Madras High Court
Senthil vs The Inspector Of Police on 31 March, 2015
Author: A.Selvam
Bench: A.Selvam, T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31.03.2015 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE T.MATHIVANAN CRIMINAL APPEAL(MD)No.54 of 2015 Senthil .. Appellant/ De facto Complainant Vs. 1.The Inspector of Police, S.S.Colony Police Station (L&O), Madurai City. (Crime No.963 of 2008). .. First Respondent/Complainant 2.Jayakumar 3.Veerapandian .. Respondents 2 and 3/Accused 3 and 4 Criminal appeal is filed under Section 372 of the Code of Criminal Procedure, 1973, praying to enhance the sentence awarded to accused 3 and 4 in the Judgment dated 10.09.2014 passed in Sessions Case No.408 of 2011 by the Fourth Additional District and Sessions Court, Madurai. !For Appellant : Mr.R.Gandhi ^For Respondent : Mr.K.S.Duraipandian, No.1 Addl. Public Prosecutor. For Respondent : Mr.K.Prabhu No.2 For Respondent :Mr.D.Shanmugaraja Sethupathi No.3 :JUDGMENT
(Judgment of the Court was made by A.SELVAM, J) Challenge in this Criminal Appeal is to the quantum of punishment awarded under Section 302 of the Indian Penal Code against the accused 3 and 4/ respondents 2 and 3 in Sessions Case No.408 of 2011 by the Fourth Additional District and Sessions Court, Madurai.
2.The nubble of the case of the prosecution is that the families of the accused 1 to 4 and deceased are residing in Bharathiyar Main Road, Sammattipuram, Madurai. Due to business motive, an animosity has been in existence between them and further the deceased Ilayaraja has hurled burlesque against one Abirami, daughter of third accused. In pursuance of previous animosity, with intention to murder the deceased viz., Ialayaraja, the accused 3 to 6 have hatched conspiracy. In pursuance of the said conspiracy, accused 1 to 6 have formed an unlawful assembly with deadly weapons and in the place of occurrence, the accused 1 and 2 have indiscriminately attacked the deceased by using deadly weapons and in the occurrence, the accused 3 to 6 have also participated. Further, accused 1 and 2 have threatened the brother of the deceased by name Senthil. After occurrence, the said Senthil as de facto complainant has given a complaint to P.W.17 viz., Palani and the same has been registered in Crime No.963 of 2008. The complaint alleged to have been given by the de facto complainant (P.W.1) has been marked as Ex.P.1.
3.On receipt of Ex.P.1, the Inspector of Police viz., P.W.18 has taken up investigation, examined connected witnesses and also made arrangements to conduct autopsy on the body of the deceased and accordingly the doctor by name Natarajan, (P.W.12) has conducted autopsy and found the following external and internal injuries:
?1.An oblique stab injury 3 x 0.5 cms/ Pleural Cavity deep noted on the front of right side of chest, 8 cms below the right nipple. On dissection, the wound passes obliquely downwards and backwards piercing the underlying muscles, vessels, nerves in the 9th intercostals space, piercing the underlying pleura, lower lobe of right Lung measuring 2.5 x 0.5 x 2 cms and ends as a point.
2.An oblique stab injury 3 x 0.5 cms/ Pleural Cavity deep noted on the right side of chest, 2 cms above the injury No.1.
On dissection, the wound passes obliquely downwards, and backwards piercing the underlying muscles vessels nerves on the 8th intercostals space, piercing the underlying Pleura and lower lobe of Right Lung measuring 2 x 1 x 1 cms and ends as a point. Right Pleural Cavity contains 200 ml of fluid blood with clots. Left Pleural Cavity empty.
3.An oblique stab injury 6 x 2 cms x peritoneal cavity deep noted on the front of left side of middle of abdomen, 8 cms above and lateral to the umbilicus.
On dissection, the wound passes obliquely downwards and backwards, piercing the underlying muscles, vessels, nerves, piercing the mesentery measuring 3 cms x linear x through & through 4 cms away from middle of descending colon. Peritoneal Cavity contains 500 ml of fluid blood with clots.
4.An oblique stab injury 6 x 2 cms x Peritoneal Cavity deep noted on the left side of upper part of abdomen, 4 cms below the costal margin, through which loops of intestines is protruding out.
