1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.08.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA, J. AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A(MD)No.55/2011 Rajendran @ Nagendran : Appellant Vs Inspector of Police, Thuckalai Police Station Kanyakumari District : Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 19.10.2010 passed in SC.No.14/2010 by the learned Principal Sessions Judge, Kanyakumari at Nagercoil, convicting and sentencing the appellant for the offence under Section 302 of IPC to undergo Life Imprisonment and to pay a fine of Rs.3000/-, in default to undergo Simple Imprisonment for one year. For Appellant : Mr.W.Peter Rameshkumar (Legal Aid Counsel) For Respondent : Mr.K.S.Duraipandian, APP JUDGEMENT (Judgement of the court was made by ARUNA JAGADEESAN, J.) This Criminal Appeal is filed by the sole accused in SC.No.14/2010 against the judgement dated 19.10.2010 passed by the learned Sessions Judge, Kanyakumari at Nagercoil, convicting and sentencing the appellant for the offence under Section 302 of IPC to undergo Life Imprisonment and to pay a fine of Rs.3000/-, in default to undergo Simple Imprisonment for one year. 2. The case of the Prosecution is as follows:- a. The appellant/accused is the father of the deceased Robert Ravi. The accused was living at Aloor. The deceased brought the accused to the House at No.26/28 at Thachanvilai and allowed the accused to live along with himself from April 2009. On 24.8.2006, PW.1 Anitha, who is the defacto complainant and the wife of the deceased, purchased 2 ½ cents of property adjacent to the house from one Muthian for Rs.16,335/- The accused also asked the same amount of Rs.16,335/- from the deceased for his share in the house and plot. The deceased did not give the money to the accused, who later asked the signature of the deceased for selling the house and the property. But, the deceased refused to put the signature. On 7.10.2009 at 5.00 p.m. keeping this as a motive in mind, the accused uttered obscene words against the deceased. On 10.10.2009 at 8.00 p.m. in front of the house, the accused abused the deceased in a filthy language and demanded his signature in a paper and since the deceased refused to put the signature, the accused saying that deceased could enjoy the property only if he lives, stabbed the deceased on the left chest with https://hcservices.ecourts.gov.in/hcservices/ 2 a knife. PW.1 wife of the deceased, PW.3 Babu Rajisha, PW.4 Rajeesh who are the children of PW.1 and the deceased and PW.2 Rajakumar and others saw the occurrence. The accused ran away from the scene of occurrence. Immediately, the deceased was taken by PW.1 and PW.2 to the Government Hospital, Thuckalay. PW.7 Dr.Jeyapaul, the Medical Officer of the said Hospital examined the deceased at 9.00 p.m. on 10.10.2009 and found the deceased in a serious condition and after giving first aid to the deceased, he referred the deceased to the Government Medical College Hospital, Asaripallam and issued Ex.P7 wound certificate, wherein it is stated that the deceased sustained a stab injury (L) anterior chest 5x3x2 cms. b. PW.8 Dr.Raju, who is the Medical Officer of the Kanyakumari Government Medical College Hospital on 10.10.2009 at 10.40 p.m. admitted the deceased for treatment and issued Ex.P8 accident register and also gave Ex.P9 intimation to the Police. As per Ex.P8, the deceased sustained stab injury (L) anterior chest 5x3x2 cms. Subsequently, the deceased was referred to Palayamkottai Government Medical College Hospital for further treatment and was taken to Tirunelveli Medical College Hospital on 11.10.2009, where in spite of the treatment given to him, the deceased succumbed to the injuries at 3.00 a.m. on 11.10.2009. Subsequently, PW.1 went to Kotticode Police Station and gave Ex.P1 complaint. c. On receipt of Ex.P1, PW.13, the Special Sub Inspector of Police, Kotticode Police Station in charge of the Thuckalay Police Station, registered a case in Cr.No.712/2009 under Sections 294(b) and 302 of IPC and prepared Ex.P18 First Information Report and sent Ex.P1 and Ex.P18 to the court and to the Inspector of Police. On receipt of the copy of the First Information Report at 10.15 a.m. on 11.10.2009, PW.14, the Inspector of Police took up the case for investigation and went to the place of occurrence and prepared Ex.P2 Observation Mahazar and Ex.P19 rough sketch in the presence of the witnesses and took photos