Madras High Court
Venkatesh @ Venkatesan vs The Deputy Superintendent Of Police on 18 December, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
Crl.A(MD)No.649 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.12.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.649 of 2023
Venkatesh @ Venkatesan ... Appellant/sole accused
Vs.
The Deputy Superintendent of Police,
Samayanallur Sub Division,
Madurai District,
Nagamalaipudukottai Police Station.
(in Cr.No.148 of 2022) ...Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to call for the entire records connected to the Judgment
in Spl.S.C.No.108 of 2022 on the file of the III Additional District and
Sessions Judge, (PCR Court) Madurai, dated 24.04.2023 and set aside
the conviction and sentence imposed against the appellant.
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For Appellant : Mr.AK.Azagarsami
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
This Criminal Appeal is filed against the conviction and
sentence passed against the appellant /sole accused in the judgment dated
dated 24.04.2023 passed by the III Additional District and Sessions
Judge, (PCR Court) Madurai, in Spl.S.C.No.108 of 2022 by convicting
and sentencing the appellant for the offence punishable under Section
341 IPC and sentenced to undergo one month simple imprisonment and
to pay a sum of Rs.500/- in default, to undergo one week simple
imprisonment and for the offence under Section 302 IPC and sentenced
to undergo imprisonment for life and to pay a sum of Rs.1,000/- in
default, to undergo one year simple imprisonment and acquitted under
Section 3(1) (r), 3(2) (va), 3(2) (v) of SC/ST Act (POA) Amendment Act
2014.
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2. The case of the prosecution is as follows:
(a) On 25.04.2022, after completion of the village festival,
the complainant’s father Seeni was returning to his residence with his
associates Ramar, Pandi @ Motor Pandi, Pandi @ Kozhi Pandi in an
auto. At 11:15 PM, when they were proceeding from South to North near
Penna Cement shop, Nagamalaipudukkottai Aathukal Road, an auto
which was driven by the accused bearing Registration No.TN 58 W
4324, came in the opposite side and dashed against the auto in which his
father and others were travelling. When their auto driver questioned the
accused auto driver about his rash and negligent driving, the accused
abused him with filthy language “Njtpbah kfNd eP ghj;J
tuNtz;baJ jhdlh”. Thereafter, he went to his auto, took a
screwdriver and stabbed on the chest of his father who was sitting in the
corner of the auto. The father of the complainant sustained grievous
injuries and became unconscious. The persons who were accompanying
the victim shouted at the accused and separated him, as otherwise, he
would have died on the spot. His father was taken in a 108 ambulance
and admitted to Madurai Rajaji Government Hospital. The complainant
received information about the occurrence and went to the hospital to
find his father unconscious. The witness Ramar narrated the incident to
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Crl.A(MD)No.649 of 2023the complainant. On enquiry, the complainant came to know that the
name of the accused is Venkatesh @ Venkatesan, a resident of Srinivasa
Colony.
(b) P.W.32, Thiru.P.Ganeshkumar, Sub Inspector of Police
Nagamalai Pudukkottai went to the Government Rajaji Hospital,
Madurai, and since the victim was not in a position to speak, he received
the complaint from his son, Pandi P.W.1 and registered FIR Ex.P21 in
crime No.148/2022, under sections 294(b), 324, 302 IPC r/w.3(1) (r),
3(2)(v) SC/ST POA Amendment Act, 2015 at about 9.00 a.m., forwarded
the original to the Judicial Magistrate No.VI, Madurai, and the copies to
the other Higher Officials for further course of action.
(c) On the same day, at about 10.00 a.m., P.W. 32 went to the
place of occurrence and prepared observation mahazar Ex.P7 and rough
sketch Ex.P22 in the presence of witnesses Raja and Sivaraja, and
recorded their statements.
(d) Thereafter, he went to Government Rajaji Hospital,
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Crl.A(MD)No.649 of 2023Madurai and recorded the statement of Ramar and Pandi, son of the
victim. Thereafter, he examined the witnesses Pandi @ Kozhi Pandi, son
of Sundarraj, Pandi @ Motor Pandi, son of Vellayan and recorded their
statements.
(e) On 26.04.2022 at about 13.00 hours, he arrested the
accused near his auto TN 58 W4324 and recorded his statement in the
presence of witnesses 1) Kannan, son of Pandi 2) Deenadayalan son of
Neelamegam, and recovered the auto and the screwdriver under a
recovery Mahazar Ex.P9 in the presence of the same witnesses. The
accused was sent for medical examination. He was admitted in the
Hospital on 27.04.2022, as in-patient and was discharged the following
day. Thereafter, he was remanded. Since the victim who was admitted in
the hospital succumbed to his injuries, P.W. 32 handed over the file to the
Inspector for further investigation.
(f) P.W.34 Thiru. Sivakumar received the file and visited the
place of occurrence. On verification, he found the observation mahazar
and rough sketch to be correct. He examined witnesses Pandi, Ramar
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Crl.A(MD)No.649 of 2023Pandiya @ Motor Pandi, Pandi @ Kozhi Pandi, Shivaraj, Raja, Kannan
and Deenadhayalan and verified their statements. On the same day, he
gave a requisition letter to the Primary Medical Centre Medical Officer,
Nagamalai Pudukkottai to give the first aid treatment documents. He
also gave a requisition letter to 108 Ambulance Service Program
Manager to give the details about the injured Seeni who was taken for
further treatment.
