GANESAN Vs. STATE

JUDGEMENT

(1.) THE sole accused in Sessions Case No.317/1999 on the file of I-Additional Sessions Judge, Madurai, is the appellant in this appeal. He was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life. Aggrieved over the said conviction and sentence, the present appeal has been filed by him.

(2.) (a) The case of the prosecution in short is that the deceased Alagarraja was having illicit intimacy with the wife of the accused. Aggrieved over that, the accused is alleged to have committed murder of Alagarraja. (b) The further case of the prosecution is that P.W.1 is the person who is living in the same village where the accused and the deceased were living. On 14.12.1994 at about 10.30 p.m. P.W.1, along with P.W.2, was returning home after irrigating his lands and at that time, the deceased overtook them by his cycle and proceeded 10 feet beyond them. At that time, the accused was standing over there. The accused prevented and waylaid the deceased and therefore the deceased alighted from the cycle. At that time, the accused stabbed the deceased on the chest by saying that - you are the person keeping my wife- . Thereafter, the accused ran away from the scene of occurrence with the weapon. P.Ws.1 and P.W.2 did not attempt to near the accused as he was having a weapon. Thereafter, they took the deceased to the police station. On reaching the police station, P.W.1 has given a report Ext.P1. (c) P.W.12 is the Grade-1 constable attached to Veerapandi Police Station. On 14.12.1994 at about 11.00p.m. P.W.1 along with the deceased appeared in the police station and gave a report and the same was reduced into writing by him. He registered a case in Crime No.430/1994 under Sections 341 and 307 IPC and Ex.P-13 is the printed FIR prepared by him. He sent the deceased to the hospital with a police medical memo. He also sent the FIR and the complaint to the court as well as to his higher officers. (d) O 14.12.1994 at about 11.47 p.m. P.W.5 Medical Officer, Theni Government Hospital, admitted the deceased, P.W.1 also accompanied the deceased. P.W.5 found two injuries on the deceased. Police Medical Memo is Ex.D-1. Thereafter, P.W.14 gave treatment to the deceased and noted down two injuries on the deceased. Ex.P-17 is the case sheet. (e) P.W.13 Inspector of Police, on receipt of the first information report at about 11.30 p.m., on 14.12.1994 took up the investigation and reached the scene of occurrence at 12.00 midnight and in the presence of P.W.3 he prepared observation mahazar Ex.P2. He also prepared rough sketch ExP14 and recovered M.O.3 cycle under Ex.P-3 mahazar attested by witnesses. On 15.12.1994 he examined P.Ws.2 and 3 and recorded their statements. He recovered M.Os.1 and 2 produced by P.W.2. He arrested the accused at 11.00 a.m. on 15.12.1994 and the accused gave a voluntary confession statement and the admissible portion of it is Ex.P-4. The accused, in pursuance of Ex.P-4 statement given by him, took and produced M.Os.4 and 5, which were recovered by P.W.13 under Ex.P5 mahazar attested by witnesses. At about 4.45 p.m. on 15.12.1994 he received intimation from the hospital regarding the death of the deceased. Based on this, he altered the case into one under Section 302 IPC and sent a special report to the Judicial Magistrate. Ex.P-15 is the altered FIR. Thereafter, on 16.12.1994 P.W.13 Inspector of Police conducted inquest over the dead body of the deceased between 10.00 a.m., and 12 noon in the presence of witnesses. EX.P-16 is the inquest report. Thereafter, he sent the body for postmortem with Ex.P-6 requisition. P.W.10 is the constable who took the dead body for postmortem and produced the same to the medical officer for autopsy with Ex.P-6 requisition. After postmortem, P.W.10 handed over the body to the relatives. P.W.7 is the Doctor who sent the death intimation Ex.P-8. (f) P.W.6 is the Medical Officer who did postmortem on the dead body of the deceased. On receipt of requisition Ex.P-6, he conducted autopsy over the dead body at 12.15 p.m. on 16.12.1994 and found the following injuries. - 1. An oblique sutured stab injury 6 cm x linear x entering thoracic cavity with extension by surgical thoraco-abdominal incision 25 x .5 cms x entering the thorax and abdomen. On opening the thorax & abdomen: Sutured wound noted in the outer border of right ventricle 2 cms x 1 cm x through & through and open wound seen on the pericardium anteriorly 4 cms x linear