Madras High Court
Arumugam vs State Rep. By on 15 November, 2024
Author: M.S. Ramesh
Bench: M.S. Ramesh
Crl.A.No.392 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 26.09.2024
Pronounced on 15.11.2024
CORAM :
THE HONOURABLE Mr. JUSTICE M.S. RAMESH
AND
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
Crl.A.No.392 of 2019
Arumugam ... Appellant
Vs.
State Rep. by
Inspector of Police,
E4 Abhiramapuram Police Station,
Chennai. ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to set aside the judgment of conviction and sentence
passed by the learned II Additional Sessions Judge, Chennai in S.C. No.
316 of 2011 dated 09.03.2018 and acquit the appellant from all the charges.
For Appellant : Mr.C.Samivel
For Respondent : Mr.A.Gokulakrishnan,
Additional Public Prosecutor
*****
Page 1 of 17
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Crl.A.No.392 of 2019
JUDGMENT
C.KUMARAPPAN, J.
The instant criminal appeal has been filed by the appellant/accused
against the order of conviction passed by the learned II Additional Sessions
Judge, Chennai, in S.C. No. 316 of 2011, dated 09.03.2018. The accused
was convicted and sentenced for the offence under Section 302 of IPC
2. The brief facts which give rise to the instant Criminal Appeal are
that, the accused and PW1/Kasthuri are husband and wife. Similarly, the
accused and the deceased were close friends. It appears that, some time
back all of them were working in Bangalore. While so, the deceased
developed intimacy with the accused's wife, PW1. After knowing such
romantic relationship outside of marriage, the accused developed a grudge
against the deceased as well as PW1. Therefore, PW1/Kasthuri and the
deceased shifted their residence to Chennai, and they had been staying at
the scene of occurrence.
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3. After knowing their whereabouts, on 06.02.2011, the accused
came down to Chennai and started staying with them, and requested the
deceased to sever the relationship, with his wife (PW1). The deceased
accepted the accused's request and pleaded for a week's time. In the
meanwhile all the them, qua the accused, the deceased, and PW1 were
staying together under one roof from 06.02.2011, until the date of
occurrence, i.e., 10.02.2011. On the fateful day, [10.02.2011], at about
11:00 p.m., when all of them had gone to bed, the accused was watching
TV with high volume. This was objected by PW1 and she reduced the
volume, and kept the remote out of the accused's reach. This was objected
to by the accused, and assaulted PW1 with the TV remote control.
4. Immediately, thereafter, there was a wordy quarrel between them.
Enraged by such wordy quarrel, and with his unquenched grudge against
PW1, the accused suddenly took the vegetable knife, which serendipitously
was placed near him, and attempted to attack PW1. The deceased, who
intervened to pacify them, sustained two stab injuries in the melee, one on
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his stomach, and another on his chest. When the accused realised that the
deceased succumbed to the stab injuries instantaneously, he fled from the
scene of occurrence.
5. Immediately thereafter, PW1 went to Abiramapuram Police
Station and gave a police complaint to PW16/Jebasingh, the Sub-Inspector
of Police. Upon receiving the complaint, he registered FIR at about 24:00
hours in Crime No. 129 of 2011 under Section 302 of IPC. After
registering the said FIR, he forwarded the same to the concerned
jurisdictional Magistrate, as well as to the Investigating Officer. [PW20/R.
Thalavaisamy]. He [PW20] after receiving a copy of the First Information
Report, proceeded to the scene of occurrence at the intervening night of
10/11.02.2011, at about 00:30 hours, and prepared an observation mahazar
and rough sketch. He also conducted an inquest upon the body of the
deceased and, thereafter, made arrangements for the post-mortem of the
deceased. He also recorded the statements of PW1/Kasthuri,
PW2/Muniyan, PW4/Deepak, PW5/Bagavathi, Rajeshwari, and Vinoth.
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Additionally, he made arrangements to take photographs of the scene of
occurrence. Furthermore, he recorded the statements of the relatives of the
deceased, as well as PW1, and recovered blood-stained belt, towel, and
other dress materials of the deceased from the scene of occurrence.
6. He also recorded the statement of the doctor, who gave the
accident register. On 11.02.2011 at about 7:00 o'clock he arrested the
accused. After arrest, the accused voluntarily gave a confession statement
in the presence of one Arasu and Devaraj. In pursuance of the said
confession statement, a discovery of facts was effected by recovering the
blood-stained knife, and dress material of the deceased. After, his transfer,
his, successor, S. Jaikrishnan, who was examined as PW21 proceeded with
investigation,. He examined the post-mortem doctor, the forensic expert,
and recorded their statements, and eventually laid the charge-sheet against
the accused.
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7. Before the Trial Court, the prosecution relied on as many as 21
witnesses, and marked 15 documents. Besides this, the prosecution also
marked 10 material objects. However, neither any witnesses were
examined, nor any documents or material objects were marked on behalf of
the accused.