(g) On 02.05.2022 at about 13.10 hours, after receipt of the
intimation from the Government Rajaji Hospital, Madurai, he went to the
Hospital and conducted an inquest on the dead body of Seeni and
recorded the further statements of Pandi son of Seeni and Pandi, son of
Ayyavu.
(h) Since the deceased belongs to Scheduled Caste
community, he altered the sections of law from sections 294(b), 324, 307
IPC to Section 294(b), 324, 302 IPC read with section 3(1)(r), 3(1)(s),
3(2)(v) of SC/ST Act. The alteration report was marked as Ex.P.24 and it
was sent in speed post to Higher Officials.
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(i) Thereafter, he gave a requisition letter to the
Superintendent of Police with a request to appoint an Investigating
Officer and as per the proceedings of the Superintendent of Police, he
handed over the case bundles to Samayanallur Deputy Superintendent of
Police Thiru. Balasundaram.
(j) P.W.36, Thiru. Balasundaram, Deputy Superintendent of
Police, after receipt of the order from the Superintendent of Police in
C.NO25/PROC/SJ&HR/MDU/2022 dated 02.05.2022 which was marked
as Ex.P26, went to the place of occurrence on 02.05.2022 at about 14:15
hours and inspected the place of occurrence and verified the same with
the observation mahazar and rough sketch, which had already been
prepared and found correct. He went to the Government Rajaji Hospital,
Madurai and prepared an inquest report in the presence of Panchayatars
and witnesses between 14.45 and 16.15 hours and prepared the inquest
report Ex.P27. Then, he sent a request letter to conduct a postmortem on
the body through Head Constable 613 Vijayakumar and handed over the
dead body to the doctor.
(k) P.W.33 Dr.Devi Bhiansha, Assistant professor, conducted
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an autopsy on the dead body and found the following injuries :
“The following ante mortem injuries are noted
on the body:
1. Surgically sutured wound measuring 1cm
x 1cm noted overfront of left side of chest,3cm below
from left nipple.
On dissection. The wound passes backwards &
inwards and piercing the underlying muscles, vessels,
nerves, intercostal space, pericardium and anterior
1/3 of left ventricle of heart measuring 0.5cm x 0.5cm
x 0.5cm. Pericardial cavity contains 20ml of
serosanguinous fluid.
2. Surgically sutured ‘C’ shaped craniotomy
wound measuring 30cm x 1cm x bone deep, noted over
left fronto parieto temporal region.
3. Abrasion measuring 5cm x 1cm noted
over inner aspect of right forearm
On dissection of Scalp, Skull & Dura:
Brown coloured subscalpal contusion measuring
12cm x 10cm noted over left fronto parietal region and
20cm x 12cm noted over left temporo parieto occipital
region. A bone piece measuring 12cm x 10cm found
surgically removed by left fronto parieto temporal
region. Bony deficit covered with gel foam material.
OTHER FINDINGS:
Peritoneal cavity-empty, Pleural cavities empty,
Pericardium-described, Heart – Right side fluid blood,
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Crl.A(MD)No.649 of 2023left side empty, Atherosclerotic changes noted over the
greater vessels; Coronaries patent; Lungs
oedematous, exudes profuse watery discharge on
pressure; Larynx & trachea- normal; Hyoid bone
intact, Stomach contains 50ml of brown colour fluid
with nil specific smell, mucosa normal, Liver, Spleen &
Both Kidneys – cut section congested, Small intestine-
contains 15ml of bile stained fluid with nil specific
smell, mucosa -normal, Bladder-empty; Brain-surface
vessels and cut section congested.
OPINION.
“The deceased would appear to have died of
stab injury to chest & its complications and associated
with cerebro vascular disease”
(l) Thereafter, the Investigating Officer reexamined the
witnesses Pandi, son of Seeni and Pandi, son of Ayyavoo, and recorded
their further statements.
(m) After post mortem, the clothes worn by the deceased
viz., shirt and dhoti were received by the Head Constable 613
Thiru.Vijayakumar in form 95 – Ex.P28.
(n) On 03.05.2022, he examined the witnesses, Chinnapandi
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Crl.A(MD)No.649 of 2023Kanimozhi and recorded their statements. He re-examined Pandi @
Kozhipandi, Pandi @ Motor Pandi and recorded their further statements.
On 04.05.2022 he examined Ramar and recorded his further statement.
(o) On 05.05.2022, he examined the witnesses
Thirupuvanam, Balu, Madhan Kumar and recorded their statements.
(p) He gave a requisition letter to Madurai West Tahsildar to
issue community certificate to the Accused Venkatesan, and also applied
for issuance of community certificate for the deceased Seeni, witnesses,
Ramar, Pandi, Pandi @ Kozhi Pandi, Pandi @ Motor Pandi and
Kanimozhi to the Tahsildar, Usilampatti.
(q) On 08.05.2022, he examined Sub Inspector
Thiru.Ganeshkumar, Inspector Thiru.Sivakumar and recorded their
statements.
(r) On 09.05.2022, he examined Regina, Staff Nurse,
Primary Health Centre, Dr. Archana Chandrasekar, Dr. Mohan Raj, and
recorded their statements.
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(s) On 10.5.2022, he sent a requisition letter to the Judicial
Magistrate No.VI, Madurai to examine witnesses Ramar, Pandi, Pandi @
Kozhi Pandi, Pandi @ Motor Pandi and Kanimozhi and to record their
statement under Section 164 Cr.P.C.
(t) On 10.05.2022 he handed over the recovered material
objects to the concerned Court. It was registered in RPR No.15/2022, and
the form 95 was marked as Ex.P29.
