Madras High Court
Narayanasamy vs State By on 21 December, 2009
Author: R.Subbiah
Bench: R.Regupathi, R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/12/2009 CORAM THE HONOURABLE MR.JUSTICE R.REGUPATHI AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Crl.A No.873 of 2002 Narayanasamy ... Appellant Vs. State by Inspector of Police, Tiruvengadam Police Station, Tirunelveli District. ... Respondent Prayer Appeal filed under Section 374 of Cr.P.C., against the judgment in S.C.No.315 of 1999, dated 22.05.2002 on the file of the Sessions Judge (Fast Track Court-II), Tirunelveli. !For Appellant ... Mr.K.Jeganathan ^Respondent ... Mr.N.Senthurpandian, Additional Public Prosecutor. :JUDGMENT
(Judgment of the Court was delivered by R.SUBBIAH, J.) The appellant is the sole accused in S.C.No.315/1999 on the file of the Sessions Judge (Fast Track Court-II), Tirunelveli on the charge levelled against him on the allegation that on 17.02.1999 at about 12.30 p.m. he brutally attacked the deceased indiscriminately with the stick and caused his death and thereby committed an offence under Section 302 IPC.
In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 16, marked Exs.P.1 to 22 and produced M.Os.1 to 7. The learned trial Judge, on conclusion of the trial, by judgment dated 17.05.2002, found the accused guilty for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for one year. Challenging the verdict of the Court below, the accused had come up with the present appeal.
2.The sum and substance of the case of the prosecution are as follows:
a)The accused and the deceased belonged to the same village. There was a dispute between the accused and the deceased in respect of using a pathway leading to the field of the deceased. On account of this enmity, the accused very often used to quarrel with the deceased.. On 17.02.1999, at 12.30 p.m. while the deceased went along with P.W.1 to graze his cattle, P.W.3, one Arunachalam and one Perumalsamy and the accused were also grazing the cattle in the lands. The accused on seeing the deceased coming to graze his cattle indulged in a quarrel with the deceased, during which the deceased scolded the accused with indecent and provocative words in filthy language thereby provoking the accused, who, on being infuriated on such extremely offensive language hit the deceased on his head with a stick forcibly. Thereafter, once again, the accused hit on the left rib of the deceased. On seeing this, P.W.1 and others who were present at the place of occurrence, raised an alarm and the accused had run away from the place of occurrence. Since the injured had become unconscious, P.W.1 and others carried him to his house and arranged for a taxi and took the deceased to the Government Hospital, Kovilpatti where the deceased was administered the first aid treatment and thereafter, he was taken to Palayamkottai Government Hospital, Tirunelveli and admitted. But on the same day evening at 6.45 p.m., the deceased succumbed to the injuries sustained by him.
b)P.W.8, the Chief Medical Officer, intimated the death of the deceased to the out post police station by 6.45 p.m. through Ex.P.9/death intimation.
c)P.W.15, the Sub Inspector of Police, on receipt of the death intimation by 10.30 p.m. proceeded to the hospital and recorded the statement from P.W.1.
The said statement is marked as Ex.P.1. Thereafter, P.W.15 registered a case in Crime No.57 of 1999 for the offence punishable under Section 302 IPC and prepared the FIR/Ex.P.16. Then, P.W.15 forwarded the FIR/Ex.P.16 through P.W.12, Head Constable to the learned Judicial Magistrate, Sankarankoil by 5.00 a.m, on 18.02.1999.
d)On receipt of the FIR, on 18.02.1999, at 6.30 a.m., P.W.16, the Investigating Officer proceeded to the place of occurrence and prepared an observation mahazar and a rough sketch Exs.P.2 and P.17 respectively and recovered one pair of chappal/M.O.3, Water bottle/M.O.2 and Soda Bottle/M.O.4 under Ex.P.3 in the presence of P.W.4 and one Mururgan and recorded their statements. Thereafter, P.W.16, the Investigating Officer, went to the Tirunelveli Medical College Hospital, Tirunelveli and conducted the inquest over the dead body of the deceased and prepared the inquest report/Ex.P.18. Thereafter, the body of the deceased was sent along with a requisition/Ex.P.10 to the Tirunelveli Medical College Hospital, Tirunelveli for conducting the autopsy.
e)P.W.9, who on receipt of the requisition given by the Investigating Officer, conducted the autopsy on 18.02.1999 at 2.50 p.m., and issued the Post- mortem Certificate/Ex.P.11 wherein, he noted the following:
"Injuries:
1)Right eye contused.
2)Abrasion:3x2cm with surrounding contusion over back of left parietal region;
4x2 cm with surrounding contusion over back of right parietal region; 3x3cm with surrounding contusion over the outer aspect of lower part of left side of abdomen.
