THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Crl.A.(MD) No.312 of 2018. the conviction and sentence passed by the Court below in S.C.No.48 of 2014 dated 28.06.2018, is modified to that extent.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Pronounced on
20.12.2021 12.01.2022

Coram

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

Crl.A.(MD) No.312 of 2018

Ravichandran … Appellant/Sole Accused
S/o.Singaan,
Keelakanniseri,
Mudukulathur Taluk,
Ramanathapuram District.
-vs-
State,
Rep. by Inspector of Police,
Mudukulathur Police Station,
Ramanathapuram District.
(In Crime No.144 of 2013) … Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code to set aside the judgment and conviction dated 28.06.2018, by the learned Fast Track Mahalir Neethimandram / Principal Sessions Judge, Ramanathapuram in S.C.No.48 of 2014 and acquit the Appellant.

For Appellant : Mr.Mahaboob Athiff
(Legal Aid Counsel)

For Respondent : Mr.A.Thiruvadi Kumar
Addl. Public Prosecutor

*****
J U D G M E N T
S.VAIDYANATHAN,J.,
and
G.JAYACHANDRAN,J.,
The appeal is filed by the sole accused, who was found guilty by the Trial Court for offences under Sections 302 IPC and he was convicted by the Trial Court for said offence as follows:
Sl.No. Offence Conviction and Sentence
1. Section 302 IPC To undergo life imprisonment with fine of Rs.1,10,000/-, in default to undergo one year Rigorous Imprisonment, with further direction to pay a sum of Rs.35,000/- each to the son and two daughters of the deceased from the fine amount and the balance amount of Rs.5,000/- be paid to the Government as fine.
The period of remand already undergone by the accused was ordered to be set off under Section 428 Cr.P.C. by the Trial Court. Aggrieved by the order of the Fast Track Mahalir Neethimandram / Principal Sessions Judge, Ramanathapuram, the Appellant/Sole Accused has preferred the present Criminal Appeal before this Court.

2. The case of the prosecution in nutshell as per FIR (Ex.P1) was that on 13.08.2013 at about 5:15pm, when the complainant, Murugeshwari / deceased, who is the wife of the complainant, son and daughters were on their way to buy grocery items, the Appellant / accused, who is none other than the brother of the complainant, on account of the previous enmity, attacked the deceased, with an Aruval in order to do away with her life and pursuant to the brutal attack, the deceased succumbed to injuries. It was alleged by the complainant / P.W.1, there was a frequent quarrel taken place between his wife and his brother / accused and the accused always used to abuse his wife in filthy language in a drunken mood.

3. It was further alleged by P.W.1 that though the deceased was admitted in the hospital through 108 Ambulance around 5.40pm, she was declared dead by the Doctor in the hospital at about 5.50pm. Thereafter, he went to the Police Station and lodged a complaint / Ex.P1 on the very same day at 20.30 hours, pursuant to which, a case was registered by the Sub-Inspector of Police / P.W.14 in Crime No.144 of 2013 for an offence under Section 302 IPC and the printed FIR was forwarded to the jurisdictional Magistrate and his Superior Officers for further action.

4. After a detailed and thorough investigation, a charge sheet was laid before the Judicial Magistrate, Mudukulathur in P.R.C.No.7 of 2014 and was subsequently, made over to the Fast Track Mahalir Neethimandram / Principal Sessions Judge, Ramanathapuram as per Section 209 Cr.P.C. for trial. The prosecution, in order to substantiate the offence against the accused, had examined 15 witnesses, marked 24 documents and exhibited 7 Material Objects and on the side of the accused, neither any witness was examined nor documents marked. The accused was questioned under Section 313 Cr.P.C. and he denied the charges levelled against him. The Trial Court, after analyzing the evidence let in by the prosecution, found the accused guilty of the offence and convicted him as stated supra.

