Bail Slip The Appellant viz., Ravi S/o Manjini @ Kaliappan, who was released on bail as per the order of this Court dated 23.10.2002 in MP.No.10810 of 2002 in Crl.A.No.511/01. IN THE HIGH COURT OF JUDICATURE AT MADRAS D A T ED: 21.07.2009 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR CRL.A.No.511 of 2001 Ravi .... Appellant Versus State S.H.O.Odiansalai P.S. Pondicherry ... Respondent. **** Appeal filed under Section 374(2) of Criminal Procedure Code to set aside the conviction and sentence of 7 years Rigorous Imprisonment imposed under section 304(2) I.P.C. by the Additional Sessions Judge, Pondicherry in SC No.11/2000 dated 7.11.2000 and to acquit of the offence charged. For Appellant : Mr.V.Sairam. For Respondent : Mr.M.V.Thangavelu (Public Prosecutor) ------- J U D G M E N T The sole accused who was prosecuted for an offence punishable under section 302 I.P.C., but was convicted for an offence under section 304(ii) IPC and sentenced to undergo rigorous imprisonment for seven years in sessions case No.11/2000 on the file of Additional Sessions Judge, Pondicherry by judgment dated 07.11.2000, has broughtforth this Appeal under section 374 of Criminal Procedure Code challenging the conviction and sentence. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution, in brief, can be stated as follows: P.W.1, Selvaraj is the younger brother of deceased Ragu. Both of them went to Vambakeerapalayam arrack shop on 30.06.1999 at about 8.30 P.M.While they were consuming arrack purchased in the said arrack shop, the appellant/accused who had come to the said village as a guest of one Velmurugan (P.W.6) came to the said arrack shop and asked the deceased to lend a match box to lit his cigaratte. The deceased Raghu replied him that he was not having match box as he did not have the habit of smoking. On hearing the said reply, the appellant/accused abused him with filthy language pursuant to which the deceased Raghu pushed the appellant/accused. The appellant/accused who fell on the ground took a soda bottle which was lying there, broke it, stabbed the deceased on his neck, using the broken soda bottle and then ran away from the place of occurrence. The above said occurrence was witnessed by P.W.1 – Selvaraj, P.W.2- Palani and P.W.3 Pappayee, both employed in the said arrack shop and also by P.W.5 – Moorthy,Immediately after the occurrence, the injured Ragu was taken to the General Hospital, Pondicherry (now Puducherry) by P.W.1 in a cycle rickshaw for treatment. However on arrival at the General Hospital, Pondicherry (now Puducherry) , P.W.10-Dr.Murali, the casualty medical officer of the said hospital examined the deceased at 9.00 P.M. on 30.06.1999, found him dead and declared that he was brought dead. After sending intimation to the police under Ex.P4, the dead body of Ragu was sent to the mortuary by P.W.10. After the deceased Ragu was declared brought dead by the casulty Medical Officer, P.W.1 went to Odiansalai Police Station and lodged a complaint under Ex.P1. The oral statement given by him was reduced to writing by one Arumugam, Head constable, in the presence of P.W.12- Thiru.Deivasigamani, the then Sub Inspector of Police, Odiansalai Police Station and P.W.1 affixed his signature in the said statement. P.W.12-Thiru.Deivsigamani registered a case for an offence punishable under section 302 IPC against the appellant/accused in Crime No.156/1999 on the file of the above said police station based on Ex.P1-complaint. Ex.P8 is the F.I.R. prepared by P.W.12 in the printed format for the registration of the case. The fact of the registration of the said case was informed by P.W.12 to the circle Inspector of Police. On receipt of such information, P.W.13-Mr.K.S.Ramalingam, the then Inspector of Police, went to Odiansalai police station at 10.00 P.M. received a copy of the FIR from P.W.12 and took up the investigation of the case. He then visited the place of occurrence along with P.W.12, one Arumugam (Head Constable) and P.W.1-Selvaraj. The statements of P.W.1, P.W.2 , P.W.3 and P.W.6 and other witnesses were recorded by P.W.13 in the place of occurrence. Thereafter, P.W.13 went to the General Hospital, Pondicherry (now Puducherry) and conducted https://hcservices.ecourts.gov.in/hcservices/ inquest on the dead body of Ragu in the presence of Panchayatars on 01.07.1999 between 8.00 P.M and 10.30 P.M and prepared Ex.P9 inquest report. P.W.13 also gave a requisition to the Resident Medical Officer for post mortem examination of the dead body of the deceased. P.W.11-Dr.R.Balaraman conducted an autopsy and issued Ex.P5 postmortem examination report. During postmortem examination P.W.11, found the following injuries on the dead body of deceased Ragu:- (i)an incised wound 4x 1/2 x 1/2 cms over the middle of the chin; (ii)An irregular incised wound 5x1.5 cms, cutting trachea on the right side, present over the front of neck below thyroid cartilage. ( The injury had cut blood vessels of the neck on the right side); and (iii) an incised wound ½ x ½ cms over the right thumb on the palmar aspect. The stomach contained blood stained fluid about 100ml. with smell of alcohol. The internal organs were preserved and sent for chemical analysis. On receipt of Ex.P6, Chemical Analysis Report, P.W.11 gave his final opinion under Ex.P7 opining that death had occurred due to shock and haemorrhage caused by the injury found on the neck and that the deceased was also found to have consumed alcohol. 