Madras High Court
Maniarasan vs The State Represented By on 14 March, 2016
Author: M. Jaichandren
Bench: M. Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 14.03.2016 CORAM THE HONOURABLE MR. JUSTICE M. JAICHANDREN AND THE HONOURABLE MR. JUSTICE S. NAGAMUTHU CRL.A.No.420/2012 Maniarasan .. Appellant/A1 Versus The State represented by The Inspector of Police Tiruchengode Police Station Namakkal District. .. Respondent Appeal filed under section 374[2] Cr.P.C., against the judgment of the learned Additional District and Sessions Judge, Fast Track Court, Namakkal District in SC.No.147/2005 dated 18.12.2008. For Appellant : Mr.C.D.Johnson For Respondent : Mr.M.Maharaja Additional Public Prosecutor JUDGMENT
[Judgment of the Court was delivered by S. NAGAMUTHU, J,] The appellant is the first accused in SC.No.147/2005 on the file of the learned Additional District and Sessions Judge, Fast Track Court, Namakkal. The second accused in this case was one Mr.Kathirvel. A1 stood charged for the offence u/s.302 IPC and A2 stood charged form the offence u/s.302 read with 34 IPC. By the judgment dated 18.12.2008, the Trial Court acquitted A2 ; but convicted the appellant/A1 herein for the offence u/s.302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for three years. Challenging the said conviction and sentence, the appellant/accused is before this Court with this appeal.
2 The case of the prosecution in brief, is as follows:-
[a] A2 [Kathirvel], during the year 2004, was running a petty shop at Karmagoundampalayam village in Erode District. The deceased in this case was one Mr.Ganesan. He also belonged to the same village. P.W.2 is the wife of the deceased. On 18.09.2004, at about 20.00 hours, the deceased had gone to the petty shop of A2 for purchasing beedi. A1 was incidentally present near the shop. When the deceased was purchasing beedi from the shop, there arose a quarrel between A2 and the deceased. It is alleged that infuriated by the abusive language used by the deceased, A2 gave an iron rod to A1 and directed him to attack the deceased. A1, in response to the same, attacked the deceased twice on his head and once on his back. P.W.1, who was at her residence, went to the shop in search of the deceased as he had not come immediately. By the time she reached the place of occurrence, the quarrel was in progress and thus, she witnessed the entire occurrence. P.W.2, a villager, who was present in the shop, also witnessed the entire occurrence. After having attacked the deceased, the accused fled away from the scene of occurrence.
[b] P.W.1 immediately took the deceased in a bus to the Government Hospital at Tiruchengode. P.W.8-Dr.Nallaiyan, who was the then duty doctor attached to the said hospital, examined the deceased at about 20.30 hours on 18.09.2004. The deceased was brought by P.W.1 and few others and the deceased was unconscious. P.W.1 told the doctor that the deceased was attacked by a known person with iron pipe at about 20.00 hours in the village. He found the following injuries:-
[1] A lacerated wound 5 cm x 2 cm x bone deep right occipital region.
[2] A lacerated wound 8 cm x 1.5 cm x bone deep right parieto occipital region.
[3] Bleeding from the right ear. Profuse bleeding in all the injuries. Ex.P.7 is the Accident Register issued by P.W.8. Since the condition of the deceased was bad, P.W.8 referred the deceased to the Government Headquarters Hospital at Erode. Accordingly, the deceased was taken to the said hospital.
[c] P.W.12-Dr.Dharmaraj, who was the then Civil Surgeon attached to the Government Headquarters Hospital at Erode, examined the deceased at about 21.40 hours on 18.09.2004. On his examination, he found that the deceased was in a serious condition. Therefore, he referred the deceased to the Government Medical College Hospital at Coimbatore.
[d] P.W.13 Dr.Kamalanathan, who was the Assistant Surgeon attached to the Government Medical College Hospital at Coimbatore, examined the deceased on 19.09.2004 at about 15.55 hours. He admitted the deceased as an In-patient. Despite the treatment given, the deceased succumbed to the injuries on 06.10.2004 at 17.25 hours.
