Madras High Court
Jothimani vs State Rep. By on 25 August, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.No.245 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.08.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.245 of 2020
Jothimani,
S/o.Dhanapal ... Appellant
Versus
State Rep. by
The Inspector of Police,
Kurinjipadi Police Station,
Cuddalore District. (Cr.No.344/2017) ... Respondent
Prayer : Criminal Appeal filed u/s.374 of the Code of Criminal Procedure,
praying to set aside the conviction and sentence imposed in S.C.No.228 of
2018 dated 31.01.2020 on the file of the First Additional District and Sessions
Judge, Cuddalore.
For Appellant : Mr.K.Gandhi Kumar
For Respondent : Mr.S.Vinoth Kumar,
Government Advocate (Crl.Side)
JUDGMENT
On 19.11.2017, when P.W.14 was on duty at Kurinjipadi Police Station, P.W.1 came to the police station and lodged a complaint to the effect that one Saritha had dried the dirty clothes washed by her in front of the house and https://www.mhc.tn.gov.in/judis 1/14 Crl.A.No.245 of 2020 therefore, her husband one Ramesh had confronted the said Saritha. While so, the accused who has previous enemity, who was coming that way picked up a quarrel and during the process, picked up a Gravel stone and hit him on the chest, due to which her husband had fallen down and died. When she came to her home upon getting information, she found that there was a crowd in front of her house and her husband was dead and therefore, came to the Police Station and lodged a complaint. On the strength of the said complaint, an FIR in Crime No.344 of 2017 was registered by P.W.14 for the offence under Section 302 of IPC. Thereafter, P.W.15 took up the case for investigation, completed the investigation and filed a final report proposing the accused guilty for the offence under Sections 294(b) and 302 of IPC.
2.The case was taken on file as P.R.C.No.10 of 2018 by the learned Judicial Magistrate No.III, Cuddalore and upon appearance of the accused and furnishing of copies under Section 207 of the Cr.P.C., the case was committed under Section 209 of Cr.P.C. to the learned Principle District and Sessions Judge, Cuddalore. Thereafter, the case was taken on file as S.C.No.288 of 2018 and was made over to the Trial Court.
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3.After considering the materials on record, the Trial Court framed charges against the accused under Sections 294(b) and 302 of IPC. Upon questioning, the accused denied the charges and stood trial.
4.In order to bring home the charges, the Prosecution examined the de-facto complainant, Parameshwari, the wife of the deceased as P.W.1, who spoke about the fact as to giving of complaint. The daughter of the deceased, namely Minor. Guna, aged about 13 years was examined as P.W.2, she was an eye-witness to the occurrence. The son of the deceased, namely Minor.Kamalanathan, aged about 15 years was examined as P.W.3, he was also an eye-witness to the incident. P.W.4, namely Sori @ Rajamoorthy, who was a resident of the same village, who rushed to the spot and attempted to give water to the deceased. One Saritha, who actually dried the clothes and who was confronted by the deceased was examined as P.W.5. One Rajini, who was witness to the previous quarrel between the deceased and the accused was examined as P.W.6. Witness to the Observation Mahazar, namely Sivananthan was examined as P.W.7 and witness to the Confession Statement one Sakaravel was examined as P.W.8. The Village Administrative Officer (VAO), who recorded Extra Judicial Confession was examined as P.W.9. One Baskar, the Forensic expert, who analyzed the blood stain in M.O.1 and compared with that https://www.mhc.tn.gov.in/judis 3/14 Crl.A.No.245 of 2020 of the blood stain from the body of the deceased was examined as P.W.10. The expert, who examined the Viscera, namely Kumaravelu was examined as P.W.11. The Doctor, who had given Autopsy Report was examined as P.W.12. The Post-Mortem Doctor was examined as P.W.13. The Sub-Inspector of Police, who registered the FIR was examined as P.W.14. The Investigating Officer was examined as P.W.15.
5.This apart, the prosecution has marked Ex.P-1 to Ex.P-20, and produced the blood stained sandal colour Gravel Stone as M.O.1 and Aadhar Card of accused Jothimani as M.O.2.
6.Upon questioning about the material evidence on record and the incriminating circumstances under Section 313 of Cr.P.C., the accused denied the same as false. Thereafter, the Trial Court proceeded to hear the learned Additional Public Prosecutor on behalf of the prosecution and the learned Counsel for the accused and by a judgment dated 31.01.2020 found the accused guilty of the act and however, finding that there was no premeditated intention, convicted the accused for the offence under Section 304(ii) of IPC and sentenced to undergo ten years of rigorous imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine to undergo six months simple https://www.mhc.tn.gov.in/judis 4/14 Crl.A.No.245 of 2020 imprisonment. The accused was not found guilty for the offence under Section 294(b) IPC. Aggrieved by the same, the present appeal is laid before this Court.
7.Heard Mr.K.Gandhi Kumar, learned Counsel appearing on behalf of the appellant and Mr.S.Vinoth Kumar, learned Government Advocate (Crl.Side) on behalf of the respondent Police.
