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Wednesday, October 21, 2015

Not a case of culpable homicide not amounting to murder - the assault was Deliberate & Designed to achieve the purpose = PW 16 Dr. Sunder Rajan found 16 cut injuries on the person of Sultan and stated that lot of blood must have been lost as a result of such injuries. Injury No.1 states that carotid artery and jugular vein were cut. Though he did not specifically say that injury No.1 singularly or all the injuries collectively were sufficient in the ordinary course of nature to have caused the death, the material on record is fully indicative of this facet. In his cross-examination he stated that a cut to the carotid artery would affect supply of oxygen to the brain and a person may lose consciousness within three minutes. In Tanviben Pankajkumar Divetia Vs. State of Gujarat [1]a cut of the size of 2” x 1”x 2 ¼” on carotid artery of the victim was considered by this Court to be indicative that the victim had profusely bled and could not have remained alive for more than 10-15 minutes. In the instant case both the carotid artery and jugular vein were found cut and Sultan had soon thereafter lost consciousness. These features are clearly indicative that injury No.1 was sufficient in the ordinary course of nature to have caused the death. Additionally Dr. Sunder Rajan had also stated that lot of blood should have been lost as a result of 16 stab wounds. In our considered view, this is not a case of culpable homicide not amounting to murder. The assault was deliberate and designed to achieve the result namely the death of Sultan. The courts below were therefore right and justified in convicting and sentencing the appellants for the offences punishable under Sections 341, 302, 506 (ii) IPC.

Non-reportable


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.786 of 2008




        KAMAL @ POORIKAMAL & ANR.                      …. Appellants


                                   Versus


         STATE OF TAMIL NADU                          …. Respondent






                               J U D G M E N T






      Uday Umesh Lalit, J.




      1.    This appeal by Special Leave challenges the judgment  and  order
      dated 28.06.2006 passed by the High  Court  of  Judicature  at  Madras
      dismissing Criminal Appeal No.572 of 2003 preferred by the  appellants
      herein and thereby affirming  the  conviction  and  sentence  recorded
      against them by the Principal Sessions Judge, Coimbatore  in  Sessions
      Case No.344 of 2002.


      2.    One Sultan Meeran hereinafter referred to as Sultan, resident of
      Coimbatore fell in love with a Hindu girl, converted her to Islam  and
      married her.  Thereafter he converted another Hindu girl to Islam  and
      married her as well.  This conduct on the part of Sultan, according to
      the prosecution, enraged the first appellant who one  month  prior  to
      the incident in question had gone to the house of  the  deceased.   He
      called Sultan and stated that he was converting Hindu girls  to  Islam
      and marrying them and that there was danger to Hindu Religion  because
      of him and that if he were to continue  such  conversions  the  things
      would become different and that he must save his  life,  if  possible.
      At that time the father of Sultan,  i.e.  PW  8  Abdul  Ajeezkhan  was
      present in the house.


      3.    On 26.03.2002 the car  belonging  to  Sultan  had  gone  to  the
      workshop of PW-11 Venu Gopal for repairs.  After the car was ready  to
      be picked up, Sultan along with his younger brother PW-1 Abdul  Kadhar
      went to the workshop on the motor-cycle of said PW-1.  Sultan had told
      his elder brother PW 9 Abudhaheer that he and PW-1 would return  after
      having dinner at Galaxy Restaurant.  After  picking  up  the  vehicle,
      Sultan and PW-1 had their dinner in the Restaurant and when they  came
      out around 10:35 p.m., Sultan suggested that  they  would  go  to  the
      adjoining club named Snooker World.


