PATTABI ALIAS PATTABIRAMAN Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) THE appellant is the second accused in S. C. No. 30 of 1998 on the file of the II Additional District and Sessions Court-cum-Chief Judicial Magistrate Court , dharmapuri at Krishnagiri. As per the judgment dated 29. 10. 1998 made in the above case, A2 was convicted and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for three months for the offence under Section 304 Part-I, I. P. C.

(2.) BRIEF facts that led to the filing of the appeal are as follows:- " (a) Appellant/a2 is the son of A1. A3 is the wife of a2. A4 is the sister of A2 and daughter of A1. P. W. 1 is the wife of the deceased Venkatachalam. P. W. 2 is the brother's wife of P. W. 1. A1 to A3 and the deceased Venkatachalam are neighbours. There were pathway dispute between them. Due to the quarrel on the previous day at 2. 30 p. m. with regard to parking of cycle in the pathway, at the time of occurrence on 2. 3. 1996 at 8. 30 a. m. , in kammalar Street, Palacode, the appellant/a2 and also A1 stopped the deceased venkatachalam when he was taking the cycle from his house through the pathway, which made the deceased to park the cycle inside the house and to sit in front of the door entrance of the house. A1 to A4 scolded P. W. 1 and the deceased. A1 caught the hands of the deceased from behind and A2 stabbed the deceased on the chest with "kuthoosi" (M. O. 2) four or five times. A3 and A4 beat the deceased with hands on his chest. When P. W. 1 intervened, she was also beaten. Then the deceased Venkatachalam tried to bring iron rod from behind the house and while bringing the iron rod, the deceased swooned and fell down. At that time the iron rod touched A1. Then all the accused run away taking the "kuthoosi". The occurrence was witnessed by P. W. 2 Danalakshmi and p. W. 3 Bakyalakshmi. On hearing noise of P. Ws. 1 and 2, P. W. 4 Ankuraj, Pattabi and Kumaran came to the occurrence and took the deceased to the Palacode government Hospital. P. W. 1 also accompanied them and the deceased died within half an hour in the hospital after he was admitted. (b) P. W. 6 Dr. M. T. Murugesan, attached to Palacode government Hospital examined the injured deceased and found the following injuries:- " (1) A stab injury over the front of right chest 2" away from nipple 1 cm x 1 cm x deep to chest. (2) A stab injury over the front of chest in midline 1 cm x 1 cm x bone deep. (3) A stab injury over the right chest in the costal margin 1 cm x 1 cm x bone deep. (4) A stab injury over the front of left chest in the cardiac region 4" above and inner to nipple 1 cm x 1 cm x deep to chest. (5) A stab injury over the front of chest in the left costal margin 1 cm x 1 cm x bone deep. " The accident register issued by the Doctor P. W. 6 is ex. P-6. The injured deceased was admitted as inpatient in the hospital. P. W. 6 also issued intimation memo Ex. P-7 on 2. 3. 1996 to the police. The deceased died at 9. 15 a. m. due to injuries sustained at the time of occurrence. (c) Doctor P. W. 6 also examined A1, who came to the hospital and found the following injuries: " (1) An abrasion in right thumb 2 cms x 1 cm in the dorsal aspect. (2) A diffuse contusion over the dorsum of right hand at left base of right thumb 2 cms x 2 cms. " The accident register extract issued by doctor P. W. 6 is ex. P-15. Doctor P. W. 6 referred A1 to Government Hospital, Dharmapuri for taking x-Ray. Doctor P. W. 6 has opined that the injuries caused to A1 were simple in nature. (d) P. W. 1 on the death of her husband in the hospital, went to the police station and gave the complaint Ex. P-1 to P. W. 11, the inspector of Police, Palacode Police Station, who registered the same in Crime no. 148 of 1996 under Section 302 I. P. C. Printed F. I. R. is Ex. P-16. He went to the Government Hospital, Palacode and conducted inquest in front of the mortuary on the dead body of the deceased. Inquest report is Ex. P-17. P. W. 11 examined witnesses P. Ws. 1, 2 and 4 and also Kumaran and Pattabiraman and recorded their statements. P. W. 11 went to the scene of occurrence at 3. 