5.An oblique stab injury 6 x 2 x 1 cms x Peritoneal Cavity deep noted on the middle of left side of abdomen, 6 cms away from the umbilicus, through which loops of intestine is protruding out.
6.An oblique stab injury 4 x 2 cms x Peritoneal cavity deep noted on left loin.
7.Two ligature marks each measuring 14 cms x 0.25 cms, 0.5 cm apart noted on the front of left side of upper part of neck, 5 cms below the left mastoid, and 5 cms below the middle of chin. On dissection, there is extravasation of blood noted on the underlying subcutaneous tissue.
8.An oblique stab injury 4 x 1 x 2 cms along the muscle plane noted on the front of middle of abdomen, 4 cms above the umbilicus.
9.An oblique stab injury 3 x 1 x 2 cms along the muscle plane noted on the lower abdomen, 5 cms below the umbilicus.
10.An oblique stab injury 2 x 1 x 2 cms along the muscle plane noted on the front of middle of chest.
Note:All the stab injuries are having regular margins and both ends are pointed?.
The Postmortem Report has been marked as Ex.P.10. On completing investigation, P.W.18, Investigating Officer, has laid a final report on the file of the Judicial Magistrate's Court No.V, Madurai and the same has been taken on file in P.R.C.No.40 of 2008.
4.The Judicial Magistrate No.V, Madurai after considering the fact that the offences alleged to have been committed by all the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Madurai Division and taken on file in Sessions Case No.408 of 2011 and subsequently made over to the file of the trial Court viz., Fourth Additional District and Sessions Court, Madurai.
5.The trial Court after hearing both sides and upon perusing the relevant records has framed first charge against accused 3 to 6 under Section 120-B, second charge against accused 1 to 6 under Section 148, third charge against accused 1 and 2 under Section 302, fourth charge against accused 3 to 6 under Section 302 read with 149 and fifth charge against accused 1 and 2 under Section 506(ii) of the of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried.
6.On the side of the prosecution, P.Ws.1 to 19 have been examined and Exs.P.1 to P.14 and M.Os.1 to 9 have been marked.
7.When the accused have been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. No oral and documentary evidence have been let in on the side of the accused.
8.The trial Court after considering the available evidence on record, has found the accused 1 and 2 guilty under Sections 148, 302 and 506(ii) read with 34 of the Indian Penal Code and sentenced them to undergo imprisonment as stated in the Judgment. The trial Court has also found the accused 3 and 4 guilty under Sections 148 and 302 read with 34 of the Indian Penal Code and imposed ten years rigorous imprisonment under Section 302 of the Indian Penal Code and in order to enhance/ award proper punishment as mentioned in Section 302 of the Indian Penal Code, the present Criminal Appeal has been preferred at the instance of the de facto complainant as appellant.
9.The learned counsel appearing for the appellant/de facto complainant has sparingly and also befittingly contended that as per Section 302 of the Indian Penal Code, two punishments are warranted. The first and foremost punishment is death and second punishment is life sentence and in the instant case, the trial Court after coming to a conclusion that the accused 3 and 4 have committed an offence punishable under Section 302 of the Indian Penal Code, has erroneously awarded ten years rigorous imprisonment under the said Section and the same is not contemplated in law and therefore the trial Court has committed a stupendous mistake and since the trial Court has found the accused 3 and 4 guilty under Section 302 of the Indian Penal Code, they should be awarded either death sentence or life sentence, but the trial Court has not followed the statutory punishment mentioned in the said Section and therefore the quantum of sentence imposed by the trial Court is liable to be enhanced either to the level of death sentence or life sentence.
10.The learned counsel appearing for the respondents 2 and 3/accused 3 and 4 have not putforth any argument.
11.The short point that has now winched to the fore in the present Criminal Appeal is as to whether the trial Court after coming to a conclusion that the accused 3 and 4 have committed an offence punishable under Section 302 of the Indian Penal Code, awarded statutory punishment as contemplated therein?
12.In fact this Court has closely perused the entire Judgment passed by the trial Court. The first charge framed against accused 3 to 6 is under Section 120-B of the Indian Penal Code and second charge framed against them is under Section 148 of the Indian Penal Code. The fourth charge framed against them is under Sections 302 read with 149 of the Indian Penal Code.
13.In paragraph No.45 of the Judgment passed by the trial Court, it is clinchingly stated that the accused 3 and 4 are also found guilty under Section 302 of the Indian Penal Code.
