Madras High Court
Jegan vs State Rep. By on 16 April, 2019
Bench: P.N.Prakash, B.Pugalendhi
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 07.02.2019
PRONOUNCED ON : 16.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A.(MD).Nos.236, 274 & 311 of 2016
Jegan ... Appellant in Crl.A(MD)No.236/16
Murugesan @ Kokkar Murugesan ... Appellant in Crl.A(MD)No.274/16
Murugan ... Appellant in Crl.A(MD)No.311/16
Vs.
State rep. by
The Inspector of Police,
Kallidaikuruchi Police Station,
Tirunelveli District.
Crime No.375 of 2013
... Respondent in all appeals
COMMON PRAYER: Appeals filed under Section 374(2) of the Code of
Criminal Procedure, to call for the entire records connected to the judgment
in S.C.No.185 of 2015 on the file of the learned IV Additional Sessions Judge,
Tirunelveli, dated 29.01.2016 and set aside the conviction and sentence
imposed against the appellants.
http://www.judis.nic.in
2
For Appellants
in Crl.A.(MD)Nos.236,274/16 : Mr.R.Alagumani
For Appellants
in Crl.A.(MD)No.311/16 : Mr.C.Christopher
For Respondent
in all appeals : Mr.R.Anandharaj,
Additional Public Prosecutor
*****
COMMON JUDGMENT
B.PUGALENDHI, J., These appeals are directed against the conviction and sentence ordered by the learned 4th Additional Sessions Judge, Tirunelveli, in S.C.No. 185 of 2015, dated 29.01.2016.
2. The Trial Court has framed as many as six charges against the accused, which read thus:
Charge Accused Section
1 A1 to A3 120(b) IPC
2 A2 342 IPC
3 A2 & A3 323 IPC
4 A1 294(b) IPC
5 A1 302 IPC
6 A2 & A3 302 r/w 109 IPC
After full trial, the Trial Court, though acquitted the accused from Charges 1 to 4, has convicted them in the remaining two charges as detailed below:
http://www.judis.nic.in 3 Accused Section of Law Sentence of Fine amount imprisonment A1 302 IPC To undergo Rs.1,000/- in imprisonment for default to life. undergo rigorous imprisonment for six months.
A2 & A3 302 r/w 109 IPC To undergo Rs.1,000/- in imprisonment for default to life. undergo rigorous imprisonment for six months.
3. The appellants in Crl.A(MD)Nos.236 of 2016, 311 of 2016 & 274 of 2016 are the accused 1 to 3, respectively, in S.C.No.185 of 2015 on the file of the learned 4th Additional Sessions Judge, Tirunelveli. Since the appeals are arising out of the judgment dated 29.01.2016 in S.C.No.185 of 2015, all the appeals are taken together for disposal.
4. The background facts, as projected by the prosecution, in a nutshell, are as follows:
4.1. On 25.09.2013, at about 11.15 pm, one Jeya [PW1] and her father were rolling Beedi leaves and her mother [PW2] was sitting beside them. Her father / the deceased went to the southern side of the house and was smoking Beedi and after some time, he raised a hue and cry. When the complainant and others rushed to the spot, they witnessed the accused http://www.judis.nic.in 4 1 & 2 beating and kicking the deceased. The third accused was also present, instigating the other accused to kill the deceased. The second accused caught hold of the deceased and the first accused took a brick from that place and attacked the deceased on the back of his head. At that time, the complainant's mother, namely, Theivanai [PW2], attempted to protect her husband, but she was also beaten up and was pulled away, out of which, PW2 also sustained three lacerated injuries. PWs 1 to 3 raised a hue and cry and thereafter, the accused ran away from the place of occurrence.
4.2. PW5 / their neighbour arranged for an Ambulance and PWs 1 & 2 took the deceased to the Ambasamuthram Hospital. Thereafter, the complainant [PW1] went to Kallidaikuruchi Police Station, along with her sister [PW4] and preferred the complaint [Ex.P1], at about 04.00 am on 26.09.2013. The Sub Inspector of Police, Kallidaikuruchi Police Station [PW17] registered the complaint in Crime No.375 of 2013, for the offence punishable under Sections 294(b), 323, 342 and 302 IPC. The printed First Information Report [Ex.P14] was sent to the Magistrate Court through Constable [PW14] and it reached the Magistrate on 26.09.2013 at 07.30 am.
