Madras High Court
Manickam vs The State Represented By on 13 December, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 Crl.A.(MD)NO. 213 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.12.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MS.JUSTICE R. POORNIMA
Crl.A.(MD)No.213 of 2020
1.Manickam
2.Manivel
3.Vetrivel ... Appellants /
Accused Nos.1 to 3
Vs.
The State represented by
The Inspector of Police,
Thottiyam Police Station,
Trichy District.
(Crime No.149 of 2016) ... Respondent /
Complainant
Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act, to
admit the appeal on file, to call for the records from the lower Court
passed by the learned First Additional District and Sessions Judge (PCR),
Tiruchirappalli in Sessions Case No.160 of 2017 dated 28.02.2020, by
allowing this appeal.
https://www.mhc.tn.gov.in/judis
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2 Crl.A.(MD)NO. 213 of 2020
For Appellants : Mr.V.Ananthapadmanaban
For Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by G.R.SWAMINATHAN, J.) This appeal is directed against the judgment dated 28.02.2020 made in SC.No.160 of 2017 on the file of the I Additional District and Sessions Judge (PCR), Tiruchirappalli. By the impugned judgment, the accused were convicted and sentenced as follows:
Accused 1 to 3 To undergo imprisonment for life and to pay a fine of Rs.10,000/- each for the offences under Section 302 and 302 r/w.34 of the IPC. In default of payment of fine, they shall undergo simple imprisonment for 1 year.
(Total fine Rs.30,000/-) Accused No.1 To undergo imprisonment of 3 years and to pay a fine of Rs.2,000/- for the offence under section 326 of IPC. In default of payment of fine, he shall undergo simple imprisonment for 3 months.
https://www.mhc.tn.gov.in/judis 2/17 3 Crl.A.(MD)NO. 213 of 2020 Accused No.1 To pay a fine of Rs.500/- for the offence under section 294(b) of the I.P.C. In default of payment of the fine, he shall undergo simple imprisonment for 1 month.
Accused No.3 To undergo imprisonment of 8 years and to pay a fine of Rs.4,000/- for the offence under section 307 of the IPC. In default of payment of the fine, he shall undergo simple imprisonment for 12 months.
The 2nd and 3rd accused were acquitted of the offence under section 294(b) of the IPC under section 235(1) of Cr.P.C. The period of sentences were to run concurrently.
2.The case of the prosecution is as follows:
Murugan and Manickam are the sons of Kulandai Chettiar. Partition took place in the family in the year 1994. The house allotted in favour of Manickam continued to stand in the name of Murugan. Despite persistent demands, Murugan refused to transfer the house in the name of Manickam. Thus there was enmity and dispute between the two brothers.
Murugan owned three shops in the vicinity. On 04.06.2016 at about 06.00 p.m, there was water logging in front of Manickam's house.
Manickam and his sons questioned Murugan over the same. They https://www.mhc.tn.gov.in/judis 3/17 4 Crl.A.(MD)NO. 213 of 2020 employed abusive language. The quarrel escalated and Manickam instigated his sons to kill Murugan. Thereupon, the accused went into their house and brought sickles with them. The first accused Manickam assaulted Kumaravel PW2, son of Murugan. The second accused attacked Murugan with sickle causing him injuries on the right knee, right upper thigh, left index finger and middle finger. The third accused Vetrivel, S/o. Manickam also assaulted PW.2 Kumaravel. PW.1 Singaravel and PW.5 Sakthivel took the injured to the Government Hospital, Thottiyam from where they were shifted to Government Hospital, Trichy. Murugan was taken to Government Hospital, Trichy but he died enroute. Kumaravel PW2 was admitted in a private hospital (Maruthi Hospital). Intimation was sent to the jurisdictional Police at around 07.00 p.m. PW15 Jaya Murugan, Grade I Police Constable, Thottiyam Police Station came to Maruthi Hospital, Trichy and recorded the statement of PW1 Singaravel. It was taken as complaint (Ex.P1). Crime No.149 of 2016 was registered on the file of Thottiyam Police Station at 06.00 p.m for the offences under Section 294(b), 324, 307 and 302 of IPC. PW.21 Manivannan was the Inspector of Police who took up the investigation. He visited the spot in the early hours of the next day and prepared the observation mahazar as well as rough sketch. He https://www.mhc.tn.gov.in/judis 4/17 5 Crl.A.