      4.     As they entered, they found the appellants sitting there.   The
      first appellant called Sultan and spoke  to  him.   Thereafter  Sultan
      told PW-1 that they should go home and they came out of  the  club  by
      about 10:45 p.m.  PW-1 then started his motorcycle  while  Sultan  was
      getting into his car.  At that time the appellants came out and  asked
      him to stop the car.  The second appellant opened the door and sat  in
      the back seat of the car of Sultan.  He held both  the  hands  of  the
      deceased backwards and the first appellant who was  standing  outside,
      took out a knife from his trouser and repeatedly stabbed Sultan on the
      head and neck, stating that he had converted two Hindu girls to  Islam
      and there was danger to Hindu Religion from him.  The first  appellant
      no.1 held the neck of Sultan and pulled him, at which point the second
      appellant came out, took  another  knife  from  his  pocket  and  also
      stabbed him.  According to the prosecution, at that stage PW-2  Ismail
      and PW-3 Sarvan Kumar had also reached the  place  of  occurrence  and
      witnessed the incident.  When PWs 1, 2 and 3 tried  to  apprehend  the
      appellants they were threatened that they would meet the same fate  as
      that of Sultan and the appellants fled away.


      5.   Sultan in that injured condition drove the car and while  he  was
      near Raj Laxami Clinic he lost control over the vehicle  and  the  car
      went into a ditch and stopped.  PW-1 who  was  following  him  on  his
      motor-cycle  saw  Sultan  being  unconscious.   At  that  point,  PW-9
      Abudhaheer also came there.  They managed to procure an ambulance  and
      PW-9 took Sultan in the ambulance, followed  by  PW-1  on  his  motor-
      cycle. They reached Government Hospital at about 11:40 p.m.  The  duty
      doctor after examining Sultan declared him to be dead.  After  putting
      the dead body in the mortuary, PW-1 went home, wrote  down  complaint,
      Ext. P-1 and thereafter reached B-2 Police  Station,  R.S.  Puram  and
      lodged the complaint at about 00:30 hours on 27.03.2002.  Crime No.389
      of 2002 was  accordingly  registered  for  offences  punishable  under
      Sections 341, 302, 506  (ii)  of  the  I.P.C.   The  FIR  reached  the
      Magistrate at 11:30 a.m. on 27.03.2002.


      6.    On 27.03.2002 the post mortem on the dead  body  of  Sultan  was
      conducted at 11:45 a.m. by PW 16 Dr. Sunder Rajan.  He found following
      ante mortem injuries:
           “1. Transversely oblique stab wound on  the  lateral  aspect  of
           neck measuring 5 cms x 2 cms x 6 cms deep. The lower medial  and
           of the wound is 2 cms below right angle of mandible.  Both  ends
           of the wound are pointed and  margins  is  regular.  This  wound
           passes downwards, backwards and medially and end as a point.  On
           dissection, the wound found cutting the  common  carotid  artery
           and internal jugular vein on the right  side.  Surrounding  area
           contained extravasted blood clots.


           2. Transversely oblique stab wound on the right  lateral  aspect
           of neck measuring 2 cms x 1 cm x 3 cms deep in the muscle plane.
           The upper lateral end of the wound is 5 cms below right mastoid.
           Both ends pointed. Margins regular. The wound passes  downwards,
           backwards and medially.


           3. Transversely oblique stab wound on the right  lateral  aspect
           of neck measuring 1 cm x 0.5 cm x 1.5 cms  deep  in  the  muscle
           plane. Both end pointed. Margins regular. The lower inner end of
           the wound is 8 cms below right  angle  of  mandible.  The  wound
           passes downwards, backwards and medially.


           4. A stab wound on the right supraclavicular region measuring 10
           cm x .5 cmx 1.5 cm in the muscle plane above and lateral to  the
           inner end of clavicle. Both ends pointed.  Margin  regular.  The
           wound passes backwards and medially.


           5. Oblique out injury on the right side of fore head 4 cms above
           the inner end of the right eye-brow measuring 2 cms x 1.5 cms  x
           bone deep.


           6. Vertically oblique incised wound involving the right temporal
           region of the scalp and right side upper part of the  face  just
           in front of right pinna measuring 12 cms x 1.5 cms x muscle deep
           with tailing in the lower end. The lower end of the wound  is  2
           cms about right angle mandible.


