Madras High Court
M.Prasanth vs State Represented By The Inspector Of ... on 1 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, J.Sathya Narayana Prasad
Crl.A.(MD)No.268 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 22.08.2024
PRONOUNCED ON : 01.10.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
Crl.A(MD)No.268 of 2020
M.Prasanth ... Appellant
vs
State represented by the Inspector of Police,
Gudalur South Police Station,
Theni District.
(in Cr.No.30 of 2014) ...Respondent
PRAYER: Criminal Appeal filed under Section 372(4) of the Criminal
Procedure Code, to call for the records to the judgment in S.C.No.16 of
2017 dated 08.06.2020 on the file of the learned Additional District and
Sessions Judge (Fast Track Court), Theni and set aside the same and acquit
him from the charge levelled against him.
For Appellant : Mr.R.Venkateswaran
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
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Crl.A.(MD)No.268 of 2020
JUDGMENT
(Judgment of this Court was delivered by C.V.KARTHIKEYAN, J.)
The sole accused in S.C.No.16 of 2017 aggrieved by the judgment
dated 08.06.2020 of the Additional District and Sessions Court (FTC),
Theni by which judgment, the appellant/accused was convicted for offence
punishable under Section 302 IPC and sentenced to undergo life
imprisonment and to pay fine of Rs.10,000/- in default to undergo further
imprisonment of one year simple imprisonment, has filed the present
Criminal Appeal.
2.Even before proceeding to state the facts of the case, it must be
mentioned that in the FIR, two accused were named, namely, this appellant,
Prasanth and Alagumalai, an Advocate. Subsequently, the Investigating
Officer had filed an application before the Judicial Magistrate Court at
Uthamapalayam to delete the name of Alagumalai from the array of
accused.
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3.It is the case of the prosecution that at Kullappa Goundanpatti,
many peoples were illegally drawing water using electric motor pumpset
from Mullai-Periyar river. The officials of Public Works Department and
Electricity Department had confiscated the electric motor pump sets. In this
manner, the electric motor pumpset of Alagumalai, a relative of the accused,
Prasanth was also confiscated. In this operation to confiscate the electric
motor pumpsets, the deceased Raja had assisted the Public Works
Department and Electricity Department officials. It is therefore contended
that the accused had harboured enmity against the deceased. It is further
stated that four days prior to the incident, the accused had threatened Raja
that he would kill him.
4.It is further stated by the prosecution that on 07.03.2014 in the night
at 07.15 pm, when the deceased Raja was walking across the road near the
broiler shop belonging to Alagumalai, the accused called him and stabbed
him with knife. When Raja tried to escape, the accused is said to have
chased him and again stabbed him on the back. It is further stated that the
deceased was then taken to the Cumbum Government Hospital by the eye
witnesses, Manikodi (PW-1) Perumal (PW-2) and Chandran (PW-3). Raja
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died that very night at 09.15 pm. Thereafter, PW-1, Manikodi, one of the
eye witnesses had lodged a complaint before the Gudalur South Police
Station at 10.00 pm. On the basis of the said complaint, FIR in Cr.No.30 of
2014 was registered at 10.00 pm for commission of offence under Section
302 IPC against two accused, Prasanth and Alagumalai. After investigation,
an alteration report was filed by the Inspector of Police, Gudalur South
Police Station dropping Alagumalai from the array of accused and later,
final report was filed alleging commission of offence punishable under
Section 302 IPC against the accused Prasanth alone.
5.The final report was taken cognizance as P.R.C. No.25 of 2015 by
the Judicial Magistrate, Uthamapalayam. The learned Judicial Magistrate,
Uthamapalayam, complied with the conditions stipulated under Section 207
Cr.P.C. and furnished copies of documents to the accused and later, since
the offence was triable exclusively by a Court of Sessions, committed the
case to the Principal District and Sessions Court at Theni District.
