SELVARAJversusSTATE OF TAMIL NADU AND ORS.

                          SELVARAJ                                              A
                              v.
                STATE OF TAMIL NADU AND ORS.

                          NOVEMBER 13, 1997

             [M.M. PUNCHHI AND M. SRINIVASAN, JJ.]                              B


      Penal Code, 1860-Sections 302. 307 & 326-Murder-Property
dispute among family members-Accused stabbed to death his brother~
Evidence of eye witnesses-Trial Court disbelieving the prosecution witness C
acquitted the accused-High Court holding the accused guilty for the offence.
convicted and sentenced him-On appeal, held, no material discrepancy in
the evidence of the eye witnesses-High Court justified in holding that trial
court has not properly appreciated the evidence and conclusions were illegal
and grossly unjust-Accused had necessary intention to attack and kill the D
deceased-Conviction and sentence upheld.

       Appellant was prosecuted for an offence under sections 302, 307 and
326 IPC. The prosecution case was that one 's' had four sons namely, 'R'
'V' (PWl), 'S' (appellant) and 'D'. The family had a house and land with
trees. There was a dispute among the members of the family that the father      E
was not giving any share to PWl and 'D'. A quarrel broke out and PWl was
attacked by some members of the family. A complaint was lodged and case
was registered. PWl and 'D' gave evidence in the said case. Appellant was
watching the proceeding in Court as his wife was one of the accused in that
case. In the evening appellant made an attempt to attack PWl but was            F
prevented from persons nearby. On that night when PWl, PWS, PW6 and
'D' were talking near the house of 'D' appellant alongwith his friend 'G'
arrived. Appellant asked 'D' whether he was in support of PWl and stabbed
him in the chest with a Katari knife. PWl was also stabbed. PWS and PW6
raised alarm and appellant and his friend ran away. The injured were taken
to the hospital. 'D' was pronounced dead and PWl was examined for his           G
injuries. Appellant surrendered before the Court and denied his guilt. The
Trial Court disbelieving the prosecution acqultted the appellant. However, on
appeal, the High Court reversed the findi~gs of the Trial Court and convicted
the appellant for an offence under sections 302 and 326 of IPC. Hence the
present appeal.                                                                 H
                                      133
    134                     SUPREME COURT REPORTS [1997) SUPP. 5 S.C.R.

A        The contention of the appellant was that there was discrepancy in the
    evidence of PWs 1, 5 and 6 and were thus wholly unbelievable; that the
    nature of injuries were not proved as the post-mortem report has not noted
    the measurement thereof, and that the appellant had no intention to attack
    and kill the deceased 'D'

B         Dismissing the appeal, this Court

         HELD: 1.1. The High Court was justified in holding that the Sessions
    Judge has not properly appreciated the evidence and had come to conclusions
    which were perverse, manifestly illegal and grossly unjust. 1137-F-G!

C         1.2. 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
    of Sessions. Every reason given by the Trial Court has been considered by
    the High Court and found to be erroneous. 1137-E-Fl
D          2. No doubt PW6 had stated that the appellant and the relatives of PW!
    were pressing 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. Thus the statement
    of PW6 cannot be torn out of the context and used by the appellant.
E                                                                       1138-A-BJ

          3. A perusal of the post-mortem 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 'D' on his chest but also dragged the knife
    downward as a result of which the intestine of the victim came out of the
F   abdomen with bleeding. The contention that the post mortem report does not
    note the measurement of injury and thus it is not proved cannot be accepted.
                                                                     1138-C; GI

          4. The appellant had necessary intention to attack and kill the deceased
    'D'. PWI has stated in his evidence that the appellant on seeing PWI and
G   deceased 'D' together in front of latter's house said that he was searching
    for both and questioned 'D' as to whether he was supporting PWI. It was
    only then the appellant stabbed 'D'.1138-D-EI
          Gu/jar Hussain v. State of U.P., AIR (1992) S.C. 2027 and Mavi/a
    Thamban Nambiar v. State of Kera/a, JT (1997) (1) S.C. 367, held
H   inapplicable.
        SELVARAJ v. STATE OF TAMIL NADU [M. SRINIVASAN, J.]              135
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 37 of              A
1994.

        From the Judgment and Order dated 17.7.92 of the Madras High Court
in Crl. A. No. 302 of 1986.

        K Janjani for the Appellant.
                                                                                 B
        V.G. Pragasam for the Respondents.

