspector of Police, in continuation of his investigation arrested the accused at 4.30 a.m. on 15.5.2006. In pursuance of the admissible portion of his confession under Ex.P.6, https://hcservices.ecourts.gov.in/hcservices/ P.W.14 recovered M.O.1-knife. He also recovered M.O.2-T-Shirt worn by the accused under Ex.P.7. After the postmortem, he examined the doctor P.W.12 and recorded his statement. The accused was remanded to judicial custody. He also recovered M.O.5-Blue colour Jeans pant, M.O.3-T-Shirt and M.O.4-Underwear of the deceased under Form 95. He sent the material objects for chemical examination through the Magistrate Court. He also received Exs.P.16 and 17-Serologist Reports and Ex.P.10-Postmortem Certificate. [h] P.W.15, the Inspector of Police in continuation of the investigation, perused the Case Diary and the statements recorded by P.W.14 from the eyewitnesses and other documents and after completion of investigation filed the charge sheet against the accused on 16.06.2006 for the offence under section 302 IPC. 3. The prosecution in order to prove its case, examined P.Ws.1 to 15, filed Exs.P.1 to 17 and marked M.Os.1 to 6. 4. When the accused was questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied each and every circumstances. He has come forward with the version of total denial. He has not chosen to examine any witness or mark any document on his side. 5. Mr.M.Muthusami, learned Senior counsel appearing for the appellant vehemently contended that the prosecution has not established the guilt of the accused by adducing clear and acceptable evidence. It is contended that P.Ws.1 and 2 could not have witnessed the occurrence as they were admittedly residing in the upstairs of the apartment and on information given by P.W.3, they came down and said to have witnessed the occurrence and P.W.3 has not supported the prosecution case and he turned hostile. It is submitted that P.Ws.1 and 2 could not have been present at the time of actual occurrence and as such, the prosecution has not come forward with the origin of the occurrence. It is further submitted that both P.Ws.1 and 2 are the father and brother of the deceased and as such, they are the interested witnesses and their evidence cannot be accepted without any independent corroboration. It is contended that the prosecution also failed to prove the motive against the accused to attack the deceased as the witnesses, examined to speak about the motive, viz., P.Ws.3 and 4, turned hostile. The learned Senior Counsel without prejudice to his earlier contention further submitted that even as per the admitted case of the prosecution the actual occurrence was preceded by a wordy quarrel and as such, the entire occurrence took place due to the wordy quarrel without any premeditation and therefore,the accused could not be held for the offence under section 302 IPC. https://hcservices.ecourts.gov.in/hcservices/ 6. Per contra Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and cogent evidence through the witnesses P.Ws.1 and 2. It is submitted that merely because P.Ws.1 and 2 are closely related to the deceased their evidence cannot be rejected as there is no infirmity or inconsistency in respect of the overt acts alleged against the accused. It is contended that the categorical version of P.Ws.1 and 2, the eyewitnesses, has been corroborated by the medical evidence through the doctor P.W.12 who has conducted the postmortem and found corresponding injuries on the deceased. 7. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the evidence available on record and perused the impugned Judgment of conviction. 8. The prosecution heavily placed reliance on the evidence of the eyewitnesses P.Ws.1 and 2. The fact remains that P.W.1 is the father and P.W.2 is the brother of the deceased and their evidence cannot be brushed aside on that score itself. The only requirement is to consider their evidence with great care and caution. At the outset, we are constrained to state that we are unable to see any infirmity or inconsistency between the evidence of P.Ws.1 and 2. P.Ws.1 and 2 have come forward with the clear and categorical version implicating the accused by attributing the overt acts against the accused. It is seen that on information given by P.W.3, the Security guard, P.Ws.1 and 2 came down from the upstairs and rushed to the scene and found the accused shouting at the deceased and thereafter, the accused stabbed the deceased on his left side head, shoulder, left hand and chest. It is pertinent to be noted that though P.W.3 has turned hostile, his evidence is clear to the extent of the presence of the accused at the scene and the quarrel between the deceased and the accused. It is well settled that the evidence of hostile witness cannot be rejected in toto and any portion, either in favour of the prosecution or in favour of the defence, can very well be placed reliance. It is to be noted that the particular portion of the version of P.W.3 to the effect of the deceased and the accused quarreling with each other at the scene of occurrence is not shattered. The defence elicited in the cross examination is only to the extent that after the arrival of P.Ws.1 and 2 to the scene, he has not noted the presence of the accused. That answer of P.W.3 had not affected his earlier version in the chief examination to the effect that there was a fight between the deceased and the accused and thereafter, he went and informed P.Ws.1 and 2 who were in the upstairs and only on his information, P.Ws.1 and 2 rushed to the scene. 