through a photographer. He recovered blood stained earth and sample earth in the place of occurrence in the presence of the same witnesses under Athakshi and examined the witnesses and recorded their statements. At 13.45 hours, he went to the Tirunelveli Medical College Hospital and conducted inquest on the body of the deceased and prepared Ex.P20 inquest report in the presence of the witnesses and sent the body of the deceased for postmortem. d. PW.9 Dr.Manikantan attached to the Tirunelveli Medical college Hospital conducted autopsy on the body of the deceased and issued Ex.P11 postmortem certificate and Ex.P13 final opinion report. In Ex.P11 the following injuries were noted on the body of the deceased:- “1.An oblique sutured stab injury measuring 6x2cm cavity deep seen over left side of chest. It lies 7 cm below middle of left clavicle, 6 cm above and medical to left nipple. The margins of the stab injury are clean cut and its inner edge is regular and outer edge is irregular. On dissection: It passes through left 3rd intercostal space by making a stab injury of six 6x2cm and then piercing the upper lack lobe of left lung and making a stab injury on https://hcservices.ecourts.gov.in/hcservices/ 3 the left ventricle of heart measuring 2x0.5cmx1cm. Its margins are clean cut and its inner edge is regular and outer edge is irregular. 2.Abrasions seen 6x1cm on the front of right knee 4x0.5cm ever front of left leg 6x0.5cm lower aspect of front of left thigh. 3. ICD wound present on the mid-axillary line of left 3rd intercostal space (surgical treatment). On dissection of scalp: Contusion of scalp 6x3 cm seen on the right side lower aspect of occipital region. Sub dural hemorrhage noted on the right parietal region.” PW.9 opined in Ex.P13 that the deceased would appear to have died of complications of stab injury on the left side of the chest and also due to the head injury sustained due to fall subsequent to the stab injury on his chest. e. On 12.10.2009 PW.14 examined the other witnesses and recorded their statements and on 17.10.2009 arrested the accused at Chempathy Pottai Marankonam and recovered MO.1 knife produced by the accused and on the basis of the confession given by the accused, PW.14 recovered MO.5 blood stained dhothy and MO.6 blood stained paper under athachi and sent the accused for judicial custody. Ex.P12 is the admissible portion of the confession statement of the accused. On 19.10.2009 PW.14 examined the Doctor who conducted postmortem and recorded his statement and after completing investigation, on 30.11.2009, filed a final report against the accused for the offences under Sections 294(b) and 302 of IPC. 3. The case was taken on file in SC.No.14/2010 by the learned Sessions Judge, Kanyakumari at Nagercoil and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as thirteen witnesses (PW.1 to PW.13) and also relied on Exs.P1 to P12 and seven material objects (Mos.1 to 7). 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. On the side of the defence, neither any witness was examined nor any document was marked. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. Mr.W.Peter Rameshkumar, the learned counsel for the appellant, while assailing the impugned judgement of conviction and sentence, would contend that the Prosecution has miserably failed to prove its case by adducing clear and consistent evidence and put forward the following contentions:- a. The Prosecution heavily placed reliance on the evidence of https://hcservices.ecourts.gov.in/hcservices/ 4 PW.1 to PW.4 who are the eye-witnesses, but PW.1, PW.3 and PW.4 are the closely related witnesses and no reliance could be placed on their evidence. In so far as the evidence of PW.2 is concerned, there is a material contradiction to the effect that he has stated that while the deceased and himself were talking in the front yard of the deceased's house, the accused came there with a knife and stabbed him, whereas it is the case of the Prosecution that there was a wordy quarrel between the accused and PW.1, the wife of the accused and at that time, the deceased came there and the accused stabbed him. Therefore, no implicit reliance could be placed on the testimony of those eye- witnesses. b. There was no explanation with regard to the second and third injuries found on the deceased and the medical evidence is in total contravention to the oral testimony, as the eye-witnesses would only account for