Madras High Court
Nagendran vs State Rep By on 8 September, 2021
Author: V.Bharathidasan
Bench: V. Bharathidasan, J.Nisha Banu
CRL.A(MD)No.310 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.09.2021
CORAM :
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Criminal Appeal(MD)No.310 of 2018
Nagendran ... Appellant/Sole Accused
vs.
State rep by
The Inspector of Police,
Town Police Station,
Pudukkottai,
Pudukkottai District.
(In Crime No.380 of 2013) ... Respondent/Complainant
Appeal filed under Section 374(2) of the Code of Criminal
Procedure, 1973, against the judgment dated 26.06.2018 made in S.C.No.
16 of 2014 on the file of the Additional District and Sessions Court cum
Special Court for EC Act, Pudukkottai, convicting the appellant for the
alleged offences under Sections 302 of IPC and sentenced to undergo life
imprisonment and to pay fine of Rs.2,000/- in default to pay he should
undergo 3 months simple imprisonment.
For Appellant : Mr.C.Mayil Vahana Rajendran
For Respondent : Mr.S.Ravi, Counsel for
Government of Tamil Nadu(Criminal Side)
1/30
https://www.mhc.tn.gov.in/judis/
CRL.A(MD)No.310 of 2018
JUDGMENT
(Judgment of the Court was made by V. BHARATHIDASAN, J.) The appellant is the sole accused. He stood charged for the offences under Sections 341 and 302 IPC. The trial Court acquitted him, for the offence under Section 341 IPC, and convicted him, under Section 302 IPC, and sentenced to undergo life imprisonment, and also to pay fine of Rs.2,000/-, in default, to undergo three months rigours imprisonment. Challenging the abovesaid conviction and sentence, the appellant is before this Court, with this appeal.
2.The deceased by name, Kalidoss, is the friend of the appellant/accused. Earlier, the deceased was working at Malaysia and returned back to his native in the year 2013. Thereafter, he was running a mechanical shop at Pudukkottai. The appellant is his close friend and they used to consume liquor together. On 02.11.2013, a Diwali day, at about 08.30 p.m., while the deceased was at his house, the appellant/accused, came to his house and demanded money from the deceased, for purchasing liquor, deceased denied, and there was a quarrel between them, at that time, the appellant attacked the deceased with a 2/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 wooden log available there. While the deceased fell down, he put a stone on his head and caused his death, then ran away from the scene of occurrence. Immediately, the deceased was taken to hospital, where he was declared brought dead.
3.PW1, mother of the deceased, went to the police station and gave a complaint(Ex.P1). PW11-Sub Inspector of Police, in the respondent police station, based on the complaint, registered the FIR in Crime No. 380/2013(Ex.P6) and sent the same to the Judicial Magistrate Court and sent copies of the same, to the investigating officer and higher officials.
4.On receipt of the FIR, one Ramamoorthy Inspector of Police in the respondent police station(since dead), commenced the investigation and rushed the scene of occurrence, where he prepared the observation mahazar(Ex.P2), rough sketch(Ex.P7), in the presence of the witnesses and arrested the accused. On such arrest, the accused voluntarily gave a confession, based on the admissible portion of the confession, PW2 recovered a wooden log(MO1) and stone(MO2) under Ex.P3-Mahazar, then, he recorded the statement of witnesses. Next day morning, at about 3/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 08.00 a.m., the Inspector of Police conducted inquest on the dead body in the Government Hospital, Pudukottai, in the presence of the panchayatars and witnesses and prepared inquest report in Ex.P8, and sent the body for postmortem autopsy through a Constable. PW9, Doctor, working in Pudukkottai Government Hospital, conducted postmortem autopsy of the body of the deceased and gave postmortem report, Ex.P5. According to him, death was due to injury in the major organs namely, brain and liver- haemorrhage, The Inspector of Police continued the investigation and recorded the statements of witnesses. Pending investigation, the investigating officer met with an accident, and hence, the investigation was handed over to PW12, who after recording the statement of remaining witnesses, filed the final report before the concerned Judicial Magistrate Court.