6.The Principal District and Sessions Court at Theni had taken the
case on file as S.C. No.16 of 2017 and framed charges under Section 302
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IPC against the accused. When questioned, the accused denied the charges
and claimed to be tried. The Session Case was then made over to the
Additional District and Sessions Court (Fast Track Court), Theni for trial.
During the course of trial, to prove the charge, the prosecution examined
PW-1 to PW-14 witnesses and marked Ex-P1 to Ex-P12 exhibits. Further,
Ex-C1 and Ex-C2 were marked as Court exhibits. The prosecution also
produced MO-1 to MO-7 material objects.
7.On conclusion of trial, by judgment dated 08.06.2020, the
appellant/accused was convicted for offence punishable under Section 302
IPC and sentenced to undergo life imprisonment and to pay fine of Rs.
10,000/- in default to undergo further imprisonment of one year simple
imprisonment. The appellant has filed the present appeal questioning the
said conviction and sentence.
8.Among the witnesses, PW-1, Manikodi, PW-2, Perumal, PW-3,
Chandran, and PW-4, Baskaran, were examined on the ground that they
were eye witnesses to the incident. PW-5, Pushpavalli was the sister of the
deceased. PW-6, Anbazhagan, was a witness to the confession statement of
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the accused and subsequent recovery of material objects. PW-7, Eswaran,
(declared hostile) was actually running the broiler shop, which was owned
by Alagumalai. PW-8, Gobi, was witness for collection of blood stained
sand and sand without blood stain from the scene of crime. He was declared
hostile during cross examination. PW-10, Murugan, is an official from the
Electricity Board who had been examined to depose that there was no power
cut in the area on the date and time of the incident. PW-9, Rajeshkannan,
PW-11, Kannan and PW-12, Parthiban, were Police Officials. PW-13,
Dr.Thiyagarajan, was the Doctor, who conducted postmortem. PW-14,
Muthumani, was the Investigating Officer.
9.PW-1, Manikodi, in his evidence stated that he along with PW-2,
Perumal and PW-3, Chandran, were taking tea in the tea shop opposite to
the broiler shop of Alagumalai. At that time, the deceased Raja had come
across the road and was called over by the accused. PW-1 stated that he
saw the accused stabbing the deceased on the left side of the neck and when
the deceased tried to catch hold of the legs of the accused, the accused again
stabbed the deceased on his back and then ran away. PW-1 stated that he
then took the deceased in a jeep to the Government Hospital, Cumbum,
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where the Doctor declared Raja as dead. Thereafter, PW-1 came back and
lodged a complaint before the Gudalar South Police Station. He identified
the complaint, Ex-P1 and also identified the weapon used by the accused as
MO-1.
10.PW-1, Manikodi, was cross examined after nearly 1 year. During
cross examination, he stated that he did not remember whether the other
person named in the complaint, Alagumalai had caught hold of the deceased
when the accused stabbed the deceased. In both chief examination and in
his cross examination, he stated about the reasons leading to the accused
attacking the deceased. He stated that the Public Works Department and
Electricity Board officials had launched an operation against illegal drawing
of water from Mullai-Periyar River and confiscated the electric motors
including the electric motor of Alagumalai. He further stated that the
deceased was actively involved in this operation by assisting the officials
Public Works Department and Electricity Department. Later, the accused
had demanded the deceased to restore the electric motor connection, but the
deceased refused to comply. PW-1 stated that this was the reason for the
hostility harboured by the accused against the deceased.
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11.PW-2, Perumal and PW-3 Chandran were also examined by the
prosecution. Both stated that they were having tea along with PW-1,
Manikodi, in the tea shop opposite the broiler shop of Alagumalai and when
the deceased was coming towards that side, the accused called him over and
stabbed him initially on the left side of the neck and when the deceased tried
to catch hold of the legs of the accused, again on the back. They both also
stated that the deceased was taken to hospital but later died of the injuries.