        The Judgment of the Court was delivered by

       M. SRINIVASAN, J. One Savariyar Adimai had four sons, namely,
Rajamani, Verghese alias Anthonimuthu (PW!), Selvaraj (Appellant) and Dasan      C
(deceased). The family had a house and the land with some trees thereon.
There was a dispute among the members ofthe 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- I 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-I and Dasan on one side and the father and two sons        D
on the other with respect to the division of the family property. PW-I 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 1.P.C. against those persons. The case was being       E
tried in the Magistrate's Court at Thuckalay. On 28.1.1984 PW I and Dasan
gave evidence in the said case for the prosecution. Though the appellant was
not an accused he was present in Court watching the proceedings as his wife
was an accused. In the evening PW-I was proceeding in front of a shop of
Chelladurai when the appellant came running from the opposite direction and
shouted at PW-I "Only if you are killed, the family's trouble will come to an    F
end" PW I was frightened and ran into the said shop. The appellant was
prevented from beating PW I by persons nearby including Chelladurai. On
the same night PW-I 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 I narrated
what happened in the evening. Both went to the house of their younger sister     G
Annapushpam 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 I and Dasan that he was searching for them everywhere. The appellant
questioned Dasan whether he was in support of PW-I and stabbed him on            H
    136                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 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 I tried to lift him up George who was standing behind him
    prevented him from doing so. The appellant stabbed PW I also stating that
    the family will have peace only if he was killed. As PW I moved a little, the
    stabbing was on the upper right arm. Appellant stabbed once again in the           ,
B   neck below the left iliac fossa. PW 1 fell down, pressing the said injuries with
    his hand and raising alarm. PW 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 I came there immediately and brought a taxi
C   driven by PW 11 to take the injured persons to the Govt. hospital at Nagercoil
    at about I0.30 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 PWI for his injuries. The following injuries were found by
    him:

D           (I) Incised wound 2" x I" depth not probed over left illiac fossa.
            Loops of intestine coming out of the wound over the abdomen. Fresh
            bleeding present from the wound.

            (2) lnci.sed wound I" xl/2" xl/2" on the upper I/3rd of right arm.

E         2 On getting information the Head Constable of Kotlar Police Station
    proceeded to the hospital and recorded a statement from PWl at 11.15 P.M.
    The Judicial Second Class Magistrate, Nagercil received the FIR and other
    connected documents 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
F   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 rear side of his
    house. The appellant was charged under Section 302 and 307 l.P.C. and his
    friend George under Section 302 read with Section 34 and Section 307 read
G   with Section 309 JPC. Both the accused denied their guilt.

          3. The Court of Session at Nagercoil disbelieved the prosecution and
    held that the accused were not guilty. Consequently they were acquitted.
    There was an appeal by the State and a revision by PW L The High Court
    after considering the evidence in detail reversed the conclusion of the trial
H   court and set aside its judgment so far as it related to the appellant herein.
       SELVARAJ v. STATE OF TAMIL NADU [M. SRINIVASAN, L)                     137
Jhe appellant-was found guilty of the offences under Section 302 and 326 IPC A
 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 strenuously contended that          B
  the evidence of PWs I, 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
  PW I was also not there. It is therefore contended that neither the deceased        C
  Dasan nor PW I was at the place of alleged occurrence at the stated time.
  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
  PW I. 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   D
  of the appellant was only to attack PW l 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 !PC and the appellant should be let off with
  the period already undergone.
                                                                                      E
       5. We are unable to accept any of the contentions. There is no
 material discrepancy in the evidence of PWs I, 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 of Session. Every reason F
 given by the trial 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 G
 was not found in his house, no inference can be drawn therefrom. In fact PW
 I 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 and were talking to them when the appellant came there 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 H
    138                     SUPREME COURT REPORTS (1997] SUPP. 5 S.C.R.

A PW 5 referred to above.
           6. The statement of PW6 cannot be torn out of the context and used
    by the appellant. No doubt PW 6 had stated that the appellant and the
    relation of 'PW I were pressing upon him to give evidence but he has
    categorically deposed that he is stating only what he had seen. A perusal of
B   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
C   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 the
    victim came out of the abdomen! with bleeding.

          8. The contention of learned counsel that the appellant had intention
D to attack PW I only and not the deceased Dasan is without merit. As stated
    by PW I in his evidence the appellant on seeing PW I and Dasan together
    in front of the latter's house said that he was searching for both everywhere
    and questioned Dasan whether he was supporting PW I. It was only then the
    appellant stabbed Dasan. As pointed out already it was not a mere stabbing
    but the knife was drawn downwards as if to cut the body into two. From the
E   above facts it is clear that the appellant had intention to attack and kill the
    deceased Dasan also.

          9. It is needless to refer to Section 30 I 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.
F
        I0. Le~rned 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 !PC. Reliance is
  placed on the judgment in Gu/jar Hussain v. State of U.P., AIR (l 992) S.C.          ,_
G 2027 to which one of us (Justice M.M. Punchni) 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
H be legally deficient. In such circumstances the Court said :
      SELVARAJ v. STATE OF TAMIL NADU [M. SRINIVASAN, J.]                     139
           "In these circumstances, it has to be seen whether the appellant           A
       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        B
       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 was likely to cause death
       of the deceased so as to fall within the grip of Section 304, Part I, l.P.C.
       and not per se under Section 302 !PC for intentionally causing the             C
       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 !PC for which he should be sentenced
       to I 0 years rigorous imprisonment."

      11. That ruling has no application in the present case.                         D
      12. Learned counsel has also drawn our attention to the judgment in
Mavila Thamban Nambiar v. State ofKera/a, JT (1997) I SC 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 302 IPC to
Section 304 Part II IPC. The Court inferred that the appellant had knowledge          E
that an injury with the scissors on the vital part would cause death though
he 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           F
of the High Court. Consequently the appeal fails and is hereby dismissed.

S.V.K.I.                                                      Appeal dismissed.