CRL A/647/1996 of Vs on 28 December 2004

BAIL SLIP

The Appellant/First Accused viz., Vellai Thurai was directed tobe released on bail in and by the order of this Court dt. 7.1.99made in Crl.M.P.No.10566/98 in C.A.647/96.

Coram:

The Honourable Mr. Justice N. DHINAKARandThe Honourable Mr. Justice N.KANNADASAN Crl. Appeal No.647 of 1996

Vellai Thurai:: Appellant:versus:State, rep. by Inspector of PoliceTondiarpet Police Station:: Respondent

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Appeal under Sec.374 of Crl.P.C. against the conviction andsentence imposed upon the appellant by the learned PrincipalSessions Judge, Chennai in S.C.No.163 of 1996 dt.19-8-1996.For Appellant:: Mr. John SathyanFor Respondent:: Mr. V.M. Rajendran Addl. Public Prosecutor- - - - -JUDGMENT

(Delivered by N. DHINAKAR, J.)

Accused No.1 in S.C. No.163 of 1996 on the file ofPrincipal Sessions Judge, Chennai is the appellant. He was triedalong with another accused, who was arrayed as A-2, and theallegation against them is that at about 11.30 p.m. on 24-4-1995,the appellant and A-2, who was acquitted by the trial court, wentto the tea-stall of the deceased and asked the deceased, who wastaking his food inside the tea-stall, for some water and sincethe water was not given immediately, the appellant kicked thefood-plate from which the deceased was taking his food andstabbed him. The learned trial Judge, finding the appellantguilty under Sec.302 IPC, sentenced him to life imprisonmentwhile he acquitted A-2 under Sec.302 IPC read with Sec.34 as well

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as Sec.341 IPC. The appellant as well as A-2 were acquittedunder Sec.506(ii) IPC. The appellant challenges his convictionand sentence.

2. The case of the prosecution is as follows:

Radhakrishnan (deceased) was the owner of a tea-stall andPrakash (PW-1) was employed under him in the said tea-stall.Velayutha Nair (PW-2) is the father of the deceased. At about11.30 p.m. on 24-4-1995, the deceased, PW-1 and PW-2, Chandranand others were in the tea-stall having their food. At that time,the appellant, who came there on a cycle-rickshaw along with A-2,asked the deceased for some water. The deceased in turn askedChandran to bring water for the appellant but Chandran took sometime in bringing the water. The appellant got angry since thewater was not supplied immediately and started shouting. Thedeceased asked him not to shout as the water had to be pumped outand brought. The appellant not satisfied with the answer of thedeceased, kicked the food-plate from which the deceased wastaking his food and started trampling him. When the deceasedattempted to run inside the tea-stall, he was caught hold of byA-2 and the appellant stabbed him on the chest. When PW-1 andPW-2 tried to apprehend the appellant and A-2, the appellantthreatened them with knife and ran away from the place with thecycle-rickshaw.

PW-1 and PW-2 took the injured Radhakrishnan to the StanleyMedical College Hospital and produced him before PW-3 who, onexamining the injured, pronounced him dead. Ex.P-2 is the copyof the accident register. PW-3 thereafter sent the intimation tothe Tondiarpet Police Station.

On receipt of intimation, the Inspector of Police (PW-9)reached the Stanley Medical College Hospital and finding PW-1there, questioned him. PW-1 gave a statement regarding theincident. The statement was reduced into writing. PW-9 returnedto the police station on the complaint (Ex.P-1) given by PW-1,registered a case in Crime No.301 of 1995 against the appellantand A-2 under Secs.341 and 302 IPC by preparing the printed FirstInformation Report. Ex.P-12 is the copy of the printed F.I.R.

PW-9 took up investigation and reached the scene ofoccurrence at about 4.15 a.m. , prepared the observation mahazar(Ex.P-6) and drew a rough sketch (Ex.P-13) in presence of thewitnesses. He seized blood-stained tar-portion under a mahazar.He questioned the witnesses and recorded their statements. Hethen proceeded to the Stanley Medical College Hospital andexamined the Doctor, who examined the deceased. He sentrequisition to the panchayatars for conducting inquest and afterarrival of the panchayatars, inquest was conducted between 7.00

a.m. and 9.00 a.m. Ex.P-14 is the inquest report. He sent thebody of the deceased with a requisition (Ex.P-3) for conductingautopsy.