(u) On 12.05.2022, he issued a requisition -Ex.P.30 to the III
Additional District and Session Judge to send the material objects
recovered from the deceased and accused for chemical analysis.
(v) On 13.05.2022, he examined Tahsildar Thiru. Krishnan,
who had issued a community certificate to the accused Venkatesan and
recorded his statement. He also examined Head Constable Vijayakumar
and recorded his statement.
(w) On 16.05.2022, he examined Dr. Lokesh and recorded
his statement. On 16.05.2022 and 20.05.2022, he produced the witnesses
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before the Judicial Magistrate for recording their 164 Cr.P.C statements.
(x) On 24.05.2022, he examined the regional transport
officer, Jasmine Mercy Kamala, and recorded her statement on
25.05.2022. He examined Thiru.Chandra Mohan, the owner of the auto
bearing registration no. TN 58 W 4324 and recorded his statement.
Thereafter, he examined Dr. Devi Biyansha and Forensic officer Thiru
Krishnan, and recorded their statements. On 20.06.2022, he received the
community certificate for the witnesses and recorded the statement of
Tahsildar Karuppaiah, Usilampatti. He sent a request letter to the
tahsildar, Periayur with a request to issue a community certificate to
witness Pandi @ Motor Pandi.
(y) On 27.06.22, he examined Ravi, Tahsildar, Peraiyur and
recorded his statement. He sent a letter to the Assistant Engineer,
Electricity Department, Nagamalai, Pudukottai, to ascertain any power
cut during the time and place of the occurrence and to determine the area
of light that was spread over from the electric post at the place of
occurrence. On 29.06.2022, he received the community certificate of
Pandi @ Motor Pandi and recorded the statement of Thiru. Ravi,
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Peraiyur Tahsildar. He received a reply from the Assistant Engineer,
TNEB Thiru. Senthilkumar, and recorded his statement, He recorded
statements of Constable 1315 Thiru.Boomiraj and 1783 Thiru.Sudalai
Madhan. On 10.07.2022, he recorded the statements of Alex pandian and
Sivapandi.
(z) On 13.07.2022, he recorded statements of Dr. Sheik Iqbal
Ushen who had treated the accused and obtained the accident register. He
recorded the statement of SSI Thiru.Ashok Kumar. He completed the
investigation on 13.07.2022 and filed a charge sheet against the accused.
3. After perusing the records, the III Additional District and
Sessions Judge took up the case in Spl. S.C.No.108 of 2022 and issued
summons to the accused. After the appearance of the accused, copies of
all the prosecution records were furnished to him, free of cost under
Section 207 Cr.P.C.
4. Thereafter, the learned Sessions Judge, after perusing the
records and hearing both sides, framed charges against the accused under
Sections 341, 302 IPC and Section 3(1) (r), 3(2) (va), 3(2) (v) of SC/ST
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Act (POA) Amendment Act 2014, read over and explained them to the
accused. The accused denied the charges and claimed to be tried.
Therefore, the case was posted for trial.
5. On the side of the prosecution, P.W.1 to P.W.36 were
examined and Ex. P1 to Ex. P30 were marked. Material Objects M.O.1 to
M.O.4 were produced. On the side of the accused, no witness was
examined.
6. After a full trial, the Trial Court convicted the accused
under Sections 341 and 302 IPC. For the offence punishable under
Section 341 IPC, the accused was sentenced to undergo one month
simple imprisonment and to pay a sum of Rs.500/- in default, to undergo
one week simple imprisonment. For the offence punishable under Section
302 IPC, he was sentenced to undergo imprisonment for life and to pay a
sum of Rs.1,000/- in default, to undergo one year simple imprisonment.
He was acquitted under Section 3(1) (r), 3(2) (va), 3(2) (v) of SC/ST Act
(POA) Amendment Act 2014. Against the said conviction, the present
Criminal Appeal is filed on the following among other grounds:-
(a) That the witnesses of P.W.2 to P.W.6 are unknown to the
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Crl.A(MD)No.649 of 2023accused who saw the accused only at the time of occurrence. The
prosecution has miserably failed to conduct the test identification parade,
which creates serious doubt about the prosecution case.
(b) The trial court ought to have considered that the FIR was
registered on 26.04.2022 at about 09.00 a.m., and the intimation memo
received by the Sub Inspector of Police from the Government Rajaji
Hospital, Madurai, was not marked before the trial court.
(c) P.W.18 Dr. Archana Chandrasekar says that the deceased has
taken initial treatment in Primary Health Center, Nagamalai, Pudukottai,
but the Accident register entry and referral slip were not marked by the
Doctor before the trial court, which creates serious doubt.
(d) The FIR reached the concerned Judicial Magistrate Court only
on 27.04.2022 at about 12.00 noon, even though the travelling time
between the respondent police station and the Judicial Magistrate Court
is only 30 minutes.
(e) P.W.33 postmortem doctor was examined by the trial court and
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Crl.A(MD)No.649 of 2023Ex.P23 postmortem report has been marked through him. At the time of
chief examination of P.W.33, screwdriver M.O.1 was not shown to him to
obtain his opinion. It is the bounden duty of the prosecution to show the
screwdriver at the time of examining the doctor. Moreover, P.W.33
admitted in his cross-examination that the injury may happen due to an
accident.
(f) The trial court failed to note that the accused also sustained
injuries and was treated as an inpatient. The injury of the accused was not
explained by the prosecution.
(g) That the trial court failed to note that there was an accident that
gave rise to a sudden fight between the deceased and accused and that
the occurrence was not a preplanned one.
