Madras High Court
Manickam vs State Rep. By on 31 January, 2012
Author: P.Devadass
Bench: N.Paul Vasanthakumar, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/01/2012 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE MR.JUSTICE P.DEVADASS Criminal Appeal (MD) No.74 of 2011 1.Manickam 2.Mariyayee ... Appellants vs. State rep. by the Inspector of Police, Thogamalai Police Station, Karur District. (Crime No.264 of 2007) ... Respondent Appeal filed under Section 374 of the Criminal Procedure Code against the judgment of the Sessions Court, Karur in S.C.No.93 of 2007 dated 29.11.2008. !For Appellants ... Mr.P.Ganapathi Subramanian ^For Respondent /State ... Mr.K.S.Durai Pandian Addl. Public Prosecutor :JUDGMENT
P.DEVADASS,J.
Accused Nos.1 and 2 in S.C.No.93 of 2007 before the learned Sessions Judge, Karur Sessions Division at Karur are the appellants before us. For convenience sake, let us call them as Accused No.1 and 2.
2. On 29.11.2008, the learned Sessions Judge convicted and sentenced them as under:-
ACCUSED CONVICTION SENTENCE A.1 302 IPC Life sentence and fine Rs.1,000/-, in default, 6 months rigorous imprisonment A.2 294 (b) IPC 1 month rigorous imprisonment 341 IPC Fine Rs.500 in defaut 1 month rigorous imprisonment 302 r/w. 34 IPC Life sentence and fine Rs.1,000/- in default 6 months rigorous imprisonment The sentences are directed to run concurrently.
3. The prosecution case in brief is as follows:-
(i). The spouses Manickam (A.1) and Mariyayee (A.2) and Balasubramanian (deceased) belong to Chinnareddypatti in Kulithalai Taluk in Karur District.
They have dispute with regard to a vacant site. On 29.6.2007, at about 11 p.m, in front of A.1's house, wordy altercation took place between them in placing a thatched fence near the vacant site. A.2 abused and caught hold of Balasubramanian, while A.1 brought a bill-hook (MO.1) from his house and cut him on his legs. He bled profusely. PWs.1 to 3 Senthil Kumar, Kanagaraj and Annadurai witnessed the occurrence. PW.1 informed this to P.W.4 Sivamani, wife of Balasubramanian. They took the injured to the Government Hospital, Kulithalai. The Doctor pronounced him dead already. On 30.6.2007, at about, 6 a.m. at the Thogamalai Police Station, PW.1 gave Ex.P.1 complaint to PW.9 Anbazhagan, Sub-Inspector of Police. He registered a case in Crime No.264 of 2007 for offences under Sections 294 (b), 341 and 302 IPC. At about 8 a.m., PW.7 Head Constable Eswaran handed over the Express FIR (Ex.P.8) to the Judicial Magistrate No.I, Kulithalai.
(ii). On receipt of a copy of F.I.R., P.W.10 Inspector Sampath Kumar, took up his investigation. At the scene place, in the presence of PW.5 Ramalingam, V.A.O and his Assistant Palaniyandi he prepared Ex.P.2 Observation Mahazar and drew Ex.P.9 Rough Sketch. At the mortuary, in the said Hospital, in the presence of Panchayathars, P.W.10 held inquest over the dead body (Ex.P.10 Inquest Report). On his requisition (Ex.P.5), at about 11.15 a.m., PW.6 Dr.Pon Marudamuthu conducted post-mortem on the dead body. He noticed (i) a cut injury, curved in shape of size 18 x 5 x 8 cm deep below the right knee, starts on the lateral aspect of the leg passes on the back of the leg and upto medial aspect of the leg and (ii) all the muscles back of the leg and major blood vessels popliteal artery and vein are cut, and tibia, fibula bone are visible through the injury. At the scene village, PW.10 examined the witnesses and recorded their statement. At about 8 p.m., on the Kulithalai - Manapparai Main Road, near Parapatti, he arrested A.1 and A.2. In the presence of PW.5 and his Assistant, he recorded confessional statement (Ex.P.3) of A.1. In pursuance of that, in Chinnareddypatti, from Nagaraja's land, A.1 produced MO.1 bill-hook. In the presence of the said Revenue staff, PW.10 seized it under Ex.P.4 Mahazar. PW.10 sent the accused to the Court for judicial custody. PW.6 opined that the said injury was possible by a weapon like MO.1 bill-hook. Concluding his investigation, PW.10 filed the Final Report for offences under Sections 294(b), 341, 302 and 302 r/w 34 IPC.
