Madras High Court
Muthu @ Muthusamy : Revision vs State Represented By on 18 June, 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.06.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.R.C.(MD)No.875 of 2007 Muthu @ Muthusamy : Revision Petitioner/ Appellant/Accused Vs. State represented by, The Sub-Inspector of Police, Radhapuram, Cr.No.190 of 2003, Tirunelveli District. : Revision Respondent/Respondent/ Complainant PRAYER: Appeal is filed under Section 397 and 491 of the Code of Criminal Procedure against the judgment passed by the Additional Sessions Judge, Fast Track Court No.I, Tirunelveli, Tirunelveli District in his C.A.NO.174 of 2005, dated 30.06.2007, wherein he has confirmed the conviction of the First Additional Assistant Sessions Judge, Tirunelveli, Tirunelveli District in S.C.NO.250 of 2004, dated 17.06.2005. !For Petitioner : Mr.V.Kathivelu Senior Counsel for M/s J.Senthilkumar ^For Respondent : Mr.P.Kannithevan Government Advocate (Crl.Side) :ORDER
The petitioner is the sole accused in S.C.No.250 of 2004, on the file of the First Additional Assistant Sessions Judge, Tirunelveli. He stood charged for the offence under Section 307 I.P.C. By Judgment dated 17.06.2005, the trial Court convicted him under Section 307 I.P.C. and sentenced him to undergo rigorous imprisonment for seven years. Challenging the same, he filed an appeal in C.A.No.174 of 2005. The learned Additional Sessions Judge, Fast Track Court No.I, Tirunelveli, by judgment dated 30.06.2007, dismissed the appeal, thereby confirming the conviction and sentence imposed on the petitioner. Challenging the same the petitioner has come up with this Revision.
2. The case of the prosecution is as follows:
Mr.Arumugam (P.W.2) is a resident of Udayathur Village. He had landed property in the said village. On 13.12.2003, P.W.2 was watering his land by taking water from the nearby tank. At about 11.30 p.m., the accused came there and closed the water flow into the field of P.W.2 and diverted the same to his field. This was objected to by P.W.2. It resulted in a quarrel between P.W.2 and the accused. There were exchange of abusive words between them. In culmination of the same, the accused gave a single blow on the head of P.W.2 with the spade handle. P.W.2 sustained bleeding injury. On seeing the same, the accused fled away from the scene of occurrence with the weapon. This was witnessed by P.W.3 and one Sornam Pillai. P.W.1 is the brother of P.W.2. On information, he rushed to the place of occurrence and took P.W.2 in a car to Diraviam Hospital at Nagercoil. P.W.6- Dr.Diraviam was then running a private hospital known as ?Diraviam Hospital?. At 02.20 p.m. on 14.12.2003. P.W.6 admitted him as inpatient. On examination, he found a cut injury measuring 12 cm on the left side of the forehead, just above the left eye brow. Correspondingly, there was a fracture of skull and the brain was exposed. The left eye also got projected. The blood was oozing out through the nostrils. The X-Ray taken in the said hospital revealed that he had suffered fracture. He underwent treatment in the said hospital as inpatient till 21.12.2003. Thereafter, he was discharged from the hospital.
2.2.On intimation from the hospital, P.W.7, the then Head Constable attached to the Radhapuram Police Station went to the hospital and since P.W.2 was not in a position to make any statement, he recorded the statement of P.W.1, returned to the police station and registered a case in Cr.No.190 of 2003, for the offences under Sections 294(b), 324 and 307 I.P.C. Ex.P.1 is the complaint and Ex.P.6 is the F.I.R. He forwarded both the documents to the Court and handed over the case diary to P.W.8 for investigation. P.W.8 proceeded to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of P.W.5. Then, he examined P.W.1 to P.W.5 and recorded their statements. He examined the Doctor, collected the medical records and finally filed the final report against the accused under Sections 294(b) and 307 I.P.C.
3.Based on the above materials, the trial Court framed a single charge against the accused under Section 307 I.P.C. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 8 witnesses were examined and six documents were exhibited, besides two material objects. Out of the said witnesses, P.W.1 is the brother of the accused and he has spoken about his taking P.W.2 to the hospital and prefering complaint to P.W.7. P.W.2 has vividly spoken about the entire occurrence. P.W.3 is an eye-witness to the occurrence who has also spoken about the same. P.W.4 has deposed that he took P.W.2 to the hospital along with P.W.1. P.W.5 has spoken about the preparation of observation mahazar and the rough sketch. P.W.6 is the Doctor, who has spoken about the injuries sustained by P.W.2 and the treatment given and the nature of injuries. P.W.7 has spoken about the registration of the case. P.W.8 has spoken about the investigation done by him. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness on his side, nor to mark any document. Having considered all the above materials, the trial Court convicted him under Section 307 I.P.C and accordingly, punished him and in the appeal filed by him, it was confirmed. That is how, the accused is before this Court with this Revision.