7.The learned Additional Public Prosecutor appearing for the
respondent states that both the accused and deceased had a quarrel and
pursuant to it, the accused inflicted an injury on the chest of the
deceased. The eyewitnesses corroborated the medical evidence. The
prosecution proved its case beyond all reasonable doubt that the accused
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committed the offence and prayed to pass orders accordingly.
8.On careful perusal of the entire records, the prosecution
case unfolding from the evidence of P.W.1 to P.W.36 is as follows:
(i) P.W.1, the complainant and son of the deceased deposed
that his father was a Village Artist. He used to go to Temple festivals and
funeral ceremonies along with Ramar, clown artist, Pandi @ Kozhipandi
who plays Pumbai, and Pandi @ Motor Pandi who plays Urumi and
Karagaatam, and dance artist Kanimozhi. On 25.04.2022, all of them
went to Nilaiyur near Thirumangalam for a funeral ceremony in an auto
belonging to one Aryapatti Pandi, son of Ayyavoo. The said function
was over by night, and they returned to their place in the same auto. Near
Aathukal Burial ground, Nagamalai Pudukottai, opposite to Penna
Cement Shop, an auto bearing registration no. TN 58 W 4324 driven by
the accused dashed against their auto. The driver of the auto got down
and questioned about the same. Both the auto drivers had wordy quarrels.
Thiru. Ramar told the accused he was at fault but the accused driver
slapped Ramar. The complainant’s father told him that they belonged to a
scheduled caste community and that they were returning after performing
in a funeral function. On enquiring as to why the accused stopped them,
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the accused started abusing him “Njtpbah kfNd eP ghj;J tuNtz;baJ
jhdlh”. and parked his auto in front of their auto. He took a screwdriver
from his auto and stabbed PW1’s father (deceased) in the chest. The
victim fell down and became unconscious. The accused fled from the
place of occurrence. The persons who were accompanying the victim
took him to the Government Hospital at Nagamalai, Pudukottai. Thiru.
Ramar called P.W.1 over the phone and informed him that his father had
been admitted to the hospital. He, his mother and brother came to the
hospital. His father did not gain consciousness. He came to know that the
name of the accused was Venkatesh, a resident of Srinivasa Nagar. His
father was taken to Madurai Government Hospital in a 108 ambulance
and admitted to the intensive care unit. He lodged the complaint Ex.P1
with the police. His father died on 02.05.2022.
(ii) P.W.2 Ramar, one of the eyewitnesses to the occurrence,
deposed that on 25.04.2022, he, Seeni (deceased) and others went to
Nilayur for a funeral ceremony. At about 10.30 p.m., while they were
returning in an auto, near Burial ground of Nagamalai Pudukkottai,
another auto driven by the accused that was coming in the opposite
direction, dashed against their auto. Both the auto drivers employed
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filthy language and engaged in a wordy quarrel. When he questioned the
same, the accused, Venkatesan slapped him. Seeni (deceased) got down
from the auto and told the accused that they belonged to the scheduled
caste community and were village artists engaged in singing and dancing
in funeral houses. The accused took a screwdriver and stabbed him on
the left chest after which he became unconscious. They took him to the
hospital in a 108 ambulance and informed his family. Subsequently, he
died.
(iii) P.W.3 Pandi @ Kozhi Pandi, another eyewitness,
corroborated the evidence of P.W.2. He identified the weapon used by
the accused, the clothes worn by deceased, namely, red colour full slack
shirt, white dhoti with blood stains, and stated that the auto was driven
by the accused. He had also deposed about the statement given by him
before the Judicial Magistrate under section 164 Cr.P.C.
(iv) P.W.4 Pandi @ Motor Pandi supported the evidence of
P.W.2 by stating that on the date of occurrence, the accused dashed
against their vehicle and stabbed victim Seeni with screwdriver. He also
stated that his statement was recorded by the Judicial Magistrate under
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section 164 Cr.PC.
(v) Another eyewitness P.W.5 Kanimozhi stated that on the
date of occurrence, the accused dashed against the auto in which they
were travelling. Both the auto drivers had wordy quarrel. Ramar told the
accused that he was at fault for which the accused slapped him. Seeni
(deceased) told him that they belonged to a scheduled caste community
and they performed in the village festivals during the day and enquired as
to why he was creating a problem. In response, the accused abused him,
took a screwdriver and stabbed him on his left chest. The injured Seeni
was admitted to the hospital. She also identified the clothes worn by the
deceased and the weapon used for the occurrence. She also stated that
her statement was recorded by the Judicial Magistrate.
(vi) P.W.6 Pandi, who is the auto driver in which the
deceased and others were travelling also supported the evidence of P.W.2
to P.W.5. He also stated that his statement was recorded by the Judicial
Magistrate.
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(vii) All the eyewitnesses stated in one voice that the
accused stabbed the deceased with a screwdriver. Their evidence
corroborates each other, and except minor contradictions which normally
happen due to lapse of time, their evidence is consistent and credible.
The accused is a stranger, and they do not have any enmity to foist a false
case against him. The appellant counsel was unable to shake the evidence
presented by the prosecution.
(viii) P.W.7 Sivaraj spoke about the preparation of
observation Ex.P7 and rough sketch Ex.P22 by the Investigating Officer.
The rough sketch showed the place of occurrence.
(ix) P.W.8 deposed about the arrest and confession of the
accused in the presence of his friend Kannan and recovery of the
screwdriver under recovery mahazar. The admitted portion of the
confession was marked as Ex.P8 and the recovery Mahazar was marked
as Ex.P9. He identified the photo of the auto M.O.4.