3)On dissection of scalp, skull and dura: Massive sub-scalpal brusing 30 cmx25cm over bifrontal, bitemporal, biparietal and occipital region. Both temporalis muscles bruised. Comminuted fracture of s vault of skull over right sides of frontal bone. Transverse fracture measuring 18cm extending from the left parietal to right parietal bone. Curvilinear fracture measuring 16 cm extending from the left frontal to left occipital through left parietal bone. Massive sudural and subarachnoid haemorrhage over both cerebral hemispheres. Fracture of left middle cranial fossa and right posterior cranial fossa of the base of the skull noted.
On dissection of thorax: Left pleural cavity contains 50 ml of fluid blood. Base of th left lung found contused. C/s.: contused. On dissection of Abdomen:
Pertitoneal cavity contained 200ml of fluid blood rupture of spleen noted with bruising of surrounding soft tissues. Rupture of left kidneys noted with bruising of perinephric soft tissues noted. C/s.of liver kidneys: Congested. Bruising of varying sizes noted over the front of stomach and omentum and intestines and mesentry.
Heart: All Chambers contained A few CC of fluid blood. Coronaries : Patient, Lungs: C/s.congested, hyoid bone : Intact. Stomach: Contained 200 gms of partly digested cooked rice food material with nil specific smell: mucosa :Normal Urinary Bladder : empty Brain C/s.Congested".
Further, he opined that the deceased appeared to have died of multiple injuries including the head injuries sustained by him.
f)P.W.16, the Investigating Officer, who, on coming to know that the accused had surrendered before the Judicial Magistrate Srivilliputhur on 22.02.1999, by filing an affidavit/Ex.P.19 before the Judicial Magistrate, Sankarankoil took the accused into police custody on 01.03.1999 and examined him. The appellant/accused voluntarily gave a confession, the admissible portion of which was marked as Ex.P.21. Pursuant to the same, the stick/M.O.1 was recovered under Ex.P.22 on 02.03.1999. The accused was produced before the learned Judicial Magistrate and got him remanded to the Judicial custody.
g)P.W.16, the Investigating Officer, after examination of the witnesses and receiving medical opinion from P.W.9 concluded the investigation and laid the final report on 07.5.1999 against the accused for the offence punishable under Section 302 IPC before the Judicial Magistrate, Sankarankoil.
h)The learned trial Judge, after receiving the oral and documentary evidence collected during the course of the trial, questioned the accused under Section 313 Cr.P.C., and the accused denied the complicity of the commission of the offence and pleaded not guilty.
i)The Trial Judge,after analyzing both the oral and documentary evidence and hearing the submissions made by both the parties found the accused guilty of the offence punishable under Section 302 I.P.C convicted and sentenced him as stated supra. Aggrieved by the conviction and sentence, the appellant has preferred the present appeal before this Court.
3.Mr.K.Jeganathan, learned counsel for the appellant submitted that the prosecution has not proved its case with cogent and convincing evidence and there are a lot of contradictions in the prosecution evidence. Further, no bloodstained weapon was recovered from the scene of occurrence and in M.O.1 said to have been used by the accused there is no bloodstain. Therefore, the non seizure of the bloodstained material object, from the place of occurrence would raise a grave doubt on the case of the prosecution. There was also delay in lodging the FIR and the said delay was not properly explained. Further, it is submitted that the overt acts attributed against the accused do not tally with the injuries mentioned in the post mortem certificate/Ex.P.11.
4.It is further submitted that P.Ws.1 and 2 are interested witnesses. Under such circumstances, it could be inferred that P.Ws.1 and 2 who are interested witnesses are pressed into service.
5.The learned defence counsel, in addition to the above submissions pleaded an alternative argument that the offence in the back ground of the motive leading to sudden and grave provocation would become punishable under Section 304(i) I.P.C. but not under Section 302 I.P.C.
6.Per contra, the learned Additional Public Prosecutor submits that the prosecution has proved its case with cogent and convincing evidence. Further, there is no delay in handing over the FIR to the Judicial Magistrate. The material objects were also seized from the place of occurrence. Under such circumstances, no infirmity could be found in the conviction and sentence passed by the trial Court under Section 302 IPC.
7.We have perused the materials on record and the submissions advanced by both sides.
