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PETITIONER: SELVARAJ

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       13/11/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M. SRINIVASAN, J.      One Savariyar  Adimai had  four sons, namely, Rajamani, Verghese alias  Anthonimuthu (pw1), Selvaraj (Appellant) and Dasan (deceased).   The family had a house and the land with some trees  thereon.   there was a dispute among the members of the  family on  the allegation  that the  father who  was plucking the  tamarind fruits  from the  tree on  the family land was  not giving  any share  to PW-1  and Dasan  but was giving them  to the  other two sons.  on account of the said dispute a  quarrel broke  out on  11.4.1982 between PW-1 and Dasan on  one side  and the father and two sons on the other with respect  to the  division of the family property.  PW-1 was said  to have  been  attacked  by  his  father,  brother Rajamani,  his   son  Kalisthar   and  wife  Marianesam  and Vasantha, the  wife of  the appellant with stick, aruval and stone, PW  lodged a  complaint and  the case  was registered under Sections  147, 148,  323, 324  and 336  I.P.C. against those persons.  The case was being tried in the Magistrate’s Court at  Thuckalay.   On 28.1.1984  PW  1  and  Dasan  gave evidence in  the said  case for the prosecution.  Though the appellant was  an accused  he was  present in Court watching the proceedings  as his wife was an accused.  In the evening PW-1 was  proceeding in  front of a shop of Chelladurai when the appellant  came running  from the opposite direction and shouted at  PW-1 "Only  if  you  are  killed,  the  family’s trouble will  come to  an end"  PW1 was frighthtened and ran into the  said shop.    The  appellant  was  prevented  from beating PW  1 by  persons nearby  including Chelladurai.  On the same  night PW-1  went to  the house  of Dasan  and  was talking to  his wife  as Dasan had gone out.  Dasan returned at about  8.00 PM  and PW  1 narratted  what happened in the evening.   Both went  to the  house of  their younger sister Annapushspam which  was in  Alangode and returned later.  At that time  PWs 5  and 6  were near the gate of Dasan’s house and all the four were talking together and it was about 9.30 PM when  from the  southern side  the appellant  and another person by  name George  came to  that place.   The appellant told  PW  1  and  Dasan  that  he  was  searching  for  them everywhere.   The appellant  questioned Dasan whether he was

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in support  of PW-1 and stabbed him on his left chest with a katari knife  and brought  it downwards with the result, the intestines came  out of  the abdomen  with bleeding.   Dasan then fell down and when PW 1 tried to lift him up George who was standing  behind him  prevented him  from doing so.  The appellant stabbed  PW 1  also stating  that the  family will have peace  only if  he was killed.  As PW 1 moved a little, the stabbing  was on  the upper right arm. Appellant stabbed once again  in the  neck below  the left  iliac fossa.  PW 1 fell down,  pressing the  said injuries  with his  hand  and raising  alarm.   PWs  5  and  6  who  were  witnessing  the occurrence also  raised alarm.  The appellant and his friend ran away  from the scene with the weapon.  The wife of Dasan rushed to  the scene  and bandaged  the injury on him.  PW 8 the son  of PW  1 came  there immediately and brought a taxi driven by  PW 11  to take  the injured  persons to the Govt. hospital at  Nagercoil at about 10.30 P.M. PW 8 and the wife of Dasan  accompanied them.  On their reaching the hospital, PW 3  Dr.  Rajapandian  pronounced  Dasan  to  be  dead  and examined PW 1 for his injuries.  The following injuries were found by him;      1) Incised  wound 2" x 1" depth not      probed  over   left  illiac  fossa.      Loopas of  intestine coming  out of      the wound  over the abdomen.  Fresh      bleeding present from the wound.      2) Incised  wound 1" x 1/2" x1’2" on the upper 1/3rd of      right arm. 2.   On getting  information the  Head Constable  of  Kottar Police Station  proceeded to  the hospital  and  recorded  a statement from  PW1 at  11.15 P.M.  The Judicial a statement from PW1 at 11.15 P.M. The Judicial Second Class Magistrate, Negercoil received  the FIR  and other cormected documets at 1.15 AM  on 29.1.1984 and forwarded the same to the judicial Magistrate,   Second Class,  Franial. PW  2, the  doctor who performed the  autopsy opined  that the  injury suffered  by Dasan was fatal.  The appellant surrendered before the Court and he  was taken on police remand on 15.2.1984  He was said to have  made a  confessional statement  and took  PW 7  and other witnesses  to his  house and produced the katari knife from the  roar side of his house.  The appellant was charged under Section  302, and  307 I.P.C.  and his  friend  George under Section  302 read with Section 34 and Section 307 read with Section 309 IPC. Both the accused denied their quilt. 3.  The  Court  of  Session  at  Nagercoil  disbelieved  the prosecution and  held that  the  accused  were  not  quilty. Consequently they  were acquitted.   There was appeal by the State and  a revision  by  PW  1.    The  High  Court  after considering the  evidence in  detail aside  its judgment  so fact as  it related  to the appellant herein.  The appellant was found  quilty of  the offences under section 302 and 326 IPC and  the offences  under Section  302 and  326  IPC  and sentenced to  imprisonment for life and three years rigorous imprisonment respectively.   Both the sentences were ordered to run  concurrently.   The acquittal  of the second accused was confirmed by the High Court. 4.  Learned   counsel  for   the  appellant  has  strenously contended that  the evidence  of PWs 1, 5 and 6 who were the eye witnesses  is discrepant  on  material  particulars  and wholly unbelievable.  In particular, the learned counsel has drawn our  attention to  a statement  in deposition  of Pw 5 that at about 9.30 PM when he went to the house of Dasan the latter was  not there  and PW1  was also  not there.   It is therefore contended that neither the deceased Dasan nor Pw 1 was at  the place  of alleged occurrence at the stated time.