(x) P.W.13 Chandra Mohan, driver of the auto bearing
Registration No.TN 58 W 4324, deposed that the accused Venkatesh
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requested him to hand over his auto for two days, and he handed over the
same. The auto was in the custody of the accused from 24.04.2022 to
25.04.2022. He was informed by the police that on 26.04.2022, the auto
was seized by the police in a criminal case. He filed an application
through Court and took the custody of the auto which reveals that his
auto was in the custody of the accused.
(xi) P.W.14 Regina, Staff Nurse, deposed that on 26.04.2022
at about 12.00 p.m., the victim Seeni was brought with injury on his left
chest. He was in an unconscious state. She gave first-aid and informed
the Medical Officer. The Doctor requested her to refer him to the
Government Rajaji Hospital, Madurai through a 108 ambulance and she
referred the injured Seeni to the Government Rajaji Hospital, Madurai.
(xii) P.W.15 spoke about handing over of the FIR and
Section alteration report to the Judicial Magistrate No.VI, Madurai.
(xiii) P.W.18 Dr.Archana Chandrasekar corroborated the
evidence of P.W.14.
(xiv) P.W.19 Jasmin Mercy Kamala, Motor Vehicle
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Inspector, deposed that she inspected the auto bearing Registration
No.TN 58 W 4324, which was driven by the accused, noted the following
damages: The front wheel arch was damaged, front right side head light
indicator was broken, the right-side rear-view mirror was broken and also
the front right-side body was pressed inward and damaged. She also
examined the auto bearing Registration No.TN 57AA 4654, but she did
not find any damage. She issued certificates for the vehicle bearing
registration no. TN 58W 4324 and TN 57 AA 4654 marked as Ex. P12
and as Ex.P30. respectively.
(xv) P.W.20 Thiru.Vijayakumar spoke about the recovery of
clothes worn by the deceased and handed over the same to the Inspector
of Police in Form 95 and submitted the letter to the Forensic Science
Department.
(xvi) P.W.21 Karthikeyan, Grade I Police Constable spoke
about handing over the records to the Judicial Magistrate No.VI,
Madurai.
(xvii) P.W.22 Boomirajan, Grade I Police Constable, who
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took the accused to Government Rajaji Hospital for treatment, deposed
that the accused was admitted as an inpatient. P.W.23 Alexpandian, Head
Constable spoke about the discharge of the accused from the hospital. He
produced the accused before the Judicial Magistrate No. VI.
(xviii) P.W.26 Dr. Mohanraj, Government Rajaji Hospital,
Madurai, deposed that the victim Seeni was admitted to the hospital and
underwent an operation. On 02.05.2022 at about 10.45 a.m., the victim
died. He issued the death intimation Ex.P14.
(xix) P.W.27 Dr.Sheikh Iqbal Ushen deposed that on
26.04.2022 at about 11.00 p.m., the accused Venkatesh was brought to
the hospital by Grade II Constable Thiru. Sudalai Madan and on enquiry,
the accused informed that on 25.04.2022 at about 9.30 p.m., near
Nagamalai Pudukkottai Pudukulam, an auto dashed against his auto. He
found blood clots in his right hand measuring 5 × 5 cm and a blood clot
on his cheek 2 x 1 cm. He was admitted as an in-patient. . He issued a
certificate that the injury sustained by him was grievous in nature and the
accident register was marked as Ex.P15.
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(xx) Some of the witnesses spoke about the issuance of the
community certificate to the accused and deceased. Since the offence
under Section 3(1) (r), 3(1) (s), 3(2) (v) of SC/ST Act was not proved
before the trial court, and the trial court acquitted the accused for the said
offences. Therefore, we have decided not to discuss about the evidences
related to the above-mentioned offences in detail.
(xxi) P.W.29 Thiru.Navaneetha Krishnan, Madurai Forensic
Scientific Officer, deposed that he received the material objects from
Head Constable Vijayakumar, and after examination, he found blood
stains on item Nos.1 & 3 viz., 1. Screwdriver with green synthetic
handle, measuring about 18 cm in length in which dark brown stains
were found. 3. White Dhoti with a blue border in which dark brown
stains were found. Item Nos.1 and 3 contained blood, but no blood stains
were found on item No.2. The same was marked as Ex.P17 and serology
report reveals that the result of the grouping test is inconclusive in items
Nos.1 and 3, and the same was marked as Ex.P18.
(xxii) P.W.31, Thiru.Senthil Kumar, Assistant Executive
Engineer, TNEB, deposed that on 25.04.2022 at about 11.15 p.m., there
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was no power cut throughout the day and the distance that the light
spreads from the lamp post was over 50 feet. The certificate issued by the
above witness was marked as Ex.P20.
(xxiii) P.W.32 deposed about the registration of FIR and the
part investigation conducted by him viz., preparation of observation
mahazar, rough sketch, arrest of the accused, recovery of material objects
etc.
(xxiv) P.W.33, Dr.Devi Bhiansha deposed about the
postmortem conducted on the dead body.
(xxv) P.W.34, Thiru.Sivakumar, Inspector of Police, deposed
about the part investigation and alteration of section of law.
(xxvi) P.W.35 Thiru.Santhana Kumar, Judicial Magistrate
No.VI, Madurai deposed about 164 statement of witnesses.
(xxvii) P.W.36, Thiru.Balasundaram, Deputy Superintendent
of Police spoke about the further investigation and preparation of final
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report.