5. The learned counsel, who is on record to appear for the appellant has reported no instruction and hence, this Court, on 09.11.2021, appointed Mr.Mahaboob Athiff, Advocate as a Legal Aid Counsel to represent the accused. Learned Legal Aid Counsel submitted that P.W.1 is not an eye witness to the occurrence, who, in his deposition stated that after hearing the noise, he came to the scene of occurrence. He further submitted that the minor witness, who are the children of the deceased have given contrary evidences and that there was no intention on the part of the accused to cause murder of the deceased, as, in a rarest of the rare cases, the bodily injury on the vital part may result in a death of the deceased. The accused, in a spur of moment and due to altercation of wordy quarrel, had attacked the deceased in the ordinary course of nature and the Trial Court, solely relying upon the evidence of P.W.1 has given its verdict, which cannot be blindly relied upon to implicate the appellant / accused in the occurrence and insofar as other minor witnesses are concerned, there is every possibility of the minor children being tutored to depose against the accused, especially when continuous grudge existed between the accused and P.W.1.

6. The Learned Legal Aid Counsel for the appellant also submitted that if at all the prosecution version is accepted in toto, the offence would be culpable homicide not amounting to murder and the conviction could be under Section 304 of the IPC only. Learned Counsel, in support of his submissions, referred the following judgments of the Supreme Court:

i) Ram Prakash Singh vs. State of Bihar, reported in (1998) 9 SCC 497
“We find considerable substance in the contention raised by the learned counsel for the appellant. The fact that the accused and the deceased were friends and were working together in the credit investment bank opened by Ram Prakash Singh is not in dispute. The fact that a hot exchange of words took place is also deposed by all the three eye- witnesses. The evidence further shows that only one knife blow was given by the appellant without aiming it at any particular part of Ramswarath’s body. The doctor, who had performed the post-mortem examination, has not stated that the injury, which was caused to the deceased, was sufficient in the ordinary course of nature to cause death. But of the sudden quarrel on that day there was no other reason for the appellant to cause an injury to his friend. Therefore, in view of the facts and circumstances of this case it will have to be held that his conviction under Section 302 IPC is not proper and that he should have been convicted only under Section 304 II IPC.”
ii) Rajinder vs. State of Haryana, reported in (2006) 5 SCC 425
“10. Thus, according to the rule laid down in Virsa Singh’s case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

11. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act 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 Clause (4) of Section 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 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.

12. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

13. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. MANU/SC/0180/1976 : 1977CriLJ1 , Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh MANU/SC/0708/2002 : [2002]SUPP1SCR703 , Augustine Saldanha v. State of Karnataka MANU/SC/0638/2003 : 2003CriLJ4458 and in Thangiya v. State of T.N. MANU/SC/1046/2004 : 2005CriLJ684 .

14. When the factual background is tested on the principles set out above, the inevitable conclusion is that the conviction under Section 302 IPC cannot be maintained and the conviction has to be in terms of Section 304 Part II IPC. Custodial sentence of 7 years would meet the ends of justice.”

7. Thus, it was the case put forth by the learned Legal Aid Counsel that admittedly, there were frequent quarrels between the deceased and the appellant and the accused had committed the offence under grave and sudden provocation. The case squarely falls under third exception to Section 300 of the Indian Penal Code and the appellant ought not to have been convicted for the offence of murder under Section 302 of the Indian Penal Code. It was finally concluded that there was a delay in preferring the complaint, which has not been properly explained and therefore, the delay is fatal to the prosecution case.

8. The learned Additional Public Prosecutor appearing on behalf of the respondent Police submitted that the deposition adduced by P.W.1 clearly points out the fact that it was the appellant alone, who had previous animosity with his wife and caused the death of the deceased with Aruval and there is no ground to suspect his deposition. He further submitted that the evidence of the postmortem Doctor (P.W.13) and the Postmortem Certificate, marked as (Ex.P.10) clearly indicate that the deceased had died on account of the injuries inflicted upon her. The learned Additional Public Prosecutor therefore concluded his arguments by submitting that the Court below has considered the oral and documentary evidence and has come to the correct conclusion that the appellant has committed the murder and the case squarely falls under Section 302 of the Indian Penal Code. In order to substantiate his arguments, the learned counsel relied upon the judgment of the Hon’ble Supreme Court in the case of Bhagwan Vs. State of Maharasahtra in Crl.A.No.385 of 2010 decided on 07.08.2019, wherein it has been held as follows:
“33….The appellant was drunk, he poured kerosene. The deceased in a natural response to the injuries would be frantic and her reaction would bring her into close contacts with others in a small room including the appellant and their children. No doubt the trial Court has reasoned that the appellant might have tried subsequently for extinguishing the fire. The appellant stands squarely implicated by the dying declaration. The unambiguous words came from the mouth of his deceased wife who cannot be expected to lie as she would be conscious, that she would have to meet her maker with a lie in her mouth. We see no merit in the appeal. The appeal will stand dismissed. As the appellant has been released on bail under orders of this Court, we direct that the bail bond of the appellant be cancelled and appellant shall be taken into custody to serve out the remaining sentence.”

