IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.02.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.528 of 2007 Ganesh @ Ajeet S/o Sakthivel .. Appellant -vs- State rep.by its Inspector of Police B-7 Ramanathapuram Police Station Coimbatore .. Respondent Memorandum of Grounds of Criminal Appeals under Section 374(2) of the Criminal Procedure Code against the judgment dated 24.05.2007 made in S.C.No.337 of 2006 on the file of the learned Additional District & Sessions Judge/Fast Track Court No.I, Coimbatore. For Appellant :: Mr.C.S.Dhanasekaran For Respondent :: Mr.P.Kumaresan Addl. Public Prosecutor JUDGMENT (Judgment of the Court was delivered by D.MURUGESAN, J.) The appellant/sole accused was tried in S.C.No.337 of 2006 on the file of the learned Additional District & Sessions Judge/Fast Track Court No.I, Coimbatore. By the judgment dated 24.05.2007, he was found guilty of the offence under Section 302 IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for three months. Challenging the said conviction and sentence, the present appeal has been filed. 2. The case of the prosecution is that the appellant-accused had borrowed a sum of Rs.1,000/- from the deceased-Bagyaraj and the said amount was not repaid by the accused in spite of repeated requests. At about 8.00 p.m., on 3.6.2006, the accused had called the deceased to Maasaniamman Temple on the promise that he will repay the amount. Believing his words, the deceased went to see the accused at Maasaniamman Temple. However, the accused, by uttering that only if the deceased is alive he would demand the https://hcservices.ecourts.gov.in/hcservices/ money, threw chilli powder on the face of the deceased and stabbed him with the knife. Thereafter the accused ran away from the place of occurrence. Later on the deceased was found fighting for his life by P.Ws.3 & 4 apart from one Padmavathi, wife of P.W.4. On seeing the deceased fighting for his life, the said Padmavathi intimated the control room through her cell phone. 3. On receipt of message from the control room, P.W.26, the Sub Inspector of Police attached to B-7 Ramanathapuram Police Station, Coimbatore District, on patrol duty, rushed to the scene of occurrence around 11.45 p.m., on 3.6.2006 and took the injured lying unconscious in the police vehicle with the assistance of P.W.4 and admitted him in the Government Coimbatore Medical College & Hospital, where he was examined by the duty doctor, P.W.20 at 12.15 a.m., on 4.6.2006 and as the condition of the injured was serious, he admitted him in the trauma ward for treatment. 4. In the meanwhile, P.W.26, the Sub Inspector of Police recorded the statement of the deceased, which is marked as Ex.P-5, at 12.45 a.m., on 4.6.2006 in the presence of the duty doctor, P.W.21. She returned to the police station at 2.00 a.m., and registered a case in Cr.No.640 of 2006 for the offence under Section 307 IPC and the printed First Information Report is Ex.P- 10. She forwarded the express reports to the Court as well as to the higher police officials. 5. P.W.28, the Inspector of Police attached to B-7 Ramanathapuram Police Station, after taking up investigation in the case, proceeded to the scene of occurrence at 4.00 a.m., on 4.6.2006 and caused photographs of the scene place. He prepared an Observation Mahazar, Ex.P-1 and also drew a rough sketch, Ex.P-13 in the presence of P.W.7 and another witness. He seized the bloodstained earth, M.O.1 and the sample earth, M.O.2 under the mahazar, Ex.P-2 in the presence of the same witnesses at 7.00 a.m. Thereafter, he went to Government Coimbatore Medical College & Hospital and recorded the statement of the injured at 8.00 a.m. He examined P.Ws.1 & 2, mother and father of the injured, and recorded their statements. He examined P.W.26, the Sub Inspector of Police and the other Police Constables and recorded their statements. He also seized the bloodstained lungi, M.O.5, bloodstained half sleeve shirt, M.O.6 and the bloodstained banian, M.O.7 worn by the injured from P.W.26 under the mahazar, Ex.P-14. He sent the bloodstained earth and the sample earth to the Court under Form-95. 6. P.W.23, the Judicial Magistrate No.VI, Coimbatore, on receipt of requisition under Ex.P-6 from P.W.28, went to the hospital and, after following the procedures and after ascertaining the fit state of mind of the injured from the doctor, P.W.29, recorded the dying declaration, Ex.P-7 between 10.50 a.m., and 11.05 a.m., on 4.6.2006. P.W.29 has also certified that the patient was conscious and in a fit state of mind throughout the period of recording of the dying declaration. 