8.The learned Counsel appearing on behalf of the appellant would take this Court through the evidence on record pointing out to the portion of evidence of P.W.3, would submit that from the evidence of P.W.3, it is clear that the children were playing at a distance and therefore, they were not eye- witness to the incident. As a matter of fact, even those witnesses, P.W.2 and P.W.3 were examined only after ten days, which shows that it is an improvement made by the prosecution to plant eye-witnesses and therefore, would say that the evidence of the eye-witnesses P.W.2 and P.W.3 should be discarded.
9.He would further submit that the evidence of P.W.1 is categorical and clear that when she came to the house already police men were standing in the house. Therefore, when there was earlier information received by the police, the https://www.mhc.tn.gov.in/judis 5/14 Crl.A.No.245 of 2020 FIR registered on the subsequent complaint of P.W.1 is hit by Section 162 of Cr.P.C., therefore, loses its evidentiary value. He would submit that when there is no other eye-witness and even the FIR losing the evidentiary value, the Trial Court to convict the accused for such a serious offence under Section 304(ii) of IPC ought to have seen that there is no material so as to bring home the charges against the accused. He would further submit that P.W.1 also did not see the accused hitting the deceased. Further, the medical evidence in his case is not clear and categorical and therefore, when the cause of death is also doubtful and when there is a previous enmity between the two families, he prayed that benefit of doubt should be granted to the appellant/accused. He would also submit that the entire episode of Confession Statement and recovery of M.O.1 are all absolutely artificial and ridden with controversy and should not be believed by the Court in any manner and therefore, the appeal shall be allowed and the appellant/accused shall be acquitted.
10.Per contra, the learned Government Advocate (Crl.Side) appearing for the respondent would submit that this is a case where P.W.2 and P.W.3 being child witnesses were cross examined in detail and the defence could not elicit any contradiction in their witnesses. Being the children playing nearby, they were frightened to see accused fighting with their father. Therefore, they have https://www.mhc.tn.gov.in/judis 6/14 Crl.A.No.245 of 2020 clearly witnessed the incident. P.W.2 vividly describes the incident and the manner in which it has happened. This apart, their evidence is corroborated by the evidence of P.W.4, who immediately rushed to the spot and gave water. The entire incident is corroborated by P.W.5, Saritha with whom the deceased had picked up the quarrel for drying up the clothes and P.W.6, is the eye-witness to the previous enmity between the deceased and the accused. Therefore, the prosecution in this case have clearly and categorically let in evidence and proved the charge to the hilt. The medical information clearly corroborates the cause of death being hit by the Gravel stone. The Trial Court has rightly convicted the accused under Section 304(ii) IPC, even though the charge under Section 302 considering the fact that there was no premeditated motive, also, considering the fact that the incident caused on account of the quarrel.
11.The reading of the postmortem report and the final information of P.W.13, doctor clearly shows that the death is caused by being hit on the chest by a blunt object. Therefore, he would submit that the appeal is liable to be dismissed.
12.I have considered the rival submissions made on behalf of both sides and perused the material records of this case.
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13.A cumulative reading of the evidence of P.W.1 to P.W.6, it would be clear that the accused and the deceased were residing in the same locality and there was enmity between the accused and the deceased, due to the fact that during the earlier flooding to avoid the water running into his property the accused had placed sand bags and the deceased had removed the same. Therefore, when there was previous enmity and when the accused was seeing the deceased picking up quarrel with the said Saritha, in the guise of intervening in the issue, the accused picked up a quarrel. To this extent, apart from the evidence of P.W.2 and P.W.3, the evidence of Saritha is also very clear and the evidence of Rajini, P.W.6 is clear and categorical. Absolutely no oblique motive or intension is even alleged by the defence on the evidence of P.W.5 and P.W.6.
14.Therefore, in that view of the matter, the fact that the accused had come and there was a quarrel and the deceased died on the spot are all clearly and categorically proved. Even assuming for a moment that P.W.2 and P.W.3 did not actually witness the accused hitting the deceased, I am of the view that the chain of events would completely prove that it is the accused who hit the deceased with the Gravel stone. Further, in this case, P.W.2 and P.W.3, the child witnesses, aged 13 and 15 years have been cross examined in detail by the https://www.mhc.tn.gov.in/judis 8/14 Crl.A.No.245 of 2020 defence. But, however, both P.W.2 and P.W.3 deposed in a natural manner and therefore, their evidence cannot be doubted or rejected and but, on the other hand, appears to be of stellar quality and inspires the confidence of this Court. Therefore, by examining the eye-witness P.W.2 and P.W.3 and even otherwise by examining P.W.4 to P.W.6, the prosecution has clearly and categorically proved the incident.