9. Though the learned counsel appearing for the appellant
raised few grounds for appeal, but during his argument, he admitted that
he was only arguing for a reduction of sentence and not for acquittal. To
support his contention, he relied on the judgment rendered by the Hon’ble
Supreme Court in State of Andhra Pradesh Vs. Rauavarapu Punnayya
and another reported in 1976 (4) Supreme Court cases 382.
10.The learned Additional Public Prosecutor appearing for
the State argued that P.W.1 to P.W.6 who were eyewitnesses to the
occurrence clearly deposed about the occurrence. He further stated that
both the accused and the deceased had a quarrel due to the collision of
the two autos. Suddenly, the accused took a screwdriver and stabbed
Seeni (deceased) on his chest. Immediately, the injured was admitted to
the hospital and treated. But he succumbed to his injuries on 02.05.2022,
a week from the date of occurrence. He argued that the ocular evidence
supported the medical evidence and prayed to pass suitable orders.
11. Now this court is satisfied that P.W.1 to P.W.6 who are
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the eyewitnesses to the occurrence, clearly spoke about the occurrence,
and stated in unison that both the accused and the auto driver had a fight
and exchanged abusive words. When the witness Ramar-P.W.2
questioned the same, the accused slapped him. Subsequently, when the
deceased enquired as to why the accused was creating problems, the
accused took a screwdriver and stabbed the victim on his chest.
12. P.W.1, son of the deceased, received the message from
the eyewitnesses, and when he came to the hospital, he found his father
in an unconscious state. Thereafter, he had given the complaint to the
Police. Evidence of eyewitnesses is clear, cogent and without any major
contradiction. The witness also spoke about the occurrence before the
Judicial Magistrate No.VI, Madurai. Their evidence could not be shaken
by the defense during cross-examination. The accused was a stranger to
the witnesses, and they had no reason to falsely implicate him for the
offence. Further the ocular evidence supported the medical evidence.
13. The Assistant Executive Engineer of TNEB clearly
stated that there was no power cut at the place of occurrence and an
electric post was also available near the place of occurrence. The
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observation Mahazar Ex.P7 clearly mentioned about the availability of
an electric pole at the place of occurrence. Even in the rough sketch
Ex.P22, there was a mention of the electric pole near the occurrence by
the Inspector of Police who conducted the investigation.
14. P.W.13 Thiru.Chandramohan, clearly stated that on the
date of occurrence, his auto bearing Registration No.TN 58 W 4324 was
taken by the accused.
15. Therefore, in all probability the prosecution has proved
the commission of offence by the accused beyond all reasonable doubts.
16. The learned counsel for the appellant argued that the
offence committed by the accused would not fall under Section 300 IPC,
but it would fall under Section 299 IPC i.e., culpable homicide not
amounting to murder. Normally Murder, under Section 300 of the IPC,
requires intention, knowledge, and premeditation to cause death.
Culpable homicide, as defined under Section 299 of the IPC, involves
killing without the specific intent to cause death, but the act must have
been done with the knowledge that it is likely to cause death or serious
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harm. The distinguishing factors between culpable homicide and murder
are as follows:
“What distinguishes these two offences is
the presence of a special mens rea which consists of
four mental attitudes in the presence of any of which
the lesser offence becomes greater. These four mental
attitudes are stated in Section 300 IPC as
distinguishing murder from culpable homicide.
Unless the offence can be said to involve at least one
such mental attitude it cannot be murder.”
17. For better appreciation, it is relevant to extract Section
300 IPC along with its comments from the Indian Penal Code, by
Ratanlal and Dhirajlal (32nd enlarged edition):-
“300. Murder.—Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing
death, or—
Secondly.—If it is done with the intention of causing
such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused,
or—
Thirdly.—If it is done with the intention of causing
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to cause death, or—
Fourthly.—If the person committing the act knows
that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to
cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
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 which
party offers the provocation or commits the first assault.”
18. As per penal provision under S.300 IPC, except the
following exceptions, culpable homicide would amount to murder.
Exception 1- When culpable homicide is not
murder- Culpable homicide is not murder if the offender,
whilst deprived of the power of self-control by grave and
sudden provocation, causes the death of the person who
gave the provocation or causes the death of any other
person by mistake or accident.
The above exception is subject to the following
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provisos:-
First- That the provocation is not sought or
voluntarily provoked by the offender as an excuse for
killing. or doing harm to any person.
Secondly- That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such public
servant.
Thirdly- That the provocation is not given by
anything done in the lawful exercise of the right of private
defense
Exception 2- Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of private
defense of person or property, exceeds the power given to
him by law and causes the death of the person against
whom he is exercising such right of defense without
premeditation, and without any intention of doing more
harm than is necessary for the purpose of such defense.
Exception 3- Culpable homicide is not murder if the
offender, being a public servant or aiding. a public servant
acting for the advancement of public justice, exceeds the
powers given to him by law, and causes death by doing an
act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose
death is caused.
Exception 4.- Culpable homicide is not murder if it
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Crl.A(MD)No.649 of 2023is committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner.
Exception 5- Culpable homicide is not murder
when the person whose death is caused, being above the
age of eighteen years, suffers death or takes the risk of
death with his own consent.”
19. To support his contention, the learned counsel for the
appellant relied upon the judgement in State of Andhra Pradesh Vs.