7. P.W.28, in the meanwhile, examined P.Ws.3 & 5 and recorded their statements. On receiving information, he went to https://hcservices.ecourts.gov.in/hcservices/ S.N.R.Arangam near Tiruchirappalli road and arrested the accused at 5.00 p.m., in the presence of P.Ws.10 and 24. In pursuance of the admissible portion of his confession under Ex.P-3, he seized the knife, M.O.3 under the mahazar, Ex.P-4 in the presence of the same witnesses. He brought the accused and the seized material objects to the police station and remanded the accused to judicial custody. He sent the material objects to the Court under Form-95. As he received intimation from the doctor, P.W.22 that the injured had died at 7.10 a.m., on 15.6.2006, he altered the offence to one under Section 302 IPC and sent the altered report, Ex.P-15 to the Court. Thereafter, he went to the mortuary at 11.30 a.m., and conducted inquest on the body of the deceased in the presence of the panchayatdars and witnesses and prepared the inquest report, Ex.P-16. He sent a requisition under Ex.P-11 through the Head Constable, P.W.12 to the doctor for conducting post-mortem on the body of the deceased. 8. P.W.27, Professor, Department of Forensic Medicine attached to Coimbatore Medical College & Hospital, commenced post- mortem at 2.45 p.m., on 15.6.2006 and he noted the following ante- mortem injuries:- "(1) Transverse infected sutured wound 2cm x 1/2cm x 3cm (muscle-deep) present over left side of neck 5cm behind the left ear. (2) There is an obliquely placed 'T' shaped sutured stab wound each of the 2 limbs measuring 3cm present over the front of the right chest touching the lower border of right nipple and 6cm away from midline. The wound passes backwards downwards and inwards through the 4th right intercostal space 5cm away from midline 3cm x 2cm. The wound enters into the right pleural cavity and pierces through the lateral surface of the lower lobe of the right lung over 3x2cm travels for 6cm through the substance of the lower lobe of the lung and emerges through its inferior surface over 2cm x 1cm and enters the pericardial cavity piercing through its right lateral pericardial sac 2cm x 1cm and stops short of injuring the cariac wall. Right pleural cavity contains 200ml of brown coloured turbid fluid and the pericardial tear is covered with purulent slough. (3) A sutured infected wound 2cm x 1cm x pleural cavity deep present over right chest wall 8cm below the axilla. (4) A lacerated wound 6 cm x ½ cm skin deep over present the antero lateral aspect of right lower thigh. (5) A lacerated sutured wound 2cm x 1/2cm bone deep present over the inner aspect of the proximal phalanx of the left thumb. (6) A 25 cm long upper midline sutured (laparotomy) wound present over the front of abdomen along with a 1.5 cm diameter drainage https://hcservices.ecourts.gov.in/hcservices/ wound in right ileac fossa & 1cm x 0.5cm drainage wound in left ileac fossa. On dissection peritoneal cavity contained about 100 ml of turbid muddy fluid & the peritoneum and omentum were surfaced by flakes of muddy matter. There is an end to end anastomosis done the level of midileum (intact), the distal ileal loops and omentum were adherent to each other and muddy." He issued the post-mortem certificate, Ex.P-12 with his opinion that the deceased would appear to have died of multiple injuries and their complications. 9. P.W.28 examined P.Ws.1,2,16,17,19,20,22,27 on various dates and recorded their statements. He sent the seized material objects through the Court for chemical examination under the requisition Ex.P-17. After completing investigation on 28.7.2006, he laid the final report against the accused before the Court. 10. The prosecution examined 29 witnesses, marked 17 exhibits and produced 7 material objects in order to prove its case. 11. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he denied each and every incriminating material as false. No witness was examined and no document was marked on the side of the defence. However, the learned trial Judge found the accused guilty, convicted and sentenced him for the offence as stated earlier. 