5.Considering the above materials, the trial Court framed the charges as mentioned above and the accused denied the same as false. In order to prove its case, the prosecution has examined as many as 12 witnesses and marked 9 documents, apart from 2 material objects. 4/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
6.Out of the witnesses examined, PW1, mother of the deceased, is an eye-witness to the occurrence. According to her, on 02.11.2013, at about 08.30 p.m., the accused came to the house of the deceased and demanded money from him, when he refused, he attacked him with a wooden log available there on his head, when he fell down, the accused put a stone on his head and caused his death. PW2 is the brother of PW1, according to him, at the time of occurrence, there was a quarrel between the deceased and the accused, then he found the deceased in pool of blood. PW3, sister of PW1, is also an eye-witness to the occurrence. According to her, at the time of occurrence, the accused demanded money from the deceased, while he refused, he attacked him on his head and also put a stone on his head. PW4, uncle of the deceased, is another eye-witness to the occurrence. According to him, there was a quarrel and he saw the accused attacking the deceased, when the deceased fell down, the accused sat over the deceased and beaten him. PW5 is also closely related to the deceased, according to him, there was a quarrel between the accused and the deceased, at that time, the deceased attacked him with stone and also criminally intimidated the deceased. PW6 is the Auto driver. According to him, at the time of 5/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 occurrence, there was a quarrel between the deceased and the accused, at that time, both the accused and the deceased fell down in the scene of occurrence. PW6 is a hearsay witness. PW7 is the father of the deceased, he is a hearsay witness. PW8, Village Assistant, is witness to recovery of MO1 and MO2, and also the confession of the accused. PW9, Doctor, conducted postmortem autopsy and given postmortem report(Ex.P5), which reads as follows:-
The body was first seen by the undersigned at 10.50 A.M. on 03.11.13. Its condition then was Rigor Mortis present in all 4 limbs. Post-mortem commenced at 11.00 A.M. on 03.11.13.
Appearance found at the post-mortem:
External Injuries:
1)5x2x2cm laceration below chin.
2)2x2x1cm laceration below lip.
3)4x3xBone deep laceration above left eye.
4)Facial deformity left side with contusion around left eye, left cheek & left side jaw and abnormal mobility of jaw.
5)Deformity of nose.
6)Crush injury left eyelid & contusion around left eye.
7)Multiple fracture, dislocation of teetj 5/8 – 4/6.
8)Abrasion over upper abdomen.
Internal Injuries:
1)Mutiple fractures over facial bones left side including fracture at both upper & lower jaw and fracture dislocation of multiple teeth.
2)Left eye ball ruptured.
3)Fissured fracture base of skull left side.
4)Linear fracture base of skull right anterior aspect.
5)On removing brain, there was a hematoma over inferior surface of frontal lobe with laceration.6/30
https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
6)Upper part of brain & skull intact.
7)3x2cm laceration over inferior surface of left lobe of liver.
Abdomen intact, Peritoneal cavity contains blood. Hyoid bone & ribs intact. Heart intact contains clotted blood. Lungs & stomach intact. Both kidneys, intestine, bladder intact. Spinal cord intact.
Opinion as to cause of death
a)Reserved pending report of____________
b)The deceased would appear to have died of I am of the opinion that the death could be due to injury to major vital organs Brain & Liver – hemorrhage.'' According to him, the deceased appears to have died due to the injuries in the major vital organs namely, brain and liver. PW10 is a hearsay witness related to the deceased. PW11, Sub Inspector of Police, in the respondent police station, registered the FIR, based on the complaint given by PW1. PW12, investigating officer, filed charge sheet before the concerned Judicial Magistrate Court, since the original investigating officer died, pending investigation, he has given evidence based on the records.
7.When the above incriminating materials were put to the accused, the accused denied the same as false. Alleging that in the scene of occurrence, the appellant has also suffered injury, he has examined the 7/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 Doctor who has given treatment to him as DW1, and also marked the accident register(Ex.D1). Considering those materials, the trial Court convicted and sentenced the accused as stated above.
8.Mr.C.Mayil Vahana Rajendran, learned counsel for the appellant submitted that all the eye witnesses to the occurrence are interested witnesses, and their testimony are also not consistent. There are material discrepancies in their evidence and therefore, it is highly unsafe to convict the accused based on their testimonies. The learned counsel for the appellant further stated that from the evidence available on record, it could be seen that at the time of occurrence, there was a quarrel between the accused and the deceased, during that quarrel, out of sudden provocation, the accused without having any intention to cause death, said to have attacked the deceased. From the evidence of PW6, auto driver who saw both the accused and the deceased found fell down in the scene of occurrence, it could be seen that there was a sudden fight between them and both of them attacked each other and fell down. 8/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
9.The learned counsel for the appellant further stated that during the occurrence, the appellant also suffered injuries all over the body and he was taken to Government Hospital, Pudukkottai. It was suppressed by the prosecution and the accused examined the Doctor who treated him as DW1 and marked the accident register as Ex.D1. The prosecution failed to explain the injuries found on the accused and suppressed the origin and genesis of the case and come out with the false case implicating the appellant. He further submitted that at any rate, the act of the accused will only fall under the fourth limb of Section 300 IPC and also under the fourth exception to Section 300 punishable under Section 304(ii) IPC.