x through & through and posteriorly surgical drainage wound 2 cms x linear x through & through. Sutured wounds seen on the left dome or diaphragm through & through x 4cms. Sutured wounds seen on the antere-superior surface of the liver through & through measuring 3 cms. X 2 cms x linear exists as an exit wound, 2.5 cms and sutured wounds seen on the anterior surface of he stomach 2 cms x linear x through & through and in the inferior surface obliquely downwards 5 cm x linear x through & through. Direction of the wound above downwards and inwards. The wound passes from the epigastium incising the pericardium, heart, diaphragm, left lobe of liver through & through and the stomach through & through. Abrasions seen on the back of left elbow 3 x2 cms, left knee outer aspect 6 x 4cms, back of right elbow 3 x 2 cms. The following surgical treatment wounds were seen: -Thoraco-abdominal laparatomy wound seen on the left side to the midline and downwards in the abdomen underlying structure are found to be sutured. --Sutured intercostals drainage wound on the left side chest in the 6th intercostals space mid axillery line 6 cms x linear x through & through. Sutured incised drainage wound left flank 3cms x linear x through & through attached with a corrugated rubber tue. OTHER FINDINGS: Pleural cavity in the left side contains 250 gms of blood with clots and right side contains 100 gms of blood with clots Pelvic cavity 450 gms of blood with clots Lungs-both sides cut section pale Heart-other than injured area, chambers empty Pericardium contains 100gms of blood with clots Liver other than injured area cut section pale Spleen & Kidneys and Brain cut section pale Hyoid bone intact Leryns & trenches normal bladder empty. Stomach other than injured area contains 30 ml of occult blood no specific smell, mucosa pale other than the injured area.- Ex.P-7 is the postmortem certificate issued by him. The medical officer is of the opinion that the deceased would appear to have died of shock and haemorrhage due to external stab injury No.1 with corresponding internal injuries (injuries to the pleural cavity, pericardium, heart, diaphragm, liver and stomach) sustained by him. The doctor is of the further opinion that injury No.1 is sufficient in the ordinary course of events to cause death and further opined that the deceased would have sustained the injury at 10.00 pm on 14.12.1994. (g) P.W.11 is the Court clerk. He has received the material objects for dispatching the same for chemical analysis. Ex.P-10 is the letter of court under which the case properties were sent to the laboratory. Ex.P-11 and Ex.P-12 are the report received from the Chemical Examiner and the Serologist. (h) P.W.9 is working in the Tamil Nadu Electricity Board and his evidence is to the effect that all the electrical lights were burning on 14.12.1994, especially at the place of occurrence, namely the road near the society. P.W.3 is the village administrative officer. He has attested the observation mahazar, recovery mahazar, etc. P.W.2 is the other eye-witness, who has been the occurrence and he has corroborated the evidence of P.W.1. P.W.4 and P.W.8 speak about the motive part of the prosecution case, namely, the deceased was having illicit intimacy with the wife of the accused. The Inspector of Police, after completing the investigation, filed the final report against the accused before the learned Judicial Magistrate. The learned Magistrate, after furnishing copies of documents to the accused, committed the case to the Court of Sessions.

(3.) IN view of the background situation of the case, we could not infer that the accused was having intention to kill, but, on the contrary, the provocation, which was given by the deceased, was subsisting in his mind which has ultimately resulted in the occurrence. Therefore, we are of the view that the offence under Section 302 IPC is not made out, but however the offence could be brought into one under in the nature of culpable homicide not amounting to murder. Under such circumstance, the offence will fall under Exception-1 to Section 300 IPC, thereby we are of the view that the accused can be safely convicted under Section 304(ii) IPC. From the background situation of the case, we could infer that the deceased was having only knowledge that his act likely to cause death of the accused and thereby we are of the view that the offence could be brought down to one under Section 304(ii) IPC.