12. Mr.C.S.Dhanasekaran, learned counsel for the appellant submitted that as there is no eye-witness in this case, the prosecution has relied upon only the following circumstances namely, (1) that there was a loan transaction between the accused and the deceased and for non payment of the loan, the deceased had demanded the same from the accused and, therefore, the accused had committed the murder. However, there is no evidence for the loan transaction. (2) The investigation is tainted inasmuch as the prosecution has not come forward with a true version of the occurrence and the genesis of the entire prosecution case is doubtful. In support of the said submission, the learned counsel would submit that the statement, Ex.P-5 said to have been recorded by P.W.26, the Sub Inspector of Police in the hospital could not have been recorded, as both the doctors namely, P.Ws.20 & 21 have stated that the deceased was brought unconscious to the hospital and was admitted in the accident ward. In fact the doctor, P.W.21 has stated that the deceased regained consciousness only after 8.00 a.m., on 4.6.2006. In the above backdrop, the claim of the prosecution that the deceased had given the statement at 12.45 a.m., on 4.6.2006 is untrue and has been made only on the instructions of P.Ws.1 & 2, the mother and father of the deceased, who were present in the hospital right from the admission of the deceased and till his death. (3) The dying declaration, Ex.P-7 recorded by the Judicial Magistrate, P.W.23 is also tutored since P.Ws.1 & 2 were present with the deceased and in fact the https://hcservices.ecourts.gov.in/hcservices/ statements made in the dying declaration before the Magistrate and in the complaint before the police are far from truth throwing a serious doubt about the veracity of such statements by the accused, especially when he was fighting for his life immediately after the occurrence. (4) In any case, the doctor, P.W.20, who saw the deceased initially had noticed only two injuries. On the other hand, the doctor-P.W.21, who was present when Ex.P-5 was recorded, had noticed four injuries and to the worse, the post-mortem doctor, P.W.27 had noticed as many as six injuries. There is no explanation to the variation in the medical opinion as to the number of injuries found on the deceased. He would also submit that the post-mortem doctor has also found a sutured wound on the stomach of the deceased, but that injury did not relate to the occurrence and there was some infection in that wound due to the operation. Therefore, even if the occurrence is proved, in the absence of any strong motive and the fact that the deceased died after 12 days, the appellant cannot be convicted for the offence under Section 302 IPC, but could be convicted only for the offence under Section 304 (Part-II) IPC. 13. We have heard Mr.P.Kumaresan, learned Additional Public Prosecutor for the respondent. So far as the motive is concerned, he would rely upon the evidence of P.Ws.1 & 2 regarding the money transaction between the accused and the deceased. In fact both of them have spoken about the enquiry made by the deceased just one hour prior to the occurrence as to whether the accused had repaid the money and he has also informed that he had been asked to come to Maasaniamman Temple by the accused for repaying the money and therefore he went to the said temple. The motive has been established since only the deceased requested for repayment of the amount paid to the accused and the accused had committed the murder to avoid repayment. Further the prosecution has proved the last seen theory through P.W.9, as he has spoken that he saw both the accused and the deceased near Maasaniamman Temple just before the occurrence. The prosecution has also let in evidence through P.W.8 to show that after the occurrence at 9.45 p.m., on 3.6.2006, P.W.8 had seen only the accused. He would also submit that the deceased in fact had informed P.Ws.3 & 4 at the earliest point of time that he had been attacked by the accused even before he was admitted in the hospital. Therefore the learned Additional Public Prosecutor has submitted that the motive as well as the occurrence have been established. So far as the discrepancy as to the injuries sustained by the deceased is concerned, he would submit that of course the doctor, P.W.20 who had seen the deceased at the earliest point of time has deposed that he found only two injuries on the deceased. Unfortunately the accident register has not been marked. Had the accident register been marked, the actual number of injuries on the body of the deceased could have been found. In the absence of the copy of the accident register, the evidence of the next doctor, P.W.21 who had seen the deceased can be accepted. According to P.W.21, he has seen four injuries, especially the injury on the right side of the chest is spoken to by him, which is also supported by the medical evidence namely, post-mortem certificate, Ex.P-12 issued by P.W.27. In fact P.W.27, the doctor who conducted post-mortem, has found many sutured wounds on the body of the https://hcservices.ecourts.gov.in/hcservices/ deceased, presumably due to the operation conducted by the doctors to save the life of the deceased. In the said process, they also conducted one operation on the stomach of the deceased, which later on turned out to be an infected one. Merely because of some infection in the small intestine, that will not be a ground to disbelieve the prosecution case put forth by way of medical evidence as to the injuries caused to the deceased by the accused. For the above reasons, the learned Additional Public Prosecutor submitted that the prosecution has established all the circumstances beyond reasonable doubt. 