one injury. c. According to the Doctor who conducted postmortem, the cause of death is only due to the complications of the injury and the stab injury is not the direct cause for the death of the deceased. d. There is delay in lodging the First Information Report and there is no plausible explanation from the Prosecution to explain the delay. e. Even in the event of accepting the case of the Prosecution, it would attract the offence only under Section 304(2) of IPC and not the offence under Section 302 of IPC. 7. Per contra, Mr.K.S.Duraipandian, the learned Additional Public Prosecutor would submit that the Prosecution has proved its case by adducing clear and cogent evidence. It is contended that merely on the ground that PW.1, PW.3 and PW.4 are related witnesses, when their evidence is consistent, their evidence could not be impeached in any manner. It is contended that there is no infirmity or inconsistency in the evidence adduced by the Prosecution. He would submit that the case of the Prosecution is also corroborated by the recovery of weapon and medical evidence. 8. We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgement of conviction and sentence. 9. The fact remains that the Prosecution has heavily placed reliance on the evidence of the eye-witnesses, namely, PW.1 to PW.4. It is seen that PW.1 is the wife, PW.3 and PW.4 are the daughter and son of the deceased respectively. PW.2 is the co-worker of the deceased, who had come to the house of the deceased with the deceased. The learned counsel for the appellant pointed out to the testimony of PW.1 and contended that his evidence indicated that the accused came to the scene of occurrence only after the deceased and himself returned to the house i.e. after five minutes, but the evidence of PW.1, PW.3 and PW.4 is to the effect that the accused was already https://hcservices.ecourts.gov.in/hcservices/ 5 there in the place of occurrence quarrelling with PW.1, wife of the deceased in the presence of one Mani who was not examined. The learned counsel for the appellant pointing out to the evidence of PW.2 contended that he was not speaking truth, as he suppressed that the deceased was drunk, whereas postmortem revealed that alcohol was found in the stomach and other inner parts and therefore, no reliance could be placed on his evidence. 10. The deceased is the son of the accused. The case of the Prosecution is that the accused was residing in the same house in the front yard. On the date of occurrence i.e. on 10.10.2009 at about 8.00 p.m. PW.1 and her children PW.3 and PW.4 were in the house and PW.1 was helping her children in their studies. At that time, one Mani was in the house and the accused scolded PW.1 in an abusive language. At that time, the deceased and PW.2 had returned to the house and when the deceased was talking to PW.2 in the front yard of the house, the accused abused the deceased in a filthy language and asked to him to sign in a blank paper. When the deceased refused, the accused took out a knife from his waist and stabbed the deceased on his right chest and fled away from the scene. 11. PW.2's evidence clearly indicated that he had accompanied the deceased to the house of the deceased from their work place and while they entered the house, the accused on seeing them asked the deceased to sign in a blank paper and when the deceased refused, he stabbed the deceased on his right chest. There is no discrepancy or contradiction in his evidence, as they may not know what was happened prior to their arrival. His evidence only indicated that after they arrived, they were talking to each other for five minutes and in the mean time, the accused came there and stabbed the deceased. 12. It is no doubt true that PW.2 has stated that the deceased had no habit of drinking liquor, but that does not in any way discredit his testimony. PW.2 has also stated that he never used to drink. It is not brought out from his cross examination that he used to consume liquor. The above said contradiction is not material enough to render his testimony unreliable. 