4. I have heard the learned Counsel for the petitioner and the learned Government Advocate (Crl.Side) appearing for the respondent State and also perused the records carefully.
5.The learned Senior Counsel appearing for the petitioner would submit that the trial Court ought to have rejected the evidences of P.W.1 to P.W.3, as they are not cogent and convincing. According to him, the evidence of these witnesses do not draw corroboration from medical evidence and as such, there is a material contradiction. However, since the occurrence was in the night time, it would not have been possible for the injured to notice the identity of the assailant. Therefore, according to the learned Senior Counsel, the identity of the accused made later on cannot be believed. He would further submit that there was inordinate delay in preferring the complaint, which also creates a doubt in the case of the prosecution.
Lastly, the learned Senior Counsel would submit that assuming that the injury sustained by P.W.2 was caused by this accused, the act of the accused would not satisfy the requirements of Section 307 I.P.C. According to him, at the most, the act of the accused would fall only under Section 308 I.P.C.
6.He would further submit that the petitioner is an aged man and he has got five children, out of whom, two children have already married and one daughter and two sons are yet to be married. He would further submit that he has got no property whatsoever except the house, where he is now residing. He would also submit that he has no permanent income and by doing coolie work, he is maintaining the entire family and if he has sent to prison at this length of time, it would completely ruin the entire family. Therefore, according to the learned Senior Counsel, having regard to the above mitigating circumstances, the punishment may be reduced. He would further submit that the petitioner is prepared to pay a sum of Rs.30,000/- as compensation to the family members of the victim today itself. The learned Senior Counsel would bring to my notice that P.W.2 is no more and he has left behind his wife Lakshmi and a son by name Murugan. The petitioner is also present before this Court.
7. The learned Government Advocate (Crl.Side) would submit that there are no reasons to reject the evidence of P.W.1 to P.W.3, as their evidences are quite natural and convincing. He would further submit that there is no contradiction so as to impeach the credibility of these witnesses. He would further submit that absolutely, there is no delay in making the complaint, as projected by the learned Senior Counsel appearing for the petitioner. He would further submit that though it is true that at the place of occurrence there was no light, since the accused is not a stranger to P.W.2. and since there were exchange of abusive words between them, the identity cannot be doubted. He would further submit that the prosecution has clearly proved the case against the petitioner beyond reasonable doubts. So far as the nature of the offence said to have been committed by the petitioner is concerned, the learned Government Advocate (Crl.Side) would state that the act of the accused would fall only under Section 307 I.P.C and therefore, the Judgment of the Lower Appellate Court does not require any interference.
8.Turning to the quantum of compensation, though the mitigating circumstances, as narrated by the learned Senior Counsel are true, going by the aggravating circumstances, the punishment imposed on the petitioner does not deserve to be reduced, the learned Government Advocate (Crl.Side) contended.
9.It is also admitted by the learned Government Advocate (Crl.Side) that P.W.2, the injured witness, in this case, is no more. His wife - Lakhsmi and his son Murugan are present before this Court. They submitted to this Court that they are prepared to receive a sum of Rs.30,000/- as compensation from the petitioner and they are also prepared to admonish the accused, considering his present condition.
10.I have considered the above submissions. P.W.2 is the injured witness. There is no reason to reject his evidence. Regarding the absence of light, I do not find any force in the arguments made by the learned Senior Counsel, because, as rightly pointed out by the learned Government Advocate (Crl.Side), the accused is not a stranger to P.W.2 and they were after all cultivating the lands adjacent to each other's land. Above all, the occurrence itself was sequel to the act of the accused in diverting the water to his field and there was a quarrel during which abusive words were exchanged. It is only thereafter, the attack was made by the accused. Therefore, there would have been no difficulty for P.W.2 to know the identity of the assailant. Therefore, this argument based on the light aspect is rejected.
11.So far as the delay in preferring the complaint is concerned, in my considered view, absolutely, there is no delay, because immediately after the occurrence, P.W.2 was taken to the hospital, where he was admitted as inpatient. Going by the nature of the injuries as spoken by the Doctor, neither P.W.1 nor P.W.2 would have been in a mood to go to the police station. Their entire endeavour would have been only to save his life. Therefore, the argument of the learned Senior Counsel regarding the delay aspect is also liable to be rejected.
