Moses Arulanantham @ Moses Arulando Vs. State of Tamil Nadu
EmailAppeal: Criminal Appeal No. 624 of 2002
Petitioner: Moses Arulanantham @ Moses Arulando
Respondent: State of Tamil Nadu
Apeal: Criminal Appeal No. 624 of 2002
Judges: U.C. BANERJEE & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Oct 23, 2002
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Section 302 or 304 – Murder or culpable homicide not amounting to murder – Accused giving knife blow on neck – Incident preceded by chastising of accused by deceased and accused having threatened to teach a lesson – Injury on neck serious going right upto lob of lung. Held that it cannot be stated that the accused did not intend to cause murder. Hence offence made out is under section 302.
Held:
The contextual facts presently under consideration depict that there was in fact a small incident wherein the accused person was chastised by the deceased and the accused in fact administered a threat to the extent that the accused would teach a lesson to the deceased. A motive stands abundantly clear and categorical to pursue an instance of such a chastisement and it is in pursuance thereof that the stab blow was given by the knife on to the neck of the deceased. (Para 7)
Cases Reffered:
1 K. Ramakrishnan Unnithan v. State of Kerala (JT 1999 (2) SC 235) (Para 5)
JUDGEMENT:
ORDER
1. The appellant herein stands convicted for an offence of murder by the learned sessions judge, Nagercoil in sessions case no. 84/99 on an allegation that at 8.30 p.m. on 9-6-1989 he had stabbed one Joshua, the deceased in the case, with a knife as a result of which the said Joshua died at about 1-45 a.m. The learned sessions judge having found the charges proved against him convicted the appellant under section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. Subsequently, the High Court was approached and the High Court confirmed the same without any variation as regards the sentence. Hence the appeal before this Court under Article 136 of the Constitution of India.
2. This Court on 7-5-2002 while granting leave was pleased to restrict it to the question of the nature of offence committed only and as such the matter presently under consideration before this Court needs to be delved into on that perspective only.
3. Mr. Gupta, learned senior advocate appearing in support of the appeal has been rather emphatic on his submission to the effect that the accused person had no animosity towards the deceased excepting for a minor incident which happened about a month back.
4. The evidence on record suggests that the deceased in fact did chastise the accused by reason of certain indecent behaviour on the part of the accused and there was in fact a threatening by the accused to the deceased that the accused would teach a lesson to the deceased. The contextual facts, as appear from the prosecution case, reveal that the deceased was proceeding on the main road and was being followed by the accused and at the place of occurrence the accused did cross over the deceased, came in face to face with the deceased
and stabbed him on the neck. The
post mortem report recorded an injury
of sutured wound of 3/4 length on the lower third of left side neck close to the midline. The external injuries, admittedly, were none apart from the one noticed above but by reason of the injury suffered there have been rather serious internal injuries which caused the unfortunate death of the deceased after about four hours.
5. It is on these facts that Mr. Gupta placed strong reliance on the decision of this Court in K. Ramakrishnan Unnithan v. State of Kerala1.
6. This Court upon perusal of the records in paragraph 6 of the judgment stated as below:
“The question then remains for consideration is whether on the materials on record can it be said that the appellant gave the blow on the deceased with the intention of causing murder of the deceased so as to be convicted under section 302, IPC. The eye witness account of the three eye witnesses is to the fact that when PW1 cried aloud, his sister rushed there and at that point of time his father, the deceased came out, opening the door and asked as to why his son is being beaten up and then the appellant stabbed the deceased on his abdomen with the knife. The post-mortem report of the deceased indicates existence of a sutured incised wound inverted “I” shaped on the left side of the abdomen, the vertical limb was parallel to the midline, 4 cms. in length and the horizontal limb from its upper and measured 3 cms. and was placed 1.3 cms. to the left of midline and the junction of the two limbs were at the level 25 of umbilicus. The wound entered the abdominal cavity. The doctor PW-14, who was working as tutor in surgery, medical college, Trivendrum and was in the casualty ward on 17.4.85, in his evidence stated that the deceased had an incised wound 4 cms. long below the umbilicus, left to the midline of the body with a part of the intestine protruding out and that is the only injury. The doctor who conducted the autopsy, PW-9 in his evidence also stated that though there are three injuries on the deceased as per the post-mortem report, but injury nos. 1 and 3 are surgical injuries and injury no.2 is the inflicted injury. Thus it is established beyond reasonable doubt that the appellant had given one blow but the blow no doubt was quite severe, as a result of which the intestines had protruded out. It is however, crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with PW1. The scenario in which the appellant has been stated by the eye-witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he could be said to have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under section 302 but under part II of section 304, IPC. We, accordingly, set aside the conviction of the appellant under section 302, IPC and instead, convict him under section 304, part II. The incident is of the year 1985 and more than 13 years have elapsed. The accused is on bail pursuant to the orders of this Court dated 6th February, 1992. Mr. Lalit, appearing for the accused-appellant stated that he has already undergone sentence of about four years in such circumstances, for his conviction under section 304, part II, IPC, we sentence him to the period already undergone. His conviction under section 324, IPC remains unaltered but no separate sentence is being awarded. This criminal appeal is disposed of accordingly. The bail bond furnished by the appellant stands discharged.
