Madras High Court
Jayakumar vs The State Of Tamil Nadu on 22 February, 2011
Author: Chitra Venkataraman
Bench: Chitra Venkataraman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/02/2011 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN AND THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Appeal No.179 of 2004 1. Jayakumar 2. Raman 3. Singam @ Singaraj 4. Duraipandi .. Appellant versus The State of Tamil Nadu, rep. by Inspector of Police Usilampatti Town Police Station Madurai District. .. Respondent Prayer Appeal filed under Section 374(2) of Cr.P.C. Against the judgment dated 08.01.2004 passed in S.C.No.284 of 2003 on the file of the Additional Sessions Judge / Fast Track Court No.2, Madurai. ----- !For appellants ... Mr.S.Jeyasingh Legal Aid Counsel ^For respondent ... Mr.M.Daniel Manoharan Additional Public Prosecutor ----- :JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) The appellants are accused-1 to 4 in S.C.No.284 of 2003 on the file of the Additional Sessions Judge / Fast Track Court No.2, Madurai. The Court below convicted the first appellant under Section 324 (3 counts) and sentenced him to undergo three years rigorous imprisonment for each count and to pay a fine of Rs.500/- for each count, in default to undergo 3 months rigorous imprisonment for each count; convicted appellants-2 and 4/A-2 and A-4 under Section 324 I.P.C. And sentenced them to undergo three years rigorous imprisonment each and to pay a fine of Rs.500/- each, in default, to undergo three months rigorous imprisonment each; convicted the appellants/accused-1 to 4 under Section 302 read with Section 34, I.P.C. And sentenced each of them to undergo life imprisonment and to pay a fine of Rs.500/- each, in default, to undergo three months rigorous imprisonment each. The sentences were ordered to run concurrently.
2. The injured witnesses and the deceased are relatives. P.W.1 is the brother of the deceased-Angathevar. P.W.2 is the son of P.W.1. The case of the prosecution is that, on 03.11.2002, at about 9.45 p.m., in front of P.W.1- Periakaruppan's house, the accused were firing crackers. When the same was objected to by the witnesses, the accused pelted stones at P.W.1 and when the deceased intervened, the accused pushed him down, thereby caused the death of Angathevar. Thus the accused were charged for the offences punishable under Section 324, I.P.C. as well as under Section 302 read with Section 34, I.P.C.
3. The prosecution relied on the evidence of P.Ws.1 to 20, marked Exs.P1 to P13 and produced M.Os.1 to 5. On behalf of the accused, Exs.D1 and D2 were marked. In reply to the questioning under Section 313, Cr.P.C., the accused denied their complicity to the charges levelled against them.
4. The case of the prosecution is that on 03.11.2002, P.W.1 was, in his house, lying near the front door. In front of his house, A-1 to A-3 were firing crackers. When P.W.1 asked them to move away from that place to fire crackers, there arose a quarrel between P.W.1 and the accused. When P.W.2 questioned them, A-1 threw a stone at P.W.2. At that time, when the deceased intervened, A-1 to A-4 pushed down the deceased and hit him on his chest. When P.W.1 intervened, A-4 Duraipandi attacked P.W.1 by pelting stones at him. When P.W.3 intervened, A-3 Singaraj, pelted stone on his head, causing injury. P.W.4, who intervened, was again attacked by A-1. The injured witnesses along with Angathevar, went before the Police Station. Since the deceased Angathevar expressed of pain in the chest, the police directed them to go to the hospital. When he was taken to the hospital, the Doctor expressed that he had already died. Thereafter, a complaint was lodged under Ex.P1 by P.W.1.
5. P.W.16 - Inspector of Police, Usilampatti Nagar Police Station, registered the complaint in Crime No.176 of 2002 under Sections 324 and 302, I.P.C. The first information report thus registered is marked as Ex.P5. P.W.20
- Inspector of Police, took up further investigation. He went to the scene of occurrence at about 1.00 a.m. and with the aid of a torch light and tube light, he prepared Ex.P9 - Observation Mahazar and Ex.P10 - Rough Sketch, in the presence of witnesses. He recovered the pelted stones, 8 in number, marked as M.O.1 series, under Ex.P11 - Seizure Mahazar. Thereafter, he enquired the witnesses and recorded their statements. Thereafter, he went to the hospital to record the statements. He conducted inquest over the body of the deceased in the presence of panchayatdars and prepared Ex.P12 - inquest report. On 04.11.2002, he arrested A-4 near the bus stand and brought him to the Police Station and thereafter, he sent him to the Court for judicial custody. On 05.11.2002, at about 14.45 hours, he arrested A-1 and A-3. At about 15.10 hours, he brought them to the Police Station and sent them for judicial custody. On 06.11.2002, he arrested A-2 near Poochipatti Thevar Statue and sent him to judicial custody. On 08.11.2002, he enquired further witnesses and recorded their statements. He examined P.W.14 - Dr.Bharathi who conducted post mortem and recorded the statement. On 02.12.2002, he once again enquired P.W.14 and received the final opinion marked as Ex.P13. On 02.12.2002, he enquired the witnesses and recorded their statements. He also enquired Dr.Sukumaran P.W.17, who treated P.Ws.4, 1 and 2 and issued wound certificates Exs.P6, P7 and P8 and recorded his statement. After completing the investigation, he lodged the final report.