30 p. m. , prepared observation mahazar Ex. P-2 and rough sketch Ex. P-18. P. W. 11 recovered bloodstained mud (M. O. 5), sample mud (M. O. 6), broken bangles (M. O. 1) of P. W. 1 under mahazar Ex. P-3 in the presence of P. W. 5 Rangan and one Shanmuganathan. P. W. 11 made arrangement to take photos at the scene of occurrence. P. W. 9 took photos. Negatives are M. O. 7. (e) P. W. 11 arrested A2 at Palacode bye-pass road opposite and near to Tomato Market at 5. 15 p. m. on 2. 3. 1996. P. W. 11 recorded confession statement of A2 in the presence of P. W. 4 and one Shanmuganathan, the admissible portion is Ex. P-4. A2 took P. W. 11 and the witnesses to his house and produced "kuthoosi" M. O. 2 and the same was recovered under mahazar Ex. P-5 in the presence of the above witnesses. M. O. 2 is of the length of 18 c. m. and the blade portion of which is 8 c. m. and the handle is 5 c. m. breadth and 3 c. m. length. P. W. 11 arrested A1, A3 and A4 at 7. 00 p. m. on 2. 3. 1996. He recorded the statement of A1, Ex. P-19 and on return to the police station registered the same in Crime No. 149 of 1996 under Section 324 I. P. C. The printed F. I. R. is ex. P-20. He sent the statement of A1 Ex. P-19 and the F. I. R. Ex. P-20 to the court. He sent the accused for remand. He also sent requisition to the Court to send the material objects to the Chemical Examination. He also sent requisition ex. P-9 to the doctor to conduct post-mortem. (f) Dr. M. Rajendran P. W. 7 conducted post-mortem on the body of the deceased at 3. 30 p. m. on 2. 3. 1996 and found the following injuries:- " (1) A punctured wound over right side of chest 5 cms below nipple 1 cm x 1 cm x 5 cms. (2) A punctured wound over front of chest over midline 1 cm x 1 cm x 2 cms. (3) A punctured wound over left side of chest 4th intercostal space 10 cms from midline. (4) A punctured wound right costal margin 1 cm x 1 cm x 5 cms. (5) A punctured wound over left side of chest left costal margin 1 cm x 1 cm x 3 cms. " The post-mortem certificate issued by Doctor P. W. 7 is ex. P-10. Doctor P. W. 7 has opined that the deceased would appear to have died of shock and haemorrhage and injury to vital organ heart 6 to 7 hours prior to autopsy. (g) On transfer of P. W. 11, further investigation was taken up by P. W. 12, Inspect of Polacode Police Station and on completion of investigation P. W. 12 filed charge-sheet under Sections 341, 302 and 323 read with 34 I. P. C. In respect of Crime No. 149 of 1996 registered on the basis of the statement of A1, P. W. 12 referred the same as mistake of fact. Chemical report is Ex. P-13 and Serological report is Ex. P-14. "

(3.) LEARNED counsel for the appellant/a2 argued that no satisfactory evidence is let in on the prosecution side in proving the guilt of the appellant/a2. As regards the evidence let in through P. W. 1, wife of the deceased and P. W. 2, who is the brother's wife of P. W. 1, it is submitted that they being close relatives to the deceased, no reliance can be placed on such evidence. Inasmuch as at the time of occurrence, the deceased tried to attack a1 by bringing iron rod from behind the house, during which time A2 attacked him with M. O. 2 "kuthoosi", by way of self-defence and therefore, the deceased being the aggressor, the finding of the trial Court as A2 guilty under section 304 Part-I I. P. C. is not proper and then argued that the injuries caused to A1 as per wound certificate Ex. P-15 has not been properly explained. In support of the argument advanced that due to the fact that the deceased would attack A1 by bringing iron rod from behind the house and by way of self-defence A2, who is the son of A1, attacked the deceased with M. O. 2 kuthoosi, the learned counsel relied on the following decisions of the Hon'ble supreme Court:- (1) Subramani vs.- State of Tamil Nadu reported in 2002 (7) SCC 210, (2) Laxman Singh vs.- Poonam Singh reported in 2004 (10) SCC 94 and (3) Vairapu Sambayya Naidu vs.- State of A. P. reported in 2004 (10) SCC 152.