Madras High Court
Prabu Alias Prabakrishnan vs State Represented By on 5 February, 2008
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.NO.113 of 2007 Prabu alias Prabakrishnan ... Appellant / Accused Vs. State represented by Inspector of Police, Suchindrum Police Station, Crime No.137/2002 ... Respondent / complainant This criminal appeal has been preferred under Section 374 (2) of Cr.P.C against the judgment passed by the Sessions Court, Kanniyakumari Division at Nagercoil, Kanniyakumari District in his S.C.No.244/2003 dated 24.01.2007 wherein the appellant is guilty convicted and sentenced to suffer life imprisonment and also imposed a fine of Rs.5,000/- indefault to suffer Rigorous Imprisonment for a period of one year for an offence under Section 302 IPC. !For Appellant ... Mr.V.Kathirvelu ^For Respondent ... Mr.P.N.Pandithurai, Additional Public Prosecutor :JUDGMENT
(The judgment of the court was made by S.PALANIVELU, J.) Challenge is made to the judgment of the Court of Sessions, Kanniyakumari District at Nagercoil in S.C.No.244 of 2003 dated 24.01.2007 by means of which the appellant/accused has been sentenced to undergo imprisonment for life and also imposed a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for one year. The trial Court has found that the charge under Section 341 IPC has not been proved against the appellant.
2.The apparent factual matrix of the case goes thus:-
P.W.1 is the mother of the deceased Murugan and P.W.2 is the brother of P.W.1. They are residents of Keezha Puthalam in Kanyakumari District. The accused is known to them. On 17.02.2002, at about 4.30 p.m. in Puthalam Sowmiyapuram Junction, P.Ws.1 and 2 were standing and speaking to each other. The accused came there and demanded wages from the deceased, who was standing nearby, for which he responded that as soon as he got it he would pay to him. However, a wordy duel ensued between them and accused took babul stick, which was lying nearby, repeatedly delivered blows on the head of deceased Murgan and fled away from the scene. Immediately, Murugan fell down with bleeding injuries. He was removed to Thiraviam Hospital, where he received treatment for 25 days and then he was shifted to Trivandrum Medical College Hospital and he breathed his last after five days on 18.03.2002.
3.Immediately after the occurrence, a case was registered under Sections 341,323 and 506(i) IPC in Crime No.137 of 2002 on the file of Suchindrum Police Station and FIR Ex.P.8 was lodged by P.W.9, the Sub-Inspector of Police. He proceeded to the scene of crime and prepared an observation mahazar and rough site plan. Then, he proceeded to the infirmary and recorded statements of witnesses P.Ws.1 and 2. After he got death intimation Ex.P.10, on 18.03.2002 from Trivandrum Government Hospital about the death of Murgan, he altered the case into one under Section 302 IPC. The case file was placed before the Inspector of Police for further investigation. After receiving the same, P.W.12 proceeded to Trivandrum Medical College Hospital and held inquest over the corpse of the deceased Murugan and prepared Ex.P.14, inquest report. He gave requisition to the Medical Officer for conducting post-mortem over the dead body.
4.The Doctor, P.W.8, attached to Trivandrum Medical College Hospital conducted autopsy on the dead body and issued Ex.P.7 post-mortem certificate. The following external injuries have been observed:-
"INJURIES (ANTE MORTEM)
1.Scar ' ' shaped, soft and having wrinkled surface on the left side of head, its inner front end being 8 cm above the top of ear and outer buck end, 6cm behind the ear.
2.Hypopigmented area 1x1 cm on the right side of forehead, 2 cm above the eyebrow and 2 cm outer to midline.
3.Infected wound 1.5x1x0.2 cm on the forehead in midline, 3.5 cm above the root of nose.
4.Infected wound 1x1x0.4 cm on the left side of back of head, 7.5 cm behind the ear.
5.Infected wound 1.5x1.5x0.4 cm on the left side of back of head, 3 cm above and 2.5 cm outer to injury No.4.
6.Contusion of scalp 12x10x0.5 cm on the left side of head, 3.5 cm above the top of ear.
Underneath the left parietal bone showed a bony deficit measuring 5x3 cm, edges were irregular. A cream coloured material was seen beneath the bony deficit and kept in situ by suturing to the dura-matter. Extradural inflitration seen over the left parietal lobe (11x9.5x0.2cm). Right frontal lobe showed an induntation measuring 4x2.5x1cm with infiltration of blood in the subarachnoid space over that area. Brain was oedematous.
7.Hypopigmented areas 4x2 cm and 4x0.5 cm on front of right knee, 2cm apart and above the other.
8.Hypopigmented area with spotty pigmentation 4x3 cm on the front of left knee and leg.
9.Multiple small abrasions over an area 2x1 cm and 1 x 0.5 cm on the back of left elbow and arm, 2 cm apart and one above the other.
10.Multiple small abrasion over an area 5x3 cm on the outer aspect of left hip, 7.5 cm below the top of hipbone.
11.Tracheostomy wound 2.5x1 cm on the front of neck in midline, 5 cm above sternal notch."
5.The doctor was of the opinion that death was due to head injury. P.W.12, the investigator examined and recorded statements under Section 161(3) Cr.P.C. Then, he checked the observation mahazar and seizure mahazar, prepared by the Sub-inspector of Police and found them correct. He also examined the doctor. On 19.03.2002, he arrested the appellant at 20.00 hrs at Parakkai Junction and sent him for judicial custody. P.W.13, the Inspector of Police, successor to P.W.12 took up further investigation in this case and examined the police constables, who had taken the job of taking the FIR to the Court and producing the body for autopsy. He also despatched the case properties for chemical analysis. Exs.P.17 & 18 are the reports from the Chemistry and Serologist Department respectively. On completion of the investigation, he laid the charge sheet.
