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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

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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.   

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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

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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.

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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

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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.

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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.  

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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

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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

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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.  

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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

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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

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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 1a 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.   1 1997 (7) SCC 156

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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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