12.Nextly the learned Senior Counsel would contend that there is a contradiction between the medical evidence and the eye-witness account. In my considered view, it is not so. Though the injuries have been described in three parts as though they were three injuries, the doctor has opined that they are continuous injuries, which could have been caused by a single blow. Therefore, absolutely, there is no contradiction between the medical evidence and the evidence of these eye-witnesses. It is in evidence that P.W.2 during the said injury had lost his left eye sight. Thus, all the grounds raised by the learned Senior Counsel are rejected and I hold that the prosecution has proved that the accused was responsible for the injuries sustained by P.W.2.
13.Now, the next question is as to what is the offence that the accused has committed by his act. The learned Government Advocate (Crl.Side) would submit that the act of the accused would fall under Section 307 I.P.C. In order to bring the act of the accused within the ambit of Section 307 I.P.C., first of all, the act of the accused should satisfy any one of the ingredients of Section 300 I.P.C., less causing of death. In other words, if the act of the accused had resulted in the death of the injured, then, the same would have been culpable homicide. If the act of the accused has not resulted in death, but it falls under any one of the ingredients of Section 299 I.P.C., then he could be punished under Section 308 I.P.C.
14.Here, in this case, it is in evidence that the occurrence was sequel to the act of the accused diverting the water to his field. It is in evidence that there was a quarrel during which abusive words were used against each other. Thus, it is crystal clear that the occurrence was not a premeditated one. Secondly, the evidence did not disclose that the accused had an intention to cause death of P.W.2. Going by the nature of the injuries sustained by PW-2 and the weapon used by the accused, I am of the considered view, the act of the accused does not fall within the first or second limb of Section 299 of the Indian Penal Code, but, it will fall within the third limb of Section 299 I.P.C. But, this would not fall under anyone of the limbs of Section 300 I.P.C., more particularly, limb 4. Therefore, the act of the accused would make out the offence under Section 308 I.P.C. and not under Section 307 I.P.C. The attempt was only to cause culpable homicide, not amounting to murder.
15.Now, turning to the quantum of compensation, sentencing is an important judicial business of the Court, during which the Court is required to have regard not only to the aggravating circumstances, but also to the mitigating circumstances. It is well known that the aggravating circumstances relate to the crime and the mitigating circumstances relate to the criminal. In the present case, so far as the aggravating circumstances are concerned, by means of single blow, the accused had caused fracture of skull, which resulted in the loss of sight of the right eye. Thus, the nature of the offence is so grave.
16.Now, turning to the mitigating circumstances, as submitted by the learned Senior Counsel appearing for the petitioner/accused, the accused is a poor man, having no property of his own, except the house, wherein he is residing. Out of five children, one daughter and two sons are also yet to be married. He has to take care of his entire family by his earnings. It is brought to the notice of this Court that he has got no bad antecedent and subsequent to this occurrence, he has not committed any crime. As pointed out by the learned Senior Counsel, at this stage, if he is sent to prison, certainly, the entire family will be ruined. These mitigating circumstances are also to be taken into account. Now, the petitioner has come forward with an offer to pay a sum of Rs.30,000/-, as compensation to the family of P.W.2. Mrs.Lakshmi, wife of P.W.2 and Murugan son of P.W.2 are present before this Court and they are prepared to receive the amount and admonish the accused going by the present condition of the accused. Though a sum of Rs.30,000/- may not be a sufficient compensation for the loss sustained, considering the economic status of the accused that he is in a very poor condition, in my considered view, ordering a sum of Rs.30,000/- as compensation would meet the ends of justice. So far as substantive sentence of imprisonment is concerned, it is stated by the learned Senior Counsel that he has already undergone imprisonment for eight months. This, in my considered opinion, would be sufficient.
17.In the result, this Criminal Revision Case is partly allowed in the following terms:
(i) The conviction and sentence imposed on the petitioner under Section 307 I.P.C, is hereby set aside and instead, he is convicted under Section 308 I.P.C., for which, the sentence is reduced to the period of sentence already undergone by him.
(ii) The petitioner is directed to pay a sum of Rs.30,000/- as compensation to Mrs.Lakshmi, wife of P.W.2 and Mr.Murugan, son of P.W.2 who are present before this Court. When this order was about to be concluded, the said amount was paid in open Court by the petitioner to them, which they have acknowledged. Thus the direction has been complied with. The same is recorded.
To
1. The Additional Sessions Court, Fast Track Court No.I, Tirunelveli, Tirunelveli District.
2. The First Additional Assistant Sessions Court, Tirunelveli, Tirunelveli District
2. The Sub-Inspector of Police, Radhapuram, Tirunelveli District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.