9. The evidence of P.Ws.1 and 2 is also corroborated by the medical evidence as the doctor, P.W.12, found corresponding injuries as per the Postmortem Certificate, Ex.P.10. The Investigating https://hcservices.ecourts.gov.in/hcservices/ officer also recovered the blood-stained weapon, M.O.1-knife in pursuance of the admissible portion of the confession of the accused under Ex.P.6. It is pertinent to be noted that the T-shirt recovered at the instance of the accused was also found to be blood-stained. Therefore, from the above said overwhelming materials it is crystal clear that the deceased died due to homicidal violence, that too, at the hands of the accused. 10. Now, we are left with the consideration of the nature of offence said to have been committed by the accused. 11. It is the case of the prosecution that the occurrence proper preceded by a wordy quarrel between the deceased and the accused. Both P.Ws.1 and 2 categorically stated that P.W.3 informed them that there was a quarrel between the deceased and the accused and thereafter, they rushed to the scene. P.W.1 has categorically stated that while he came down to the scene of occurrence along with P.W.2 the accused was shouting at the deceased stating that the deceased was in due of Rs.2,000/- and further he has taken the groundnut sweet bottle. P.W.2 has stated that even after reaching the scene they found the deceased and the accused were quarreling with each other. Therefore, it is crystal clear that the occurrence was preceded by the continuous wordy quarrel between the accused and the deceased. The version of P.Ws.1 and 2 further discloses that the accused was under provocation due to the conduct of the deceased having dues of Rs.2,000/- to be paid to the accused and apart from this, the deceased also took away the groundnut sweet bottle. 12. Further, the perusal of the entire disclosure statement of the accused recorded under section 27 of the Indian Evidence Act discloses that it was stated by the accused that the deceased was already having dues to be paid to the accused and inspite of the same, at the time of occurrence the deceased came to the shop of the accused and asked cigarette. But, the accused refused to give it which resulted in a wordy quarrel between them. It is further stated that while the accused refused to give the cigarette the deceased had taken away the groundnut sweet bottle and thereafter, the accused rushed to the apartment of the deceased and requested him to return the bottle. For that, the deceased refused which resulted in a further wordy quarrel between them and only thereafter, the accused is said to have stabbed the deceased resulting in his death. 13. It is well settled by a catena of decisions that in the interest of justice it is permissible to look into the confession recorded under Section 27 of the Indian Evidence Act from the accused including the inadmissible portion in order to decide the nature of offence committed by the accused. This Court in Ganesan, In re (1973 L.W.(Cri.) 42) has held as follows : https://hcservices.ecourts.gov.in/hcservices/ "3. The evidence shows that the appellant went straight to the police station at 9.15 a.m. and made a statement. In fact, that is the first information report in the case. It contains the confession that the appellant inflected cuts on his wife. The learned Sessions Judge has excluded this portion and marked the rest of the statement, as Ex.P.6. This, however, is not correct. In Aghnoo Nagesia V. State of Bihar (AIR 1966 SC 119) it has been observed :- “Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement, partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession”. …………… Little substance and content would be left in Ss.24, 25 and 26, if proof of admissions of incriminating facts in a confessional statement is permitted. “Some of the decided cases took the view that if a part of the report is properly severable from the strict confessional part, then the severable part could be tendered in evidence. We think that the separability test is misleading, and the entire confessional statement is hit by S.25, and save and except as provided by S.27, and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.” The above decision has been followed in Khatri Hemraj Amulkah V. State of Gujarat (AIR 1972 SC 929). According https://hcservices.ecourts.gov.in/hcservices/ to these decisions (of this Court and the Hon'ble Apex Court), the only portion of the statement, which could be admitted is the initial portion that he was making the statement, which would not be of any use to the prosecution. But there is no bar to the appellant using the statement in his favour – see also Mottai Theva, In re [(1951) 2 M.L.J. 605]. We are referring to this at this stage itself, because Ex.P.6 contains statements favourable to the appellant. It is a long statement, but for our purpose, it is enough to give a brief summary. Ever since the marriage, the wife has been refusing to have conjugal relationship with him. On the other hands, he had good reason to believe that she had been carrying on with P.W.6, her elder sister’s husband. On one night, Kamala and P.W.6 had gone out for the ostensible purpose of answering calls of nature, but evidently for having sexual relationship. On the night previous to the day of occurrence also she refused him conjugal felicity. On the morning of the day of occurrence according to Ex.P.6, the appellant gave ten paise to P.W.1 and asked her to get onions. But his wife, Kamala said that she should not go out. He pointed out that P.W.1 was rendering service for all, and sundry in the village, but why not for them. In reply to that, Kamala abused him, ……. (you silly-fellow, you run away) and buried a vegatable-cutter (….) on him. He warded it off with his left hand. It fell down. But she threw it on him again with force. He