4. The Trial Court framed charges under Section 302 IPC against A.1 and under Sections 294(b), 341 and 302 r/w 34 IPC as against A.2.
5. To prove the charges, prosecution examined PWs.1 to 10, marked Exs.P.1 to 10 and exhibited MOs.1 to 5.
6. When the learned Sessions Judge examined the accused under Section 313 Cr.P.C. on the incriminating aspects in the prosecution evidence, they denied their complicity in this case.
7. The accused have examined DWs.1 and 2 and marked Ex.D1. According to DW.1, Dr.Muthuraman, on 1.10.2006, at the Government Hospital, Tiruchirappalli, he had treated Balasubramanian for injuries in his chin, right knee and right leg, which were sustained by him in a road accident and he issued him Ex.D.1 Accident Register.
8. According to DW.2, Mookkan, Village Accountant, Chinnareddypatti, on the occurrence day, at about 8 p.m., in front of accused's house, there were shoutings, certain persons brought a thatched hut; it fell on the legs of Balasubramanian; he got injured, D.W.2 sent them to village headman's house, police took them from there.
9. Appreciating the evidence on record, the learned Sessions Judge came to the conclusion that the prosecution has proved the charges beyond all reasonable doubts, convicted and sentenced them as stated already.
10. According to Mr.P.GanapathiSubramanian, learned counsel for the appellants, prosecution has not brought home the charges levelled against the appellants beyond all reasonable doubts. The learned counsel elaborated it as under:-
(i). There is inconsistency as between the oral evidence and medical evidence. According to the post-mortem Doctor P.W.6, the injury was on the back side of right leg of the deceased, whereas P.Ws.1 to 3 says that it was on the front side of the right leg.
(ii). Prior to the occurrence, the deceased had sustained injuries in his right leg in a road accident. D.W.1 treated him and issued him Ex.D.1 Accident Register. Now, that injury has been shown as injury sustained in the occurrence.
(iii). P.W.6 himself admits that if proper treatment was given, the deceased would have survived.
(iv). The eye-witnesses P.Ws.1 to 3 are inconsistent in their evidence.
Their very presence at the scene of crime is doubtful.
(v). P.W.1 had stated that before lodging the FIR, on his way to hospital, he had informed about the occurrence at the Thogalamalai Police Station.
(vi). P.W.2 stated that in the house of Jayaraman, Village Headman, a compromise was attempted. P.W.3 stated that Police came to the Village at about 5 a.m. However, the F.I.R was lodged at about 6 a.m. There is long delay in lodging the F.I.R as well as in sending it to Court. There was a prior complaint. That has been suppressed. So, the F.I.R is doubtful. Prosecution case lacks credibility,
(vii). Even as per the overtact alleged as against A.1, he cannot be held to have committed murder.
(viii). There is no acceptable evidence to link A.2 in this case.
11. Per contra, Mr.K.S.Durai Pandian, learned Additional Public Prosecutor submitted that P.Ws.1 to 3, have clearly spoken to about they having witnessed the occurrence. The medical evidence shows that the deceased had a curved shape cut injury on his right leg and his death is connected with the injury caused to him in the occurrence. Prosecution has established the charges against the accused beyond all reasonable doubts. They have been rightly convicted and sentenced.
12. On 29/6/2007, at about 11 p.m., in Chinnareddypatti, in Kulithalai Taluk, in Karur District, in front of A.1 Manickam's house, Balasubramanian was found with injury on his right leg. His wife P.W.4 Sivamani and P.W.1 Senthilkumar took him to the Government Hospital, Kulithalai. The Doctor declared him dead already.
13. At the said hospital, on 30/6/2007, at about 11.15 a.m., P.W.6 Dr.Pon Marudhamuthu conducted autopsy on the dead body and found the following:
(i). Cut injury, curved in shape of size 18 x 5 x 8 cm deep below the right knee, starts on the lateral aspect of the leg passes on the back of the leg and upto medial aspect of the leg.