3. The blood stained clothes of the deceased produced as M.O's – 1 to 5 were recovered by the investigating officer(P.W.13) under Ex.P2 Seizure Mahazar in the presence of one Palanivel and P.W.8 - Ravi kumar. The crime details report prepared by the investigating officer in the presence of P.W.9. - Remo and one Murugan is Ex.P3. The invetigating officer viz. P.W.13 arrested the appellant/accused on 13.09.1999 at about 6.00 A.M. at the residence of his relative viz. P.W.6 – Velmurugan, recorded the confession statement given by the appellant / accused in the presence of witnesses (Balamurugan and Jayakumar) and sent the accused to the Court for remand. Before completing the investigation P.W.10 was transferred from Grand Bazaar circle and hence he handed over the case records to his successor viz. P.W.14 - Thiru. P.R. Ramachandran, who took up the further investigation of the case, recorded the statement of the police photographer who had taken the photograph of the deceased and seen of occurrence and recovered those photographs marked as M.Os. 6 and 7 and M.Os. 10 to 12 along with their respective negatives marked as M.Os. 8 and 9, and M.Os. 13 to 15. After completing the investigation, P.W.14 submitted a final report alleging commission of an offence under section 302 IPC by the appellant / accused. 4. The final report was taken on file by the learned judicial first Class Magistrate Pondicherry (now Puduchery) as https://hcservices.ecourts.gov.in/hcservices/ P.R.C.No.2/2000. After furnishing copies of the documents relied on by the prosecution to the appellant/ accused under section 207 Cr.P.C and following the procedure for committing cases for trial to the Court of Sessions, the learned judicial First class Magistrate, Pondicherry (now Puduchery) committed the case for trial under section 209(a) Cr.P.C to the sessions court, Pondichery. 5. The learned principal sessions judge, Pondichery took it on file as S.C.No.11/2000 and made it over to the Court of the Additional Sessions Judge (trial court) for disposal according to law. Necessary charge for an offence punishable under section 302 I.P.C. was framed against the appellant/accused in the trial court (the Court of Additional Sessions Judge, Pondicherry, now Puduchery). The appellant/accused pleaded not guilty and wanted the case to be tried. 6. As many as fourteen witnesses were examined as P.Ws. 1 to 14, ten documents were marked as Exs.P1 to P10 on the side of the prosecution in order to prove the charge framed against the appellant/accused. M.Os. 1 to 16 were also produced on the side of the prosecution. After completing recording of evidence on the side of the prosecution, the accused was examined under section 313 (1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. The accused denied them as false and reiterated his stand that he was innocent. No witnesses was examined and no document was produced on his side. 7. The learned Additional Sessions Judge, Puduchery (trial judge) heard the arguments advanced on either side, considered the evidence brought before him in the light of such arguments and upon such consideration, came to the conclusion that the prosecution had proved that it was the appellant/accused who caused the death of the deceased by stabbing him with a broken soda bottle on the neck beyond reasonable doubt. However the learned trial judge held that said act of the appellant/accused in causing the death of the deceased Ragu would not amount to culpable homiside not amounting to murder punishable under section 302 I.P.C. and on the other hand, the same would amount to cupable homicide not amount to murder punishable under section 304(ii) IPC. Based on the said finding, the court below recorded a conviction for an offence punishable under section 304(ii) I.P.C and sentenced the appellant/accused to undergo rigorous imprisonment for a period of seven years for the above said offence without imposing any fine. 8.Challenging the conviction and sentence, the appellant/accused has brought forth this Appeal on various grounds set out in the appeal petition. The points that arise for consideration are as follows: https://hcservices.ecourts.gov.in/hcservices/ (i)Whether the finding of the court below that the appellant/accused was guilty of an offence punishable under section 304(ii) is erroneous? and (iii)Whether the conviction recorded by the court below and sentence imposed on the appellant/accused for the offence punishable under section 304(ii) IPC should be set aside or in any way interfered with? 9. The arguments advanced on either side were heard. The entire materials available on record wre also perused by this court. The sole accused, who was prosecuted for an offence under section 302 I.P.C. but convicted for lesser offence, namely an offence punishable under section 304(ii) I.P.C. and sentenced to undergo rigorous imprisonment for seven years, has come forward with this Appeal challenging the above said conviction and sentence. 