Order accordingly.”
7. Significantly, the bench came to a definite conclusion that the scenario in which the appellant has been stated by the eye-witnesses to have given one blow on the deceased, it is difficult to hold that he gave the blow in question either with an intention of causing murder of the deceased or he can be said to have the requisite knowledge that the death would otherwise be the inevitable result. Admittedly, in Unnithan’s decision (supra), this Court was faced with the situation wherein there were available on record no evidence of a pronounced animosity. It is on the wake of the aforesaid facts that this Court stated and converted the sentence from under section 302 to 304 part II of the Indian Penal Code. Be it noticed here that as a matter of fact the contextual facts presently under consideration depict that there was in fact a small incident wherein the accused person was chastised by the deceased and the accused in fact administered a threat to the extent that the accused would teach a lesson to the deceased. A motive stands abundantly clear and categorical to pursue an instance of such a chastisement and it is in pursuance thereof that the stab blow was given by the knife on to the neck of the deceased. The internal injuries as recorded by the doctor in the post mortem speaks of volumes as to whether in fact there was an intent to cause murder or not. The post mortem report recorded the following internal injuries.
“Internal injuries.
On dissection of wound no.1 it passes down wards and medially into the thoracic cavity. There is a tear of ½ cm. length on the right innominate vein and the adjoining pleura on right side was torn for ½ cm. There is haematoma around the injury site. There is an incised wound of ½ cm. length x ½” depth present on the medial aspect of lobe of right lung. The lung injury is 2½” away from external wound. All the internal injuries fall in line with the external wound. There is about 2 litres of blood on the right thoracic cavity.
Heart: 250 gms. chambers empty c/s pale.
Lungs: Right 450 gms. left 400 gms. c/s pale.
Stomach : 800 gms contains 450 gms. of partially digested rice particles present. No peculiar smell.
Liver : 1100 gms. c/s pale spleen 75 gms. c/s pale.
Kidneys : Each 150 gms. c/s pale. Brain 1400 gms.”
8. On the state of this evidence and by reason of the nature of injuries suffered, we have not been able to convince ourselves with the submissions of Mr. Gupta that in fact there was no intention to cause murder or knowledge that the resultant effect of such an act would cause death. There is no reason therefor to convert the sentence from section 302 to 304 part II of the Indian Penal Code. As such, this appeal fails and is dismissed. The appellant to serve the remaining part of the sentence.
1. The appellant herein stands convicted for an offence of murder by the learned sessions judge, Nagercoil in sessions case no. 84/99 on an allegation that at 8.30 p.m. on 9-6-1989 he had stabbed one Joshua, the deceased in the case, with a knife as a result of which the said Joshua died at about 1-45 a.m. The learned sessions judge having found the charges proved against him convicted the appellant under section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. Subsequently, the High Court was approached and the High Court confirmed the same without any variation as regards the sentence. Hence the appeal before this Court under Article 136 of the Constitution of India.
2. This Court on 7-5-2002 while granting leave was pleased to restrict it to the question of the nature of offence committed only and as such the matter presently under consideration before this Court needs to be delved into on that perspective only.
3. Mr. Gupta, learned senior advocate appearing in support of the appeal has been rather emphatic on his submission to the effect that the accused person had no animosity towards the deceased excepting for a minor incident which happened about a month back.
4. The evidence on record suggests that the deceased in fact did chastise the accused by reason of certain indecent behaviour on the part of the accused and there was in fact a threatening by the accused to the deceased that the accused would teach a lesson to the deceased. The contextual facts, as appear from the prosecution case, reveal that the deceased was proceeding on the main road and was being followed by the accused and at the place of occurrence the accused did cross over the deceased, came in face to face with the deceased
and stabbed him on the neck. The
post mortem report recorded an injury
of sutured wound of 3/4 length on the lower third of left side neck close to the midline. The external injuries, admittedly, were none apart from the one noticed above but by reason of the injury suffered there have been rather serious internal injuries which caused the unfortunate death of the deceased after about four hours.
5. It is on these facts that Mr. Gupta placed strong reliance on the decision of this Court in K. Ramakrishnan Unnithan v. State of Kerala1.