(ii). All the muscles back of the leg and major blood vessels popliteal artery and vein are cut; and Tibia, fibula bone are visible through injuries.
14. P.W.6 opined that the deceased would appear to have died of shock and prolong Hemorrhage due to severe injury about 11 to 12 hours prior to post- mortem (Ex.P.6 Post-Mortem Certificate).
15. On 1/10/2006, at the Government Hospital, Tiruchirapalli, D.W.1 Dr.Muthuraman treated Balasubramanian for injuries in his right leg sustained in a road accident and Ex.D.1 Accident Register was issued to him. P.W.4 Sivamani also confirms this. In his cross-examination, D.W.1 did not deny that the injury sustained in the leg would have healed 6 months ago. P.W.6 had stated that his death was due to the injury sustained by him on the occurrence day. The cut injury on the right leg was curve shaped, and P.W.6 had also stated that if the deceased was cut on his right leg with a bill-hook from the front side slantingly, the curved shape injury is possible. P.Ws.1 to 3 have stated that the injury was on the front side of his right leg. The occurrence was during night time. During such time, they could view the causing of cut injury on the leg and could not clearly view whether it was on the front side or on the rear side. Further, the injury was curve shaped. So, such question is also out of question. There is no material contradiction as between the oral evidence and medical evidence. There is close connection between the injury sustained by the deceased on the occurrence day and his death. His death was due to the injuries sustained by him on the occurrence day only.
16. P.W.6 did not deny that if immediate treatment was given to the deceased, he would have survived. Pointing out this, the learned counsel for the appellants argued that the appellants could not be made responsible for his death.
17. It is a matter of common sense that in every case, if immediate and proper treatment is given, possibility of an injured surviving cannot be ruled out. That will be the hope of every one. It is relevant here to note Explanation 2 to section 299 IPC., namely, "Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to per remedies and skilful treatment the death might have been prevented."
So, the argument based on such hypothetical answer of P.W.6 is of no avail to the appellants.
18. The occurrence was on 29/6/2007, around 11 p.m., in front of A.1's house. On its northern side, there is a vacant site of the deceased. Already, there was dispute with regard to the site as between both sides. In Ex.P.1 complaint this aspect also has been mentioned. In Ex.P.1, it is also mentioned that just before the occurrence, there was wordy altercation between the deceased and the accused in placing a thatched fence near the disputed site. The eye-witnesses to the occurrence P.Ws.1 to 3 Senthil Kumar, Kamaraj and Annadurai, have also stated that just prior to the occurrence, there was quarrel between the deceased and the accused with regard to keeping of the thatched fence. P.W.1 had stated that A.1 had brought M.O.1 bill-hook from his house and cut the deceased on his right leg. This was also corroborated by P.Ws.2 and 3. This aspect has been mentioned in the F.I.R. We have closely scanned the evidence of P.Ws.1 to 3 and we do not find any material inconsistency in their evidence. No major dent has been made by the defence in their cross-examination disturbing the clear cut and consistent evidence of the ocular witnesses as to the overtact attributed as against A.1.
19. On 30.06.2007, at about 6 a.m., at the Thogamalai Police Station, P.W.1 Senthilkumar lodged Ex.P.1 complaint to P.W.9 Anbalagan, Sub-Inspector of Police. Based on that FIR was registered.
20. In between Chinnareddipatti and Thogamalai, the distance is about 6 Kms. From Thogalamalai to Government Hospital, Kulithalai, the distance is about 22 Kms. From the village, the injured was taken in a most serious condition to the Government Hospital, Kulithalai by P.Ws.1 and 4, at that time, P.W.4 will be very much interested in saving her husband's life than giving a complaint to the Police. Since the Police Station is just on the way to Kulithalai, P.W.1 put a word about the occurrence to the Police and rushed to the hosital with the injured. After Balasubramanian having been declared dead, P.W.1 came to the Police Station and at about 6 a.m., gave Ex.P.1 complaint. In these circumstances, there is no delay in lodging the FIR.
21. On the same day, P.W.9 despatched the Express FIR (Ex.P.8) through P.W.7 Head Constable Eswaran, who after travelling about 22 Kms., at about 8 a.m., handed over the FIR to Judicial Magistrate No.I, Kulithalai. Thus, there is no delay in despatching the F.I.R nor it reaching the Court.