8. The Trial Court, after considering the oral and documentary
evidences, as well as the material objects, found that the prosecution had
proved the charge against the accused beyond reasonable doubt and
ultimately, convicted and sentenced the accused to undergo life
imprisonment and to pay a fine of Rs. 1,000/-, in default to undergo six
months' rigorous imprisonment, for the offence under Section 302 IPC.
Aggrieved by the said order, the appellant/accused is now before this
Court.
9. Assailing the said order of conviction, the learned counsel
appearing for the appellant/accused would vehemently contend that,
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though the petition under Section 311 Cr.P.C was allowed to recall PW4,
the prosecution had miserably failed to produce him, and that the evidence
of PW1 is highly untrustworthy. It was also contended that, there was no
premeditation by the accused against the deceased. Further, the learned
counsel for the appellant/accused contended that there are numerous
contradictions between the eyewitnesses, and that there was delay in
registering the First Information Report. It was also contended by the
learned counsel for the appellant/accused that the prosecution has
miserably failed to examine the wife of the deceased. According to the
learned counsel for the appellant/accused, the arrest and recovery have also
not been proved in a manner known to law. Hence, he prayed to interfere
with the order of the learned Sessions Judge.
10. Per contra, the learned Additional Public Prosecutor would
vehemently contend that the prosecution has proved the charges, by
examining eyewitness/PW1, whose evidence inspires confidence. PW1
admitted the relationship between herself and the deceased, and that, she
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had also spoken about the accused's grudge against her relationship with
the deceased. Therefore, it is the contention of the learned Additional
Public Prosecutor that the prosecution has proved the motive, and also the
occurrence through the eyewitness account. Moreover, PW1's evidence
was corroborated by PW2, PW3 and PW4 who were neighbours. Thus, it is
the contention of the learned Additional Public Prosecutor that the
prosecution has proved the charge beyond reasonable doubt. The Trial
Court also rightly appreciated the evidence and arrived at a correct
conclusion, which does not require any interference by this Court. Hence,
he prayed to dismiss the instant Criminal Appeal.
11. We have given our anxious consideration to the submissions
made on either side.
12. The prosecution's case primarily rests upon the oral testimony of
the eyewitness (PW1). According to the prosecution, PW1 and the
deceased were in a live-in relationship, which the prosecution projects as a
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motive for the accused to do away the deceased. The PW1, in her evidence
had chronicled the proclivity of the events: For ready reference, we deem it
appropriate to extract the relevant portion of PW1's evidence, the same is
as follows:-
“////10/02/2011 md;W ,ut[ 11/00 kzpf;F rhg;gpl;LtplL
; 3
ngUk; gLj;Jfplo; Ue;njhk;/ vd; tPlL ; f;fhuu; o/tpia mjpfkhf
rt[z;L itj;jhu; upnkhl; vLj;J ehd; kiwj;J itj;njd;
upnkhl;il fz;Lgpoj;J vLj;J vd; jiynky; moj;jhu;/ clnd
ehd; fj;jpndd;/ fha; eWf;Ffpw fj;jpia vLj;J te;J vd;id
Fj;j te;jhu;/ nyhfehjd; ntz;lhk; vd;W tpyf;f te;jhu;/ clnd
nyhfehjid. vd; g[Urd; MWKfk; tyJ gf;f nky; be";rpYk;.
TyJ gf;f tapww; pYk; Fj;jpdhu;/////”
She further stated that immediately after the occurrence, PW2/Muniyan
and PW4/Deepak rushed to the scene of occurrence.
13. The PW2/Muniyan deposed before the Court about the
deceased's injury and the presence of the accused with the knife. He [PW2]
further deposed about the presence of the body of the deceased lying in a
pool of blood. The accused while cross examining this witness, there is no
serious dispute about his presence. Interestingly, it was suggested to the
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PW2 that, the accused, on seeing the compromising position of PW1 and
deceased, got annoyed and shouted at them, and enraged by the accused's
conduct, the deceased who instigated PW1 to stab the accused, by holding
him, but the stab landed on the deceased as the accused dexterously
avoided the stab. Thus, the defence of the accused is an attempt to divert
the allegation towards PW1. But except for their suggestion, there is no
other evidence against PW1.
14. At this juncture, while looking at the evidence of PW4, he was
admittedly not cross-examined. It is in this background, the learned
counsel for the appellant/accused would submit that, since the prosecution
did not produce the PW4 despite allowing the 311 Cr.P.C petition, his
evidence has to be eschewed. However, not withstanding the evidence of
PW4, the landlord, PW5, who leased the ground floor to the deceased,
independently testified about the information given by PW2 & PW4
(Muniyan and Deepak) about the occurrence and the presence of blood in
the scene of occurrence. The cross examination of PW5 did not discredit
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the presence of PW2 & PW4 at the scene of occurrence.