(MD)NO. 213 of 2020 collected the bloodstained samples from the spot. He examined the eye witnesses and recorded their statements. At around 09.00 a.m on 05.06.2016, he arranged inquest. After the post-mortem was done, the body was handed over to the relatives. On 06.06.2016, he examined few more witnesses. Kumaravel PW.2, the injured witness was examined on 07.02.2016. On 06.06.2016, the accused surrendered before the learned Judicial Magistrate No.5, Trichy. On 08.06.2016, Police custody was taken and the accused voluntarily gave confession statements. Based on their confession, weapons used in committing the crime were recovered. He then submitted alteration report. After obtaining forensic opinion, final report was filed before the learned Judicial Magistrate, Musiri. It was taken on file in PRC.No.2 of 2017. On receipt of summons, the accused appeared and copies were furnished under 207 of Cr.P.C. Since the case was exclusively triable by the Sessions Court, it was committed to the Principal District and Sessions Court, Trichy. It was taken on file in S.C.No.160 of 2017 and made over to first Additional District and Sessions Judge (PCR), Trichy. Charges were framed against the accused. They denied the charges and claimed to be tried. The prosecution examined PW.1 to PW.21 and marked Ex.P1 to Ex.P22. The three sickles used in committing the crime were marked as M.O.1 to M.O.3. https://www.mhc.tn.gov.in/judis 5/17 6 Crl.A.(MD)NO. 213 of 2020 Incriminating circumstances were put to the accused during examination under Section 313 of Cr.P.C. The accused characterised them as false. On the side of the accused, no evidence was adduced. After hearing both sides and considering the evidence of record, the learned trial Judge by the impugned judgment convicted and sentenced the accused as mentioned above. Challenging the same, this appeal came to be filed.
3.The learned Senior Counsel appearing for the appellants reiterated all the contentions set out in the memorandum of grounds of appeal. He pointed out that in the disputed house, the accused were not residing. They had shifted to Musiri some 10 years prior to the occurrence. They used to come to the disputed house only occasionally. He pointed out that the claim of PW1 and PW2 that they were attending to the business in their shops with the deceased when the occurrence took place could not be true. PW3 Sagunthala, wife of PW1 deposed that since there was a temple festival in the village, they had closed their shops at 04.00 p.m itself. He also contended that the accused did not have any intention to kill the deceased. The attack was not on the vital parts of the body. The injuries were caused only on the right thigh and right elbow. The nature of injuries suffered by PW2 is also not clear. https://www.mhc.tn.gov.in/judis 6/17 7 Crl.A.(MD)NO. 213 of 2020 Though PW2 claimed that there were as many as 8 persons in the shop not even a single independent witness was examined. Even the neighbors were not examined to prove the occurrence. The learned Senior Counsel strongly pleaded that taking into account the overall facts and circumstances, the case on hand is fit for modification.
4.Per contra, the learned Additional Public Prosecutor submitted that the prosecution had convincingly established the charges against the accused beyond reasonable doubt and that the trial Court rightly convicted and sentenced the accused and that interference is not warranted. He pressed for dismissal of the appeal.
5.We carefully considered the rival contentions and went through the evidence on record.
6.PW1 Singaravel is the son of the deceased. He deposed that on 04.06.2016 at about 06.00 p.m, there was water logging in front of their house on account of leakage from the street pipe. Angered by this, the accused abused them in filthy language and came to hack them with sickles. Manickam hacked PW2 Kumaravel on his right hand. A3 https://www.mhc.tn.gov.in/judis 7/17 8 Crl.A.(MD)NO. 213 of 2020 Vetrivel, S/o.Manickam hacked PW2 on neck as well as on the back (neck and hip). When PW1 and Murugan went to rescue Kumaravel PW2, A2 Manivel hacked Murugan on the right thigh as well as right elbow. PW1 and their mother took Murugan in their two wheeler to hospital. PW2 Kumaravel was taken in another two wheeler by a relative Sakthivel and his wife. Kumaravel was admitted in Maruthi Hospital, Trichy at around 08.00 p.m. Before Murugan could be admitted in the Government Hospital, Trichy he died enroute. PW.1 lodged Ex.P1 complaint with Thottiyam Police Station at around 01.00 a.m (05.06.2016). PW.1 identified M.O.1 Aruval as the one used in hacking his father. He also identified M.O.2 as the weapon with which A1 Manickam hacked PW.2 Kumaravel. He identified M.O.3 as weapon with which A3 Vetrivel hacked PW.2.