14. We have carefully considered the respective submissions. So far as the first contention relating to the motive is concerned, we have the evidence of P.Ws.1 & 2. P.W.1 is the mother of the deceased and P.W.2 is the father of the deceased and both of them are the fit persons to speak about the money transaction between the accused and the deceased. In fact just one hour prior to the occurrence, the deceased is said to have contacted his mother-P.W.1 and enquired whether the accused had repaid the amount of Rs.1,000/- as promised by him. Therefore, in all probability, the information of the deceased to P.Ws.1 & 2 that he was asked by the accused to come in front of Maasaniammal Temple must be accepted and therefore only, he had gone to the said place to collect the money from the accused. Though the learned counsel for the appellant has submitted that the motive is very weak and such a motive cannot be a ground for committing the murder, we are of the considered view that the motive for the commission of the offence varies from person to person and it depends upon the person's status and the money transaction over a sum of Rs.1,000/- between the accused and the deceased cannot be ignored in this case and, therefore, merely because there is no other independent evidence to speak about the money transaction between the accused and the deceased, the Court cannot hold that the prosecution has failed to prove the motive. Hence we reject the first contention relating to the motive. 15. The next contention of the learned counsel for the appellant is that the complaint, Ex.P-5 could not have been registered at 12.45 a.m., on 4.6.2006 as contended by the prosecution, since the doctors, P.Ws.20 & 21 have specifically deposed that the deceased was brought unconscious to the hospital and he had regained consciousness only at 8.00 a.m., on 4.6.2006. In our opinion, the said contention is liable to be rejected for the simple reason that after the First Information Report was registered at 2.00 a.m., it was sent to the Magistrate and the same was received by the Magistrate at 6.00 a.m., on 4.6.2006 along with the copy of the complaint also. We have to necessarily refer to one fact that nothing was elicited from the Magistrate that he has ante-timed the receipt of the First Information Report as well as the complaint. In the absence of any defence taken and the Magistrate was not controverted as to the above aspect, we are not inclined to entertain such a plea at this stage as we have to go by the records. If the endorsement of the Magistrate as to the receipt of the First Information Report and the copy of the complaint as borne out of record is taken into consideration, https://hcservices.ecourts.gov.in/hcservices/ certainly, the complaint, Ex.P-5 could have been recorded much prior to 6.00 a.m., on 4.6.2006. 16. There is one more strong circumstance put against the accused namely, the dying declaration, Ex.P-7 recorded by the Judicial Magistrate No.VI, Coimbatore. Before the dying declaration was recorded, the Magistrate had ascertained the fit state of mind as well as he consciousness of the deceased to give such a statement. In fact P.W.29, the doctor was also present and he has certified the consciousness of the deceased before and after the recording of the dying declaration. In the dying declaration, the deceased has specifically implicated the accused for the commission of the offence and there is absolutely no variation in his statement before the Magistrate as well as before P.W.26, the Sub Inspector of Police who recorded the statement, Ex.P-5 from the deceased, which was later on treated as the complaint and registered as the First Information Report. In fact, even before Exs.P-5 and P-7 had come into existence, from the evidence of P.W.3, it is seen that the deceased had informed P.W.3 that he was attacked by the accused. This statement was in fact made by the deceased while he was taken to the hospital for treatment. For all