12.Though there were minor contradictions in the evidence, they both
stated that the animosity between the accused and the deceased was that the
electric motor pumpset of Alagumalai, a relative of the accused, was
confiscated by the Public Works Department and Electricity Department
officials, since it was alleged that it was used for illegal drawing of water
from Mullai-Periyar River. In that operation, the deceased had assisted the
officials. He later refused to restore the service connection to the electric
motor pump set of Alagumalai.
13.The prosecution also examined PW-4, Baskaran, who was having
a grocery shop and also stated about the quarrel between the deceased and
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the accused and the accused stabbing the deceased in the neck and when the
deceased tried to catch hold of the legs of the accused, the accused stabbing
the deceased again on the back.
14.The prosecution thus relied on evidence of PW-1 to PW-4 to speak
about the incident which had happened.
15.PW-10 stated that there was continuous electricity supply during
night at 07.03.2014 and there was no interruption in the power supply.
16.Thereafter, the prosecution further examined PW-12, Parthiban
Sub Inspector of Police, Gudalur South Police Station, who had received the
complaint from PW-1, and had registered the FIR, Ex-P6, in Cr.No.30 of
2014 at 10.00 pm against two accused, Prasanth and Alagumalai for
commission of offences punishable under Sections 342 and 302 IPC. In his
evidence, PW-12 stated that immediately after registering the FIR, he had
forwarded the complaint and the FIR through express tapal, Ex-P6 and
through PW-11, Police Constable, Kannan, handed it over to the Judicial
Magistrate. It was handed over to the Judicial Magistrate at Bodi, who was
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in-charge of Judicial Magistrate Court, Uthapalayam at 03.00 am on
08.03.2014.
17.The prosecution further examined PW-14, Muthu Mani, the
Investigating Officer. He stated that he received information about the
registration of the FIR and immediately, proceeded to the scene of crime at
11.15 pm. He then with the help of the street light prepared observation
mahazar, Ex-P4 and rough sketch, Ex-P8 in the presence of witnesses, Gobi
(PW-8) and Theivam (not examined). He then collected the blood stained
sand and sand without blood stain, which were produced during trial as
MO-3 and MO-4. He recorded the statement of Gobi (PW-8) and Theivam
(not examined). He then conducted inquest over the dead body of the
deceased in the hospital in the presence of panchayatars on 08.03.2014
between 07.00 am and 08.00 am and prepared inquest report, Ex-P9. He
then recorded the statements of Manikodi, PW-1, Perumal, PW-2,
Chandran, PW-3, Baskaran, PW-4, Theivam (not examined), Indirani (not
examined) and Pushpavalli (PW-5). He then recorded the statement of
Electricity Board wire man, Murugan, PW-10.
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18.PW-14, the Investigating Officer then arrested the accused,
Prasanth, in the presence of witnesses, Anabalgan (PW-6) and Selvendran
(not examined). He then recorded the confession statement of the accused.
The admissible portion was marked as Ex-P2. On the basis of the
confession, he recovered the blood stained knife used by the accused and
the blood stained dhoti of the accused which were produced as MO-1 and
MO-2. He then forwarded the material objects under Form-91 to the
Judicial Magistrate Court. He then recorded the statement of Dr.Sasikala
who initially treated the deceased at the time of admission and marked the
accident register as Ex-P10. The said Doctor was not examined in Court,
since she was on maternity leave.
19.PW-14 then forwarded the material objects MO-3 and MO-4 for
forensic examination. He then filed a petition to record the statement under
Section 164 Cr.P.C., of Manikodi, PW-1, Perumal, PW-2 and Chandran,
PW-3. The statements recorded were marked as Ex-P11 series. He then
arrived the conclusion that the second accused mentioned in the complaint
and in the FIR, namely, Alagumalai was not directly involved in the offence
and therefore, filed an alteration report to drop the said Alagumalai from the
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list of accused. This petition was marked as Ex-P12. He then examined and
recorded the statement of Dr.Thiyagarajan, PW-13 who conducted the
postmortem. The postmortem report was marked as Ex-P7. PW-13,
Dr.Thiyagarajan in his report, Ex-P7 had given the list of injuries as
follows:
“1.A stab injury of size of 4 cm x 1 cm near the
root of neck of the left side just above the left clavicle;
on probing the bound side extends downwards and
medially for about 15 cms.