4.3. The copy of the printed FIR was also sent to the Inspector of Police [PW19] and the Inspector of Police proceeded to the place of http://www.judis.nic.in 5 occurrence at about 06.00 am, took up the case for investigation, prepared the Observation Mahazer [Ex-P3] and Rough Sketch [Ex-P18], showing the place of occurrence, in the presence of PW8 and another witness. He also recovered bloodstained concrete slabs and bloodstained broken bricks in Ex.P4. The broken brick was marked as MO1. The Inspector of Police [PW19] examined PW3, PW8 and another witness from the place of occurrence and went to the Hospital at Ambasamuthiram and conducted inquest from 08.45 am to 10.30 am, in the presence of PWs 1, 2 & 4. He also recorded their statements. He made a request for postmortem through PW16 and examined PW5 & PW17 on that day.
4.4. On 26.09.2013, at about 03.00 pm, PW19 arrested the third accused and recorded his confession statement. Accused 1 & 2 surrendered before the Judicial Magistrate Court, Nanguneri, on 27.09.2013 and PW19 made a request for their remand in this case. He collected the postmortem report on 13.02.2014 and examined the Doctor [PW10] and thereafter, recorded her statement. He recorded the further statements of PWs 1 to 3 on 20.03.2014 and filed the final report as against the accused persons.
4.5. During the trial, 19 witnesses were examined and 21 documents and 6 material objects were marked. The available evidence http://www.judis.nic.in 6 from the prosecution witnesses are as follows:
a) PW1 / complainant is the daughter of the deceased and an eye witness to the occurrence. According to her, on the instigation of the third accused, the second accused caught hold of her father / the deceased and the first accused attacked her father / deceased using a brick on 25.09.2013 at about 11.15 pm. After the incident, she took the deceased and PW2 in 108 Ambulance to the Hospital and thereafter, lodged the complaint [Ex.P1];
b) PW2 is the wife of the deceased and also an injured eye witness. According to her, out of previous motive, the accused have attacked her husband and when she attempted to save her husband, she was attacked by the accused persons, due to which, she suffered lacerated wounds;
c) PW3 is the son of the deceased and also an eye witness, whose deposition sails with that of PWs 1 & 2;
d) PW4 is the sister of PW1, who accompanied PW1 in lodging the complaint [Ex.P1] before the Kallidaikuruchi Police Station;
e) PW5 is a neighbour and also a relation, who arranged the Ambulance and took the deceased and PWs 1 & 2 to the Ambasamuthiram General Hospital;
f) PW6 is the brother of PW2, who speaks about the land dispute http://www.judis.nic.in 7 between the third accused and the deceased;
g) PW7 is the staff of Tamil Nadu Electricity Board and he speaks about the supply of electricity in that area at the time of occurrence;
h) PW8 is the witness for the observation mahazar – Ex.P3 and the recovery of MOs 1 to 4 from the place of occurrence;
i) PW9 is the Doctor, who admitted the deceased and PW2 and issued the Accident registers – Ex.P5 & Ex.P6, respectively. According to the Doctor, the deceased was brought dead on 25.09.2013 at 11.55 pm by PWs 1 & 2. The Doctor has noted down the following injuries on PW2:
i) Abrasion of 1 x 1 cm over post aspect of left elbow;
ii) Abrasion of ½ x 1 cm over post aspect of right elbow; and
iii) Abrasion of ½ x 1 cm over post aspect of right arm.
j) PW10 is the Doctor, who conducted Postmortem and according to PW10, postmortem was commenced at 11.30 am on 26.09.2013.
Postmortem certificate is marked as Ex.P7 and the Doctor gave his opinion that the deceased died of Intracranial injury. He found the following injuries on the body of the deceased:
i) Injury in the Orcipital region, measuring 5 x 3 x bone depth;
ii) Abrasion of 3 x 2 cm behind right ear; and
iii) Laceration of 2 x 1 x ½ cm above left ear.