7.PW.2 Kumaravel is an injured witness. He deposed that A1 Manickam and A3 Vetrivel hacked him while A2 Manivel hacked his father Murugan. PW.3 Sakunthala, wife of PW.1, is also an eye witness. It was she who sat in the pillion and rushed Murugan to Thottiyam Government Hospital. Murugambal, wife of PW.2 Kumaravel is another eye witness. PW.5 Sakthivel is the relative who took PW.2 to https://www.mhc.tn.gov.in/judis 8/17 9 Crl.A.(MD)NO. 213 of 2020 the hospital in his two wheeler. PW.6 Velayutham and PW.7 Arumugam are the other eye witnesses. PW.8 Ayyanar is a mahazar witness (Ex.P2 Observation mahazar and Ex.P3 Seizure mahazar). PW.13 Mookan witnessed the recovery of the weapons M.O.1 to M.O.3 and signed in the seizure mahazars (Ex.P7, Ex.P8 and Ex.P9). PW.16 Dr.Karthikeyan was working as Assistant Surgeon at Government Hospital, Thottiyam on 04.06.2016 and he gave first aid to PW.2 Kumaravel. One Dr.Balasubramani of Maruthi Hospital gave treatment to PW.2 Kumaravel. On behalf of the said Hospital, PW.18 Dr.Balaji deposed that 3 cut injuries were found on PW.2 and that he was an in-patient from 04.06.2016 till 10.06.2016 and that the injuries suffered by PW.2 were grievous in nature. PW.19 Dr.Saravanan performed autopsy on the body of Murugan and issued Ex.P17 post-mortem report. PW.20 is the Sub- Inspector who registered the FIR and PW.21 is the Investigation Officer. A1 Manickam is the father and A2 & A3 are his sons. It is beyond dispute that it was A2 Manivel who inflicted the fatal injuries on Murugan. This has been convincingly established through the testimonies of the eye-witnesses.
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8.The first question that calls for consideration is whether A1 Manickam and A3 Vetrivel could be imputed with common intention under Section 34 of IPC. It is admitted by the prosecution witnesses themselves that the accused were not residing at Thottiyam. They had shifted to Musiri 10 years prior to the occurrence. The disputed house had been allotted to Manickam way back in the year 1994. But the house was in the name of Murugan and he refused to transfer the said property. This gave rise to strain in the relationship between Murugan and Manickam. Manickam and his sons used to come to the disputed house only occasionally. The claim of PW1 and PW2 is that when they were attending to their business, the accused picked up quarrel may not be correct. PW3, wife of PW1, admitted in the cross examination that on the occurrence date, there was village festival and since there was no business after 04.00 p.m, the shops had been closed. The house allotted to Manickam was situated on the northern side of Murugan's house. It was on the back side. Even according to the prosecution, there was water logging which gave rise to the wordy quarrel. PW1 also conceded that the arrival of the accused from Musiri was only by chance. Manickam was inside the house along with sons. PW1 concedes that wordy quarrel took place between the brothers in the lane leading to the disputed house. https://www.mhc.tn.gov.in/judis 10/17 11 Crl.A.(MD)NO. 213 of 2020 One can safely infer that at some point the quarrel became heated and that is why the accused went into the house and came out with the weapon.
9.The weapons used for committing the crime are found in any house in the rural side. It is not the case of the prosecution that the accused came to Thottiyam fully armed. From a careful reading of the testimony of the prosecution witnesses, one can infer that the occurrence took place more on the spur of the moment and that there was no premeditation.
10.The Hon'ble Supreme Court in its decision reported in 2022 LiveLaw (SC) 287 (Gadadhar Chandra Vs The State of West Bengal), had held as follows:
“9. ...As consistently held by this Court, common intention contemplated by Section 34 of IPC presupposes prior concert. It requires meeting of minds. It requires a prearranged plan before a man can be vicariously convicted for the criminal act of another. The criminal act must have been done in furtherance of the common intention of all the accused.” https://www.mhc.tn.gov.in/judis 11/17 12 Crl.A.(MD)NO. 213 of 2020
11.The Hon'ble Supreme Court in the decision reported in 1971 (3) SCC 471 (Devi Lal & Another Vs The State of Rajasthan) had held as follows:
“13. ...Under Section 34 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words "in furtherance of the common intention of all" are a most essential part of Section 34 of the Indian Penal Code, It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime. Common intention means a pre- arranged plan.” Applying the aforesaid ratio to the facts of this case, we hold that the accused acted in a fit of anger spontaneously. One cannot infer from the evidence adduced by the prosecution that there was common intention among the accused. It is true that the prosecution has established that the accused had motive. But it was not something new. For over 16 years, Murugan did not effect mutation of property in favour of Manickam. It could not have triggered the occurrence. Since the accused have not been permanently residing at Thottiyam, water logging also could not have been the reason for committing the crime. Water logging providing the cause for quarrel. The quarrel must have gone on for sometime. https://www.mhc.tn.gov.in/judis 12/17 13 Crl.A.(MD)NO. 213 of 2020 Inappropriate language would have been employed on either side.