2.Another stab injury of about 2 cms x 05. cm
below the right scapula on the right side of back, on
probing the wound extends 0.5 cm deep.”
20.He further stated that on dissection of wound No.1, the wound
extended through the apex of the lateral lung arch of aorta and upper border
of heart. He had given an opinion that the cause of death was due to shock
and hemorrhage due to injuries in the vital organs.
21.PW-14 then filed final report before the Judicial Magistrate Court
against the accused, Prasanth charging him with commission of offence
punishable under Section 302 IPC. During cross examination, when
questioned whether he had recorded the statement of Alagumalai, he stated
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that he did not record the statement, since Alagumalai was absconding. On
all other aspects, he withstood the cross examination.
22.The learned Additional District and Sessions Judge (FTC) Theni,
on appreciation of evidence came to the conclusion that the prosecution had
established the case beyond reasonable doubt and therefore, convicted the
appellant/accused for offence punishable under Section 302 IPC and
sentenced him to undergo life imprisonment and to pay fine of Rs.10,000/-
in default to undergo further imprisonment of one year simple
imprisonment. He also directed that the period of remand must be set off
under Section 428 of Cr.P.C., in the period of sentence.
23.He further stated that PW-8 Gobi who was a witness for
observation mahazar and rough sketch and seizure of material objects from
the scene of crime had deposed in affirmation during his chief examination,
but when he was cross examined after six months, had denied the statements
in his chief examination. The learned Additional District and Sessions
Judge (FTC) Theni declared him as hostile and had also directed that he
should be proceeded under Section 344 Cr.P.C., for giving false evidence.
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24.The accused has filed the present appeal questioning conviction
and sentence passed against him.
25.The point to be determined is whether the conviction and sentence
against the appellant/accused should be upheld or modified or set aside?
26.Heard arguments advanced by Mr.R.Venkateshwaran, learned
Counsel appearing for the appellant and Mr.A.Thiruvadi Kumar, learned
Additional Public Prosecutor appearing for the respondent.
27.Mr.R.Venkateshwaran, learned Counsel appearing for the
appellant took the Court through the facts of the case and pointed out that it
was the other individual who was named in the complaint, namely,
Alagumalai, who had direct cause for grievance against the deceased, since
during the operation conducted by Public Works Department and Electricity
Department officials, the officials had confiscated the electric motor of
Alagumalai. The learned Counsel also pointed out that PW-1 had initially
stated that Alagumalai had held the deceased and the accused then stabbed
the deceased. He further stated that the Investigating Officer, PW-14 had
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filed an alteration report dropping Alagumalai from the list of accused and
asserted that it was so done only to protect Alagumalai.
28.The learned Counsel also pointed out that Alagumalai was the
owner of the broiler shop, where the accused was standing, when the
deceased came there and the incident happened. He also pointed out that
Alagumalai was an Advocate and therefore, argued that the appellant had
been wrongfully arrayed as an accused. The learned Counsel also pointed
out the discrepancies between the evidence of PW-1, PW-2 and PW-3 and
stated that it is their case that the appellant had stabbed the deceased on the
neck and the deceased had turned around and caught hold of the legs of the
appellant and at that time, the second injury was caused on the back which
was only inadvertent
29.The learned Counsel argued that the appellant had no direct
motive against the deceased and it was a sudden quarrel which was the
reason for the incident. He therefore argued that the offence would come
under Exception 4 to Section 300 I.P.C., and that the appellant could be
convicted only for offence under Section 304 Part II IPC, since the appellant
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had no intention to cause death and did not have the knowledge that the
injuries caused by him would cause death. The injuries caused were owing
to sudden quarrel and the accused was also in an agitated state of mind.
