CRL.A/754/2001 of PRABHAKARAN CONVICT NO.4349 Vs STATE on 18 November 2005

JUDGMENT

The appellant herein was charge sheeted for theoffence under Sections 302 and 447 of the Indian PenalCode (`I.P.C' for short). After trial, he was acquitted ofoffence under Section 447 IPC and convicted and sentencedfor offence under Section 304(1) I.P.C. and sentenced toundergo rigorous imprisonment for seven years and topay a fine of Rs.50,000/-in default to undergo rigorousimprisonment for two years. If the fine is realised, itwas ordered to be disbursed to the legal heirs of deceasedDamodaran. The appellant challenges the said convictionand sentence passed against him in this appeal.

2. According to prosecution, on 23.7.1994 at about 3.45 p.m., the appellant stabbed the deceased Damodaranon his chest with MO1 knife and he succumbed to theinjury on the same day at about 4.30 p.m. on the way tothe hospital. The incident was occurred in the propertyof the deceased Damodaran where he has allegedlytrespassed. The motive alleged for the offence is thatthere was a quarrel between the appellant anddeceased Damodaran, since the latter had taken away thegrass which was kept by his wife. The deceased wasinfuriated by washing of the grass in the water tankof deceased Damodaran, against the instruction given notto wash the grass there. The act of the deceasedDamodaran was questioned by the accused on the

crucial day and following this, the accused stabbed thedeceased with MO1.

3. PWs 1 to 12 were examined and Exhibits P1 to P14were marked on the side of the prosecution. MOs 1 to 12were also marked. On the side of the accused DWs 1 and 2were examined and Exhibit D1 was marked. Considering theevidence adduced in this case, the court below found thatthe accused had stabbed deceased Damodaran with MO1 whichhas resulted in his death on the same day and that theinjury is sufficient in the ordinary course of death.The court found that the accused acted at the spur of themoment carried away by his emotions in a heat of passionupon a quarrel on provocation and hence the offence madeout is only under Section 304(I) IPC. He was convictedfor the said offence and acquitted of other offences.

4. To prove the prosecution case, the prosecutionrelied upon ocular evidence, medical evidence, dyingdeclaration and recovery of weapon at the instance of theaccused, pursuant to a statement given under Section 27of the Evidence Act. The only eye witness to theoccurrence is PW2. PW2 gave evidence that he wasquestioned at the time of inquest and that the incidenthappened at about 3.30 p.m., while he was walking along aroad near the quarry. Deceased Damodaran was comingthrough his property and the accused was found walkingbehind him. Suddenly deceased Damodaran turned back andthe accused stabbed deceased Damodaran on the left sideof his chest with knife MO1. He identified MO1 as theknife used by the accused for commission of offence. Healso said that he heard the cry of PW3, the daughter of deceased Damodaran. It was then that he knew about herpresence in the scene. The accused ran away from theseen towards the east and then towards the west. He wasalso carrying the bloodstained knife. PW2 also deposedthat PW1 came to the spot and the deceased told him that hewas stabbed by Prabhakaran. Deceased Damodaran had bythat time fell down. He was removed to the hospital.

5. PW2 is an independent witness to the occurrence.Nothing is brought out in his evidence to show thathe falsely implicated the accused in the crime. There isno reason for this witness either to support theprosecution or to speak against the accused. Hisevidence stands undiscredited in cross-examination.There is no material contradiction or omission in hisversion. He has stood at the test of cross-examination.He deposed that he saw the accused going behinddeceased Damodaran and stabbing just once. Hisevidence is supported by the medical evidence also,which reveals that the deceased Damodaran had sustained oneincised injury on the chest which can be inflicted by aweapon like MO1.