6. This Court upon perusal of the records in paragraph 6 of the judgment stated as below:
“The question then remains for consideration is whether on the materials on record can it be said that the appellant gave the blow on the deceased with the intention of causing murder of the deceased so as to be convicted under section 302, IPC. The eye witness account of the three eye witnesses is to the fact that when PW1 cried aloud, his sister rushed there and at that point of time his father, the deceased came out, opening the door and asked as to why his son is being beaten up and then the appellant stabbed the deceased on his abdomen with the knife. The post-mortem report of the deceased indicates existence of a sutured incised wound inverted “I” shaped on the left side of the abdomen, the vertical limb was parallel to the midline, 4 cms. in length and the horizontal limb from its upper and measured 3 cms. and was placed 1.3 cms. to the left of midline and the junction of the two limbs were at the level 25 of umbilicus. The wound entered the abdominal cavity. The doctor PW-14, who was working as tutor in surgery, medical college, Trivendrum and was in the casualty ward on 17.4.85, in his evidence stated that the deceased had an incised wound 4 cms. long below the umbilicus, left to the midline of the body with a part of the intestine protruding out and that is the only injury. The doctor who conducted the autopsy, PW-9 in his evidence also stated that though there are three injuries on the deceased as per the post-mortem report, but injury nos. 1 and 3 are surgical injuries and injury no.2 is the inflicted injury. Thus it is established beyond reasonable doubt that the appellant had given one blow but the blow no doubt was quite severe, as a result of which the intestines had protruded out. It is however, crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with PW1. The scenario in which the appellant has been stated by the eye-witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he could be said to have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under section 302 but under part II of section 304, IPC. We, accordingly, set aside the conviction of the appellant under section 302, IPC and instead, convict him under section 304, part II. The incident is of the year 1985 and more than 13 years have elapsed. The accused is on bail pursuant to the orders of this Court dated 6th February, 1992. Mr. Lalit, appearing for the accused-appellant stated that he has already undergone sentence of about four years in such circumstances, for his conviction under section 304, part II, IPC, we sentence him to the period already undergone. His conviction under section 324, IPC remains unaltered but no separate sentence is being awarded. This criminal appeal is disposed of accordingly. The bail bond furnished by the appellant stands discharged.
Order accordingly.”
7. Significantly, the bench came to a definite conclusion that the scenario in which the appellant has been stated by the eye-witnesses to have given one blow on the deceased, it is difficult to hold that he gave the blow in question either with an intention of causing murder of the deceased or he can be said to have the requisite knowledge that the death would otherwise be the inevitable result. Admittedly, in Unnithan’s decision (supra), this Court was faced with the situation wherein there were available on record no evidence of a pronounced animosity. It is on the wake of the aforesaid facts that this Court stated and converted the sentence from under section 302 to 304 part II of the Indian Penal Code. Be it noticed here that as a matter of fact the contextual facts presently under consideration depict that there was in fact a small incident wherein the accused person was chastised by the deceased and the accused in fact administered a threat to the extent that the accused would teach a lesson to the deceased. A motive stands abundantly clear and categorical to pursue an instance of such a chastisement and it is in pursuance thereof that the stab blow was given by the knife on to the neck of the deceased. The internal injuries as recorded by the doctor in the post mortem speaks of volumes as to whether in fact there was an intent to cause murder or not. The post mortem report recorded the following internal injuries.
“Internal injuries.
On dissection of wound no.1 it passes down wards and medially into the thoracic cavity. There is a tear of ½ cm. length on the right innominate vein and the adjoining pleura on right side was torn for ½ cm. There is haematoma around the injury site. There is an incised wound of ½ cm. length x ½” depth present on the medial aspect of lobe of right lung. The lung injury is 2½” away from external wound. All the internal injuries fall in line with the external wound. There is about 2 litres of blood on the right thoracic cavity.
Heart: 250 gms. chambers empty c/s pale.
Lungs: Right 450 gms. left 400 gms. c/s pale.
Stomach : 800 gms contains 450 gms. of partially digested rice particles present. No peculiar smell.
Liver : 1100 gms. c/s pale spleen 75 gms. c/s pale.
Kidneys : Each 150 gms. c/s pale. Brain 1400 gms.”
8. On the state of this evidence and by reason of the nature of injuries suffered, we have not been able to convince ourselves with the submissions of Mr. Gupta that in fact there was no intention to cause murder or knowledge that the resultant effect of such an act would cause death. There is no reason therefor to convert the sentence from section 302 to 304 part II of the Indian Penal Code. As such, this appeal fails and is dismissed. The appellant to serve the remaining part of the sentence.