30.In this connection, the learned Counsel for the appellant placed
reliance on the following judgments:
(1)(2010) 2 MLJ (Crl) 246, (Eenamuthu vs State represented by the
Inspector of Police), wherein, a Division Bench of this Court had in quite
similar circumstances, held as follows:
“10......It is stated that A-1 and A-3 were armed
with wooden log and A-1 caused injury on the chest of
the deceased. On perusal of the evidence of P.Ws.1
and 2, it appears that the appellant delivered a single
blow and he did not attempt further. The injuries
inflicted by another accused, who was acquitted by the
trial Court also was fatal to cause the death of the
deceased, for, the positive medical opinion is that the
death was due to multiple injuries. In view of the
admitted case of the prosecution that the appellant
inflicted a single blow, we could discern that the
appellant did not intend to cause the death of the
deceased. However, having regard to the medical
evidence especially about the nature of injury caused
on the chest of the deceased with wooden log we could
find that the appellant was having sufficient
knowledge, that such injury may result in the death of
the deceased.”
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(1.a)The Division Bench had in the said case after examining the
earlier judgments of the Hon'ble Supreme Court modified the conviction
from under Section 302 IPC to one under Section 304 Part II IPC and
sentenced the accused therein to rigorous imprisonment of five years.
(2)(2012) 3 MLJ (Crl) 145 (Ebenezer vs State represented by
Inspector of Police), wherein, a Division Bench of this Court on
appreciation of evidence had held as follows:
“33.Thus, it is seen that due to the sudden
provocation the accused had lost his power of self
control and beaten the deceased to death. The
occurrence had taken place during a sudden fight.
There was no premeditation. The accused did not
bring any weapon along with him. In a fit of anger,
suddenly, he had picked up a stick lying in front of the
house of the deceased and with that he had assaulted
the deceased on his head. The medical evidence of
P.W.14 shows that the deceased sustained serious
injuries on his head. There was fracture also. The
accused had caused him injury on a vital part of his
body. The accused assaulted him wishing his death.
34.In the facts and circumstances, the offence
committed by the accused will fall under Exception 1
to Section 300 of IPC. It will not be murder. It will be
culpable homicide not amounting to murder. It is
punishable under Section 304 Part I of IPC.”
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31.In view of the above pronouncements, the learned Counsel for the
appellant argued that the conviction under Section 302 IPC should be
interfered with by this Court.
32.Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor
however disputed and contested the statements made by the learned Counsel
for the appellant. The learned Additional Public Prosecutor pointed out the
motive for the attack by the accused against the deceased. He pointed out
that the Public Works Department and Electricity Department officials had
launched an operation to confiscate motor pumpsets used to draw water
unlawfully from Mullai-Periyar river. The deceased had assisted the
officials in that operation. The motor pump set of Alagumalai, uncle of the
accused was also confiscated. The learned Additional Public Prosecutor
stated that the accused had requested the deceased to restore the electricity
service connection, but the deceased had refused to do so. He pointed out
that this was a direct motive for enmity to be harboured by the accused
against the deceased.
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33.He then pointed out the evidence of PW-1, PW-2 and PW-3,
which were consistent and stated that they had all deposed witnessing the
accused calling the deceased when he crossed the broiler shop run by PW-7
Eswaran owned by Alagumalai and had stabbed the deceased in the left side
of the neck which was a vital portion of the body and also again on the
back.
34.The learned Additional Public Prosecutor then pointed out the
evidence of PW-13, Dr.Thiyagarajan, who conducted the postmortem and
issued postmortem certificate, Ex-P7 wherein, the reason for the death had
been given as owing to injuries to vital organs. The learned Additional
Public Prosecutor therefore stated that the accused had deliberately and
intentionally stabbed the deceased on the neck with knowledge and
intention that such injuries would cause death. The learned Additional
Public Prosecutor stated that the prosecution had marshalled all the
witnesses and had proved the charge beyond reasonable doubt. He
therefore stated that the appeal should be dismissed.
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35.We have carefully considered the arguments advanced and
perused the materials records.