           7.  Vertically oblique  incised  wound  in  the  right  temporal
           partito occipital region measuring 10 cms x  1  cm  muscle  deep
           with tailing in the lower end. The middle of the wound is 3  cms
           posterior to right mastoid.


           8.  Oblique stab wound on the right side of chin involving right
           side of lower lip also measuring 5 cms x 2 cms in the  chin  and
           exiting out thrown in buccal surface of the right  side  of  the
           lower lip measuring 4cms x 1 cm. both  ends  of  the  wound  are
           pointed and the margins are regular.


           9. Transversely oblique stab wound on the right  lateral  aspect
           of chest measuring 3 cms x 2 cms x 3.5 cms deep  in  the  muscle
           plane. Both ends pointed. Margins regular. The  posterior  upper
           end of the wound is 14 cm right to the middle of T 10  vertebra.
           The wound passes downwards, backwards and medially.


           10. Oblique, cut injury on the back of lower third or left  fore
           arm measuring 4 cms x 2 cms x 53 neon deep. The lower radial end
           of the wound is 3 cms about left wrist.


           11.  Transversely oblique cut injury over the flexor  aspect  of
           left forearm measuring 5 cms x 2 cms  tendon  deep.  The  medial
           distal end of the wound is 9 cms above left wrist.


           12. Oblique cut injury front of left forearm 7 cms.  Above  left
           wrist measuring 2 cms x 1 cm tendon deep.


           13. An oblique incised wound 1 cm lateral to the previous  wound
           number 13 measuring 1 cm x 0.5 cm skin deep.


           14. Oblique cut injury in the ulna aspect of left palm measuring
           6 cms x 2 cmx bone deep. The wound is 4 cms below left wrist.


           15. Oblique cut injury on the back of ulnar side  of  left  hand
           wrist measuring 2.5 cms x 2 cms x tendon deep.
           16. Four oblique skin deep incised wounds measuring 3 cms  x  .5
           cms, 2 cms x .5 cm, 3 cms x .5 cm and 2 cms x .5 cm on the  back
           of left wrist.”


           He also found following injuries:-
            1.   2 cms x .5 cm over left side of fore head.
           2.    1 cm x.5 cm in the right side of front of lower neck.
            3.   5 cms x 3 cms back of right shoulder.
           4.    3 cms x 2 cms over right deltoid region.
           5     5 cms x 2 cms, 3 cms x 1 cm, 1 cm x .5 cm , .5 cm x .5  cm
           over lateral aspect of middle third of left arm.”




             PW-16  doctor  Sunder  Rajan  issued  Ext.  P-14  post   mortem
      certificate  and  letter  Ext.  P-16  being  the   final   certificate
      specifying the reasons for death.  According to him Sultan Meeran  had
      died  of  hemorrhage  due  to  injury   no.1   “stabbed   injury   and
      corresponding internal injury to neck vessels.”


      7.    The first appellant surrendered on 28.03.2002 while  the  second
      appellant was arrested on  31.03.2002.   Pursuant  to  the  disclosure
      statement made by the second  appellant,  M.O.  No.1  namely  a  blood
      stained knife with rubber handle  was  recovered  on  31.03.2002.   On
      02.04.2002 M.O. No.2 being a blood stained knife  with  wooden  handle
      was recovered pursuant  to  the  disclosure  statement  of  the  first
      appellant.  After completion of investigation, charge-sheet was  filed
      against the appellants and they were tried for the offences punishable
      under Sections 341, 302, 506 (ii)  of  the  I.P.C.  in  Sessions  Case
      No.344 of 2002.


