KAMAL @ POORIKAMAL & ANR. Vs. STATE OF TAMIL NADU
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 786 of 2008, Judgment Date: Oct 16, 2015
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