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It is  further pointed  out that PW6 has expressly stated in his deposition  that he  is giving  evidence due to pressure from the  police and  the relatives  of PW1.    It  is  also contended by  learned counsel  that a  perusal of  the  post mortem report  shows that  the nature  of the  injury is not proved as  the measurement thereof is not noted.  It is also argued that  if at  all, the  intention of the appellant was only to  attack PW  1  and  not  Dasan,  and  therefore  the appellant could  not be convicted under Section 302 IPC. The last argument  addressed by  the learned counsel is that the offence should  have been  brought under Section 304 Part II IPC and  the appellant  should be  let off  with the  period already undergone. 5.   We are  unable to accept any of the contentions.  There is no  material discrepancy in the evidence of PWs 1,5 and 6 who were  the eye  witnesses.  Their evidence is natural and cogent.  The High Court has analysed the entire evidence and believed the  witnesses.   The High  Court  has  also  given sufficient reasons  for differing  from the  Court has  been considered by  the High Court and found to be erroneous.  We are entirely  in agreement  with the  judgment of  the  High Court that  the "Sessions Judge has not properly appreciated the evidence  and has come to conclusions which are perverse and manifestly  illegal and grossly unjust".  As regards the statement of PW 5 that at 9.30 PM Dasan was not found in his house, no  inference can  be drawn  therefrom.  In fact PW 1 has categorically stated that he and Dasan went to the house of their  younger sister  at Alangode, on return found PWs 5 and 6  at the gate of Dasan’s house at that time.  According to him  it was  about 9.30 PM.  There is no merit whatsoever in the contentions urged by the learned counsel based on the statement of PW 5 referred to above. 6.   The statement  of PW6 cannot be turn out of the context and used  by the  appellant.   No doubt Pw 6 had stated that the appellant  and the  relation of  PW 1 were pressing upon him to  give evidence  but he has categorically deposed that he is  stating only  what he  had seen.   A  perusal of  his evidence shows  that he  has no  motive whatsoever  to speak against the appellant. 7.   The comment  of the  learned counsel on the contents of the post  mortem report is without any substance.  A perusal of the  report shows  that the  injury found on the deceased was the  immediate cause  of death.  The evidence shows that the appellant  did not only stab Dasan on his chest but also dragged  the  knife  downward  as  a  result  of  which  the intestine of victim came out of the abdoment with bleeding. 8.   The contention  of learned  counsel that  the appellant had intention to attack PW 1 only and not the deceased Dasan in without merit.  As stated by PW 1 in together in front of the latter’s  house said  that he  was  searching  for  both everywhere and questioned Dasan whether he was supporting PW 1.   It was  only then  the appellant  stabbed  Dasan.    As pointed out  already it was not a mere stabbing bu the knife was drawn  downwards as  if to  cut the body into two.  From the above facts it is clear that the appellant had intention to attack and kill the deceased Dasan also. 9.   It is  needles to  refer to  Section 301  of the Indian Penal Code  in the  present case  as we are convinced on the facts that the appellant had the necessary intention to kill the deceased also. 10.  Learned counsel  for the  appellant contends that there being only  one fatal  blow and no repetition of the blow by the accused,  the conviction should be under Section 304 and not under  Section 302  IPC.   Reliance  is  placed  on  the judgment in  Guljar Hussain  Versus State  of U.P.  AIR 1992

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S.C. 2027  to which  one of  us (Justice M.M. Punchhi) was a party.   In that  case the dimension of the injury could not be given  by the doctor and the post mortem report could not be legally  proved.   The said  report was not deposed to by any witness  at the trial.  The benefit of cross-examination of the  concerned doctor  was not available in  full measure to the  accused because  of the  absence of the medico legal report.   Thus the  medical evidence was found to be legally deficient.  In such circumstances the Court said:      In these  circumstances, it  has to      be  seen   whether  the   appellant      intended to  cause the death of the      deceased.   When dimension  of  the      injury has  not been legally proved      one has  to fall back on the proved      fact that  after the  blow  of  the      appellant, the deceased died within      two hours.   In  other  words,  the      death  of   the  deceased  was  the      direct result  of the  blow of  the      appellant.    Thereafter  no  other      supportive factor  is available  to      maintain  the   conviction  of  the      appellant under  Section  302  IPC.      The blow  was not  repeated.    The      primary intention  of the appellant      was to obstruct the marriage of his      sister.   it could well be that the      appellant intended  to  cause  such      injury as  so as to fall within the      grip of Section 304, Part I, I.P.C.      and not  per se  under Section  302      IPC for  intentionally causing  the      death  of   the  deceased.      The      totality of  the circumstances thus      goads us  to err  on the safer side      by altering  the conviction  of the      appellant to  one under Section 304      Part I  IPC for  which he should be      sentenced  to   10  years  rigorous      imprisonment." 11.  That ruling has no application in present case. 12.   Learned  counse has  also drawn  out attention  to the judgment in Mavila Thamban Nambiar Versus State of Kerala JT 1997 (1) S.C. 367.  On the facts of the case this Court held that the offence would more appropriately fall under Section 304 Part II and altered the conviction from Section 304 Part II and  altered the  conviction  from  Section  392  IPC  to Section 304  Part  II  IPC.  The  Court  inferred  that  the appellant had  knowledge that an injury with the scissors on the vital  part would  cause death  though be  may not  have intended to  commit murder.   The ruling turned on the facts of the  case and would not help the appellant in the present case. 13.  In the  circumstances we  have no  hesitation to uphold the judgment  of the  High Court.   Consequently  the appeal fails and is hereby dismissed.