Dr. Thangaraj (PW-4), Additional Professor, ForensicMedicines, attached to the Stanley Medical College Hospital,onreceipt of Ex.P-3, requisition, conducted autopsy over the dead-body of the deceased and noted the following injuries:

"An oblique stab injury 4 X 1 cms on front of leftside of chest 4 cms away from midline and 21 cms belowthe left mid-clavicular. On dissection there is anoblique cut 4 cms. long involving sixth intercostalmuscle. ... Bruising of retro-sternal tissues to anextent of 10x5x0.5 cms seen. On further dissectionthere is an oblique cut over the anterior wall of thepericardium to a length of 2.5 cms ... On furtherdissection there is an oblique cut over the antereo-inferior wall of the right ventricle to a length of 1.5cms to its full thickness communicating with the rightventricular chamber with bruising of tissues of theheart along the lower border of the cut to an extent of2x0.5x0.2 cms. The depth of the wound is 12 cms anddirection of the wound is upward and backwards."

PW-4 was of the opinion that the deceased would appear to havedied of shock and haemorrhage due to stab injury to the heart.Ex.P-14 is the post-mortem certificate.

PW-9 questioned some witnesses and recorded theirstatements. He searched for the accused and on the informationreceived, he proceeded to the junction of Suriyanarayana ChettyStreet and Jeevarathinam Road and arrested them at about 6.00p.m. on 25-4-1995 in the presence of witnesses. The appellantgave a statement and in pursuance of the admissible portionthereof (Ex.P.10), he took the police party to his house andproduced blood-stained knife and blood-stained shirt (M.O.6),which were seized under a mahazar Ex.P-11. Accused were broughtto the police station and locked-up. On the next day, they weresent to court for remand. The material objects were forwarded tothe court with a requisition to send them for chemical analysis.After the completion of investigation, final report was filedagainst the appellant and A-2 on 25-9-1995.

When the appellant and A-2 were questioned under Sec.313Crl.P.C. regarding the incriminating circumstances appearingagainst them, they denied the same and pleaded not guilty.

The learned trial Judge accepted the prosecution case andheld that a case under Sec.302 IPC is made out against the appellant and accordingly convicted the appellant and sentencedhim to undergo imprisonment for life.

2. The cause of death of Radhakrishnan is not disputedby the defence and the same stands established through theevidence of PW-4, who conducted autopsy and issued post-mortemcertificate (Ex.P-14). The cause of death was stated to be shockand haemorrhage on account of the stab injury and thecorresponding internal injury to the vital organs of the body.This injury, in the opinion of PW-4, was sufficient in theordinary course of nature to cause death. On the medicalevidence, we therefore hold that Radhakrishnan had died onaccount of homicidal violence. This takes us to the nextquestion whether the learned trial Judge was correct inconvicting the appellant under Sec.302 IPC and sentencing him tolife imprisonment.

3. Learned counsel for the appellant made twocontentions, viz.

(i) That even if the entire facts as projected by theprosecution are taken to be true, from the facts andcircumstances of the case and the evidence available on record,it could be said that the appellant could not have intended tocause the death of the deceased as he had no motive or priorenmity against the deceased and the occurrence having taken placewithout premeditation in the heat of passion upon a suddenquarrel, he may be given the benefit of 'Exception 4' to Sec.300IPC.

(ii) The appellant, in the course of sudden quarrel, gaveonly one blow with the knife, which accidently landed on thevital part, viz. chest of the deceased, which proved fatal and,in these circumstances, this being a case of 'single stabinjury', the appellant may be given the benefit of 'Exception 4'to Sec.300. In support of his contentions, learned counsel relied on thejudgment of the Supreme Court in THOLAN v. STATE OF TAMIL NADU(1984 SCC [Cri.] 164).