6. The evidence of PW2 is supported by evidence ofPWs 3 and 4 also. PW3 is the daughter of deceasedDamodaran who said that one Lalitha, PW4 came to herhouse and said that there was some quarrel between theaccused and deceased Damodaran and she rushed to thescene and found the accused drawing out a knife from thechest of deceased Damodaran and running away. She criedaloud and by the time PW1 had also reached the scene.There is no reason to disbelieve PW3.

7. Though the witness was cross-examined at length,her presence at the scene is not doubtful. Nothing isbrought out to show that she could not have reached theplace of occurrence when she saw the accused drawing outthe knife. Though she is the daughter of deceasedDamodaran, that reason alone will not be sufficient todiscard her evidence. She did not give an exaggeratedversion, but only spoke about a part of the incident.The presence of accused at the scene and his involvementat the occurrence is corroborated by the evidence of PW3.

8. PW4 is another witness who supported theprosecution case. PW4 is also an independent witness whowas working in the quarry. According to her, the accusedhad come to her on the date of occurrence at about 3.45p.m. and asked for a hammer and she said that it was notavailable and that could be given tomorrow. He went away.At that time, the deceased Damodaran was there and accusedpicked up quarrel with him asking him as to who was he toremove the grass washed by his wife etc. PW4 felt thatthere will be a quarrel and immediately she rushed to PW3and informed her that there was a quarrel between theaccused and the deceased Damodaran. She also saidthat PW3 rushed to the scene and by the time PW4 reachedthe scene she found PWs 2 and 3 near the deceasedDamodaran. But the accused was not present at the sceneat that time.

9. There is no reason to disbelieve the evidence ofPW4 also. She has not stated anything with respect tothe incident in which the accused stabbed thedeceased Damodaran. She only saw a part of the incident in

which she felt that there can be a quarrel between theaccused and the deceased Damodaran on account of somedispute. Learned counsel for appellant vehementlycontended that none of these witnesses can be believedbecause they have suppressed genesis of the incident andthey have not stated whole truth before the court. Hehas drawn my attention to the evidence of PW6. PW6 isthe doctor who gave evidence that on 24.7.1996 at about11.50 a.m. he examined the accused and issued a woundcertificate and he had noted on the body of the accused,the following injuries:

with surrounding induration 2 x 3 cm.

The fact that the accused had injuries on his body at thetime of examination by the doctor on the next day at11.50 a.m. cannot be disputed in the light of theevidence of PW6. But the question is whether injurieswere sustained on the course of incident or not.

10. The mere presence of some injuries on theaccused cannot lead to an inference that the accusedsustained those injuries in the course of the sameincident. The accused is putting forward a defence thatthe injuries were sustained by him in the course of thesame incident. If that be so, this fact must be broughtout in evidence. But, the evidence in this casedoes not probabalize the defence version that the

injuries were sustained by the accused at the time ofoccurrence in the course of the incident.

11. The reasons are as follows: The prosecutionwitnesses, PWs 1, 2 and 3 had seen the accusedimmediately after the incident. But none of them had seenany injury. The defence was also not able to establishor probabalise that these witnesses were suppressing theinjuries which the accused had allegedly sustained in thecourse of the incident. None of the witnesses have a casethat the accused had injuries on his body during theincident. The accused himself did not tell the doctor,that the injuries were sustained in the course of theincident. On the other hand, the evidence given by PW6,doctor is that the injuries were sustained during a fall.

12. Of course, learned counsel for the appellantsubmitted that no value can be attached to this versiongiven by the doctor, because the accused gave thestatement to the doctor while he was in police custody. Itis clear from the evidence of PW6 that the accused wasin the custody of the police, when he made the statement tothe doctor. But, nothing is brought out in evidence toshow that he was threatened by the police or he wasinstigated by the police or instructed by them to makefalse statement to the doctor regarding the cause ofinjury. The evidence of PW6 will not conclusivelyestablish the presence of any of the police officersin the vicinity while the accused was examined by thedoctor. Nothing was brought out from the evidence to showthat the accused was examined by the doctor in thepresence of any police officer.

