IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 03.03.2010 Coram THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE C.S. KARNAN Crl. A. No.735 of 2009 Mari @ Mariyappan ... Appellant/Single Accused ..Vs.. State: Inspector of Police, N-1, Rayapuram Police Station, Chennai. ... Respondent/Complainant Crime No.319/07 Appeal filed under Section 374 (2) of Cr.P.C. against the judgment dated 6.10.2009 passed by the Court of Sessions at Chennai in S.C. No.470 of 2007. For Appellant : Mr. S. Doraisamy For Respondent : Mr. V.R. Balasubramanian Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 6.10.2009 passed by the Court of Sessions at Chennai in S.C. No.470 of 2007, whereby the sole accused stood charged, tried and found guilty for the offences under Sections 307 and 302 of the Indian Penal Code and sentenced to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for three months under Section 307 of the Indian Penal Code and to undergo Life Imprisonment and to pay a fine of Rs.10,000/- in default to undergo Rigorous Imprisonment for six months under Section 302 of the Indian Penal Code. 2. The short facts necessary for the disposal of the case can be stated thus: (i) P.W.1 and the deceased are brothers. The accused was residing in the next house. They are all residing in a row of houses https://hcservices.ecourts.gov.in/hcservices/ in O.S.H. Road, Royapuram, Chennai. On 10.8.2007 at about 11 p.m., in front of his house, the accused quarreled with his wife Devi. At that time P.W.1 was sitting outside his house on a cot and his brother deceased Sekar actually slept in his house. The deceased told the accused not to shout. On hearing the noise, the accused scolded him in a filthy language and threatened to kill him. Immediately P.W.1 warned the accused not to speak so. (ii) On hearing this, the accused took M.O.1 knife and stabbed P.W.1 on his abdomen. He fell down. The deceased, who was inside the house, came outside and questioned him. Immediately, the accused stabbed him on his right side abdomen, right thigh and left buttock. P.Ws.2 and 3 have witnessed the same. The accused ran away from the scene of occurrence. One Ekambaram took P.W.1 and the deceased to the Stanley hospital. (iii P.W.4 gave treatment to both of them and Ex.P3 is the copy of accident register for P.W.1 and Ex.P2 is the copy of accident register for the deceased. P.W.1 gave complaint Ex.P1 to respondent- police, who in turn registered the case for the offences under Sections 341, 327 , 307 and 506(2) of the Indian Penal Code. The First Information Report Ex.P12 was despatched to the Court. (iv) P.W.13 Inspector took up investigation, proceeded to the spot, made an inspection and prepared Observation mahazar Ex.P13 and also rough sketch Ex.P14. He also examined the deceased and P.W.1 and recorded their statements. (v) On 11.8.2007, the accused was arrested. At the time of arrest, he voluntarily gave confession statement and the same was recorded in the presence of witnesses. The admissible portion of the same was marked as Ex.P6. Pursuant to the confession statement, he produced M.O.1 knife which was recovered under mahazar Ex.P15. Thereafter, P.W.1 was discharged from the hospital on 20.8.2007. Ex.P4 wound certificate was issued to the effect that the injury was simple in nature. The brother of P.W.1 Sekar, who was admitted in the hospital after the occurrence, despite treatment, died. Hence, P.W.13 altered the offence to Section 302 of the Indian Penal Code and sent Ex.P16 Express report to the Court. (vi) P.W.13 conducted inquest on the dead body in the presence of witnesses and the inquest report is marked as Ex.P17. Thereafter, he sent the dead body for post-mortem. P.W.11 Doctor, who has conducted post-mortem, issued Ex.P11 post-mortem Certificate and P.W.11 Doctor opined that the death was due to septicaemea and renal failure. In the said Certificate, the following injuries are noted:- " An infected sutured stab wound 2.5 x 1cm x cavity deep on right illac fossa. https://hcservices.ecourts.gov.in/hcservices/ A sutured wound 32 cm long in the midline of abdomen from xiphistemum to supra pubic region. On removal of sutures the margings are infected (surgical wound) A sutured wound 2.5x1x3cm on inner aspect of middle third of right thigh. On removal of sutures the margins are irregular. On left flank compressing tube jejunostomy and feeding jejunostomy found done (surgical)" (vii) On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 13 witnesses and relied on 17 documents and also relied on M.O.1. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Sections 307 and 302 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned counsel Mr. S. Doraisamy would submit that in the instant case, the evidence adduced by the prosecution is neither reliable nor trustworthy. P.W.1 and the deceased are brothers. Except P.W.1, P.Ws.2 and 3 were examined as eye witnesses. A scrutiny of evidence given by witnesses P.Ws.1 to 3 would clearly indicate that there are lot of discrepancies on the material facts. Apart from this, all the three witnesses have turned hostile. Hence, their evidence should not be relied. 