9. This Court has carefully considered the submissions made on either side and perused the materials available on record.

10. The foremost contention raised on the side of the accused was that the Trial Court proceeded to convict the accused on the basis of the deposition of P.W.1, who was not at all present in the scene of occurrence. The said contention cannot be accepted for the reason that in the complaint, it was stated that when the complainant went to buy grocery items along with his wife and children, the accused caused the death of the deceased. In his cross examination, the same version was reiterated in a different tone, saying the grocery shop has been situated just 100 ft distance and upon hearing the cry of the deceased, he immediately rushed near to her and noticed the accused fleeing from the spot after attacking the deceased. Therefore, it can be inferred that P.W.1 was very much available in the spot and witnessed his brother / accused escaping from the scene of occurrence.

11. Moreover, the evidence of P.W.1 appears to be very natural and the same has been corroborated with the evidence of his children, namely, P.Ws.3 to 5. Since they were minor witnesses, the Trial Court followed all the procedures before it could commence recording of their statements. P.W.3, in his cross examination conducted on 05.10.2015, deposed as under:
“ehd; fPHf;fd;dpr;nrhpapy; vdJ jfg;gdhh;. mk;khnthL jhd; nrh;e;Jjhd; thH;e;Jte;njd;/ M$h; vjphpia bjhpa[k;/ mth; vdf;F rpj;jg;gh cwt[ KiwahFk;/ 13/08/13k; njjp brt;tha;fpHik khiy 05.15 kzpf;F ehd; gs;spf;Tlj;jpw;F ngha;tpl;L tPl;ow;F jpUk;gpte;Jtpl;nld;/ vdJ mk;kh filapy; rhkhd; th’;Ftjw;fhf nghdhh;/ ehd; mg;nghJ mk;kh ehDk; tUfpnwd; vdr; brhd;ndd;/ mg;nghJ eP ,U ehd; ngha; th’;fp tUfpnwd; vdr; brhd;dhh;/ mg;nghJ g!;!lhg;gpy; g!; te;jJ/ mg;nghJ vdJ rpj;jg;gh mUthis vLj;J btl;odhh;/ vdJ mk;khtpw;F ,lJ KH’;fhypy; btl;odhh;/ bjhilapy; btl;odhh;/ ,lJ gPr;rh’;ifapy; fPnH xU btl;Lk;. nkny xU btl;Lk; btl;odhh;/ nrhj;jh’; ifapy; cs;s’;ifapy; btl;odhh;/ mg;nghJ ehDk; vdJ mg;ght[k; vdJ j’;fr;rp epj;ah. fhaj;jphp kw;Wk; vdJ rpj;jg;gh ,uhkh; Mfpnahh; Xote;J ghh;j;njhk;/////”
Subsequently, P.W.3 was recalled and subjected to cross examination on 30.12.2015, in which, P.W.3 adduced evidence as follows:
“//// vdJ mk;kh filf;F rhkhd; th’;f nghdnghJ ehDk; vdJ j’;iffSk; tPl;oy; ,Ue;njhk; vd;why; rhpjhd;/ vdJ mk;kh rj;jk; nghl;lgpwF vdJ jfg;gdhUk; eh’;fSk; nghndhk;/////

/// ehd; rk;gt ,lj;jpw;F ngha; ghh;j;jnghJ vd; mk;kh btl;Lg;gl;L fPnH fple;jhh;/ ehd; ghh;f;Fk; nghJ vd; mk;khtpw;F caph; ,Ue;jj/ ehd; rk;gt ,lj;jpw;F nghdnghJ gf;fj;J tPl;Lf;fhuh;fs; ,Ue;jhh;fs;/ ehd; nghdgpwF jhd; vd; mg;gh te;jhh; vd;Wk; gpd;dpl;L rhl;rp vdJ mg;ght[ld; ehDk; nghdjhf brhy;fpwhh;/////”

12. Of course, there were minor contradictions between the chief on 05.10.2015 and cross on 30.12.2015 and the fact that the cross examination had taken place nearly after 2½ months cannot be lost sight of and there is every possibility of confusion in the mind regarding the presence of his father. Further, the evidence of P.W.4 clearly proved the fact that there was an existence of previous dispute on account of the death of a cow, belonging to the accused. It was also stated by P.W.4 that the accused was a drunkard and he used to pick up quarrel with the deceased frequently.