Rauavarapu Punnayya and another reported in 1976 (4) Supreme
Court cases 382. It was held therein as follows :
“12. In the scheme of the Penal Code, ‘culpable
homicide’ is genus and ‘murder’ its specie. All ‘murder’
is ‘culpable homicide’ but not viceversa. Speaking
generally, ‘culpable homicide’ sans ‘special
characteristics of murder’, is ‘culpable homicide not
amounting to. murder’. For the pur- pose of fixing
punishment, proportionate to the gravity of this
generic offence, the Code practically recognises three
degress of culpable homicide. The first is, what may be
called, culpable homicide of the first degree. This is
the gravest form of culpable homicide which is defined
in s. 300 as ‘murder’. The second may be termed ashttps://www.mhc.tn.gov.in/judis
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Crl.A(MD)No.649 of 2023‘culpable homicide of the second degree’. This is
punishable under the l st part of s. 304. Then, there is
‘culpable homicide of the third degree.’ This is the
lowest type of culpable homicide and the punishment
provided for it is, also, the lowest among the
punishments provided for the three grades. Culpa- ble
homicide of this degree is punishable under the second
Part of s. 304.
13. The academic distinction between ‘murder’
and ‘culpable homicide not amounting to murder’ has
vexed the courts for more than a century. The
confusion is caused, if courts losing sight of the true
scope and meaning of the terms used by the legislature
in these sections, allow themselves to be drawn into
minutae abstractions. The safest way of approach to
the interpretation and application of these provisions
seems to be to keep in focus the key words used in the
various clauses of ss. 299 and 300. The following
comparative table will be helpful in appreciating the
points of distinction between the two offences.
Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide if the act by which Culpable homicide is murder
the death is caused is done….. if the act by which death is
caused is done…
INTENTION
(a) With the intention of (1) With the intention of
causing death; or causing death; or
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(b) With the intention of (2) With the intention of
causing such bodily injury as causing such bodily injury as
is likely to cause death; or the offender known to be likely
to cause the death of the
person to whom the harm is
caused; or
(3) With the intention of
causing bodily injury to any
person, and the bodily injury
intended to be inflicted is
sufficient in the ordinary
course of nature to cause
death; or
KNOWLEDGE
(c) with the knowledge that act (4) With the knowledge that
is likely to cause death. the Act is so imminently
dangerous that it must in all
probability cause death, or
such bodily injury as is likely
to cause death, and without
any excuse for incurring the
risk of causing death or such
injury as is mentioned above.
14……
……..
20. Clause (c) of s. 299 and cl. (4) of s. 300 both
require knowledge of the probability of the causing
death. It is not necessary for the purpose of this case to
dilate much on the distinction between these
corresponding clauses. It will be sufficient to say that
cl. (4) of s. 300 would be applicable where the
knowledge of the offender as to the probability of death
of a person or persons in general–as distinguished
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from a particular person or persons—being caused
from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the
offender must be of the highest degree of probability,
the act having been committed by the offender without
any excuse for incurring the risk of causing death or
such injury as aforesaid.
21. From the above conspectus, it emerges that
whenever a court is confronted with the question
whether the offence is ‘murder’ or ‘culpable homicide
not. amounting to murder,’ on ,the facts of a case, it
will be convenient for it to approach the problem in
three stages. The question to be considered at the first
stage would be, whether the accused has done an act
by doing which he has caused the death of another.
Proof of such causal connection between the act of the
accused and the death, leads to the second stage for
considering whether that act of the accused amounts to
“culpable homicide” as defined in s. 299. If the answer
to this question is prima facie found in the affirmative,
the stage for considering the operation of s. 300, Penal
Code is reached. This is the stage at which the Court
should determine whether the facts proved by the
prosecution bring the case within the ambit of any of
the four Clauses of the definition of murder’ contained
in s. 300. If the answer to this question is in the
negative the offence would be ‘culpable homicide not
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amounting to murder’, punishable under the first or the
second part of s. 304, depending. respectively, on
whether the second or the third Clause of s. 299 is
applicable. If this question is found in the positive, but
the case comes, within any of the Exceptions
enumerated in s. 300, the offence would still be
‘culpable homicide not amounting to murder’
punishable under the First Part of s. 304, Penal
Code.”
20. In the case of Anda v. State of Rajasthan, reported in
AIR 1966 SC 148, the two relevant Sections 299 and 300 are
comprehensively analyzed, and the relevant observations are made at
page 151 in para 7. Before we refer to those observations, we would refer
to certain observations made earlier. They are as under:-
“The offence of culpable homicide involves the
doing of an act (which term includes illegal omissions)
(a) with the intention of causing death, or (b) with the
intention of causing such bodily injury as is likely to
cause death or (c) with the knowledge that the act is
likely to cause death. If the death is caused in any of
these three circumstances, the offence of culpable
homicide is said to be committed……………. Intent and
knowledge in the ingredients of the section postulate the
existence of a positive mental attitude and this mental
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Crl.A(MD)No.649 of 2023condition is the special mens rea necessary for the
offence. The guilty intention in the first two conditions
contemplates the intended death of the person harmed or
the intentional causing of an injury likely to cause his
death. The knowledge in the third condition
contemplates knowledge of the death of the person.
Sec. 300 tells us when the offence is murder and
when it is culpable homicide not amounting to murder.
Sec. 300 begins by setting out the circumstances when
culpable homicide turns out into murder which is
punishable under sec. 302 and the exceptions in the
same section tell us when offence is not murder but
culpable homicide not amounting to murder punishable
under sec. 304. Murder is an aggravated form of
culpable homicide. The existence of one of four
conditions turns culpable homicide into murder while
the special exceptions reduce the offence of murder
again to culpable homicide not amounting to murder.”