14.As rightly pointed out by the learned counsel appearing for the appellant/de facto complainant, it is a humdrum that as per Section 302 of the Indian Penal Code, two kinds of punishments can be awarded. One is death sentence and another is imprisonment for life. If an accused is found guilty under the said Section, no lesser punishment can be awarded other than life sentence.
15.In the instant case, as pointed out earlier, the Fourth Additional District and Sessions Court, Madurai has awarded ten years rigorous imprisonment under Section 302 of the Indian Penal Code to the accused 3 and 4 and the same is not contemplated under law and therefore it is needless to say that accused 3 and 4 are liable to be given life sentence.
16.Before parting with this Criminal Appeal, it has become shunless to say something about the conduct of the trial Judge. In Sessions Case No.408 of 2011, totally six persons have been arrayed as accused. The Trial Judge has acquitted the accused 5 and 6. The accused 1 and 2 are found guilty under Sections 148, 302 and 506(ii) read with 34 of the Indian Penal Code and awarded sentences as mentioned in the Judgment. To put it in short, the Trial judge has given life imprisonment to the accused 1 and 2 under Section 302 of the Indian Penal Code. But after coming to a conclusion that the accused 3 and 4 are also found guilty under the said Section, has awarded ten years rigorous imprisonment, which is not permissible under law. Since the present Criminal Appeal has been preferred for getting enhancement of punishment by way of pointing out the stupendous mistake committed by the Trial Judge, this Bench on 26.02.2015, has directed him to submit his explanation as to why strictures/ adverse remarks cannot be passed against him? The order dated 26.02.2015 has been communicated on 02.03.2015 [vide C.O.Letter No.58/2015]. Even after receipt of the said communication, the Trial Judge has not submitted his explanation and it shows his nonchalant as well as defiant attitude. In fact the trial Judge has awarded ten years rigorous imprisonment under Section 302 of the Indian Penal Code against statutory punishment. As mentioned earlier, the trial Judge has awarded life imprisonment under Section 302 of the Indian Penal Code against the accused 1 and 2 whereas he awarded only ten years rigorous imprisonment against the accused 3 and 4 in a licentious manner for the reasons best known to him. Without sinister/oblique motive, he would not have awarded ten years rigorous imprisonment under Section 302 of the Indian Penal Code against the accused 3 and 4. Further as stated supra, the Trial Judge has not cared to give proper respect to the order dated 26.02.2015 passed by this Bench and it shows his total insubordination and therefore for cumulative reasons/facts mentioned supra, this Court has no other option, except to pass reproof and under the said circumstances this Court has denounced the approach made by the trial Judge as well as his reckless conduct in awarding punishment under Section 302 of the Indian Penal Code against the accused 3 and 4.
17.It has already been pointed out that the accused 3 and 4/respondents 2 and 3 are liable to be given life imprisonment under Section 302 of the Indian Penal Code and therefore the present Criminal Appeal is liable to be allowed to the extent mentioned supra.
18.In fine, this Criminal Appeal is allowed. The sentence imposed in Sessions Case No.408 of 2011 by the Fourth Additional District and Sessions Court, Madurai against the accused 3 and 4/respondents 2 and 3 under Section 302 of the Indian Penal Code is modified as follows:
"The accused 3 and 4/respondents 2 and 3 are sentenced to undergo imprisonment for life and also imposed a fine of Rs.5,000/- upon each of them under the said Section. In default of payment of fine, each must undergo six months rigorous imprisonment?.
19.Since strictures/adverse remarks have been passed against the Trial Judge [Thiru.N.Venkatavaradan, Fourth Additional District and Sessions Judge, Madurai], a copy of this Judgment is ordered to be sent to the Registrar General and the Registrar General is directed to submit the same before the Hon'ble Chief Justice, for keeping it in the personal file of the officer.
[A.S.,J.] [T.M.,J.] 31.03.2015 Index:Yes Internet:Yes smn Copy to: The Registrar General, High Court, Madras.
To
1.The Fourth Additional District and Sessions Court, Madurai.
2.The Inspector of Police, S.S.Colony Police Station (L&O), Madurai City.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
A.SELVAM, J.
and T.MATHIVANAN, J.
Judgment made in Crl.A(MD)No.54 of 2015 31.03.2015