15.Now, the question is as to what offence the accused can be convicted. The Trial Court had found that, since there is no premeditated intention, the accused cannot be convicted for an offence under Section 302 and have convicted the accused for the offence under Section 304(ii) IPC. As a matter of fact, to convict the person under Section 304(ii), the act of the accused should be done with the knowledge that it is likely to cause death, but without any premeditated intention to cause death, or to cause such bodily injury with the knowledge that it is likely to cause death. In this case, the act complained is that the accused picked up a Gravel stone and hit the deceased. Therefore, it cannot be said that the accused when he picked up with the Gravel stone and hit the deceased in the spur of the moment, can be presumed to have a knowledge that the hitting by the Gravel stone would cause the death of the deceased. In this regard, this Court itself has dealt with in detail as to the said ingredient in the https://www.mhc.tn.gov.in/judis 9/14 Crl.A.No.245 of 2020 judgment in Crl.A.769 of 2019 and it is useful to reproduce paragraphs No.19, which is as follows :-
“Therefore, even in the description of injuries, neither any contusion nor any lacerated wound were seen on the right side of the chest. But, still unfortunately, there was a fracture of one of the rib bones on the right side of the chest. It in this context, I am of the view that the action of the appellant can be visualized that he neither caused injury with an intention to cause the death nor with the knowledge that it is likely to cause the death and therefore, I am of the view that on the facts and circumstances of the case, only an offence under Section 326 of IPC is made out. In this regard it is useful to extract the paras 13 to 15 of the judgment of the Honourable Supreme Court in Ramesh Kumar [cited supra] relied upon by the learned counsel for the appellant.
“13. We have considered the rival submissions and the submissions made by Mr Dubey commend us. We have extracted in the preceding paragraph of our judgment the injuries sustained by the deceased and from a perusal thereof it is difficult to hold that the appellants intended to cause such bodily injuries which they knew to be likely to cause the death. From that it is also not imperative that the appellants intended to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The injuries found on the person of the deceased also do not indicate that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.
14. It has to be borne in mind that the intention of the accused is gathered from the nature of the weapon used, the part of the body chosen for assault and other attending circumstances. Here in the present case according to the prosecution the weapon used for commission of the crime is “lathi” and “danda” and the part of the body chosen cannot be said to be a vital part of the body. Further the injuries are contusions. It seems that the deceased was not taken to the hospital immediately after the occurrence and he died. Perhaps, his life could have been saved had he been given the medical aid immediately.
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15. In view of what we have observed above the ingredients for the offence of murder is not made out. However, the appellants have caused grievous hurt by dangerous weapon in furtherance of their common intention and as such the facts proved make out the offence under Sections 326/34 of the Penal Code.” Therefore, taking into account the manner of injury, part of the body attacked and the corresponding medical evidence, I am inclined to modify the conviction as one under Section 326 of IPC.” Thus, taking into account, M.O.1, which is used for hitting, namely the Gravel stone, I am of the view that it cannot be said that the accused did the act with the knowledge that the act which is doing is likely to cause death or any bodily injury, which will result in death.
16.Therefore, I am of the view that following the dicta in the aforementioned judgment, the action of the accused is punishable under Section 325 of IPC as the hurt which is caused as en-dangered the life itself and it is a grievous hurt. Therefore, I hold that the accused guilty of the offence punishable under Section 325 of IPC.
17.Now, considering the quantum of sentence, the learned Counsel for the appellant would plead that the accused is the sole bread winner of the https://www.mhc.tn.gov.in/judis 11/14 Crl.A.No.245 of 2020 family and prays for leniency. He would also plead about the circumstances in which the occurrence has happened in the village.
18.Considering said pleadings, also at the same time, considering the seriousness of the consequences of the action of the accused resulting in the death of a person and these effect on the deceased family residing in the same locality, the punishment should neither be too harsh nor should be too lenient and appropriate and commensurate with the act complained of and I am of the view that imposing rigorous imprisonment for a period of five years and a fine of a sum of Rs.1,000/- and in default, to undergo simple imprisonment for a period of six months would be an appropriate punishment. The appellant can also adjust the fine amount of Rs.1,000/-, which is already paid by him.
19.Therefore, the Criminal Appeal is partly allowed on the following terms :-
(i) the finding of the learned I Additional District and Sessions Judge, Cuddalore, dated 31.01.2020 in S.C.No.228 of 2018 that the appellant/accused is guilty for an offence under Section 304(ii) IPC is set aside and modified as the accused being guilty for an offence punishable under Section 325 IPC ;
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(ii) the appellant/accused is imposed with rigorous imprisonment for a period of five years and to pay a fine amount of Rs.1,000/- and it is seen that the said fine amount is already paid, therefore, the appellant/accused is entitled to set off the fine amount already paid by him.
25.08.2022 Index : yes/no Speaking order/Non-speaking order sp To
1.The I Additional District and Sessions Judge, Cuddalore.
2.The Inspector of Police, Kurinjipadi Police Station, Cuddalore District.
3.The Public Prosecutor, Madras High Court.
https://www.mhc.tn.gov.in/judis 13/14 Crl.A.No.245 of 2020 D.BHARATHA CHAKRAVARTHY, J., sp Crl.A.No.245 of 2020 25.08.2022 https://www.mhc.tn.gov.in/judis 14/14