8.It is the specific case of the prosecution that the deceased was attacked by the accused at 12.30 p.m. on 17.02.1999 with a stick and after the occurrence P.W.1 and P.W.2 took the deceased by arranging a Taxi and admitted the deceased in the Government Hospital, Kovilpatti by 2.30 p.m. Thereafter, he was shifted to Tirunelveli Medical College Hospital, Palayamkottai where he succumbed to the injuries at 6.45 p.m. and the death intimation was sent by the hospital authorities to the out post police station, who in turn, sent the intimation to the Sub Inspector of Police, Thiruvengadam Police Station and the Inspector of Police from Tiruvengadam Police Station came to the hospital at 10.30 p.m. and obtained the confession from P.W.1 and returned to the police station at 2 a.m. and registered the FIR in Crime No.57 of 1999 under Section 302 IPC. On deeply examining the evidence of prosecution witnesses and the sequence of events as spoken to by the prosecution witnesses are very cogent and convincing and we find that there was no delay in registering and sending the FIR to the Court. Therefore, the submission made by the learned counsel for the appellant that there was delay in registering and sending the FIR to the Court is not acceptable. Further, we find that M.O.1/Stick was also recovered pursuant to the voluntary confession statement/Ex.P.21 made by the accused.
9.Further, it is the case of the prosecution that the deceased was hit by a stick on the head and his left rib, on account of which the stick got broken. Under such circumstances, naturally, there cannot be a bloodstain on the stick. Therefore, we do not find any force in the submission made by the learned counsel for the appellant that no bloodstained weapon was seized by the prosecution. Therefore, we are not inclined to accept the said submission. We are of the opinion that the prosecution has proved the case beyond reasonable doubt with cogent and convincing manner. In fact, there is absolutely no evidence and circumstance leading to any inference that P.Ws.1 to 3 are pressed into service to speak against the accused. However, on a deep examination of the oral testimony of P.Ws.2 and 3, we find that there was a wordy quarrel before the occurrence, which fact is corroborated by P.Ws.2 and 3. P.W.3 had specifically stated in his evidence that prior to the occurrence, there was a wordy quarrel between the accused and the deceased and the accused, who was in possession of a stick for grazing cattle at the heat of uncontrollable passion arising out of the explosive and dirty utterances made by the deceaseD , suddenly beat the deceased on his head and left rib. Hence, in our opinion, ultimately, this resulted in the death of the deceased.
10.The attending circumstances and evidence brought on record ultimately show that the appellant/accused could not have determined to murder the deceased when the deceased came with P.W.1 to graze the cattle. But the occurrence had taken place as a result of a wordy quarrel ensued between the appellant/accused and the deceased and on the heat of the same, the accused, who got more and more irritated at the comment of the deceased, beat the deceased with a stick which he was having for grazing the cattle. In fact, even according to the prosecution, the motive for the sudden occurrence was on account of those provocative utterances made by the deceased. This could be evident from the confession statement/ Ex.P.21 of the accused wherein he had stated that when the cattle of the deceased entered into the field on the western side, he called the deceased to drive out the cattle from the field, for which, the deceased indulged in a wordy quarrel and on the heat of such quarrel, he hit the deceased with a stick.
11.According to the learned counsel for the appellant that though as per section 25 of the Evidence Act no statement made to a police officer shall be proved as against a person accused of any offence, the confession statement of the accused explaining the circumstances in which the deceased got provocation could be used for the benefit of the accused.
12.In view of the above submission, now the question that arises for our consideration is whether the offence is one of murder or whether there is any extenuating circumstance bringing the offence under any one of the exceptions, enumerated in the definition of Section 300 I.P.C and bringing the offence as one of culpable homicide not amounting to murder punishable Under Section 304
(i) of I.P.C.
13.We arrive at the conclusion from the detailed discussion made in the earlier part of the judgment that the accused who was deprived of the power of self control by the grave and sudden provocation caused by the deceased, inflicted the injuries which resulted in the death of the deceased. Therefore, we hold that the exception 1 to Section 300 IPC is attracted and consequently the appellant cannot be held liable under Section 302 I.P.C but would be liable for the offence of culpable homicide not amounting to murder punishable under Section 304 Part I, I.P.C.
14.In the result, we set aside the conviction under Section 302 I.P.C and the sentence of imprisonment for life awarded by the learned sessions Judge and instead we convict the accused under Section 304(i) I.P.C. and sentence him to undergo 5 years' Rigorous Imprisonment. The period, if any, already undergone shall be given set off. The fine amount of Rs.1000/- with default clause imposed by the court below is retained.
15.The criminal appeal is partly allowed subject to the above modification.
16.It is reported that the accused is on bail. The Sessions Judge concerned is directed to take steps to secure the presence of the accused and commit him to prison to undergo the remaining period of sentence, if any.
sms To:
The Inspector of Police, Tiruvengadam Police Station, Tiruvengadam, Tirunelveli District