4. On these contentions, we have heard the learnedAdditional Public Prosecutor.

5. PW-1 and PW-2 were examined by the prosecution asthe eye-witnesses to the occurrence. It is the evidence of PW-1,who was employed under the deceased, that at about 11.30 p.m. on24-4-1995, himself, PW-2, the deceased and others were havingtheir food and at that time, the appellant and A-2, who came oncycle-rickshaw to the tea-stall, asked the deceased for somewater. The deceased in turn asked Chandran to bring water and onseeing that water was not supplied immediately, the appellantstarted shouting and kicked the foot-plate of the deceased and trampled him to the ground. Sensing the belligrent mood of theappellant, the deceased tried to run inside the tea-stall but hewas caught hold of by A-2 and the appellant stabbed him on thechest. When PW-1 and others tried to apprehend the appellant andA-2, they were threatned with knife-point and the appellant andA-2 ran away from the scene. Immediately the injured was takento the hospital where, on examination by the Doctor, he waspronounced dead. A complaint was given by PW-1 to PW-9 Inspectorof Police, who reached the hospital on receipt of theinformation. Similar is the evidence of PW-2.

6. On going the evidence of PW-1 and PW-2, we find noinfirmity in the evidence of both the eye-witnesses. Thetestimony of both the witnesses are reliable and trustworthy and,therefore, can safely be relied upon. It is not in dispute thatPW-1 is the employee of the deceased and PW-2 is deceased'sfather and, therefore, their presence in the tea-stall at thetime of occurrence is natural. We, therefore, accept theevidence of PW-1 and PW-2 and hold that it was the appellant whostabbed the deceased.

7. Now let us deal with the contentions raised by thelearned counsel for the appellant that the appellant is entitledto the benefit of 'Exception 4' to Sec.300 since firstly, theappellant did not intend to cause the death of the deceased asthe incident took place in the course of a sudden quarrel andsecondly, that this is a case of 'solitary stab injury'.Considering the facts and circumstances of the case, we find itdifficult to countenance the contentions raised by the learnedcounsel. Here is a case where the deceased, his father and hisemployees, after closing down their tea-stall around 11.30 p.m.,were having their food in the tea-stall and at that time theappellant and A-2 came there and asked the deceased for somewater. The deceased asked his employee Chandran to get somewater and since there was delay in bringing the water, theappellant in a belligerent mood started shouting at the deceased,kicked the food-plate from which the deceased was taking hisfood, trampled him to the ground and when he tried to run away,stabed him on the chest. In the above scenario, we cannotaccept the contention of the learned counsel that the incidentoccurred without any premeditation in the heat of passion upon a'sudden quarrel'. We therefore hold that the appellant is notentitled to the benefit of 'Exception 4' to Sec.300 IPC.

8. Now, let us analyse the Tholan case, cited supra,relied upon by the learned counsel for the appellant. Afterhaving carefully perused the judgment, we are of the opinion thatthe said decision will not apply to the facts and circumstancesof the present case. In Tholan case, the learned Judges, takingthe facts and circumstances therein, were satisfied that the appellant therein wielded a weapon like a knife and therefore hecould be attributed with the knowledge that he was likely tocause an injury which was likely to cause death and in such asituation, he would be guilty of committing an offence underSection 304 Part II IPC. The decision in the said was renderedon the facts and circumstances therein and that the Supreme Courtdid not lay down any law that in cases where there is singleinjury, the accused is entitled to the benefit of 'Exception 4'to Sec.300 IPC irrespective of the other circumstances. Thejudgment relied upon by the learned counsel is, therefore, of noassistance and will not go to the rescue of the appellant.