10.Per contra, Mr.S.Ravi, learned counsel for the State submitted that there are four eye-witnesses to the occurrence, all of them consistently says that, only this accused came to the house of the deceased, and quarrelled with demanding money, when he refused, he attacked him with wooden log available in the scene of occurrence, when the deceased fell down, he put a stone over his head and caused serious head injury and the deceased succumb to those injuries. The medical evidence also corroborates the evidence of eye witnesses. The 9/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 occurrence took place near the house of the deceased, the parents are eye witnesses cannot be doubted, the accused attacked the deceased with an intention of causing death, and the trial Court considering the materials rightly convicted him under Section 302 IPC. Hence, there is no reason to interfere with the well considered judgment of the trial Court.
11.We have considered the rival submissions and also perused the records carefully.
12.PW1 is the mother of the deceased. According to her, both the accused and the deceased were friends, used to consume liquor together. On the date of occurrence, the accused demanded money from the deceased, when he refused, he attacked him with wooden log and also put a stone over his head and caused his death. According to PW2, another eye-witness, and brother of PW1, there was a quarrel between the accused and the deceased. PW3 is the sister of PW1. According to her, at the time of occurrence, the accused demanded money from the deceased, but he refused, then the attacked him on his head and also put a stone over his head. However, PW4, uncle of the deceased, has given a 10/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 different version, that, both the accused and the deceased went out of the house and after half an hour, there was a quarrel between them, in the scuffle, the deceased fell down and the accused sitting over the deceased, attacked him. PW5, wife of PW4, according to her, her son informed her that there was a quarrel between the deceased and the accused, at that time, the accused put a stone on the head of the deceased. PW6, a Auto driver, is an independent witness, according to him, at the time of occurrence, there was a quarrel between the deceased and he found both the accused and the deceased fell down. It is the consistent evidence of all the eye witnesses that it is only the accused attacked the deceased with wooden log and put a stone over his head and caused his death. The medical evidence also corroborates the evidence of the eye witnesses. Considering the above, we are of the considered view that it is only this accused has attacked the deceased and caused his death. The trial Court also considering the materials rightly held so.
13.The next question is what was the offence that was committed by the accused. Whether the act of the accused amounts to murder or culpable homicide not amounting to murder.
11/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
14.Killing of a human being by another human being is called homicide. If the homicide is done with a culpable mental state, it is called as culpable homicide or unlawful homicide. Some culpable homicide are murders as per Section 300 of Indian Penal Code (IPC) and some culpable homicides may not amount to murder. In fine, all murders are culpable homicide and all culpable homicides will not amount to murder.
15.Section 299 of IPC, deals with culpable homicide, which reads as follows:
"299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall 12/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 be deemed to have caused his death.
Explanation 2.—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 proper remedies and skilful treatment the death might have been prevented.
Explanation 3.—The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
(illustrations are omitted)
16.Section 299 of IPC, has three limbs. The first limb speaks about the intention of causing death. The second limb speaks about the intention of causing such bodily injury as is likely to cause death. The third limb speaks about the knowledge of the offender that his act is likely to cause death. If the act of the offender falls in any one of the three limbs, then it will amount to culpable homicide. 13/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
17.Section 300 of IPC, deals with murder, which reads as follows:
"300. Murder. —Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— 2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— 4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
(illustrations are omitted) 14/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.—Whether the provocation 15/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.—Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill- will towards the person whose death is caused.
Exception 4.—Culpable homicide is not murder if it is committed without premeditation in 16/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
18.Section 300 IPC, contains four limbs.
(i) The first limb deals with the intention of causing death.
(ii) The second limb deals with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.
(iii) The third limb deals with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is 17/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 sufficient in the ordinary course of nature to cause death.