13. Next coming to the evidence of PW.1, PW.3 and PW.4, their testimony is consistent and their presence cannot be doubted. The occurrence had taken place in the house of the deceased where he was living with his wife and children. The accused being the father of the deceased was also residing in the same house in a portion in the front yard of the house. They had seen the accused quarrelling with the deceased and forcing him to sign a blank paper which was refused by the deceased. Their evidence clearly indicated that they had seen the accused stabbing the deceased though at a fraction of seconds. There is no reason as to why PW.1 to PW.4 would try to rope in the accused falsely as the assailant. Merely because that PW.1, PW.3 and PW.4 are closely related to the deceased, their evidence cannot be discarded which is otherwise cogent and credible. 14. In the present case, PW.3 and PW.4 who are the children of the deceased had seen the occurrence and there is no ground of https://hcservices.ecourts.gov.in/hcservices/ 6 doubting the veracity of the testimony of those child witnesses. Their deposition indicated that they had sufficient maturity to depose what they saw and nothing was brought out in their cross-examination to have any doubt on the veracity of the said witnesses. The narration of the incident by PW.3 and PW.4 is found quite natural and the trial court rightly placed implicit faith and reliance on their evidence. 15. It was contended that the earliest information was suppressed and Ex.P1 complaint was given after a delay of nearly 13 hours after the occurrence and therefore, implication of the accused after due deliberation cannot be ruled out. From the evidence of PW.1, it is seen that immediately after the occurrence, the deceased was taken to Thakkalai Government Hospital and from there, he was taken to Asaripallam Government Hospital where he was given first aid treatment and thereafter, shifted to Tirunelveli Government Hospital. The deceased had succumbed to the injuries at 3.00 a.m. early in the morning. PW.1 had lodged the complaint in Kottikode Police Station. PW.13 Sub Inspector of Police had recorded the complaint and had registered the First Information Report at 9.00 a.m. 16. PW.13 has stated that he received a telephonic information from the Thakkalai Police Station and proceeded to Thakkalai Government Hospital where he was informed that the victim had been taken to Asaripallam and when he went to the said Hospital he was informed that the victim had been shifted to Tirunelveli Government Hospital. He also received information at 4.00 a.m. that the victim died and when he searched for the relative of the deceased, he was informed that they had gone to Kollikode Police Station. He received the complaint at Kollikode Police Station and came to Thakkalai Police Station and registered the First Information Report. 17. As the deceased was in a critical condition, PW.1 was made to run from one hospital to another to save the life of the deceased, however, he died in the Tirunelveli Government Hospital despite treatment given to him. Considering the above said circumstances, as PW.1 was taking all efforts to save her husband, no significance has to be given to the delay caused in lodging the complaint to the Police by PW.1. The delay by itself cannot make the First Information Report doubtful especially when the delay is properly explained. We are unable to find any circumstances or material to raise any considerable doubt regarding the genuineness of the complaint and the veracity of the evidence of the complainant (PW.1) and PW.13, Sub Inspector of Police rendering it unsafe to rely upon it. 18. Yet another submission was put forth by the learned counsel for the appellant to the effect that oral testimony of the Prosecution witnesses is not corroborated by the medical evidence, inasmuch as two out of three injuries found on the body of the deceased are not explained by the Prosecution as to how those injuries were caused to the deceased. The learned counsel would submit that it raises a considerable doubt on the veracity of those witnesses. The postmortem certificate shows the following three injuries:- “1.An oblique sutured stab injury measuring 6x2cm cavity deep seen over left side of chest. It lies 7 cm below https://hcservices.ecourts.gov.in/hcservices/ 7 middle of left clavicle, 6 cm above and medical to left nipple. The margins of the stab injury are clean cut and its inner edge is regular and outer edge is irregular. On dissection: It passes through left 3rd intercostal space by making a stab injury of six 6x2cm and then piercing the upper lack lobe of left lung and making a stab injury on the left ventricle of heart measuring 2x0.5cmx1cm. Its margins are clean cut and its inner edge is regular and outer edge is irregular. 