22. Between Thogalamalai Police Station and the scene village, the distance is about 6 Kms. As already P.W.1 had alerted the Police, in verification of that, Police had rushed to the scene village on the early morning. That is how P.W.3 had stated that at about 5 a.m., Police had been seen in the Village. Further, P.W.3 is a rustic person, then he was wearing a wrist-watch. So, no gain has been accrued to the accused by such evidence of P.W.3.
23. One Jayaraman seems to be the Village Headman. Villagers held such persons in high esteem and used to appraise them of any untoward incident in the Village. On the occurrence day, such an incident having been taken place, it is quite natural that that had been informed to him. This has not tilted the scale in favour of the accusd.
24. There is no evidence that prior to the occurrence as to the land dispute, a complaint was lodged either by the deceased or by the accused. Therefore, the salvoes unleased towards the FIR failed to hit it.
25. Prosecution version as against A.2 is that just prior to the commencement of the occurrence, she had abused the deceased in a foul language. It is also alleged that thereafter, she had caught hold of the deceased, and her husband cut him on his right leg with M.O.1 bill-hook.
26. The foul language alleged to have been hurled by her at the deceased has been detailed in Ex.P.1 complaint. In his evidence, P.W.1 did not say so. He did not say that she had scolded the deceased at all. Such is also the evidence of P.W.2. P.W.3 also did not say that A.2 had scolded the deceased in such foul language. P.W.2 had stated that she had caught hold of the deceased from behind. He did not say so in his chief-examination. P.W.3 had stated that she had caught hold of the hip of the deceased. P.W.1 is silent about these aspects in his evidence. P.Ws.1 to 3 did not say that she had instigated or goaded or provoked her husband to kill or cut the deceased. Of course, their evidence shows that then she was present. There is no legal and acceptable evidence to show that she had committed any overtact. By her such presence alone she cannot be fastened with criminal liability.
27. Thus, by ample evidence, prosecution has established that on the occurrence day A.1 had cut Balasubramanian with M.O.1 bill-hook on his right leg and that proved him fatal.
28. Now, we have to see what offence is made out as against him.
29. There was no pre-mediation. It was sudden on a spur of moment. The weapon used in the commission of the offence is M.O.1 bill-hook. A.1 brought it from his house. With that he had cut him on his right leg. It was very deep. The major blood vessels popliteal artery and vein were cut and Tibia, fibula bone were visible through the injury. So, it was forceful. In his evidence, P.W.6 the Post-mortem Doctor stated that the injury was sufficient to cause his death. So, A.1 knows that his such overtact will result in causing him such bodily injury likely to cause his death. In the circumstances, his case will fall under Section 304 (ii) IPC.
30. Now, what punishment shall be meted out to him.
31. Now, A.1 is about 46 years old. A married man. He has wife, two daughters, aged about 15 and 10 years respectively and a son, aged about 13 years. They are in abject poverty. Poverty has very much engulfed this family. At the same time, we cannot lost sight of the victim of the crime. P.W.4 has become a widow because of A.1. Her sufferings cannot be belittled. We have to consider these two extremes in sentencing him.
32. In the result,
(i). this Criminal Appeal is allowed in part,
(ii). The conviction of the second appellant under Sections 294 (b), 341 and 302 r/w. 34 IPC and sentences imposed upon her in S.C.No.93 of 2007 on 29/11/2008 by the learned Sessions Judge, Karur are set aside.
(iii). If fine amount is already paid, it shall be refunded to her,
(iv). Her bail bond shall stand cancelled,
(v). The conviction of the first appellant under Section 302 IPC and the life sentence and the fine of Rs.1,000/- in default 6 months rigorous imprisonment awarded to him are set aside.
(vi). Instead, he is convicted under Section 304 (ii) IPC,
(vii). He is sentenced to 6 years rigorous imprisonment.
(viii). He is entitled to set off under Section 428 Cr.P.C.
asvm/mvs.
To
1. The Sessions Judge, Karur
2. The Judicial Magistrate No.I, Kulithalai
3. The District Collector, Karur
4. The Superintendent of Police, Karur
5. The Central Prison, Tiruchy
6. The Inspector of Police, Thogamalai, Karur District.