[e] In the meanwhile, on receiving intimation from the Government Hospital, Tiruchengode, P.W.11 [K.Ramasamy], the then Sub Inspector of Police attached to the Tiruchengode Police Station, rushed to the Government Hospital at Tiruchengode. Since he was informed that the deceased had been taken to the Government Hospital at Erode, he went to the said hospital, where he found the deceased in an unconscious state. Therefore, he recorded the statement of P.W.1 under Ex.P.1 [complaint] and on returning to the Police Station at about 01.30 hours on 19.09.2004, he registered a case in Cr.No.405/2004 for the offence u/s.307 IPC. Ex.P.13 is the printed FIR and he forwarded the complaint and FIR to the higher officials and to the jurisdictional Magistrate Court, which was received by the learned Judicial Magistrate concerned at 04.00 hours on 19.09.2004.
[f] P.W.14, the then Inspector of Police attached to the said police station, upon receipt of the copy of the FIR and complaint, took up the case for investigation, proceeded to the place of occurrence at 06.00 hours on 19.09.2004, prepared the Observation Mahazar [Ex.P.3] and a Rough Sketch [Ex.P.17] showing the place of occurrence, in the presence of one Chinnappan and Sengottaiyan He also recovered blood-stained earth [M.O.5] and sample earth [M.O.6] in the presence of the same witnesses. He examined P.Ws.2 to 5, one Krishnan and Madheswaran and recorded their statements. He went to the Government Hospital at Erode and recorded the statement of P.W.1 and also recovered the blood-stained shirt [M.O.2]; blood stained lungi [M.O.3] and blood stained towel [M.O.4] in the presence of the witnesses Anbu and Senthilraja, under the cover of Mahazar. On the same day, P.W.14 arrested the accused. A1 came forward to give a voluntary confession statement [admissible portion of which is marked as Ex.P.5] in the presence of witnesses, in which, he had disclosed the place where he had hidden the iron pipe [M.O.1]. In pursuance of the same, he took the police and the witnesses to a bridge near Thokkavadi Bus stop and he produced M.O.1-iron pipe from the place of hide out. The same was recovered under the cover of Mahazar. On returning to the police station, he forwarded the accused to the Court for judicial remand and also the material objects for chemical examination. After the death of the deceased, the case was altered to one u/s.302 IPC. Ex.P.18 is the altered FIR.
[g] P.W.14 thereafter went to the hospital and conducted inquest on the body of the deceased at 05.30 hours on 07.10.2004 in the presence of the Panchayatdars and P.Ws.1, 2 and 5 and prepared Ex.P.19-Inquest Report. Then he sent the body of the deceased for postmortem.
[h] One Dr.Xavier Selva Suresh, the then Tutor in Forensic Medicine, attached to the Coimbatore Medical College Hospital, conducted the autopsy on the body of the deceased on 07.10.2004 at 11.00 hours. He found the following injuries:-
injuries:-
[1] 5cms length sutured wound with 4 sutures seen over right parietal region of the scalp. 9 cms above the upper end of right ear lobule.
[2] 6cms length sutured wound with 4 sutures seen over right occipital region of the scalp. The anterior end is 3.5 cms posterior to the upper part of right ear lobule.
[3] On dissection of scalp, sub scalp haemoatoma seen over right temporal and mid frontal region of the scalp.
[4] Comminuted fracture of right temporal and right posterior parietal bone of the vault of the skull.
[5] Extra dural haematoma seen over right temporal region of the dural surface.
[6] Subarachnoid haemorrhage seen over left frontal regions of the brain surface.
[7] Intra cerebral hemorrhage seen over the right temporal and right occiptal lobes of the brain.
[8] Comminuted fracture of right middle cranial fossa and left anteriro cranial fossa of the base of the skull.
Other findings:-
Pleural and peritoneal cavities empty.
Heard normal Lungs cut section congested Hyoid bone intact.
Stomach contains 100 ml of bile stained fluid. No specific smell. Mucosa congested Liver, spleen, kidneys cut section congested Intestine contains chyme like material. No specific smell Mucosa congested Urinary Bladder empty sample of blood preserved. Ex.P.16 is the Postmortem Certificate. He opined that the injuries found on the deceased would have been caused by attack with iron pipe.
[i] Continuing the investigation, P.W.14 examined Dr.Xavier Selva Suresh, who conducted autopsy on the dead body of the deceased and recorded his statements. He also recovered the material objects, viz., dress materials of the deceased, under the cover of Mahazar. On completion of the investigation, he laid the charge-sheet against the accused.