9. In this connection, we may refer to the decision ofthe Supreme Court in STATE OF KARNATAKA v. VEDANAYAGAM (1995) 1SCC 326 wherein the question that arose for consideration waswhether the High Court was right in holding that whenever thereis single injury the offence would be only culpable homicidethough the medical evidence is to the effect that the same isnecessarily fatal and sufficient in the ordinary course of natureto cause death. In this case, the accused gave a knife blow onthe left chest of the deceased as a result of which the deceasedfell down and died. The trial court convicted the accused underSec.302 IPC and sentenced him to life imprisonment but, onappeal, the High Court, relying on the decision in Tholan case,cited supra, held that the offence would come down to Sec.304Part II IPC. The finding of the High Court was challenged beforethe Supreme Court. The Supreme Court after elaboratelyconsidering the decisions in Visra Singh v. State of Punjab (AIR1958 SC 465) and Jagrup Singh v. State of Haryana (1981) 3 SCC616, distinguished the decision in Tholan case, cited supra, andheld as follows:"Thus it is clear that ingredient of clause 3rdly isnot the intention to cause death but on the other handthe ingredient to be proved is the intention to causethe particularly injury that was present. It isfallacious to contend that wherever there is a singleinjury only a case of culpable homicide is made outirrespective of other circumstances. ... there is nolegal basis whatsoever for the High Court to hold thatsince the respondent-accused gave only one blow, thoughfound to be sufficient in the ordinary course of natureto cause death, clause 3rdly of Section 300 is notattracted. ... It is important to note that there wasneither a quarrel nor a fight between the deceased andthe accused. The words uttered by the accused againstthe deceased followed by stabbing with the dagger onthe left side of the chest of the deceased, wouldclearly indicate that he intended to cause thatparticularly injury which was objectively found to besufficient in the ordinary course of nature to cause death. ... there is no doubt whatsoever that theaccused intended to cause that particular injury on thechest which necessarily proved fatal. Therefore clause3rdly of Section 300 IPC is clearly attracted. TheHigh Court erred in holding that 'the accused did notintend to cause his death by inflicting the injury onthe chest because there was no premeditation andtherefore the offence would be culpable homicide. Thisview of the High Court is not correct and as discussedabove clause 3rdly of Section 300 IPC is clearlyattracted. For all these reasons, we set aside thejudgment of the High Court and restore the judgment ofthe trial court convicting the accused under Sec.302IPC and sentencing him to undergo imprisonment forlife."

10. In HUKAM CHAND v. STATE OF HARYANA (2002) 8 SCC421, where the deceased died due to infliction of single blow onvital part of the body by the appellant (accused), the SupremeCourt rejected the plea for conversion of conviction to thatunder Sec.304 Part I instead of Sec.302 IPC and justified theconviction under Sec.302 IPC.

11. In STATE OF U.P. v. PREMI AND OTHERS (2003) 9 SCC 12, theSupreme Court, while rejecting the contention that therespondents (accused) had no intention to kill and that only asingle blow was inflicted on the head of the deceased and,therefore, their conviction deserves to be altered to be onefalling under Sec.304 IPC, observed as follows:

"The mere fact that only a single blow was inflicted onthe head by itself is not enough to alter the convictionfrom Section 302 to Section 304 IPC"

12. The facts in the present case are identical to theone in Vedanayagam case, cited supra. In the present case, asnarrated above, the appellant, on a trivial issue of notsupplying water immediately, after shouting at the deceased,stabbed him on the vital organ of the body in a cruel and unusualmanner. Of course, the appellant came to the tea-stall not withthe intention to cause the death of the deceased but, thesubsequent criminal act of the appellant in shouting against thedeceased and stabbing him on the chest with the knife wouldclearly indicate that he intended to cause that particular injurywhich was objectively found to be sufficient in the ordinarycourse of nature to cause death. The intention to cause thatparticular bodily injury can be gathered from the kind of weaponused, the part of the body aimed at, the amount of force employedand the gravity of the injury suffered. There is sufficientmedical evidence on record to show that the injury inflicted was sufficient in the ordinary course of nature to cause death.Therefore, we are of the clear opinion that the appellant isliable to be convicted under Sec.302 IPC and was rightly done soby the learned trial Judge.

13. We do not find any merit in the appeal. The appealdeserves to be dismissed and, accordingly, it is dismissed.

Sd/Asst.Registrar

/true copy/

Sub Asst.Registrar

Jai

To:

1. The Principal Sessions Judge, Madras

2. The District Collector, Madras

3. The Director General of Police, Chennai

4. The Public Prosecutor, Madras

5. The Superintendent, Central Prison, Chennai

6. The Inspector of Police,Tondiarpet Police Station, Madras7.The XV Metropolitan Magistrate,George Town, Chennai.8.-do- Thro The Chief Metropolitan MagistrateEgmore, Madras -8

+1cc to K.Selvarangan, Advocate Sr 58252

TS (CO)km/18.1.

Crl.A. No.647 of 1996