BAIL SLIP The Appellant/Accused was namely V. Raja was directed to be released on bail in Crl.M.P.No.12948 of 2002 dated 19.12.2002 and in C.A.No.815 of 2002 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.11.2009 CORAM: THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN Crl.A.No.815 of 2002 V.Raja ..Appellant Vs. 1.State rep. by The Inspector of Police, B-1, Udagamandalam Police Station, Udagamandalam, Nilgiris District. 2.The Superintendent, Central Prison, Coimbatore-641 018. ..Respondents PRAYER: Criminal Appeal is filed under section 374 (1) of Cr.P.C., to call for the records in connection with S.C.No.30 of 2000 on the file of the learned District and Sessions Judge, Udagamandalam, Nilgiris District and set aside the judgment and conviction imposed on the appellant/accused by the learned District and Sessions Judge, Udagamandalam in S.C.No.30 of 2000 judgment dated 20.07.2001 and order to acquit the appellant/accused from all the charges framed against him by the trial Court. For Appellant : Mr.T.Jaishankar For Respondents : Mr.Hasan Mohammed Jinnah Additional Public Prosecutor (Crl.side) J U D G M E N T The appellant stands convicted for offence punishable under Section 304 (2) IPC and sentenced to undergo seven years Rigorous Imprisonment by the learned District and Sessions Judge, Udagamandalam in S.C.No.30 of 2000 by judgment dated 20.07.2001. https://hcservices.ecourts.gov.in/hcservices/ 2. The brief facts, which are necessary for the disposal of this Criminal Appeal are recapitulated as under:- The deceased and the accused are the neighbours. On 17.11.1998 at about 9.00 P.M., the accused had a quarrel with the deceased in relation to his love affair with the relative of the deceased wherein, the deceased objected to the said love affair. In the course of such quarrel, the accused got angry and stabbed the deceased on his abdomen and chest. On hearing his cry, P.W.1, the father of the deceased and P.W.2 & P.W.3, the brothers and P.W.6, mother of the deceased had rushed to the spot and seen the deceased profusely bleeding from the abdomen. On seeing them, the deceased had run away from the scene and they have taken the deceased to Udagamandalam Government Hospital and admitted him as In-Patient. 3. P.W.9, Dr.Shanmugam attached to the Udagamandalam Government Hospital had admitted the deceased with the injuries on his abdomen and left chest and had given treatment for him. P.W.12,the Head Constable of Udagai Nagar Central Police Station has received the intimation on 23.15 hrs on 17.11.1998, proceeded to the Udagamandalam Government Hospital but he could not record the statement as the deceased was in an unconscious state. On 18.11.1998, he has recorded the statement from the deceased and registered a case in Cr.No.1352 of 1998 under Section 326 IPC. 4. On receipt of the printed FIR, Ex.P13 from the Head Constable, P.W.14, the Sub-Inspector of Police went to the Hospital and recorded the statement of the deceased and seized the dress worn by the deceased as M.O.1 to 4 under Mahazar. He went to the place of occurrence and prepared Observation Mahazar Ex.P.4. and a rough plan under Ex.P20. He recorded the statement of the witnesses and arrested the accused on 18.11.1998 at 12.30 noon ATC Bus stand in the presence of the witnesses and recorded the confessional statement given by him. 5. Based on his confessional statement, he recovered the knife M.O.5 from his house under Mahazar in the presence of the witnesses. He had examined the witnesses on 19.11.1998 and on 23.11.1998. He received information that the accused tried to commit suicide in the Central Prison and a case was registered in Cr. No.59 of 1998 under Section 309 IPC. Thereafter, he had examined some more witnesses on 24.11.1998. On 28.11.1998, he received information that the deceased had died due to the septicemic shock of the stabbed injuries sustained by him. So, he altered the offence under Section 302 IPC and prepared alteration report. P.W.15, the Inspector of Police continued the investigation, conducted inquest on the body of the deceased and sent the body for post-mortem. 6. Dr.V.Balasubramanian had conducted the Post-mortem and found the following injuries:- https://hcservices.ecourts.gov.in/hcservices/ 1. 2 cm long sutured linear wound, 4 cm below and lateral to left nipple, 2 stitches. 2. 7 cm long sutured linear wound at left hip, infected, closed with 6 silk sutures. 3. Midline vertical incision 20 cm long, closed with 19 silk sutures middle of abdomen. 4. Right hip rubber drainage tube kept in 2 cm wound with one silk suture. Tongue within mouth. Hands empty. Abdomen empty. Tongue within mouth. Hands empty. Abdomen empty. Peritoneal cavity contains about 600 ml of peritoneal (torn) tear about 3 cm long sutured with black silk sutured. Abdominal viscera pale. Intestine, Mucosa Pale. Abdomen (n.c.) present. Both kidneys, Pancreas, Heart and lungs pale. Brain contents normal, pale. Opinion: The deceased would appear to have died of stabbed injuries in abdomen with septicemic shock. 7. The Inspector of Police in continuation of his investigation examined some more witnesses and laid the final report against the appellant under Section 302 IPC. 8. The case was taken on file in S.C.No.30 of 2000 on the file of the learned District and Sessions Judge, Udagamandalam and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 15 witnesses and also relied on Exs.P1 to P24 and M.O.Nos.1 to 8. 9. On completion of the evidence on the side of the prosecution, the accused was questioned as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 10. The Court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 11. This Court heard the submissions of the learned counsel on either side and also perused the material records placed. 