(Emphasis supplied)
(2) Even when the intention or knowledge of the
accused may fall within Clauses (1) to (4) of Section 300
of the IPC, the act of the accused which would otherwise
be murder, will be taken out of the purview of murder, if
the accused’s case attracts any one of the five exceptions
enumerated in that section. In the event of the case
falling within any of those exceptions, the offence would
be culpable homicide not amounting to murder, falling
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within Part 1 of Section 304 of the IPC, if the case of the
accused is such as to fall within Clauses (1) to (3) of
Section 300 of the IPC. It would be offence under Part II
of Section 304 if the case is such as to fall within Clause
(4) of Section 300 of the IPC. Again, the intention or
knowledge of the accused may be such that only 2nd or
3rd part of Section 299 of the IPC, may be attracted but
not any of the clauses of Section 300 of the IPC. In that
situation also, the offence would be culpable homicide
not amounting to murder under Section 304 of the IPC.
It would be an offence under Part I of that section, if the
case fall within 2nd part of Section 299, while it would
be an offence under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC. (3) To put it in
other words, if the act of an accused person falls within
the first two clauses of cases of culpable homicide as
described in Section 299 of the IPC it is punishable
under the first part of Section 304. If, however, it falls
within the third clause, it is punishable under the second
part of Section 304. In effect, therefore, the first part of
this section would apply when there is ‘guilty intention,’
whereas the second part would apply when there is no
such intention, but there is ‘guilty knowledge’. (4) Even
if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the
ordinary course of nature to cause death, the
requirements of Clause 3rdly to Section 300 of the IPC,
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are fulfilled and the offence would be murder.”
21. In this case, the accused had no previous enmity with the
deceased. Even prior to the occurrence, they had no acquaintance with
each other. On the date of occurrence, a quarrel ensued between the
accused and the auto driver Pandi PW6, due to a collision between the
two autos. P.W.2 Ramar in his evidence, clearly stated that both the
accused and P.W.6 had a fight, and both used abusive language against
each other. At that time, when P.W.2 Ramar stated that the accused was
at fault, the accused assaulted him. When the deceased also questioned
him as to why he was creating problems, the accused due to his anger
attacked him with a screwdriver.
22. The sequence of acts as available from the records
reveals that there was a collision between the two autos due to which the
vehicle of the accused was damaged extensively as proved by Ex.P12
MVI report. It is also proved that there was no mechanical defect in the
vehicle in which the deceased was travelling along with the other eye
witnesses. It is further proved that the accused had also sustained
grievous injuries. The accident register issued under Ex.P.15 proved that
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he sustained grievous injuries in the accident. Therefore, due to the
above act, he had a fight with P.W.6. When P.W.2, and Seeni (deceased)
questioned him about his conduct and P.W.2 stated that he was at fault,
due to sudden provocation, he took a screw driver and stabbed the
deceased. He did not intend to come to the spot and attack the deceased.
There is no motive or premeditation to attack the deceased but it
happened due to sudden provocation without any premeditation.
Therefore, the offence committed by the accused does not not fall under
section 302 IPC, but falls under Section 304(ii) IPC because it is done
with the knowledge, that the act is likely to cause death. Though the
injury was inflicted on the vital part viz., chest, he gave only a single
blow. He knew that the injury caused by him may cause death, but he had
no intention to do it. The incident took place due to a petty quarrel
which led to sudden provocation. The accused attacked the deceased and
death was caused, but it has been proved that he inflicted a single stab
injury on his chest.
23. We therefore hold that the offence committed by the
appellant falls under culpable homicide not amounting to murder and is
punishable under the second part of section 304 IPC. The first part of
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section 304 would apply when there is such intention to cause death or
bodily injury, whereas the second part would apply when there is no such
intention but the act is done with the knowledge that it is likely to cause
death.
24. Relying on the ratio laid down in the above judgments,
we hold that the offence committed by the accused does not attract
Section 300 IPC, but falls under Section 304(ii) IPC. Therefore, we
modify the conviction of the accused from Section 302 IPC to Section
304(ii) IPC and modify the sentence of life imprisonment. We hereby
sentence the accused to undergo six (6) years rigorous imprisonment with
fine of Rs.5,000/- (Rupees Five Thousand only) in default, to undergo
three months simple imprisonment.
25. In the result,
(i) This Criminal Appeal is partly allowed.
(ii) In so far as the charge under Section 341 IPC is
concerned, the order of the trial Court is confirmed.
(iii) The conviction under Section 302 IPC passed by the
learned III Additional District and Sessions Judge, (PCR Court) Madurai,
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dated 24.04.2023, in Spl.S.C.No.108 of 2022 is set aside and the
conviction is modified to Section 304(ii) IPC.
(iv) Accordingly, the sentence of Life Imprisonment passed
by the Court below is set aside and the appellant is sentenced to undergo
Rigorous Imprisonment for six (6) years and to pay a fine of Rs.5,000/-
(Rupees Five Thousand only) and in default to pay the fine amount, to
undergo Simple Imprisonment for three months.
(v) The period of sentence already undergone by the
accused/appellant shall be set off under Section 428 Cr.P.C., as against
the substantive sentence.
(vi) The trial Court is directed to secure the
appellant/accused and commit him to the prison to undergo the remaining
period of sentence.
(G.R.S., J.) & (R.P., J.)
18.12.2024
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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Crl.A(MD)No.649 of 2023
To
1.The III Additional District and Sessions Judge,
(PCR Court) Madurai.
2.The Deputy Superintendent of Police,
Samayanallur Sub Division,
Madurai District,
Nagamalaipudukottai Police Station.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.649 of 2023
G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
RM
Judgment in
Crl.A(MD)No.649 of 2023
18.12.2024
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