(iv) The fourth limb deals with the knowledge that the act is so imminently dangerous that, it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
19.Section 300 IPC also contains five exceptions. A culpable homicide would amount to murder, if the act of the accused falls in any one of the four limbs of Section 300 IPC and it does not falls in any of the general exceptions to Section 300 IPC. If the act of the accused falls in any one of the four limbs of Section 300 IPC and it falls in any one of the general exceptions contained in Section 300 IPC then the act of the accused will amount to culpable homicide not amounting to murder. If the act of the accused falls under the category of murder, he will be punished under Section 302 IPC and if the act of the accused amounts to culpable homicide not amounting to murder, then he will be punished under Section 304 IPC.
18/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
20.Let us now examine the circumstances under which, the act of the accused will amount to murder or culpable homicide not amounting to murder, which incurs lesser punishment.
21.The first limb of Section 299 IPC namely intention to cause death corresponds to first limb of Section 300 IPC, which speaks about intention to cause death. To find out whether the accused has intention to cause death of a person, Court can infer from various circumstance like the motive, gravity of injuries, weapon used by the accused for committing the act etc., Based on the available evidence, if the Court comes to the conclusion that the accused has the intention to cause death of the deceased, then it amounts to murder and the accused is liable to be punished under Section 302 IPC.
22.The second limb of Section 299 IPC, deals with the intention of the accused to cause such bodily injuries as is likely to cause death, corresponds to the second and third limb of Section 300 IPC. These limbs deals with the intention of the accused to cause bodily injuries. 19/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
23.The second limb of Section 300 IPC, speaks about the intention of causing such a bodily injury with a knowledge that, the particular victim has a specific health issue and that any injury caused to him is likely to cause death of the person, however that injury may not likely to cause the death of a person having ordinary health condition. If the accused caused any injury fully aware of the fact that the deceased is having a peculiar health issue, and causing such injury is likely to cause his death, and is resulted into death, then his act amounts to murder.
24.The third limb of Section 300 IPC, speaks about the intention of the accused to cause bodily injury and the intended injury to be inflicted is sufficient in the ordinary course of nature to cause death.
25.The fine distinction between the second limb of Section 299 IPC and the third limb of Section 300 IPC is that the second limb of Section 299 IPC deals with injury likely to cause death, whereas the third limb of Section 300 IPC speaks that the intended injury to be inflicted is sufficient in the ordinary course of nature to cause death. The third limb of Section 300 IPC, does not speak about the resulted injury but it only speaks about the injury intended to be inflicted by the accused. 20/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
26.To bring the act of the accused under the third limb of Section 300 IPC, it should be proved that the injury inflicted is sufficient to cause death in the ordinary course of nature, and in addition to that the injury found to be present was the injury that was intended to be inflicted by the accused.
27.The Hon'ble Supreme Court in Virsa Singh Vs. State of Punjab reported in AIR 1956 SC 465 has held in para 10 has follows:
"10. Once that is found, the enquiry shifts to the next clause-
"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though all injury to the heart is shown to be present, the 21/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 intention to inflict ail injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining " and the bodily injury intended to be inflicted "
is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention."
28.In short, to bring the act under third limb of Section 300 IPC, the prosecution must establish that a bodily injury is present, the nature 22/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 of injury sustained by the deceased and it must be proved that there was an intention to cause that particular bodily injury and it is not intentional or some other kind of injury was intended. Finally, the injury caused by the accused is sufficient to cause death of a person in the ordinary course of nature. Once the above said four elements are established by the prosecution, the offence is murder, as it will fall under third limb of Section 300.
29.The third limb of Section 299 (b) IPC corresponds to the fourth limb of Section 300 IPC. These provisions speak about the knowledge of the accused. Both the provisions speaks about the knowledge and also the bodily injury which is likely to cause death. However the distinction between both the limbs is the degree of knowledge and also the imminent dangerous nature of the act that in all probability cause death or such bodily injury caused by the accused is likely to cause death without any excuse of incurring the risk of causing death or such injury.
30.To bring the act of the accused under the fourth limb of Section 300 IPC, it should be established that the accused is aware of the 23/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 consequences of his act and the consequence is either imminently dangerous to life or bodily injury which is likely to cause death. The degree of knowledge makes the difference between the third limb of Section 299 IPC and the fourth limb of Section 300 IPC. Further to bring the act under the fourth limb of Section 300 IPC, it should be proved that it is not the knowledge of mere possibility, but the accused had knowledge that the act is imminently dangerous and that in all probability the act is likely to cause death.