Thereupon, the accused feeling suddenly provoked rushed into the disputed house and came out with sickles in their hands. From this sequence of events, common intention cannot be established. We therefore hold that the prosecution could not have invoked Section 34 of IPC against the accused.
12.Now we have to analyze individual acts of the accused. A2 Manivel hacked the deceased Murugan and inflicted the following injuries:
“1.Blood stained whitish hospital dressing on right arm; On removal of that, Blood stained gapping oblique cut injury 0.5 x 0.5 x 1 cm on outer aspect of middle third of right arm;
2.Blood stained gapping oblique horizontal cut injury 7 x 5 cm x bone deep on inner aspect of middle third of right arm; underlying soft tissues were cut and severed; complete cut fracture on the underlying middle part of right humerus with surrounding dark red extravasation of blood;
3.Blood stained whitish hospital dressing on right thigh; On removal of that, Blood stained obliquely vertical gapping cut injury 17 x 1 x 6 cm on front and adjoining outer aspect of middle third of right thigh https://www.mhc.tn.gov.in/judis 13/17 14 Crl.A.(MD)NO. 213 of 2020 underlying soft tissues were cut and severed; underlying right femur was intact;
4.Blood stained gapping oblique cut injury 3 x 0.2 x 0.2 cm on back of lower part of left index finger; underlying bone was intact;
5.Blood stained gapping oblique cut injury 2 x 0.2 x 0.2 cm on back of lower part of left middle finger;
underlying bone was intact;”
13.The medical opinion is to the effect that the deceased died of multiple injuries. Murugan was aged about 70 years at the time of occurrence. A2 obviously knew that inflicting sharp and deep injuries on Murugan would surely lead to his death. He obviously had an intention to cause Murugan's death. This is evident from the nature of injuries inflicted. We do not find any merit in the contention of the learned Senior Counsel that the attack was on non-vital parts of the body. Distinction between vital and non-vital parts becomes irrelevant since age and physical condition of the victim must also be taken into account. In that view of the matter, we hold that the acts attributed to A2 constitute the offence punishable under Section 302 of IPC. https://www.mhc.tn.gov.in/judis 14/17 15 Crl.A.(MD)NO. 213 of 2020
14.The nature of injuries suffered by PW2 is not clear. Ex.P16 wound certificate issued by Maruthi catalogues three stab injuries. The doctor who treated PW2 was not examined. Ex.P12 accident register maintained by Thottiyam Government Hospital where PW2 was first admitted refers to lacerated injuries. PW2 was an in-patient in Maruthi hospital only for six days. PW2 deposed that A1 inflicted only injury on his right palm. It does not appear to be a serious injury. It is only A3 who had inflicted cut injury on the neck.
15.Since dangerous weapons had been used, A1 as well as A3 are found guilty of the offence under Section 324 of IPC. Evidence on record is insufficient to find A1 guilty of the offence under Section 294(b) of IPC. In the result, the first accused is convicted for the offence under Section 324 of IPC and sentenced to the period already undergone and to pay a fine of Rs.12,000/-. In default of payment of fine amount, he shall undergo simple imprisonment for three months. The second accused is convicted for the offence under Section 302 of IPC and sentenced to undergo imprisonment for life and pay fine of Rs.10,000/-. In default of payment of fine, he shall undergo simple imprisonment for one year. The third accused is convicted for the offence under Section https://www.mhc.tn.gov.in/judis 15/17 16 Crl.A.(MD)NO. 213 of 2020 324 of IPC and sentenced to undergo imprisonment for one year. He is entitled to set-off under Section 428 of Cr.PC.
16.This Criminal Appeal is partly allowed. No costs.
[G.R.S., J.] [R.P., J.]
13.12.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
MGA/skm
To:
1.The First Additional District and Sessions Judge (PCR), Tiruchirappalli.
2.The Judicial Magistrate No.5, Trichy.
3.The Principal and District Sessions Judge, Trichy.
4.The Inspector of Police, Thottiyam Police Station, Trichy District.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 16/17 17 Crl.A.(MD)NO. 213 of 2020 G.R.SWAMINATHAN,J.
AND R.POORNIMA, J.
MGA/skm Crl.A.(MD)No.213 of 2020 13.12.2024 https://www.mhc.tn.gov.in/judis 17/17