10. Advancing arguments on behalf of the appellant/accused, Mr.V.Sairam, learned counsel submitted that the judgment of the court below convicting the appellant/accused for an offence punishable under section 304(ii) I.P.C. and sentencing him to undergo rigorous imprisonment for seven years was against law, weight of evidence and liable to be set aside, that the court below failed to note the material contradictions found in the evidence of prosecution witnesses regarding the occurrence as well as investigation; that the court below failed to appreciate the fact that the first investigating officer had not chosen to recover the blood stained earth from the alleged place of occurrence; that the presence of conflicting versions given by prosecution witnesses as to whether the blood stains were found in the scene of occurrence at the time of inspection of the same by the investigating officer; that the court below having arrived at a conclusion that there could have been no intention to kill the deceased, it should have also come to the conclusion that not even the offence punishable under section 304(ii) was made out and at the best, the offence would amount to an offence punishable either under sections 324 I.P.C. or under section 326 I.P.C; that in any event the sentence imposed was excessive and disappropriate to the criminality of the act of the appellant and that hence the appellant should be acquitted holding him not guilty of any offence or at least the conviction should be modified as one for a lesser offence with a resultant reduction of the sentence. 11. Per contra, Mr.Thangavelu, the learned Public Prosecutor submitted that the well considered finding of the court below to the effect that it was the appellant/accused who caused the death of the deceased by inflicting, stab injury on his neck using a https://hcservices.ecourts.gov.in/hcservices/ broken soda bottle could not be said to be discrepant capable of being interfered with in this appeal; that the prosecution proved beyond reasonable doubt the overt act of the part of the appellant/accused; that infact the state could have come forward with an appeal because the court below had chosen to convict the appellant/accused for a lessar offence, that the offence punishable under section 302 had been proved beyond reasonable doubt by the prosecution by adducing sufficient and proper evidence and that hence there was no scope whatsover for interfering with the judgment of conviction and order of sentence of the court below at instance of the appellant/accused. As an alternative argument, it was contended by the Public Prosecutor that even assuming that the facts would attract a lesser offence punishable under section 326 I.P.C., the sentence awarded by the court below could not be termed either excessive or harsh and that in any event, the sentence of imprisonment awarded by the court deserved confirmation. 12. This court paid its anxious consideration to the submissions made on either side. 13. The occurrence is said to have taken place on 30.06.1999 at about 8.30pm near the arrack shop at Vambakeerapalayam, within the jurisdiction of Odiansalai Police Station, Puducherry. The appellant/accused is said to have caused the death of the deceased Raghu, a Rickshaw puller by inflicting stab injuries on the neck of the deceased, using a broken soda bottle. According to the prosecution case, when the deceased Raghu and his brother Selva Raj (P.W.1) were consuming arrack purchased from the above said arrack shop, the appellant/accused came there and wanted the deceased to lend him his match box to lit his cigarette, for which the deceased Raghu replied in the negative stating that he did not have the habit of smoking and hence no match box was available with him. It is the further case of prosecution that, besides commenting that it was surprising to hear that the deceased was not having the habit of smoking, while he had the habit of taking alcohol, the appellant/accused abused the deceased using unparliamentary and vulgar words, pursuant to which, the deceased pushed away the appellant/accused whereupon he fell on the ground. Enraged by the same, according to the prosecution case, the appellant/accused took an empty soda bottle that was lying on the ground, broke it and using the broken soda bottle, stabbed the deceased on his neck and escaped from the place of occurrence. The chase made by P.W.1 and others proved ineffective as the appellant/accused disappeared in dark and hence could not be followed. Thereafter P.W.1 took the deceased in a cycle rickshaw to the General Hospital, Puducherry where he was declared dead by the Medical Officer. 