2.Abrasions seen 6x1cm on the front of right knee 4x0.5cm ever front of left leg 6x0.5cm lower aspect of front of left thigh. 3. ICD wound present on the mid-axillary line of left 3rd intercostal space (surgical treatment). On dissection of scalp: Contusion of scalp 6x3 cm seen on the right side lower aspect of occipital region. Sub dural hemorrhage noted on the right parietal region.” 19. According to the Prosecution, the accused stabbed the deceased on his left chest with MO.1 knife. The injuries (1) and (3) are the corresponding injuries to the stab injury. The injury had pierced the upper lobe of left lung and also left ventricle of heart. It has also resulted in cutting the mid axillary on the left 3rd intercostal space. PW.9 Dr.Manikandan, has stated that the deceased had died due to the complications of the stab injury to the left of chest. The possibility that the 2nd injury namely abrasion to have been caused while the deceased being carried on to three different hospitals cannot be ruled out. In the absence of any specific cross- examination of the medical witnesses with a view to establish that injury no.2 could have been caused in any other manner, it cannot be said that the said injury is not explained by the Prosecution. The medical evidence supports the case of the Prosecution and there is nothing to suggest any inconsistency in the medical evidence so as to reject the evidence of the eye-witnesses. Unless the medical evidence in turn goes so far that it completely rules out all possibilities whatsoever of the injuries taking place in the manner alleged by the eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. The evidence of PW.1 to PW.4 is sufficient without anything more to warrant a conviction and we do not find any serious discrepancies to render their evidence inherently improbable and incredible. 20. The next question to be considered in this case is as to whether the act of the accused would only attract an offence under Section 304(2) and not under Section 302 of IPC. Even as per the case of the Prosecution, there was dispute between the accused the deceased with regard to sharing of two and half cents of land in the property which the deceased was refusing to part with. The accused had nutured sustained provocation in view of the same. https://hcservices.ecourts.gov.in/hcservices/ 8 21. On the date of occurrence, both the accused and the deceased exchanged heated words and abused each other in a filthy language. The accused had asked the deceased to sign in a blank paper which the deceased refused and therefore, the accused had given one stab injury on the chest of the deceased. Thus, it is clear from the evidence that there was no premeditation and the incident had occurred all of a sudden in view of grave and sudden provocation. Therefore, the offence made out against the appellant is under Section 304(ii) of IPC, as he had no intention to cause death, but he had knowledge that the injuries inflicted is likely to cause death. 22. In the result, this Criminal Appeal is partly allowed. The conviction made under Section 302 of IPC is modified to one under Section 304(ii) of IPC. Considering the facts that the accused is aged about 65 years old and he is suffering from ailments due to his old age and he has already undergone two years of imprisonment, the sentence is also modified to the period already undergone by him and the fine amount imposed by the court below shall be maintained. 23. This court places its appreciation on record for the services rendered by the learned counsel for the appellant (legal aid) and his remuneration is fixed at Rs.5000/-, which shall be paid by the Legal Aid Services Committee, Madurai Bench. Sd/- Assistant Registrar(P&A) /TRUE COPY/ Sub Assistant Registrar To: 1.The Sessions Judge, Kanyakumari at Nagercoil 2.The Judicial Magistrate, Padmanabhapuram. 3.Do-Thro' The Chief Judicial Magistrate, Kanyakumari District at Nagercoil. 4.The Inspector of Police, Thuckalai Police Station, Kanyakumari District. 5.The Superintendent,CentralPrison,Palayamkottai. 6.The District Collector,Kanyakumari District at Nagercoil. 7.The Director General of Police,Chennai. 8.The Secretary, Legal Aid Services committee, Madurai. 9.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.W.Peter Rameshkumar, Advocate SR.No.25770 Judgement in Crl.A(MD)No.55/2011 Srcm PA/11.08.2011/8P/11C https://hcservices.ecourts.gov.in/hcservices/