13. It is a settled law that ocular evidence can be disbelieved only when the medical evidence rules out all possibilities of ocular evidence being true. P.Ws.1 and 3 to 5 vividly indicate the specific parts of the body on which, the deceased sustained injuries and therefore, we feel it appropriate to refer to the postmortem report to arrive at a definite conclusion whether there were injuries on the body. A close and careful reading of the postmortem certificate / Ex.P.10 unfolds that there were incised wounds over the left thigh measuring 15x3x6 cm in size and 10x4x4 cm in size wound over the mid arm. Therefore, the evidence of P.Ws.1 and 3 to 5 was duly corroborated with the medical evidence. Thus, it is obvious that the Trial Court not only relied upon the evidence of P.W.1, but also the evidence of P.Ws.3 to 5, which is cogent and corroborative, to convict the accused.

14. The plea of delay made by the learned Legal Aid Counsel in lodging the complaint and sending it to Court has no significance to the facts of the case in hand. The occurrence of crime was on 13.08.2013 at 17:15hours. The defacto complainant, who is the husband of the injured and witness to the occurrence took the injured to hospital immediately. At the hospital, the injured was declared dead. Thereafter, he went to the Police Station and gave the complaint at 20:30hrs. The FIR registered in Crime No.144 of 2013 had reached the Judicial Magistrate on the same day at 22:30hrs.

15. The alternate plea advanced by the learned Legal Aid counsel was that the act committed by the Appellant comes within the ambit of exception to Section 300 of the Indian Penal Code, which is culpable homicide not amounting to murder and thereby attempted to bring this case under one of the Exceptions of Section 300 IPC, so as to have the benefit of reduction of punishment under Section 304 (II) IPC. The learned counsel submitted that there used to be frequent quarrels between the appellant and the deceased over the black magic exercised by the deceased, which ultimately ended in the death of the cow of the accused. This provoked the accused on the date of incident, in the heat of passion upon the earlier incident and he attacked the deceased and caused the death of the deceased. For the act of the appellant, who caused the death without any intention, he can be convicted only for culpable homicide not amounting to murder and be sentenced under Section 304 (II) of the Indian Penal Code, even if the Court conclude that the death of Murugeshwari was caused by the appellant / accused. The attack was due to sudden provocation and not done with intention to cause death. To substantiate his submission, the learned counsel for the appellant drew the attention of this Court to the Postmortem Certificate / Ex.P10, the seat of injuries and the provocation caused by the deceased playing black magic to kill the cow of the accused.

16. To consider the said plea, this Court has to necessarily look into the parametria drawn for extension of the benefit of Exception to Section 300 IPC. When the Court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, it is equally important to note as to whether there is any oral and documentary evidence so as to bring the pendulum to a particular side. A scrutiny of the depositions of witnesses, namely, P.Ws.1 and 3 to 5 reveals the fact that the accused always believed that he suffered loss in his life pursuant to the “left-hand path” being exercised by the deceased and infuriated by the same and at the spur of the moment, the accused had attacked the deceased and caused her death. In our considered opinion, no doubt, there is an element of provocation. However, to claim the defence of provocation under first exception, it is subject to the following three conditions, mentioned in proviso to Exception I to Section 300 of IPC. They are;
firstly, 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 defence.
If the defence of provocation is sought under Exception 4 of Section 300 of IPC, the following four requirements must be satisfied, namely,
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in a heat of passion; and
(iv) The assailant had not taken any undue advantage or acted in a cruel manner.