36.The accused is a close relative of Alagumalai, Advocate, at
Kullappa Goundanpatti within the jurisdiction of respondent Police,
Gudalur South Police Station.
37.It is the case of the prosecution that finding several persons
drawing water unlawfully from Mullai-Periyar river, the Public Works
Department and Electricity Department officials had launched an operation
to confiscate the electric motor pumpsets and to cut the electricity service
connection. The deceased, Raja was working as a contract electrician and
assisted the Public Works Department and Electricity Department officials
in this operation. The motor pump set of Alagumalai was also confiscated.
It is on evidence by PW-1 that Alagumalai and also the accused, Prasanth
had requested the deceased Raja to restore the electricity connection and
return back the motor pumpset, but the deceased refused to do so and had
stated that it was only the officials who could so restore/return the electric
motor pumpset. The prosecution had projected this incident as motive for
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the accused stabbing the deceased.
38.The occurrence took place around 07.15 pm on 07.03.2014.
PW-1, PW-2 and PW-3 were taking tea in the opposite tea shop of the
broiler shop owned by Alagumalai, which was run by Eswaran, PW-7. It is
the evidence of PW-1, PW-2 and PW-3 that when the deceased came across
the street, the accused who was in the broiler shop called him over and
stabbed him on the left side neck initially. PW-1 had mentioned in the
complaint, Ex-P1, that Alagumalai had held the deceased, when the accused
stabbed him. But during his chief examination, he stated that the deceased
tried to escape and held the legs of the accused, at that time, the accused had
stabbed the deceased on the back. Thereafter, the accused had run away.
39.The sequence of events were thus that initially when the accused
stabbed the deceased on the neck, the deceased tried to catch hold of the
legs of the accused. Naturally, he had to bend down. The accused stabbed
him on the back. The injuries were noted as follows:
“1.A stab injury of size of 4 cm x 1 cm near the
root of neck of the left side just above the left clavicle;
on probing the bound side extends downwards and
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medially for about 15 cms.
2.Another stab injury of about 2 cms x 05. cm
below the right scapula on the right side of back, on
probing the wound extends 0.5 cm deep.”
40.PW-1 had then taken the deceased to the Government Hospital at
Cumbum and after two hours, at around 09.15 pm, the Doctor declared him
as dead. The accident register had been marked as Ex-P10. In the accident
register, it had been stated that the deceased was attacked by two known
persons around 07.30 pm. Thus, the consistent evidence was about two
persons. However, an alteration report in Ex-P12 had been filed by PW-14,
Investigating Officer, dropping Alagumalai from the list of accused. During
evidence, if further evidence had surfaced against the role of Alagumalai,
the trial Court could have invoked Section 319 Cr.P.C., and could have
arrayed him as further accused. But during the evidence in Court, the fact
that Alaguamalai held the deceased and then the accused stabbed the
deceased had not been stated by any of the witnesses.
41.A further analysis of the evidence of the witnesses reveals that the
entire incident happened owing to a quarrel which took place at the spur of
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the moment. The accused had demanded restoration of electricity supply
and return of the motor pumpset. That request was refused and denied by
the deceased. PW-1, PW-2 and PW-3 had seen the incident, but were not in
a position to hear whether any quarrel took place between the accused and
the deceased just prior to the incident. The accused stabbed the deceased on
the left neck and when the deceased tried to pull his legs, had caused
another injury on the back. It is therefore clear that the deceased died a
homicidal death. It is also clear that it was the accused who was culpable
for such death.
42.The only point to be now examined is whether the incident should
be brought under Exception 4 of Section 300 IPC as urged by the learned
Counsel for the appellant.
43.Exception 4 to Section 300 IPC is as follows:
“Section 300: Murder:
......
Exception 4.—Culpable homicide is not murder
if it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel and
without the offender's having taken undue advantage
or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases
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which party offers the provocation or commits the first
assault.”
44.The factors which stated are that sudden quarrel should be to such
an extent that it should disturb the mental status of the accused. He must
then, in the heat of passion, react in a manner violently, but without
knowledge that his action would cause death and with or without intention,
cause death.