15. Thus, in view what has been stated herein above, the presence of
PW2 & PW4 at the scene of occurrence is not in serious dispute. In this
background, the presence of PW4; the hearing of hue and cry; his visit to
the scene of occurrence; witnessing the presence of the accused with a
knife; presence of PW1; and the presence of body of the deceased in the
pool of blood, though not cross examined, can be relied upon, as a
corroboration to the evidence of PW1 and PW2. Therefore, if we look at
the evidences of PW1, with the aid of the evidence of PW2, PW4 & PW5,
the same categorically proves the charge against the accused beyond
reasonable doubt. Thus, the findings rendered by the Trial Court that the
accused caused the death of the deceased cannot be faulted.
16. This finding is further supported by the testimony of the
Postmortem Doctor/PW14, who opined that the deceased is appeared to
have died of shock and hemorrhage due to the stab injury on the right side
of his chest. Though PW1 had spoken about two stab injuries, one on the
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right side chest, and another on right side abdomen, the Doctor's evidence
would only indicate the injury on the right chest, which was fatal.
Therefore, it is amply clear that, though the accused had knife in his hand,
he did not stab the deceased indiscriminately, but had inflicted only a
single stab on the right chest of the deceased.
17. While looking at the rough sketch (P11), it was a single room
where, in one corner, there is a cooking counter and a TV in the other
corner. Through the evidence, it is apparently clear that just before the
occurrence all of them were preparing for their sleep. While looking at
P11/rough sketch, the grabbing of the vegetable cutting knife would not
have been intentional, since finding a knife on the kitchen counter is
normal. If we look at the evidence of PW1, in the above factual scenario,
the occurrence took place on the spur of the moment. The accused made a
single stab on the right chest of the deceased in the melee, when the
deceased intervened to safeguard PW1. Further, from the evidence of PW1,
PW2 and PW5, we could not find any premeditation of the accused, against
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the deceased.
18. In view of what is stated herein above, and on a harmonious and
forensic analysis of the evidence of PW1, as extracted herein above, the
accused came to the deceased's house about 4 days back, on 06.02.2011,
and all of them, namely the accused, deceased, and PW1 stayed together in
the same room. Even on the fateful day, there was no quarrel between the
accused and the deceased, but for a bickering between PW1 and the
accused over a trivial issue of reducing the volume of the TV, when the
accused assaulted PW1 with the TV remote control and in the middle of the
quarrel, he had suddenly grabbed the vegetable cutting knife from the
kitchen counter and stabbed the deceased in the melee.
19. On analyzing the entire incidents, it is clear that the occurrence
took place in a spur of the moment. From PW1's evidence, it could be
discernible that there was no premeditation to cause the death of the
deceased, and the duration of the entire episode was very short. If the
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accused had really intended to harm either PW1, or the deceased, he would
have armed himself and would have assaulted the deceased
indiscriminately.
20. Thus, from the proved facts, the present case comes within
Exception 4 of Section 300 of the IPC, as the occurrence took place
without premeditation and was a result of sudden fight, which started with
trivial squabbles. Further, the accused did not take any undue advantage,
nor acted in a cruel or unusual manner. Therefore, the findings rendered by
the Trial Court that, the accused committed an offence under Section 302
IPC is liable to be interfered with, as from the proved facts, there are no
material to prove the intention of the accused to cause death of either the
deceased or PW1. Accordingly, this case would fall only within the
purview of Section 304(ii) of IPC.
21. In the light of the above findings, if the conviction and sentence
of the accused imposed by the Trial Court is modified to one under Section
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304(ii) of IPC, by imposing a punishment of 10 years rigorous
imprisonment and a fine of Rs. 1,000/-, in default to undergo six months
rigorous imprisonment, the ends of justice could be secured.
22. In the result, this Criminal Appeal is partly allowed and the
judgment dated 09.03.2018 passed by the II Additional Sessions Judge,
Chennai in S.C.No.316 of 2011 is modified, by convicting the accused
under Section 304(ii) of IPC sentencing him to a punishment of 10 years
rigorous imprisonment and a fine of Rs. 1,000/-, in default to undergo six
months rigorous imprisonment. The trial Court shall secure the accused
and commit him to prison to undergo remaining period of sentence. The
bail bond executed, if any, shall stand cancelled.
[M.S.R., J.] [C.K., J.]
15.11.2024
Index:Yes/No
Speaking order /Non Speaking Order
Neutral Citation: Yes/No
kv
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To
1. The II Additional Sessions Judge, Chennai.
2. The Inspector of Police,
E4 Abhiramapuram Police Station,
Chennai.
3. The Public Prosecutor,
High Court of Madras.
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M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
kv
judgment made in
15.11.2024
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