warded it off with his right hand. This time it caused an injury on the palmer aspect of his right little finger. It was about 8- 30 a.m. He could not control his anger. He therefore took cut the koduval and inflicted cuts on her. He came out with a rope with the idea of hanging himself that day. But on nearing Manonmani’s house he thought that it was not proper to do so and threw it aside. There used to be frequent quarrels between him and his wife, and Andalammal (P.W.2) and Devaraja Pillai (P.W.7) knew about it. So runs Ex.P-6. ……… Taking all these circumstances together we hold that Kamala threw the vegetable cutter on the appellant and caused injury on the right little finger. In our opinion, this cannot afford a ground for self defence under Exception II because after throwing it at her husband, Kamala, did not try to attack him with it and it was not justifiable for the appellant to inflict cuts on Kamala. But at the same time it seems to us that her act in throwing the vegetable cutter at him constituted grave and sudden provocation which deprived him of the power of self- https://hcservices.ecourts.gov.in/hcservices/ control within the meaning of Exception I.” (Emphasis supplied)". 14. This Court also by placing reliance on the decision cited supra, has taken a similar view in the following decisions:- 1.CHANDRAN, IN RE reported in 1988 L.W.[Crl.] 113; 2.MUTHUSWAMY V. STATE reported in 1994 (1) L.W. (Crl.) 44 ; and 3.VAIRAMUTHU V. STATE reported in 1996 (1) L.W. (Crl.) 9. 15. In SANKARLAL ALIAS SANKARAYEE V. STATE reported in 1989 L.W. (Crl.) 468 a Division Bench of this Court has held that the term 'self-control' in Section 300 I.P.C. is a subjective phenomenon and it can be inferred from the surrounding circumstances of a given case. In order to find out whether the last act of provocation upon which the offender caused the death was sufficiently grave as to deprive him of the power of self-control, we have to take into consideration the previous act of provocation caused by the deceased person. 16. The above said principle laid down by this Court in the decision cited supra, is squarely applicable to the facts of the instant case. As already pointed out, even as per the admitted prosecution version the actual occurrence was preceded by a wordy quarrel between the deceased and the accused. P.W.1 categorically stated that on reaching the scene of occurrence the accused was shouting at the deceased with anger to the effect that the deceased was already having dues to be paid to the accused. But, inspite of the same, he has also taken the groundnut sweet bottle. P.W.2 stated that even after reaching the scene, both the deceased and the accused were quarreling with each other. The perusal of the disclosure statement recorded under section 27 of the Indian Evidence Act as stated above makes it crystal clear that the deceased was having dues to be paid to the accused in respect of the purchase of cigarettes and even just prior to the time of occurrence the deceased asked for the cigarette and the accused refused to give and thereafter, the deceased has taken away the groundnut sweet bottle which provoked the accused and the accused went to the apartment and requested the deceased to return the bottle. But again the deceased indulged in quarreling with the accused and thereby added fuel to the fire and the accused lost his power of self-control and stabbed the deceased and caused injuries. 17. It is also relevant to refer to the landmark decision in K.M.NANAVATI VS. STATE OF MAHARASHTRA reported in A.I.R. 1962 S.C. 605, the Hon'ble Supreme Court of India has laid down the following principles regarding the Exception 1 to Section 300 I.P.C.: https://hcservices.ecourts.gov.in/hcservices/ "1. The test of grave sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in situation in which the accused was placed would be provoked as to lose his self-control. 2. In India, words and gestures may also, under certain circumstances, cause gave and sudden provocation to an accused so as to bring his act with the first Exception of Section 300 I.P.C. 3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence." In the above said decision, the Hon'ble Apex Court held that the mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation to the accused to commit the offence. 18. As already pointed out even in the case on hand, the deceased was already having dues to be paid to the accused and on the fateful date of occurrence, again the deceased asked for cigarette for which the accused refused which resulted in a wordy quarrel and thereafter the deceased has taken away the groundnut sweet bottle from the shop of the accused and went to the apartment. The accused being provoked, went to the apartment and again requested the deceased to return the groundnut sweet bottle. But, inspite of returning the bottle, the deceased indulged in further wordy quarrel with the accused and only such conduct of the deceased caused grave and sudden provocation to the accused and thereby he has stabbed the deceased with knife. Therefore, we have no hesitation to hold that in view of the above said facts, the accused is entitled to invoke exception [1] to section 300 IPC and as such he is liable to be convicted only for the offence under section 304[Part I] IPC. 19. Accordingly, the appeal is allowed in part and the conviction and sentence imposed on the appellant for the offence under section 302 IPC by the learned Principal District and Sessions Judge, Chennai dated 26.04.2007 in SC.No.487/2006 is hereby set aside and instead, the appellant is convicted under section 304[I] IPC and sentenced to undergo seven years rigorous imprisonment. 20. Mr.M.Muthusami,