14. P.W.10, Dr. Murali was the Casualty Medical Officer, Government Hospital, Puducherry who examined the deceased when https://hcservices.ecourts.gov.in/hcservices/ brought to the hospital and declared him to have been brought dead. Besides, certifying that the deceased was brought dead to the hospital, P.W.10, sent an intimation to the police in Ex.P4 regarding the death of the deceased Raghu and sent the dead body to be kept in the mortuary. According to his testimony, the deceased was brought dead to the hospital at 9.00 p.m. Besides such intimation sent by the Medical Officer to the police, P.W.1 himself had gone to the Odiansalai Police Station and lodged a complaint at about 9.30p.m. He gave the complaint orally and same was reduced to writing by one Arumugam, Head Constable. The said complaint, thus reduced to writing by the Head Constable and signed by P.W.1 is Ex.P1. After the registration of the case, P.W.13, Inspector of Police, Grand Bazaar Circle, Puducherry, took up the investigation and conducted inquest over the dead body of the deceased. After the inquest, based on the requisition given by the investigating Officer to the Resident Medical Officer, P.W.11 Dr.Balaraman conducted autopsy and issued Ex.P5, Postmortem Report. After receiving the Chemical Analysis Report of viscera, P.W.11 gave his final opinion under Ex.P7. The following injuries were found on the dead body of the deceased at the time of Postmortem examination and noted down by P.W.11:- 1)an incised wound measuring 4 x ½ x ½ cms over the middle of the chin, 2)an irregular incised wound measuring 5 x 1.5 cms, over the front of neck below thyroid cartilage, cutting trachea and blood vessels on the right side of the neck. and 3)an incised wound measuring ½ x ½ cms over the right thumb at the palmar aspect. The Medical Officer, who conducted autopsy, based on his findings and after perusing the Chemical Analysis Report of viscera, gave a final opinion that the deceased Raghu had died of shock and haemorrhage due to the injury found on the neck. From the evidence of P.W.11 and Exs.P5 to P7, it is quite obvious that the injury found on the neck was the cause of the death of deceased Raghu. The said injury could not have been a self-inflicted injury. 15. There is the clear evidence of P.W.11 that injury No.2 was the fatal injury, which caused the death and that the same could have been caused by a sharp and irregular weapon like a glass piece. The probable time of death has also been estimated by the Medical Officer to be more than 6 hours and less than 24 hours prior to autopsy. The Postmortem examination was commenced at 11.00a.m on 01.07.1999. Hence the probable time of death shall be between 11.00a.m. on 30.06.1999 and 5.00a.m. on 01.07.1999. According to the prosecution case, the occurrence took place at 8.30p.m. on 30.06.1999 and the deceased was brought dead to the hospital at 9.00p.m. itself. The same corresponds to the opinion of the Medical Officer, who conducted autopsy. Though there was a https://hcservices.ecourts.gov.in/hcservices/ suggestion put to the Medical Officer, P.W.11, that a fall on the ground making the deceased coming into contact with irregular sharp edged weapon like glass piece would have caused the fatal injury namely, the injury No.2, the said suggestion was stoutly refuted by the Medical Officer. It was the evidence of the Medical Officer that in such an event the injury would have been associated with abrasions. The injury Nos.1 and 3, which were also incized wounds, according to the submissions made by the learned Government Advocate (Criminal Side), alone were associated with the injury No.2 and no such abrasion suggesting such fall with a force was found on the dead body of the deceased. 16. Taking into consideration the above said medical evidence and the oral testimony of P.W.11, this Court comes to the conclusion that the Trial Court has arrived at a right conclusion that injury No.2 resulted in the death of the deceased; that the said injury could have been caused by another person and that hence the death of the deceased Raghu was homicidal and was neither suicidal nor accidental. There is no defect or infirmity in the above said finding of the court below and the same deserves approval of this Court. 