k) PW11 is the scientific expert, who issued the Viscera report [Ex.P8];
l) PW12 is the then Village Assistant, who is the witness for the http://www.judis.nic.in 8 confession statement of the third accused;
m) PW13 is a Constable who speaks about the Call details of PW5 in proof of intimation to 108 Ambulance on the date of occurrence;
n) PW14 is a Constable, who received the printed FIR [Ex.P14] from PW17 at 5.10 am and handed it over to the Judicial Magistrate, Ambasamuthiram, at his residence, on 26.09.2013 at about 07.30 am;
o) PW15 is a Grade I Constable, who took the postmortem report to the Judicial Magistrate Court;
p) PW16 is the Head Constable who identified the body to the doctor [PW10] for the postmortem;
q) PW17 is the Sub-Inspector of Police, who received the complaint [Ex.P1] from PW1 and registered the same in Crime No.375 of 2013, as against the appellants for the offence punishable under Sections 294(b), 323 & 342 IPC;
r) PW18 is the Assistant Director, Forensic Lab, who issued the Biological report [Ex.P16] and the Serological report [Ex.P17] and he detected the presence of Human Blood group 'A' in MOs 1 to 4;
s) PW19 is the investigation officer who conducted the investigation and filed the final report.
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5. In conclusion of the trial, the learned trial Judge put the incriminating materials to the accused under Section 313 Cr.P.C., and the accused have denied the same. Upon appreciating the evidence let-in by the prosecution, the trial Court found the accused guilty and convicted them as stated supra. As against this conviction and sentence, these appeals have been filed.
6. Heard Mr.R.Alagumani, learned Counsel for the appellants in Crl.A.(MD)Nos.236 & 274 of 2016; Mr.C.Christopher, learned Counsel for the appellant in Crl.A.(MD)No.311 of 2016 and Mr.R.Anandharaj, learned Additional Public Prosecutor for the respondent / State in all the appeals.
7. Learned Counsel for the appellants contended that the learned trial Judge, having acquitted the accused under Sections 120(B), 342, 323 & 294(b) IPC, based on the available evidence, ought to have acquitted the accused as regards the remaining charges also. They also pointed out that there is a correction in the complaint [Ex.P1] as to the number of persons involved in the occurrence. Initially, it was written as one and corrected to two and finally, it was corrected as three. There is also a delay in FIR reaching the Court, which has not been properly explained. http://www.judis.nic.in 10
8. They further contended that in the inquest report, it is mentioned that the deceased was last seen alive at 09.15 pm. But, the case of the prosecution is that the occurrence had taken place at 11.15 pm and the witnesses have witnessed the same. This creates a doubt on the time of occurrence as projected by the prosecution, which would go to the very root of the case of the prosecution. Moreover, there is no independent witness.
9. Per contra, Mr.R.Anandharaj, learned Additional Public Prosecutor, submits that from the evidence, the prosecution has clearly established that it was these accused, who committed the murder of the deceased. Therefore, according to the learned Additional Public Prosecutor, the conviction and sentence imposed by the trial Court on the accused does not require any interference at the hands of this Court.
10. This Court considered the submissions made by the learned counsel appearing on either side and perused the materials available on record.
11. The deceased in this case, namely, Padalingam, was admitted to the Government Hospital, Ambasamuthiram, on 25.09.2013 at about 11.55 pm, by the Doctor [PW9], vide Ex.P5 / Accident Register. On the same http://www.judis.nic.in 11 day, the Doctor [PW9] has also treated PW2 and issued Wound Certificate under Ex.P6, wherein the injuries sustained by PW2 is noted. PW10 is the Doctor, who conducted postmortem on 26.09.2013 at about 11.30 am and he gave an opinion that the deceased appears to have died of Intracranial injury and the death would have occurred 10 to 14 hours prior to autopsy.
12. PW1 has lodged the complaint [Ex.P1] at about 04.00 am in the morning before the Sub-Inspector of Police [PW17] and the same was registered in Crime No.375 of 2013 at about 05.00 am and had also reached the Court at 07.30 am. According to the complainant, there was an incident of wordy quarrel in the morning on 22.09.2013, between the deceased and the accused with regard to a place for cultivating Palm fruits. Pursuant to the same, in the evening, the accused assaulted the deceased and also tore his shirt. But, they have not preferred any complaint. On the next day morning, when the deceased was going for his job, the accused have planned to attack him and the deceased overheard the same. On account of that also, there was a wordy quarrel and on 25.09.2013, at about 11.15 pm, when they were rolling Beedi leaves in front of their house, the deceased went to smoke Beedi and little later, he raised a hue and cry. PWs 1 to 3 rushed to the spot and found the deceased being beaten by the accused. The second accused caught hold of the deceased and at the instigation of the http://www.judis.nic.in 12 third accused, the first accused took a brick from the place of occurrence and attacked the deceased on the back of his head. PW2 / wife of the deceased attempted to protect her husband, but she was also assaulted and pulled away from the place. Their neighbor [PW5] arranged the 108 Ambulance service and the deceased was taken to the Hospital by PWs 1 & 2 and the deceased was admitted to the Hospital at 11.55 pm. After the arrival of PW4, PW1 went to the police station along with PW4 and lodged the complaint [Ex.P1].