45.In the instant case, the fact that after the first stab injury, the
deceased had caught hold of the legs of the accused would also show that at
that time, the second injury had suddenly happened and certainly not
premeditated. The first injury was quite deep in the neck portion, but again,
it will have to be examined whether there was any quarrel before the said
attack and whether the accused knew that this injury would cause death and
had intention to cause death. It is a fact that the injury was caused in the
neck portion. But again, a slight leverage should be given to the fact that it
was a single stab and there was not a repeated stab except for the second
stab which could be caused owing to the deceased trying to catch hold of
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the legs of the deceased, thereby, his bent body coming in close proximity to
the accused, who must have been put off balance and in that jerky moment
could have landed a stab injury on the back of the deceased.
46.In (2010) 2 MLJ (Crl) 246, referred supra, the Division Bench
had referred to earlier decisions of the Hon'ble Supreme Court, which are
extracted hereunder:
(1)The Hon'ble Supreme Court in Gokul Parashram Patil Vs. State
of Maharastra reported in 1981 Crl.L.J 1033, had held as follows:
"When the solitary blow given by the accused to
the deceased was on the left clavicle a non vital part
and the accused did not know that the superior
venacava would be cut as a result of that wound, the
injury though sufficient in the ordinary course of
nature to cause death was not one intended by the
accused. Thus, to such a case illustration (c) to Section
300. Thirdly was not attracted. Accordingly, accused
could be convicted not under S.302 but under S.304
Part II. A sentence of 5 years' R.I. held, would meet
the ends of justice under the circumstances of the
case".
(2)In yet another decision, the Hon'ble Supreme Court in Karam
Singh Vs. State of Punjab reported in 1993 Crl.L.J 3673(1), ruled thus:
"The contusions on the chest and Injuries Nos.5
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to 7 resulted in the fracture of the ribs which caused
his death. The doctor in his evidence has admitted that
the fracture of the ribs could have in turn caused the
rupture of the liver and the spleen. Under these
circumstances, it is difficult to hold that the appellant
intended to cause the injuries to the liver and the
spleen which unfortunately proved to be fatal. Having
regard to the nature of the weapon used and the parts
of the body on which blows were dealt, it is difficult to
hold that he intended in cause the death or intended to
cause that particular injuries to the liver and the
spleen. However, under the circumstances he must be
attributed to have the knowledge that by dealing such
blows he was likely to cause the death of the deceased
in which case the offence is one punishable under
Section 304 Part II, I.P.C. In the result the conviction
under Section 302, I.P.C and the sentence of life
imprisonment awarded against the appellant by the
High Court are set aside. Instead the appellant is
convicted u/S.304".
(3)In Chuttan and others Vs. State of M.P. reported in AIR 1994 SC
1398, wherein, it was observed:
"Out of these injuries only one injury appears
to be serious and that could have been caused with a
stick. What is more, even according to the prosecution,
the injured deceased was left unattended for nearly 20
hours at the site itself. No doubt the explanation is
that the witnesses were afraid but in judging the
intention, the main requirements of Clause I or Clause
III of S.300, IPC of these aspects become relevant.
Having given our earnest consideration to the manner
in which the blows were dealt and the parts of the
body on which they were dealt and the manner in
which the weapons were used, we find it difficult to
conclude that the intention of the appellants was to
cause death or to cause such injuries which were
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sufficient in the ordinary course of nature to cause
death. But they can be attributed the knowledge that by
causing such injuries they were likely to cause death of
the deceased. Accordingly, the conviction of the
appellants under S.302, IPC and the sentence of
imprisonment for life awarded thereunder are set
aside. Instead they are convicted under S.304, Part II
IPC and sentenced to undergo R.I. For five years.
Their conviction under S.325, IPC and the sentence of
three years R.I. are however, confirmed. The sentences
are directed to run concurrently. In the result, the
appeal is partly allowed to the extent indicated above".