17. In the present case, it is not the case of the prosecution or the defence that there was sudden fight or sudden quarrel between the deceased and the accused. In fact, it is a clear case that the accused armed with Aruval (M.O.1) attacked the unarmed deceased in a public place. It is found that the appellant, on seeing the deceased on the street completely lost his self-control. The loss of his cow was presumed due to the black magic played by the deceased and he, in the heat of passion, had caused death of the deceased by attacking her with an Aruval. It could also be seen that there was no premeditation to murder the deceased. The seat of attack indicates that the accused attacked the deceased with Aruval with an intention to cause bodily injury and not to cause death. The postmortem certificate Ex.P10 says that the following external injuries were found on the body of Murugeshwari:
1. Incised wound 10x4x4cm size on the anterior aspect of right mid arm.

2. An incised wound over posterior medial aspect of left thigh 15x3x6cm size.
3. Lacerated wound over posterior aspect of left lower leg 10x8x3cm from knee to ankle.
4. Incised would of 5x2x1cm size over left thumb.
5. Punctured wound just below right elbow 0.5×0.5cm.

18. The injuries are caused on the non vital part of the body, as could be seen from the postmortem certificate. In the cross examination, P.W.12 Dr.Ramesh, who conducted autopsy admits that these injuries will not ordinarily cause death of a person. Unfortunately, in this case, death had occurred, due to shock and loss of blood due to multiple injuries. It is found that the appellant had not voluntarily provoked himself and there were obviously earlier fights between the parties for a very long time and in continuation thereof, the entire incident had occurred. The appellant / accused attacked the deceased with Aruval (M.O.1), which is evident from the nature of injuries shown in the postmortem certificate. It can be inferred that the incident took place, while the offender, who lost his self control on provocation in respect of death of cow.

19. Taking into consideration the facts and circumstances of the case and in view of the above discussions, this Court is of the considered view that the conviction and sentence passed by the Court below requires modification, as the facts of the present case clearly falls under Exception 1 to Section 300 of the Indian Penal Code. The accused armed with M.O.1 had caused multiple injuries on the deceased. Though these injuries were not on vital part of the body, it cumulatively has caused the death due to shock and hemorrhage. The accused had caused these injuries with knowledge that these injuries are likely to cause death. Therefore, the appellant is convicted for “culpable homicide not amounting to murder” and he is sentenced under Section 304 (II) of the Indian Penal code, to undergo Rigorous Imprisonment for a period of seven years. At the same time, we are not inclined to interfere with the fine amount, that was imposed by the Trial Court. The appellant shall pay a fine of Rs.1,10,000/-, in default to undergo one year Rigorous Imprisonment, as ordered by the Trial Court and out of the fine amount, a sum of Rs.35,000/- each shall be payable to the son and two daughters of the deceased and the balance amount of Rs.5,000/- be remitted to the Government as fine.

20. Accordingly, the conviction and sentence passed by the Court below in S.C.No.48 of 2014 dated 28.06.2018, is modified to that extent. It is made clear that the appellant shall NOT be entitled for set off in accordance with Section 428 of the Code of Criminal Procedure for the period of imprisonment, if any as undertrial, i.e., detention period prior to 28.06.2018. It is seen that the accused was enlarged on bail by this Court on 02.08.2018 and the substantive sentence of imprisonment was suspended. The appellant is directed to immediately surrender before the concerned jurisdictional Magistrate and on such surrender, the appellant shall be confined in jail to undergo the remaining period of sentence, pursuant to the orders of this Court in this Appeal. It is made clear that if the appellant fails to surrender before the concerned Court, the respondent police shall secure the appellant and produce him before the Magistrate and thereafter, he shall be confined to the prison.

21. This Court places on record its appreciation to Mr.Mahaboob Athiff, learned Legal Aid Counsel appointed by this Court to represent the appellant / accused for his assistance to dispose of this Appeal. A sum of Rs.25,000/- (Rupees Twenty Five Thousand only) is fixed as remuneration payable to him by the Legal Services Committee, attached to this Court.
S.VAIDYANATHAN,J.,
and
G.JAYACHANDRAN
ar

22. With the above modification, this Criminal Appeal is partly allowed.
[S.V.N,J.,] [G.J,J.,]
12.01.2022
Index: Yes / No
Speaking Order / Non Speaking Order
ar

To:

1. The Inspector of Police,
Mudukulathur Police Station,
Ramanathapuram District.

2. The Fast Track Mahalir Neethimandram
/ Principal Sessions Judge,
Ramanathapuram.

PRE-DELIVERY ORDER IN

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