6. Learned counsel added further that in the instant case, the medical opinion canvassed by the prosecution would not support the prosecution. Insofar as P.W.1 was concerned, the accused was charged for attempt to murder. The opinion canvassed through P.W.4 Doctor would clearly indicate that all the injuries are simple. Insofar as the deceased was concerned, the post-mortem Certificate clearly indicate that he died septicaemea and renal failure. He was admitted in the hospital on 10.08.2007, but he died only on 22.8.2007 i.e. after the period of ten days. During the said interval, an operation was conducted and the Doctor's opinion clearly indicates https://hcservices.ecourts.gov.in/hcservices/ that the deceased died out of septicaemea and renal failure. The prosecution has failed to produce the medical sheets in respect of treatment taken by the deceased to prove its case. 7. Learned counsel further added that even assuming the prosecution has proved its case that it was the accused who stabbed the deceased and caused his death, the act of the accused would not attract the penal provisions of murder. Pursuant to the incident, he was admitted in the hospital and an operation was done and after ten days, he died due to renal failure. Hence, Section 302 of the Indian Penal Code cannot be applied to the present facts of the case. At best, it would attract section 324 of the Indian Penal Code. Insofar as P.W.1 was concerned, the injuries that were caused were simple in nature. Pursuant to the quarrel, neither P.W.1 nor the deceased was attacked by the accused with an intention. The Trial Court should have acquitted the accused, but the Trial Court has taken an erroneous view in finding the accused guilty under Section 307 of the Indian Penal Code and also for murder under Section 302 of the Indian Penal Code. Hence, the judgment passed by the Trial Court has got to be set aside. 8. This Court heard the learned Additional Public Prosecutor on the above contentions. 9. This Court paid its anxious considerations on the above contentions. The case of the prosecution is that the incident had taken place on 10.8.2007 at 11 p.m. in front of the house of the accused and the deceased. During relevant time, as per the evidence available, P.W.1 and the deceased, who are brothers, were living in the adjacent house of the accused. On 10.8.2007 at about 11 p.m., in front of his house, the accused was quarrelling with his wife. The deceased Sekar was sleeping inside the house, while P.W.1 was sitting on a cot in front of his house. On hearing the noise, the deceased Sekar was telling the accused from inside to stop the noise. The accused talked ill of him in a filthy language. 10. When P.W.1 intervened, the accused being provoked went inside and took M.O.1 knife and stabbed him on his abdomen. On seeing this, when the deceased intervened, the accused attacked him also with M.O.1 knife on his right abdomen, right thigh and left buttock. Insofar as this part is concerned, not only P.W.1, who is the injured witness but also P.Ws.2 and 3 have spoken to the fact. From this, it is quite clear that before the incident, there was a quarrel and due to wordy quarrel, the incident had taken place and the deceased was attacked by the accused at that time. This particular part of ocular testimony is fully corroborated through medical evidence by P.W.4 Doctor attached to Stanley Hospital, who admitted P.W.1 and the deceased. 11. P.W.1 had treatment till 20.8.2007 and the Accident https://hcservices.ecourts.gov.in/hcservices/ Register was marked as Ex.P3. When Ex.P3 accident register is looked into, it is quite clear that the Doctor has noted that the injury is simple. It should not be forgotten that the accused had stabbed him at the time of quarrel not with an intention to cause his death. Hence the act of the accused insofar as P.W.1 was concerned would attract the penal provisions of Section 324 of the Indian Penal Code and not Section 307 of the Indian Penal Code. 12. Insofar as deceased is concerned, the medical opinion canvassed through P.W.4 Doctor would clearly indicate that he was under treatment from 10.8.2007 to 22.8.2007, on which date he died. P.W.11 Doctor, who has issued post-mortem Certificate has categorically opined that the deceased died due to septicaemea and renal failure. It is true that when he was stabbed by the accused, he was taken to the hospital and given treatment. It is an admitted position that he died after a period of 12 days. The prosecution should have produced all the materials pertains to the treatment like case sheets etc, but nothing was produced. 13. The added circumstance is the opinion of the Doctor that the deceased died out of septicaemiea due to the stab wound and also renal failure. As could be seen in Ex.P11 post-mortem Certificate, it remains to be stated that originally there was a quarrel, following the same the occurrence had taken place. He was under treatment and he died after treatment due to septicaemea and renal failure. It would clearly indicate that the provisions of Section 300 of the Indian Penal Code would not be attracted. It is not even an case that the Court would find him guilty under Section 304 Part (i) or Part (ii) of the Indian Penal code, in which case finding him guilty under Section 326 of the Indian Penal code, awarding 5 years Rigorous Imprisonment would meet the ends of justice. 14. Accordingly, the sentence of imprisonment imposed on the appellant under Section 307 of the Indian Penal code is modified to Section 324 of the Indian penal Code for which he was awarded 3 years Rigorous Imprisonment and this Court, while setting aside the second charge of murder, found him guilty under Section 326 of the Indian Penal Code, for which 5 years Rigorous Imprisonment was imposed. Both the sentences have to run concurrently. With this modification, the appeal is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ssa. https://hcservices.ecourts.gov.in/hcservices/ To 1. The XVI Metropolitan Magistrate, Chennai. 2. -do- Thro The Chief Metropolitan Magistrate, Egmore, Chennai. 3. The Principal Sessions Court, Chennai. 4. The Superintendent, Central Prison, Puzhal, Chennai. 5. The District Collector, Chennai. 6. The Director General of Police, Mylapore, Madras – 4. 7. The Inspector of Police, N-1, Rayapuram Police Station, Chennai. 8. The Public Prosecutor, High Court, Madras. Crl. A. No.735 of 2009 GV {CO} TP/22.3.2010. https://hcservices.ecourts.gov.in/hcservices/