6.In order to establish charges levelled against the appellant, the prosecution examined as many as 13 witnesses and marked 18 documents and M.Os.1 to 3. Neither the appellant has chosen to examine any witness nor marked any documents. After hearing arguments advanced by both sides and after making a through analysis of the materials available, the lower Court found the appellant guilty of charge under Section 302 IPC and acquitted him of charge under Section
341.
7.The learned counsel appearing for the appellant Mr.V.Kathirvelu, would stress upon the ground that the evidence on record would go to show that there was no premeditation or predetermined mind on his part to cause death of the deceased. However, in a fit of fury, he collected a babul stick which was lying nearby and assaulted him even without entertaining an intention to cause grievous injury and hence, the conviction under Section 302 is not at all in accordance with law.
8.P.Ws.1 and 2 are categorical in saying that the appellant assaulted the deceased appellant with babul stick on his head causing injuries. They are closely related to the deceased. Merely because the witnesses are relatives of the deceased, it could not be stated that their evidence are far from acceptance. The Court has to exercise thorough scrutiny of the materials available on record to reach a conclusion by appreciating them in the light of well established principles. A careful scanning of their evidence would go a long way to show that there is truth in their versions. In their cross- examinations evidence adduced in their chief examinations have not been shattered. P.W.1 is the father of the deceased, who would state that he is the brother of Chenbakalingam, P.W.2, Thangaraja and others were talking to each other and at that time, the accused came and asked his son Murugan to pay his wages, for which he replied that he would pay it afterwards and with this reply, he got infuriated. The accused picked up a babul stick, which was lying nearby and made assault on the head of Murugan indiscriminately. The evidence of P.W.2 is also in tune with that of P.W.1. P.W.2 says that at the time of occurrence, the accused being enraged at the response given by the deceased, took a firewood and assaulted him.
9.Learned counsel for the appellant Mr.V.Kathirvelu would strenuously contend that even from the oral testimonies of the prosecution witnesses, it could not be seen that the appellant acted in such a manner as to cause death of the deceased to murder him and in a fit of rage, he picked up stick from a heap of firewood and beat the deceased. Bringing his act within the purview of Section 302 IPC or under Section 304 IPC, cannot be possible, but squarely it could be brought under Section 335 IPC, he adds. It is his further argument that the prosecution has not brought home the guilt of the accused beyond all reasonable doubt as far as Section 302 IPC concerned.
10.We have heard the learned Additional Public Prosecutor as regards the above said contentions. We bestowed our anxious considerations to the rival submissions.
11.In the first place, while the oral accounts of P.Ws.1 and 2 are subjected to a thorough examination, it is seen that the accused before the occurrence had no intention at all even to cause a hurt to him. But peeved at the answer given by the deceased, he immediately took the firewood lying there and lashed out on the head of the deceased. No doubt, the beating by the appellant had caused grievous injuries on the person of Murugan. From the oral evidence, it transpires that he had been taking treatment as inpatient in the hospital for 24 days. But the prosecution has miserably failed to establish that he was having necessary mens rea to commit murder of Murugan. The appellant had no intention to cause death or such bodily injury so as to cause death. By no stretch of imagination, it could be stated that he had acted in such a way to make him dead. The injury caused with the stick on the head of the body is without the knowledge of the appellant when the blows given which would eventually cause the death of the deceased.
12.It is not the case of the prosecution that the appellant was having a motive to do away the deceased nor he had ill-will against him. It could be held from the scanning of materials available that the appellant at the most might have thought of causing some injury to the deceased at the time of taking the stick, but in no way he would have thought that the injury would lead to his death.
13.The indepth study of the evidence on record would show that the appellant on grave and sudden provocation had caused grievous hurt to the deceased, but he never intended nor knew that it would likely to cause grievous hurt to the deceased. Hence, his act could not be brought either under Section 302 or under any of the categories adumbrated under Section 304 IPC. But it is the one which clearly falls within the scope of Section 335 IPC, since the appellant had not intended to cause even grievous hurt on sudden provocation, he got on getting the reply from the deceased. In view of our above said discussion, we hereby modify the sentence to be imposed under Section 335 IPC. Awarding of life imprisonment under Section 302 IPC is not permissible and the sentence of life imprisonment imposed by the Sessions learned judge is hereby set aside.
14.In fine, the conviction and sentence imposed on the appellant / accused under Section 302 IPC has been converted to one under Section 335 IPC. Life imprisonment is set aside and instead, two years R.I. is awarded. The fine amount imposed by the trial Court along with default sentence is affirmed. The period of imprisonment already undergone shall be given set off.
ssm To
1. THE JUDICIAL MAGISTRATE NO.III NAGERCOIL.
2. -DO THRO'- THE CHIEF JUDICIAL MAGISTRATE, KANYAKUMARI AT NAGERCOIL.
3. THE SESSIONS JUDGE, KANNIYAKUMARI DIVISION AT NAGERCOIL, KANNIYAKUMARI DISTRICT.
4. -DO THRO'- THE PRINCIPAL SESSIONS JUDGE, KANYAKUMARI AT NAGERCOIL.
5. THE SUPERINTENDENT, CENTRAL PRISON, PALAYAMKOTTAI.
6. THE DISTRICT COLLECTOR, KANYAKUMARI.
7. THE DIRECTOR GENERAL OF POLICE MYLAPORE, CHENNAI - 4.
8. THE PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
9. THE INSPECTOR OF POLICE, SUCHINDRUM POLICE STATION, KANYAKUMARI DISTRICT.