47.The ratio laid down by the Hon'ble Supreme Court is that the
injury though sufficient in the ordinary course of nature to cause death, was
not one intended by the accused. Even in the instant case, it is difficult to
hold that the accused intended to cause death of the deceased. He had a
reason for grievance, but not directly. He was a stranger to the motor
pumpset controversy or to the electricity connection being cut. It was
Alagumalai who suffered owing to confiscation of motor pumpset and
electricity connection being cut.
48.The Hon'ble Supreme Court in the judgment reported in (2009) 16
SCC 361, Felix Ambrose D'souza -vs- State of Karnataka, while dealing
with the plea of mitigation and conversion of conviction from offence
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punishable under Section 302 IPC to offence punishable under Section 304
part II IPC had held as follows:-
7. The learned counsel for the appellant in the
alternative has made a submission that, at any rate,
the facts even held proved, could not be considered to
be just and sufficient to warrant a conviction under
Section 302 IPC and if at all conviction under Section
304 part II IPC alone could have been rendered
possible. Though the learned counsel for the
respondent - state strongly insisted that keeping in
view the gravity of the offence and the brutal manner
in which it has been committed with the background of
animosity and ill-will there was no need for altering
the nature of offence and that the finding of the High
Court in this regard may not call for any interference.
As noticed earlier and having regard to the materials
and the evidence on record as spoken to even by the
prosecution witnesses there does not appear to be any
premeditated plan or intention to either put an end to
the life of the deceased or cause any injury with the
intention of causing his death or causing such bodily
injury which within the knowledge of the accused was
likely to cause his death even in the ordinary course of
nature. Irrespective of the silent nature ill-feelings
which existed between the parties, it appears to have
surfaced with a violent turn on the fateful day due to
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sudden quarrel which even according to the
prosecution witnesses, commenced with an altercation
and attempts to break open the lock which was said to
have been placed on the door of the store room by the
appellant in addition to the one part by the father and
the deceased. In the tussle and altercation and an
attempt to break the lock by the deceased with an
hammer in his hand and attempts made by the
appellant to physically prevent the deceased from so
doing, and physical use of force in the process,
passions seem to have flared up beyond proportion all
of a sudden, perhaps neither anticipated nor intended
by either of them. The prosecution version itself lends
credence and support to the plea of sudden
provocation on the spur of moment. Therefore, we are
of the view that the High Court was not right in
arriving at the conclusion to convict the appellant
under Section 302 IPC. In our considered view, on the
proved facts the only offence that could reasonably be
said to have been made out and for which the
appellant could be convicted would be under Section
304 part II IPC and to this extent we partly allow the
appeal and set aside the order of conviction under
Section 302 IPC and instead convict him under Section
304 part II IPC.”
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49.In view of the above reasons, we would set aside the conviction
passed under Section 302 IPC, but rather modify the same to conviction for
offence punishable under Section 304 Part II IPC and sentence the accused
to rigorous imprisonment for four years. We would retain the fine amount
and the default sentence.
50.The Criminal Appeal is therefore partly allowed as aforementioned
setting aside the conviction under Section 302 IPC and modifying the same
to Section 304 Part II IPC and sentencing the accused to undergo four years
rigorous imprisonment and retaining the fine of Rs.10,000/- and in default
one year simple imprisonment. The trial Court is directed to secure the
accused to serve out the remaining portion of the sentence. The period of
remand and any part portion of the sentence already undergone by the
accused is directed to be set off under Section 428 of Cr.P.C.
[C.V.K., J.] & [J.S.N.P., J.]
.09.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
cmr
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To
1.The Additional District and Sessions Judge (Fast Track Court), Theni.
2.The Superintendent, Central Prison, Madurai.
3.The Inspector of Police,
Gudalur South Police Station,
Theni District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
5.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
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C.V.KARTHIKEYAN, J.
AND
J.SATHYA NARAYANA PRASAD. J.
cmr
Judgment made in
01.10.2024
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