6. Ex.P13 is the final opinion given by P.W.14 Dr.Bharathi as to the cause of death of the deceased. A perusal of Ex.P4 - Post Mortem Certificate issued by Dr.Bharathi - P.W.14, shows that there were no external or internal injuries. Evidence of P.W.14 points out that the deceased, aged 60 years, had not died due to any injuries suffered and that he would have died in the natural way by reason of cardiac arrest. On the question as to whether the deceased died due to natural heart attack or heart attack on account of the attack by the accused, the evidence of P.W.14, read in the context of Ex.P13, shows that even though the deceased died due cardiac arrest, yet, there were no materials to link the death of the deceased to any attack by the accused herein.
7. Learned counsel for the appellants pointed out that even going by the evidence of the Doctor P.W.17 as well as Ex.P4 the post mortem certificate, the Ex.P13 - final opinion and also the evidence of P.W.20, the Investigating Officer, there is hardly any material to indicate that the deceased died out of any overt act attributed to the accused, as has been spoken to by the witnesses. In fact, he pointed out to the evidence of P.W.20 and stated that none of the injured witnesses spoke about the accused attacking the deceased resulting in the death. Quite apart from this, learned counsel for the appellants further pointed out that as per Ex.P6, the injuries suffered by the witnesses are simple in nature and even as per the evidence of the Investigating Officer P.W.20, all that they recovered from the scene of occurrence were only small stones. In these circumstances, the case of the prosecution as regards the charges levelled against the accused under Section 302, I.P.C. is totally unsustainable. Learned Additional Public Prosecutor, however, supported the judgment of the Court below by placing reliance on the evidence of the injured witnesses.
8. Heard learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent and considered the material on record.
9. It is seen from the evidence of the witnesses herein that the occurrence took place on the night of Diwali. Evidently, there were crackers fired by the public in the open space near the residence of P.W.1. Objecting to the accused firing crackers in front of his house, P.W.1 asked the accused to move away from that place to fire crackers. However, it resulted in a wordy altercation between the accused and the injured witnesses, who were there in the scene of occurrence. When P.W.2 objected to the use of intemperate language of A-1 abusing P.W.1, P.W.2 was attacked by A-1. It is in the evidence of P.W.2 and P.W.20 that all the accused were stated to have attacked the injured witnesses by pelting small stones which were strewn in the grazing ground. The evidence herein does not speak about the size of the stones used in the occurrence, P.W.20's evidence shows the recovery of 8 small jelly stones marked as M.O.1 series and the injury that one notice on P.Ws.1, 2 and 4 under Exs.P6. P7 and P8 respectively, are simple injuries sustained by the witnesses. Apart from this, as already pointed out, the evidence of P.W.20 referred to the statements of P.Ws.1, 2, 3 and 4 that none of the witnesses spoke about the accused attacking the deceased by pushing him down. The evidence of P.W.14 - Doctor, read with Ex.P13, points out that there is hardly any material to substantiate that the death of the deceased was one caused on account of any overt act of the accused herein. Thus the evidence available herein in this case only disproves the case of the prosecution that the accused had caused the death of the deceased - Anguthevar by pushing him down, attacking on the chest. In the light of the above-said facts, particularly going by the medical evidence as well as the evidence of P.W.20, we have no hesitation in setting aside the conviction and sentences imposed on the accused A1 to A4 under Section 302 read with Section 34, I.P.C.
10.Nevertheless, the fact remains that the evidence herein, particularly that of P.W.20 as well as the injured witnesses, pointed out to the accused pelting stones on the injured witnesses causing injuries on them. Evidence of P.W.17 - Dr.Sukumar as well as Ex.P6, P7 and P8 point out to the injuries suffered due to the pelting of stones. Thus the evidence adduced herein establishes the overt act of the accused causing injuries to the witnesses by pelting stones. Therefore, the question that now arises for our consideration is as to whether the stones which are used in this case could be considered as deadly weapon or not. As already observed, as the stones which are used in this case are only small in size, they cannot be considered as deadly weapon. The fact that the accused had attacked the witnesses by pelting stones stands proved and hence, the accused are to be convicted for the offence punishable under Section 323, I.P.C. Therefore, the conviction and sentences imposed under Section 324, I.P.C. on A-1, A-2 and A-4 are set aside, instead, they are convicted under Section 323, I.P.C. It is stated that they were already in prison for more than two months. In the light of the above, we do not impose any further sentence under Section 323, I.P.C. on A-1, A-2 and A-4 and hence, the period undergone in prison is taken as the period of punishment imposed, viz., two months imprisonment, apart from the levy of fine as already imposed. The fine amount imposed on them is confirmed.
11. In the result, the conviction and sentences imposed on the appellant / accused-1 to 4 under Section 302 read with Section 34, I.P.C. are set aside. The conviction and sentence imposed on the first appellant/A-1 under Section 324, I.P.C. (3 Counts) are set aside and instead, the same stands modified that he is convicted under Section 323, I.P.C. (3 counts) and sentenced to the period which he had already undergone. The conviction and sentence imposed on appellants-2 and 4/A-2 and A-4 under Section 324 I.P.C. are set aside and instead, they are convicted under Section 323, I.P.C. and sentenced to the period which they had already undergone. The fine amount imposed on them stands confirmed.
12. The Criminal Appeal is partly allowed.
KM To
1. The Additional Sessions Judge Fast Track Court No.II Madurai.
2. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.