13. If at all the petitioner had sustained an injuryin the course of the incident, the nature of the injurynoted in Exhibit P2 will show that the injury was on avisible part of the body, namely, cheek. Had there beensuch an injury, there can be no doubt that the eyewitnesses would not have omitted to note such an injuryon the accused. PW2 is an independent witness who has noaxe to grind against the accused. He did not speak thatthe accused had any injury on his cheek. Nothing isbrought out from his evidence to indicate that he wassuppressing the injury which was sustained by the accusedin the incident.

14. It is also relevant to bear in mind that this isnot a case where the accused was prevented from going to adoctor, if at all he had sustained an injury in thecourse of the incident. The incident occurred on23.7.1996 at about 3.45 p.m. But accused had not gone toany doctor till he was arrested on 24.7.1996 by theinvestigating officer, PW12. If the accused had a genuinecase that he was injured in the same incident, there was noreason why he did not seek medical aid or treatment.It is not comprehensible as to why he waited until he wastaken to the doctor by the police.

15. If the accused had a genuine case that hesustained the injury in the course of the incident in thiscase, the normal human conduct will be to go to thedoctor immediately. In fact, it has come out indefence evidence itself that he had intended to goto the hospital and he had got into an autorikshaw also.He had also taken Rs.100/- from DW1. The evidence of PW8

would go to show that accused had gone in his autorikshaw.But the accused never went to the doctor. He had deposedthat he had seen the accused at 4 p.m. on the date ofoccurrence at the house of Natarajan, DW1.

16. PW8 deposed that he found the accused and DW1talking to each other. He had also stated that therewas blood on the shirt and Kaili of the accused. But hedid not say that the accused had any injury on hisbody. He also deposed that he had taken him in hisautorikshaw and told him not to stop the vehicle, even ifanybody showed any signal and requested him to takehim to the police station. Though the vehicle was sloweddown at the police station, he did not get down. Buthe wanted to go to some other place. Though he went fromplace to place in the autorikshaw of PW8, the evidence ofPW8 also does not disclose that the accused did not wantto go to hospital or to the doctor to taketreatment.

17. PW8 specifically deposed in cross-examinationthat he had not seen any injury on the body of theaccused and there was no bleeding below his left eye. Noblood was seen on the body of the accused. There is noreason to disbelieve PW8 who is another independentwitness. In fact, his evidence reveals that he isclosely connected with DW1 who spoke for the accused. Fromthe above discussion I find that the accused had asufficient opportunity to go to a doctor and get himselfexamined. Nobody prevented him from going to a doctor,if at all he had any injury. The evidence of thedefence witnesses also does not show how the accused had

sustained the injury. DW1 did not say that theaccused was injured. Therefore, there is no evidence toshow that the accused had sustained the injuries in thecourse of the incident in this case.

18. It is only if the injuries are sustained in thecourse of the incident that the prosecution has a duty toexplain the same. It is also relevant to note that theinjuries sustained by the accused are quite simpleinjuries as spoken to by PW6, doctor. Though the doctorwould say that the injury on the neck could have beenimplicated by a hammer, no much value can be given to hisevidence because he was not speaking with reference to anyhammer at all. The hammer which was allegedly used by theaccused was not available in court. In suchcircumstances, no inference can be drawn that thewitnesses were suppressing the genesis of the incident orany part of the incident. Learned counsel for theappellant cited decisions reported in Lakshmi Siong andothers v. State of Bihar (AIR 1976 SC 2263) andSamuelkutty v. State of Kerala (1998(2) KLJ 180) andvehemently contended that the court has to disbelievethe prosecution case and discard the same, since theinjuries on the accused were not explained. The abovedecisions cannot be applied to the facts of this case,since there is nothing on record to establish that theinjuries were sustained by the accused during thecourse of the incident in this case. Only if theinjuries are sustained in the course of the sameincident, application of the dictum laid down in thedecisions would arise.