31.If the prosecution bring the act of the accused within the ambit of any one of the four limbs of Section 300 IPC, the act of the accused will be culpable homicide amounting to murder. However, if the act of the accused, falls within the definition of murder and it falls within any one of the five exceptions enumerated under Section 300 IPC, the offence would be culpable homicide not amounting to murder, which is punishable under Section 304 IPC.
32.Section 304 IPC contains two parts which reads as follows:
"304. Punishment for culpable homicide 24/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 not amounting to murder.—Whoever commits culpable homicide not amounting to murder, shall be punished with 1 [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
33.The first part provides for punishment for culpable homicide not amounting to murder, if the act of the accused is done with the intention of causing death or such bodily injury as is likely to cause death. The intention of the accused is essential requirement under the first part of Section 304 IPC. The second part deals with the knowledge of the accused. If the accused has knowledge that his act is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death.
25/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018
34.To put it more clearly, if it is proved that the act of the accused is culpable homicide not amounting to murder, and it falls either under the first or second limb of Section 299 IPC, then the accused is liable to be punished under Section 304(i) of IPC. If the act of the accused is proved as culpable homicide not amounting to murder and falls within the ambit, third limb of Section 299 IPC, the accused is liable to be punished under Section 304(ii) of IPC. Likewise, if the act of the accused falls within first, second or third limb of Section 300 IPC and if it falls under any one of the exceptions enumerated in Section 300 IPC, then the act of the accused is only culpable homicide not amounting to murder and the accused is liable to be punished under Section 304(i) IPC. If the act of the accused falls within the fourth limb of Section 300 IPC and if it falls under any one of the exceptions enumerated in Section 300 IPC, it is punishable under Section 304(ii) IPC. [Vide Ganesan v. State of T.N., 2012-2- L.W. (Crl) 733]
35.Keeping the above principles in mind, let us now consider the act of the accused. From the available evidence, it is seen that both the accused and the deceased were close friends and there is no serious 26/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 motive attributed against the appellant/accused. At the time of occurrence, there was a quarrel between the accused and the deceased, during that quarrel, the accused has attacked the deceased. From the evidence, it is clear that the appellant/accused attacked the deceased with intention to cause bodily injury, which is sufficient to cause death of the deceased in the ordinary course of nature. Hence, the act of the accused will fall under the third limb of Section 300 IPC. However, the accused without any premeditation, attacked the deceased, in a sudden fight, out of sudden quarrel and without taking any undue advantage, he has attacked the deceased with wooden log and stone available in the scene of occurrence. In the said circumstances, the act of the deceased will fall under the fourth exception to Section 300 IPC. Hence, the appellant is liable to be punished under Section 304(i) IPC not under Section 300 IPC.
36.Sofaras the quantum of sentence is concerned, the accused is an young man, he has a chance to reform himself, the occurrence has taken place in the heat of passion on a sudden quarrel between the accused and the deceased and the accused has attacked the deceased with the weapon 27/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 available in the scene of occurrence, and there is no serious motive attributed against him. Considering the above mitigating as well as the aggravating circumstances, we are of the considered view that sentencing the appellant to undergo 7 years of rigorous imprisonment will meet the ends of justice.
37.In the result, this Criminal Appeal is partly allowed, and the conviction under Section 302 IPC, is set aside, instead, the appellant is convicted under Section 304(i) IPC, and sentenced to undergo 7 years rigorous imprisonment and also to pay a fine of Rs.2,000/- in default, to undergo three months rigorous imprisonment. The period of sentence already undergone by the appellant/accused shall be set off under Section 428 Cr.P.C.
[V.B.D.,J.] & [J.N.B.,J.]
08.09.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but, ensuring that the copy of the order that is 28/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To
1)The Inspector of Police, Town Police Station, Pudukkottai, Pudukkottai District.
(In Crime No.380 of 2013)
2)The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
29/30 https://www.mhc.tn.gov.in/judis/ CRL.A(MD)No.310 of 2018 V.BHARATHIDASAN, J.
and J.NISHA BANU, J.
bala JUDGMENT MADE IN CRL.A(MD)No.310 of 2018 DATED : 08.09.2021 30/30 https://www.mhc.tn.gov.in/judis/