12. Mr.T.Jaishankar, the learned counsel for the appellant argued only with regard to the nature of the offence said to have committed by the appellant and also for reduction of the sentence. Mr.T.Jaisankar, the learned counsel for the appellant submitted that https://hcservices.ecourts.gov.in/hcservices/ in a heat of passion and in a sudden quarrel between the appellant had caused those injuries and there is no intention for him to cause the death of the deceased. He pointed out to the medical evidence and submitted that the deceased died not directly due to injuries sustained by him but only due to septicemic shock developed after performance of surgery on his abdomen. In support of his contention the learned counsel relied upon the decision of the Hon'ble Supreme Court rendered in the case of Halke & another Vs. State of M.P. (1994 Crl. L.J. 1220) wherein, the Hon'ble Supreme Court held that when the medical evidence showed that the deceased was treated for nearly a week after the occurrence and an operation was also performed and died only thereafter, the offence committed by the appellant cannot be under 304 (2) IPC but the appellant would be convicted under Section 325 IPC. The Hon'ble Supreme Court on facts in the said case that the deceased was attacked by the appellant with a stick and only one blow was given by them and pointing to the fact that the deceased had been under treatment for one week and surgery was also performed but unsuccessfully, the Hon'ble Supreme Court held that no knowledge could be attributed to the appellants that the blow given by them would cause the death of the deceased and altered the offence into one punishable under Section 325 IPC. 13. But in this case, the prosecution witnesses have categorically stated that the accused stabbed the deceased on his abdomen and also on his chest i.e. the vital parts of the body. It is no doubt true that the deceased was alive for ten days and undergone a surgery on his abdomen. At this juncture, it is relevant to refer to the evidence of P.W.9, Dr.Shanmugam who has stated in his cross-examination as below:- rhjhuzkhf rpwpa fha';fshf ,Ue;jhYk; me;j fhaj;jpw;F chpa rpfpr;if mspf;fhtpl;lhy; me;j fhaj;jpw;F brg;of; gpof;f tha;g;g[z;L vd;why; ,wg;g[ rk;gtpf;f tha;g;g[z;L vd;why; rhp. Xuth; nehahsp rpfpr;irapy; ,Uf;Fk;nghJ me;j nehahsp brg;of;fpdhy; ,we;jhy; mjw;F rpfpr;ir mspj;j kUj;Jth; bghWg;g[ vd;why; rhp. tpgj;J gjpntl;L efiy fhty;Jiwf;F ehd; bfhLj;Jtpl;Bld;. brg;orpkPah tapw;wpy; Vw;gl;lhy; me;j egUf;F cly;KGtJk; Vw;gl tha;g;g[z;L vd;why; rhp// 14. The learned counsel for the appellant has referred to the above statement of the Doctor elicited during cross-examination and argued that the deceased would have survived if he had been given proper medical care and therefore, death caused in this case is not referable to ante-mortem injuries and therefore, he would contend that the appellant could be convicted not under Section 304 (2) IPC but only for a lesser offence. 15. On the other hand Mr.Hassan Mohammed Jinnah, the learned Additional Public Prosecutor relied on the judgment of the Hon'ble https://hcservices.ecourts.gov.in/hcservices/ Supreme Court rendered in the cases of Antram Vs. State of Maharastra (AIR 2008 SC 409) & Pitchai Vs. State by Inspector of Police, Vadamadurai (2006 (1) SCC (Cri) 505) and submitted that merely because the deceased survived for about ten days would not show that the death was not the direct result of the act of the accused in causing stabbed injuries on his abdomen. He would submit that though the deceased had the symptom of Septicemic shock which attributed to his death but the said effect was only due to the the injury sustained by him on his abdomen a vital part of the body. 16. The learned Additional Public Prosecutor referred to Exception 2 to Section 299 IPC which reads as follow:- "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." 17. In the present case, when the background facts are examined on the touchstone of the principles of law highlighted by the Hon'ble Supreme Court in the decisions cited supra, the contention of the learned counsel for the appellant does not merit acceptance. 18. In this case, there is overwhelming evidence in the form of testimony of witnesses and also medical evidence of the deceased to show that the appellant had stabbed the deceased on his vital parts with the knife and caused grievous injuries which subsequently after performance of surgery had developed Septicemic shock. Therefore, the contention of the appellant that had the deceased been given proper treatment he would not have died cannot be accepted and the trial Court rightly analysed the evidence in a proper perspective manner and convicted the appellant under Section 304 (2) IPC. However, the learned counsel for the appellant pleaded for leniency in the award of sentence on the ground that the appellant had been in custody for more than two years, and the occurrence had taken place in a sudden quarrel. 19. Considering the facts and circumstances of the case and taking into account that the entire incident has taken place in a spur of moment, in a heat of passion during the quarrel between the appellant and the deceased without any premeditation, the sentence can be modified and be reduced from seven years to three years Rigorous Imprisonment. In the result, the appeal is partly allowed and the conviction imposed on the appellant under Section 304 (2) IPC is confirmed and the sentence of imprisonment alone is reduced to three years Rigorous Imprisonment. It is seen from the records that the appellant was https://hcservices.ecourts.gov.in/hcservices/ enlarged on bail by this Court. The bail granted to the appellant is cancelled and the learned District and Sessions Judge, Udagamandalam, Nilgiris District shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar DP To 1. The District & Sessions Judge, Udhagamandalam. 2. The Judicial Magistrate, Udhagamandalam. 3. -do- Through The Chief Judicial Magistrate, The Nilgiris, Udhagamandalam. 4. The District Collector, Nilgiris. 5. The Director General of Police, Mylapore, Chennai-4. 6. The Superintendent, Central Prison, Coimbatore-641 018. 7. The Inspector of Police, B-1, Udagamandalam Police Station, Udagamandalam, Nilgiris District. 8. The Public Prosecutor, High Court, Madras. + 2 c.cs. to M/s. T. Kumar, Advocate. S.R.No.61382. Crl.A.No.815 of 2002 AKR (CO) GSK 02.12.2009. https://hcservices.ecourts.gov.in/hcservices/