19. In addition to the ocular evidence, medicalevidence is also available. PW10 is the doctor who hadissued the postmortem certificate, Exhibit P5. He hasnoted that the deceased Damodaran had sustained an injuryas injury No.1 which is as follows:

"Incised penetrating wound 2.3 x 0.5cm. horizontally placed on the front ofleft side of chest, the inner sharply cutend was 7 cm. outer to midline and 14 cm.below the upper end of breast bone.The outer end of the would showed splittingof tissues. The chest cavity was seenpenetrated by cutting the 5th rib.underneath the upper lobe of left lungwas transfixed. Pericardium and front wallof the right ventride were seen cut and thewound terminated in the interventricularseptum 2 cm. below theatrioventricular ring. The pericardiumcavity contained 200 ml. of fluid bloodand the left chest cavity contained 1250 ml.of fluid blood. The left lung collapsed.The would was directed backwards upwards andto the right for a total minimum depth of5 cm."

20. PW10 deposed that the injury would be sufficientin the ordinary course of nature and that a person candie within a few minutes of sustaining such injurytheoretically. The evidence of PW7 doctor would showthat the deceased Damodaran was taken him to hospital on23.7.1999 at 4.30 p.m. and he died as recorded inExhibit P3. Thus it is clear that the deceased Damodaranhad sustained incised injury which has resulted in deathwithin 45 minutes of the incident. It is also seen fromthe evidence of PW10 that the injury could be caused byMO1. The evidence of PWs 1, 2 and 3 will indicate that MO1 was the knife which was used for the incident and thedoctor's evidence corroborates their evidence to theeffect that the injury sustained by the deceasedDamodaran could be inflicted by MO1. The medicalevidence also thus corroborates the ocular evidence.

21. Next is the recovery of the weapon, MO1 at theinstance of the accused. PW12, the investigating officerdeposed that he had arrested the accused near the houseof the sister of the deceased and at 9.45 a.m. on24.7.96 on the very next day. Pursuant to a statementgiven by him, the weapon, MO1 was recovered and a mahazarwas prepared on the same day at 10.15 a.m. Thedisclosure statement is also marked as Exhibit P8(a).Though PW8 is an official witness, I do not find anyreason to discard his evidence. The evidence of PWs 1, 2and 3 shows that the accused had MO1 in his hand. MO1 wasseen in the hands of the accused at the time ofoccurrence as well as after the incident. PW8 alsodeposed that he had seen MO1 in his hand. He identified MO1from the court as the weapon carried by the accused whenhe saw him after the incident at about 4 p.m. i.e., after15 minutes of the incident.

22. The evidence of DW1 also shows that the accusedhad a knife in his hand when he saw him at 4.45 p.m. onthe date of occurrence. The fact that the accused was inpossession of MO1 which was identified as the weapon ofoffence is clearly established in this case and it isonly probable that he alone will be knowing the placewhere it is hidden. The recovery of MO1 inpursuance of Exhibit P8(a) disclosure statement from a

hidden state also supports the prosecution case.

23. In the light of the above discussion, I find thatthe prosecution has proved beyond doubt that the accusedhad caused an injury on the deceased Damodaran bystabbing him with MO1 on his chest which has caused tohis death as disclosed by the medical evidence and otherevidence. Though the accused was charge sheeted foroffence under Section 302 IPC, it is seen that he wasconvicted only for offence under Section 304(I) IPC onthe ground that the incident occurred was at the spur ofthe moment carried away by his emotions in a heat ofpassion upon a quarrel etc. The State has not filed anyappeal. In the above circumstances, I find that thereis ground to interfere with the sentence.

The appeal fails and is dismissed.

K.HEMA, JUDGE

vgs.

K.HEMA, J. ------------------------------CRL.A.NO.754 OF 2001 ------------------------------

JUDGMENT

18.11.2005