the above reasons, we are of the considered view that there is no variation or discrepancy in the dying declaration. However, the dying declaration recorded by the Magistrate is questioned on the ground that there was a possibility of tutoring the deceased to falsely implicate the accused, since right from the admission of the deceased in the hospital and till his death, P.Ws.1 & 2 were present with him. Again this submission cannot be accepted for the simple reason that the Magistrate, who recorded the dying declaration, has not been controverted with any question as to the possibility of tutoring by P.Ws.1 & 2 to falsely implicate the accused. In the absence of any such defence, we are not inclined to entertain such a contention in the appeal. For all these reasons, we are of the considered view that the prosecution has proved all the circumstances as to the involvement of the accused in the commission of the offence and we will have to necessarily reject all the contentions made on behalf of the accused questioning the conviction. 17. This leads us to the last submission of the learned counsel for the appellant as to the sentence, particularly, with reference to the offence. The deceased was at the earliest point of time seen by the doctor, P.W.20 attached to Government Coimbatore Medical College & Hospital. In his evidence, he has categorically stated that he noticed only two injuries namely, 3 x 2 cm of lacerated wound on the right chest and 5 x 5 cm abrasion on the right thigh. Except the above two injuries, he has not noticed any injuries on the body of the deceased. Strangely, the prosecution has failed to mark the accident register as well as the wound certificate issued by P.W.20, though he has admitted that he prepared the accident register and the wound certificate and gave them to the Investigating Officer. 18. Coming to the evidence of the doctor, P.W.21, of course, he has also found the same two injuries as noticed by P.W.20. In https://hcservices.ecourts.gov.in/hcservices/ addition to the above, he has noticed the injuries on the small intestine after an operation was conducted and the post-mortem doctor, P.W.27 had found as many as six injuries on the various parts of the body of the deceased including the two injuries noticed by P.W.20. In fact his opinion is that the deceased should have died of multiple injuries and their complications. He has admitted that there was an infection due to the surgery conducted on the small intestine. 19. From the above facts, we will have to necessarily go back to the evidence of P.W.20 as to the nature of injuries sustained by the deceased in the occurrence. P.W.20 has spoken only two injuries, which we have referred to earlier. Of course, the second injury was due to an operation performed on the left thigh of the deceased. The first injury is on the right chest necessarily meaning thereby that in the occurrence, the deceased had sustained only one injury and he has been treated for almost 12 days in the hospital and in the meantime, there were at least three surgeries conducted and he died only after 12 days. Going by the above facts and coupled with the further fact that the accused had inflicted only one injury, which is also not on the vital part but on the right chest, and the opinion of the doctor is that the deceased had died due to the multiple injuries and due to the further complications, we are of the considered view that the accused can be convicted and sentenced only for the offence under Section 304 (Part-II) IPC. 20. In fine, we set aside the conviction and sentence imposed on the appellant for the offence under Section 302 IPC and instead convict him for the offence under Section 304 (Part-II) IPC and sentence him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for three months. The appeal stands disposed of with the above modification in the conviction and sentence. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ss https://hcservices.ecourts.gov.in/hcservices/ To 1. The Addl. District & Sessions Judge, (Fast Track Court No.I), Coimbatore 2. -do- thru' the Principal Sessions Judge, Coimbatore 3.The Judicial Magistrate No.6, Coimbatore. 4.-do- Thro' The Chief Judicial Magistrate, Coimbatore. 5. The Superintendent, Central Prison, Coimbatore 6. The Public Prosecutor, High Court, Madras 7. The District Collector, Coimbatore 8. The Director General of Police, Chennai 9. The Inspector of Police, B-7, Ramanathapuram Police Station, Coimbatore +1 cc To Mr.C.S.Dhanasekaran, Advocate, SR.9004. Crl.A.No.528 of 2007 ksk [co] gkg/12.3 https://hcservices.ecourts.gov.in/hcservices/