      8.    The prosecution examined 19 witnesses in support  of  its  case.
      Eye-witness account was unfolded through the testimony of PWs 1,2  and
      3.  PW1 deposed to the incident reiterating the narration as stated in
      complaint Ext.P1.  PWs 2 and 3 supported the  version  of  PW1.   PW8,
      father of Sultan deposed to the incident when the first appellant  had
      come to the house of Sultan.  PW9 stated about the shifting of  Sultan
      in ambulance to Government Hospital.  Medical evidence on  record  was
      in the form of depositions of  PW15  Dr.  Natrajan  who  had  declared
      Sultan dead when he was brought to the hospital and of PW16 Dr. Sunder
      Rajan  who  had  conducted  the  post-mortem.   Though  PW16  did  not
      specifically state that injury No.1 was  sufficient  in  the  ordinary
      course of nature to cause the death, in response  to  queries  in  the
      cross-examination he stated as under:


           “Carotid artery carries the blood to brain with the oxygen.   If
           the pure blood is not carried to the brain, then the brain would
           not function for more than 3 minutes.  A  lot  of  blood  should
           have been oozed when there were 17  stab  wounds.   …..  If  the
           blood is not carried to brain, consciousness may  not  be  there
           beyond 2 or 3 minutes.  Thereafter, a  person  would  loose  his
           consciousness.”




      9.    The first appellant took the defence of right of private defence
      and examined one Suresh Babu as DW1.  It was the  case  of  the  first
      appellant that as he came out of the club Sultan and one  more  person
      tried to drag him into the car of Sultan, that there was a dagger kept
      in the car which was used by the first appellant in self defence, thus
      suggesting that the injury on the person of Sultan could have been the
      result of the scuffle between them.  But there was not a single injury
      on the person of the first appellant whereas Sultan  had  suffered  16
      injuries.    The  second  appellant  took   the   defence   of   false
      implication.


      10.   The trial court after considering the  material  on  record  and
      rival submissions found the case of the prosecution completely  proved
      and  by  its  judgment  and  order  dated  20.02.2003  convicted   the
      appellants under Section 302 IPC and sentenced them  to  undergo  life
      imprisonment and to pay fine of Rs.10,000/-,  in  default  whereof  to
      undergo rigorous imprisonment for one year.  It also found them guilty
      under Section 506 (ii) I.P.C. and sentenced them to  undergo  rigorous
      imprisonment for 6 months.  It however acquitted them of  the  offence
      under  Section  341  I.P.C.   The  sentences  were  directed  to   run
      concurrently.


      11.   The appellants being aggrieved, filed Criminal Appeal No.572  of
      2003 in the High Court which was dismissed by the High  Court  by  its
      judgment under appeal, thereby affirming the  judgment  of  conviction
      and order of sentence as recorded by the trial court.  This appeal  by
      special leave challenges the said judgment of the High Court.


      12.   Mr.  R.  Basant,  learned  Senior  Advocate  appearing  for  the
      appellants made following submissions:
           1.    Complaint Ext. P-1 was received in the police  station  at
           00:30 hours but reached the Magistrate only  at  11:30  a.m.  on
           27.03.2002.  The  time  so  taken  shows  that  the  period  was
           utilized to prepare the complaint after due deliberation and  as
           such the complaint Ext. P-1 does not inspire evidence.


           2.    PWs 2 and 3 alleged eye witnesses were not present at  the
           scene of occurrence and their version is completely unreliable.


           3.   Though PW-1 was with the deceased, his version  now  before
           the Court was completely exaggerated and as such not trustworthy
           at all.


           4.   The plea of private defence as taken by the first appellant
           raises doubts about the prosecution case which doubts  were  not
           discharged at all.


           5.   The medical opinion on record nowhere  states  that  injury
           no.1 was sufficient in the ordinary course  of  nature  to  have
           caused the death and as such the offence, if at  all,  could  be
           that of culpable homicide not amounting to murder.


      13.    Mr. Yogesh Kanna, learned  Advocate  appearing  for  the  State
      submitted that the material on record clearly indicated that the  plea
      of self-defence was totally false.  In his submission the  case  stood
      completely proved against both the appellants.  He  further  submitted
      that there was sufficient material on record to conclusively establish
      that carotid artery and jugular vein were cut. Such an injury  in  the
      ordinary course of nature would certainly have caused the death and in
      any case the matter would come under the first clause of  Section  300
      IPC and not under the third clause of 300 IPC as suggested.