13. The contention of the learned Counsel for the appellants that there is a delay in lodging the First Information Report and the First Information Report reaching the Court cannot hold much water. This is because PWs 1 & 2 are women and PW3 is a fifteen year old boy. It is only with the help of PW5, they were able to take the deceased to the Hospital. The call details of PW5 establishes the same. PW2 is injured and her husband / PW1's father is died. Under this circumstances, it will be very difficult for PW1 to leave her injured mother in the Hospital and rush to the police station to lodge the complaint in the night hours. PW4 is the sister of PW1, who is living with her husband at Kodarankulam. After getting intimation about the incident, she came to the Hospital and only then, PW1 was able to go to the Police Station along with her sister [PW4] and lodge http://www.judis.nic.in 13 the complaint [Ex.P1]. In this circumstances, the complaint lodged at 04.00 am cannot be termed as delay in lodging the complaint. The complaint was also registered by PW17 at about 05.00 am and the FIR was handed over to the Judicial Magistrate, Ambasamuthiram, at his residence at 07.30 am by PW14. According to PW14, the residence of Judicial Magistrate, Ambasamuthiram, is 3 kms away from the bus stand and he boarded a bus from Kallidaikuruchi to Ambasamuthiram and went to the residence of Judicial Magistrate by walk, which is 3 kms away from the bus stand and handed over the First Information Report at 07.30 am. It is quite natural, the availability of the bus in the morning to the specific destinations will be rare and therefore, this delay in FIR reaching the Court cannot be termed as inordinate.
14. The prosecution has also collected the call details of PW5 / the neighbor and marked the same as Ex.P9. The call details of PW5 establishes that a call was made through his phone number '97904-62339' to '108' on 25.09.2013, at about 11.14 pm and 11.25 pm. The Accident Registers [Ex.P5 & Ex.P6] show that the deceased and PW2 were taken to the Hospital immediately. PW2 is also an injured eye witness and she speaks about the occurrence without any infirmity. The available evidence is cogent and trustworthy to believe that the occurrence had taken place at 11.15 pm. http://www.judis.nic.in 14 The evidence of PWs 1 to 3 cannot be discarded that they are closely related and interested witness. The occurrence took place in front of their house, at about 11.15 pm and therefore, PWs 1 to 3 will be the natural witness and in this case, PW2 is an injured witness. The testimony of PWs 1 & 2 are cogent, trustworthy and also supported by the scientific evidence.
15. The learned Counsel for the appellants contended that there is no complaint for the earlier incident, as projected by the prosecution and therefore, no clear motive has been established. We are of the view that this is a case of direct evidence and therefore, motive, even if it is not established, is of less significance in deciding the issue. The Doctor [PW10], who conducted the autopsy, has noted three injuries and also submitted that the injuries found on the body of the deceased are possible through the Brick pieces, recovered from the place of occurrence, as projected by the prosecution. The scientific expert who issued the Serological report [Ex.P17] has noted the presence of Human Blood Group “A” in MOs 1 & 2 / the shirt and lungi of the deceased as well as in MOs 3 & 4 / the Crater Pieces and Brick Pieces, recovered from the place of occurrence. Therefore, we are of the view that the prosecution has clearly established the offence. http://www.judis.nic.in 15
16. The question that now falls for consideration is whether the offence disclosed by the facts and circumstances established by the prosecution against the accused is murder or culpable homicide not amounting to murder.
17. The Hon'ble Supreme Court, in the decision reported in (1976) 4 SCC 382 [State of Andhra Pradesh v. Rayavarapu Punnayya and another], has pointed out the distinction between Sections 299 & 300 IPC and issued the following guidelines:
“21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to http://www.judis.nic.in this question is in the negative the offence would be 'culpable 16 homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304, Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.”