17. We have seen in the foregoing paragraph that the death of the deceased Raghu was neither suicidal nor accidental, but was homicidal. Then the necessary question that arises shall be, who caused the death of the deceased? Totally four persons were examined on the side of the prosecution as eye witnesses. They are P.Ws.1,2,3 and 5. Out of the above said 4 witnesses, P.W.3 has turned hostile and stated in his evidence that while he was selling arrack in the above said arrack shop on 30.06.1999 at about 8.30p.m, he heard about the attack made by the appellant/accused on the deceased Raghu with a broken soda bottle. He has not stated that he saw the occurrence. Therefore, he was treated hostile and during cross examination on the side of the prosecution, he was successfully contradicted with reference to his statement under Section 161 Cr.P.C. wherein he had stated that he saw the accused stabbing the deceased on the neck using a broken soda bottle; that there after the accused ran towards the cremation ground and that subsequently he heard the news that the deceased succumbed to the injuries on the way to hospital when he was taken by P.W.1 in a rickshaw. 18. P.W.1 is the brother of the deceased who is said to have accompanied the deceased to the arrack shop. It is his clear evidence that while he along with his brother was consuming arrack purchased from the arrack shop, the accused came there and wanted the deceased to lend him match box to lit his cigarette and that the subsequent altercation resulted in the occurrence in which the appellant/accused took a soda bottle lying on the ground, broke it https://hcservices.ecourts.gov.in/hcservices/ and stabbed the deceased on his neck with the broken piece of the soda bottle. P.W.1 is the person who took the deceased in a rickshaw to the Government Hospital, Puducherry where the Medical Officer in the Casualty department examined the deceased and certified him to have been brought dead. His evidence to that effect gets corroboration from the evidence of P.W.10 Medical Officer. It is he who went to the police station and gave Ex.P1- complaint. Soon after the Medical Officer declared the deceased to be dead and sent the dead body to mortuary, P.W.1 proceeded towards the Odiansalai Police Station, where his oral statement was reduced to writing by the Head Constable. P.W.1 has also signed the statement thus recorded by the Head Constable. The said evidence of P.W.1 is also corroborated by the evidence of P.W.12-Sub Inspector of Police, who registered the case based on Ex.P1- complaint. Of course it is true that P.W.1 is a close relative of the deceased. The mere fact that a witness happened to be a close relative of the deceased is not enough to discard his evidence as interested testimony. The same shall be accepted after putting it to the test of careful scrutiny. If such a test is applied to the testimony of P.W.1, the said evidence could not be discarded as unbelievable. His evidence is so cogent and natural without there being any exaggeration. 19. P.W.2 is a person who was employed in the arrack shop at Vambakeerapalayam at the time of occurrence. He has clearly narrated the incident in accordance with the prosecution theory. He has also totally corroborated the evidence of P.W.1 by stating that his attention was drawn by the sound of breaking the soda bottle; that thereafter he saw the appellant/accused stabbing the deceased on his throat using the broken soda bottle; that after stabbing the deceased the appellant/accused ran away from the place of occurrence taking along with him the broken soda bottle used in the occurrence; that they chased him in vain, as he disappeared in darkness and that thereafter P.W.1 took the deceased to the hospital in a rickshaw. 20. Yet another eye witness, namely P.W.5 has also narrated the occurrence in a cogent manner. He is said to have travelled along with his wife in the rickshaw of the deceased to Vambakeerapalayam, prior to the occurrence. It is his further version that after leaving his wife in his house at Vambakeerapalayam, he went to the arrack shop, where he saw the deceased and P.W.1 consuming arrack and also witnessed the occurrence taking place. His narration of the occurrence is in tune with the prosecution story and also the testimonies of P.Ws.1 and 2. There is no reason, whatsoever, to disbelieve the evidence of P.W.2 and P.W.5. The evidence of the above said eye witnesses stand unasailed and there is no discrepancy or inherent infirmity in their testimonies making them unreliable or unbelievable. https://hcservices.ecourts.gov.in/hcservices/ Therefore, this court is convinced that the eyewitness P.Ws.1,2 and 5 have given clear and cogent evidence to the effect that it was the appellant/accused who caused the injury to the deceased using a broken Soda bottle which ultimately resulted in his death. 21. Subsequent to the registration of the case, the investigating officer visited the place of occurrence and prepared Ex.P3, Crime Details Form. Of course there are some minor discrepancies as to whether the