[j] Based on the above materials, the Trial Court framed a lone charge as detailed in the first paragraph of the Judgment. The accused denied the same. In order to prove the case on the side of the prosecution, as many as 14 witnesses were examined, 20 documents and 7 material objects were also marked.
[k] Out of the said witnesses, P.Ws.1 and 2, who are the eyewitnesses to the occurrence, have vividly spoken about the entire occurrence. P.Ws.3 and 4 have turned hostile and did not support the prosecution case in any manner. P.W.5, the daughter of the deceased, has spoken about her hearing of the occurrence from somebody else. She has also stated that she saw the accused persons running from the scene with iron pipe. P.W.6 has spoken about the recovery of the clothes from the deceased under Ex.P.2-Mahazar. P.W.7 has spoken about the preparation of the Observation Mahazar and the Rough Sketch at the place of occurrence. He has stated that he arrived at the scene of occurrence on hearing about the same and during that time, the Inspector of Police [P.W.17] prepared the Observation Mahazar, the Rough Sketch and also the recovery of M.O.1-iron pipe from the accused in pursuance of the confession statement. P.W.8, Dr.Nallaiyan, has spoken about the treatment given by him to the deceased at the Government Hospital at Tiruchengode. P.W.9, the Head Constable, has spoken about the handing over of the dead body of the deceased for postmortem and also about the handing over of the altered FIR [Ex.P.18] to the Court concerned. P.W.10, the Head Clerk of the Court has spoken about the sending of material objects for chemical examination on the orders of the learned Judicial Magistrate. P.W.11 has spoken about the registration of the case on the complaint of P.W.1. P.W.12-Dr.Dharmaraj, has spoken about the treatment given to the deceased and his reference to the Government Medical College Hospital, Coimbatore, for further treatment. P.W.13-Dr.Kamalanathan, has spoken the admission of the deceased as an In-patient in the Government Medical College Hospital, Coimbatore and the subsequent death of the deceased in the said hospital on 06.10.2004 and also about the postmortem conducted by Dr.Xavier Selva Suresh. P.W.14, has spoken about the investigation done by him and filing of the final report.
3 When the above incriminating materials were put to the accused u/s.313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness on his side ; but marked Ex.R.1-In-patient record of the deceased Ganesan.
4 Having considered all the above, the Trial Court convicted the appellant herein for the charge u/s.302 IPC and sentenced him as stated in the first paragraph of this judgment. Challenging the said conviction and sentence, the appellant/accused is before this Court.
5 We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and we also perused the materials placed on record carefully.
6 Learned counsel for the appellant would submit that the presence of P.Ws.1 and 2 in the scene of occurrence is highly doubtful. He would submit that P.Ws.1 and 2 are interested witnesses and therefore, their evidences should be rejected. Further, he would submit that the medical evidence do not corroborate the eyewitness account. He would also add that the FIR in this case has been registered belatedly. For all these reasons, the learned Counsel for the appellant prays that the appellant is entitled for acquittal.
7 Per contra, the learned Additional Public Prosecutor would oppose to this appeal stoutly. He would submit that the presence of P.Ws.1 and 2 cannot be doubted as they have vividly spoken about the occurrence in a very cogent manner and that their evidences cannot be disbelieved. Though according to him, these witnesses are interested, on that score, their evidence cannot be rejected. Further he would submit that the medical evidence duly corroborate the eyewitness account. The motive aspect has also been proved by the prosecution. Therefore, according to him, there is no reason to reject the evidences of P.Ws.1 and 2.
8 We have considered the rival submissions.
9 P.W.1 is the wife of the deceased and P.W.2, of course, is a relative of the deceased. Simply because they are so related to the deceased, their evidences cannot be outright rejected. Law requires that their evidences only require a close scrutiny. In this case, P.Ws.1 and 2 have spoken vividly about the occasion for them to be present at the time of occurrence. P.W.1 has stated that since her husband, who had gone to the nearby petty shop, had not returned home by that time, she went there in search of him and it was only at that time, she witnessed the entire occurrence. P.W.2 though a relative, was also present at the time of occurrence in the shop where he had seen the occurrence. Thus, we do not find any reason to reject the evidences of P.Ws.1 and 2. They have spoken that it was this accused who had attacked the deceased with iron pipe. P.W.8-Dr.Nallaiyan has stated that on the day of occurrence at about 20.30 p.m., when he was in the hospital, the deceased was brought to him by P.W.1. At that time, the deceased was unconscious. He noticed as many as three injuries. Thereafter, the deceased was shifted to the Government Hospital, Erode, from where he was again shifted to the Government Hospital, Coimbatore, where he breathed his last after several days. The medical evidence clearly would go to show that the injuries found on the deceased would have been caused by attack with a weapon like M.O.1-iron pipe and the cause of death has been spoken by P.W.13, who has stated that the death was due to the effects of the injuries on the body of the deceased. Thus, the prosecution, in our considered view, has clearly proved that it was this accused who caused the death of the deceased.