18. In the decision reported in (2006) 11 SCC 444 [Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh], the Hon'ble Supreme Court has enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused. The relevant portion is extracted as under:
“29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters – plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or http://www.judis.nic.in even an objectionable glance, may lead to altercations and group 17 clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302 are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw http://www.judis.nic.in light on the question of intention. Be that as it may.” 18
19. Keeping these broad principles in mind, we have considered the issue carefully. Admittedly, the first accused hit the deceased with a brick; the second accused associated him by caught hold of the deceased and the third accused instigated the others. It is not the case of the prosecution that the accused had carried the brick to the place of occurrence with an intention to kill the deceased. The occurrence took place at 11.15 pm and the accused, without any weapon, went to the place of occurrence, without any premeditation and have assaulted the deceased with the brick, which was taken from the place of occurrence. Only on hearing the hue and cry of the deceased, PWs 1 to 3 witnessed the occurrence, but, they have not witnessed any wordy quarrel at that time.
Further, the occurrence took place at 11.15 pm and therefore, it is highly improbable to accept the theory that the accused intentionally assaulted the vital part of the body of the deceased for fatal blow. Though the Doctor had noted down three injuries, they are interlinked and also possible on a single blow.
20. Under these circumstances, we are of the view that the act of the accused cannot be construed as murder and it has to be construed as culpable homicide not amounting to murder.
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21. Considering the nature of the crime; nature of the weapon used and the fact that the brick was not carried by the accused to the place of occurrence; that the incident occurred by chance and without any premeditation; that the injuries are also possible on a single blow, we hold the first accused guilty of the offence under Section 304(i) IPC, instead of Section 302 IPC. Insofar as the accused nos. 2 & 3 are concerned, though they have not inflicted any injury, they facilitated the commission of crime by caught hold of the deceased and instigated for the commission of offence and therefore, we hold the second and third accused guilty of the offence under Section 304(i) r/w 34 IPC and Section 304(i) r/w 109 IPC, respectively.
22. Since the charges and section of law are modified, we are inclined to modify the sentence of imprisonment. The life imprisonment ordered by the trial Court as regards the first accused under Section 302 IPC stands modified and the first accused shall undergo rigorous imprisonment for ten years under Section 304(i) IPC. Insofar as the second and third accused are concerned, the life imprisonment ordered by the trial Court under Section 302 r/w 109 IPC stands modified to seven years rigorous imprisonment under Section 304(i) r/w 34 IPC and Section 304(i) r/w 109 IPC, respectively. The fine amount imposed by the trial Court as well as the default clause stands confirmed. Since the appellants are on bail, the http://www.judis.nic.in 20 learned trial Judge is directed to secure the appellants and confine them, in accordance with law.
23. In the result,
i) the conviction and sentence imposed by the trial Court stands modified as follows:
Accused Ordered by the trial Court Ordered by this Court A1 302 IPC - To undergo 304(i) IPC – To undergo rigorous imprisonment for life and to imprisonment for ten years and pay fine of Rs.1,000/-, in to pay fine of Rs.1,000/-, in default to undergo rigorous default to undergo rigorous imprisonment for six months. imprisonment for six months. A2 302 r/w 109 IPC – To undergo 304(i) r/w 34 IPC – To undergo imprisonment for life and to rigorous imprisonment for pay fine of Rs.1,000/-, in seven years and to pay fine of default to undergo rigorous Rs.1,000/-, in default to imprisonment for six months. undergo rigorous imprisonment for six months.
A3 302 r/w 109 IPC – To undergo 304(i) r/w 109 IPC – To undergo imprisonment for life and to rigorous imprisonment for pay fine of Rs.1,000/-, in seven years and to pay fine of default to undergo rigorous Rs.1,000/-, in default to imprisonment for six months. undergo rigorous imprisonment for six months.
ii) these Criminal Appeals are partly allowed.
[ P.N.P.J.,] [ B.P.J.,]
16.04.2019
Index : Yes /No
Internet : Yes
http://www.judis.nic.in
gk
21
To
1)The 4th Additional Sessions Judge,
Tirunelveli.
2)The Inspector of Police,
Kallidaikuruchi Police Station,
Tirunelveli District.
3)The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
4)The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
22
P.N.PRAKASH, J.,
and
B.PUGALENDHI, J.,
gk
Pre-Delivery Judgment made in
Crl.A.(MD).Nos.236, 274 & 311 of 2016
16.04.2019
http://www.judis.nic.in