      14.    We  have  gone  through  the  record   and   considered   rival
      submissions.  The evidence of PW1 is fully consistent with the medical
      evidence on record and is quite cogent and trustworthy.  The  presence
      of PW1 along with the deceased is established through the testimony of
      PW11 Venu Gopal and such presence was not seriously challenged by  Mr.
      Basant at all.  What was submitted was that  there  were  elements  of
      exaggeration  which  would  create  doubts  about  the  case  of   the
      prosecution.  In our view, there was no exaggeration at all.  Further,
      merely because PW1 a young boy of 17  years  had  first  gone  to  his
      house, prepared  the  complaint  and  thereafter  reached  the  police
      station would  not  be  sufficient  to  discard  his  testimony.   The
      complaint in question was  received  at  0030  hrs.,  the  police  had
      immediately swung into action, prepared inquest panchnama and sent the
      body of Sultan for post-mortem.  Though the FIR reached the Magistrate
      at about 11:30 am, the post-mortem itself was conducted  at  11.45  am
      and it would not be correct to assume that the FIR was so  tailor-made
      to suit any finding in the post-mortem.  To us, there was no delay  in
      the FIR reaching the Magistrate.  Moreover, the defence of  the  first
      appellant itself accepts his presence at the time and place as alleged
      by the prosecution.  We therefore find the evidence  of  PW1  reliable
      and trustworthy, which is supported by the testimony of PWs 2 and 3 as
      well. According to the medical evidence on record  two  sharp  cutting
      weapons were used for inflicting the injuries found on the  person  of
      Sultan and that  the  injuries  were  possible  by  MO.  Nos.1  and  2
      recovered from the appellants. The involvement of both  the  appellant
      thus stands proved.


      15.   PW 16 Dr. Sunder Rajan found 16 cut injuries on  the  person  of
      Sultan and stated that lot of blood must have been lost as a result of
      such injuries.  Injury No.1 states that  carotid  artery  and  jugular
      vein were cut.  Though he did not specifically say  that  injury  No.1
      singularly or all the injuries collectively  were  sufficient  in  the
      ordinary course of nature to have caused the death,  the  material  on
      record is fully indicative of this facet.  In his cross-examination he
      stated that a cut to the carotid artery would affect supply of  oxygen
      to the brain and a person may lose consciousness within three minutes.
       In Tanviben Pankajkumar Divetia Vs. State of Gujarat [1]a cut of  the
      size of 2” x 1”x 2 ¼” on carotid artery of the victim  was  considered
      by this Court to be indicative that the victim had profusely bled  and
      could not have remained alive for more  than  10-15  minutes.  In  the
      instant case both the carotid artery and jugular vein were  found  cut
      and Sultan had soon thereafter lost consciousness.  These features are
      clearly indicative that injury No.1 was  sufficient  in  the  ordinary
      course of nature to have caused the death.   Additionally  Dr.  Sunder
      Rajan had also stated that lot of blood should have  been  lost  as  a
      result of 16 stab wounds. In our considered view, this is not  a  case
      of culpable  homicide  not  amounting  to  murder.   The  assault  was
      deliberate and designed to achieve the  result  namely  the  death  of
      Sultan.  The courts  below  were  therefore  right  and  justified  in
      convicting and sentencing the appellants for the  offences  punishable
      under Sections 341, 302, 506 (ii) IPC.


      16.    This appeal must therefore fail and is dismissed.







                       ……………....……………………..J.
                                  (Fakkir Mohamed Ibrahim Kalifulla)





                       ……………………………………..J.
                                  (Uday Umesh Lalit)


      New Delhi,
      October 16, 2015





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      [1] 1997 (7) SCC 156

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