10 Learned counsel for the appellant would submit that there was a delay in preferring the complaint. The FIR in this case has been registered at 09.30 a.m. on 19.09.2004. This delay has been duly explained by the investigating officer. According to him, P.W.11, on receipt of the intimation from the Government Hospital, Tiruchengode, when he went to the said hospital, he found that the deceased had already been shifted to the Government Hospital, Erode. Thereafter, he rushed to the Government Hospital, Erode, where he obtained the statement of P.W.1 and on returning to the police station, he registered the case. This is the reason why there had occurred some delay. This delay, in our considered view, has not caused any dent in the case of the prosecution and therefore, the argument of the learned counsel that the prosecution case should be doubted on account of the said delay, is liable only to be rejected.
11 Learned counsel for the appellant would next contend that the act of the accused would not make out an offence of murder. We find some force in the said argument. According to the positive case of the prosecution, the deceased had gone to the shop only to purchase beedi. The presence of A1 there was only by chance. There was no enmity between A1 and the deceased. There was also no enmity between A2 and the deceased. When the deceased was purchasing beedi, there arose a quarrel between A2 and the deceased. It is inferable that in that quarrel, A1 had intervened. The said intervention of A1 must be with the intention to avoid further quarrel between the deceased and A2. It was only at that time, the deceased had used some abusive language against A1. There is positive evidence that there was a quarrel and only at the end of the quarrel, A1 had taken the weapon and caused three blows on the deceased. Going by the natural human conduct, it is possible to presume that A1 would have been provoked by the abusive language of the deceased and only driven by the same, the appellant/A1 had caused the injuries. The fact remain that A1 was not already armed with any weapon. He had taken the iron pipe lying there and gave the blows on the head of the deceased. This act of the A1/appellant, in our considered view, would squarely fall under limb 3 of section 300 IPC. At the same time, the same shall fall within the first exception to section 300 IPC. Therefore, the appellant is liable to be punished only for the offence u/s.304 [Part I] IPC.
12 Now turning to the quantum of punishment, the occurrence was not premeditated. There was no enmity between A1/appellant and the deceased. It was out of sudden quarrel, that too, in a heat of passion. The accused had got no bad antecedents. Even after this occurrence also, the appellant/A1 had not shown any deviance. The appellant / A1 was also not already armed with any weapon. Having regard to all these mitigating and aggravating circumstances, we are of the view that sentencing him to undergo 7 years rigorous imprisonment and to pay a fine of Rs.1000/-, in default, to undergo four weeks rigorous imprisonment would meet the ends of justice.
13 In the result, the criminal appeal is partly allowed and the conviction and sentence imposed on the appellant for the offence u/s.302 IPC by the Trial Court in SC.No.147/2005 dated 18.12.2008 are hereby set aside and instead the appellant/A1 is convicted u/s.304 [Part I] IPC and he is sentenced to undergo 7 years rigorous imprisonment and to pay a fine of Rs. 1000/-, in default, to undergo four weeks rigorous imprisonment.
14 It is reported that the appellant/A1 is on bail. Bail bond executed, shall stand cancelled. The Trial Court is directed to secure the presence of the appellant/A1 to undergo the unexpired portion of the sentence. The sentence already undergone by him shall be given set off u/s.428 Cr.P.C.
[M.J., J.,] [S.N., J.]
14.03.2016
Index : Yes
Internet : Yes
AP
To
1.The Additional District and Sessions Judge,
Fast Track Court, Namakkal
2.The Inspector of Police
Tiruchengode Police Station
Namakkal.
3.The Judicial Magistrate
Tiruchengode.
4.The Public Prosecutor
High Court, Chennai.
M.JAICHANDREN, J.,
AND
S.NAGAMUTHU, J.
AP
Judgment in Crl.A.No.420/2012
14.03.2016