IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 4.2.2011
Coram
The Hon'ble Mr. Justice A.ARUMUGHASWAMY
Criminal Appeal No.967 of 2004
1.D.Mohan
2.D.Prakash ... Appellants
Vs.
The State
rep. by Inspector of Police
Marakkanam Police Station ... Respondent
Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional District and Sessions Judge, (Fast Track Court No.1), Dindivanam in S.C.No.190 of 2003 dated 15.7.2004.
For Appellants:- Mr.S.Ashokkumar, Senior Counsel
For Mr.A.Sasidharan
For Respondent :- Mr.N.Kumanan Govt. Advocate (Crl. Side)
JUDGMENT
The first appellant/A-1 stands convicted for the offence under Section 304 Part II and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2000/- in default to undergo rigorous imprisonment for one year and the appellants stand convicted for the offence under Section 324 IPC and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1000/- each in default to undergo rigorous imprisonment for three months by the judgment of the learned Additional District and Sessions Judge, Dindivanam in S.C.No.190 of 2003 dated 15.7.2004. Challenging the said conviction and sentence, the appellants have come forward with the present appeal.
2. The short facts necessary for the disposal of the appeal can be stated as follows:-
P.W.1 and the deceased are husband and wife. P.Ws.1 to 3 are their son and daughter. A-1 to A-3 are the sons of A4 and A5. On 17.9.2002 at about 7.30 a.m. P.W.1 and his sister P.W.3 were watering the newly constructed house. At that time A2 who came across their house caught hold of the shirt of P.W.1 and quarrelled with him. On hearing the noise, P.W.2 came and separated them. At that time , the other accused also joined together and entered into the scene. A1,A2 and A4 were having casuarina stick and A3 was having iron pipe. A1 hit P.W.1 on the forehead; A-2 gave a blow on the front and back side of the head. When the deceased intervened in order to prevent the accused from beating P.W.1, A-1 attacked the deceased with the casuarina stick on her head as a result of which she fell down. Again A4 attacked the deceased on her chest and right hand with stick. When P.W.1 intervened and lifted her mother, A-3 attacked P.W.1 with iron pipe on his left ankle, right thigh , right forearm and chest. Thus, A1 to A3 attacked P.W.1 with casuarina stick and iron pipe all over the body. The mother of P.W.1 became unconscious. Thereafter P.W.1 was taken to the Government Hospital, Dindivanam for treatment of the injuries sustained by him. P.W.13 is the Doctor who gave treatment to P.W.1 in Dindivanam Government Hospital. P.W.16 Inspector of police who was on duty regulating the traffic, received a phone call from the Sub Inspector P.W.15 regarding the occurrence and he rushed to the spot. P.W.16 directed P.W.15 to get the complaint from P.W.1 who was by then hospitalised. Thereafter, P.W.15 registered a case in Cr.No. 432/02 for the offences under Sections 147, 148, 323, 324, 506(2) and 302 IPC Ex.P23 is the F.I.R.
3.On receipt of the FIR, P.W.16 the Inspector of Police took up investigation and proceeded to the scene of occurrence and prepared observation Mahazar Ex.P2 and a rough sketch Ex.P24. He further conducted inquest on the dead body of Saroja in the presence of witnesses and panchayatdars and prepared Ex.P25 inquest report. Following the same, he recovered the blood stained brick and earth viz., M.Os.1 and 2 and sample earth M.O.3 under a cover of mahazar. Then he gave a requisition to the hospital authorities through P.W.14 Head constable. P.W.7 is the Village Administrative Officer P.W.8 is the Assistant of P.W.7 who turned hostile. P.Ws.9 and 10 are the neighbours who turned hostile. P.W. 11 is the Head Clerk of Principal Subordinate Court, Villupuram. P.W.16 Inspector took up the investigation and laid charge sheet under Sections 147, 148, 326, 324, 302, 302 read with 149 and 302 read with 109 IPC.
4. Before the trial court on the side of the prosecution P.Ws.1 to 16 were examined, Exs.P1 to P25 were filed and M.Os. 1 to 9 were marked.
5. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, the accused denied their complicity. The trial court on consideration of the oral and documentary evidence placed before it found the accused guilty, convicted and sentenced them as stated above and acquitted A3,A4 and A5 of the charges levelled against him. Hence the present appeal.
6. The vehement contention of the learned counsel appearing for the appellant is that P.W.16 the Inspector of Police who is the investigating officer rushed to the spot at 8.45 am, complaint was received after 10 am and the FIR has been registered at 12 noon and took up investigation at 1 p.m. The evidence reveals that he has recorded the statement of several witnesses before 12 noon. Thus the above events would show that the complaint came into existence after much delay. Therefore giving benefit of doubt to the accused the complaint as well as the FIR has to be rejected.
7. The learned Government Advocate (Criminal side) for the prosecution assisted by the learned counsel appearing for the defacto complainant contended that even though the investigating officer has visited the scene of occurrence earlier to the complaint, he commenced the investigation only after receipt of the FIR and till receipt of FIR he was engaged in maintaining the law and order problem. Hence the argument advanced by the learned counsel appearing for the appellants has to be rejected in toto.
8. The relationship between the parties is not disputed. Further the fact on 17.9.2002 P.Ws.1 and 3 were watering their newly constructed house is not in dispute. From the evidence as well as from the case of the prosecution it is seen that there was difference of opinion among these two families on various issues such as local body election and division of the properties. On the occurrence day at about 7.30 a.m, according to accused only P.W.1 voluntarily called A4 and picked up a wordy quarrel, whereas according to the case of prosecution it is only the accused who invited the problem with P.W.1. From the evidence it is seen that accused alone was liable to pay money to P.W.1. for the use of the tractor by A4. Therefore, as seen from the evidence while P.Ws.1 and 3 were watering their newly constructed house, P.W.1 demanded money from A4 for the use of the tractor by A4 and at that time a wordy quarrel arose between A4 and P.W.1 and the quarrel continued for some time. On hearing this noise, the other accused as well as the parents of P.W.1, viz.,P.W.2 and the deceased also intervened. As per the evidence A1 to A3 attacked P.W.1 and caused several injuries. But the trial court has acquitted A3 to A5. From the evidence, it is seen that A1 attacked P.W.1 on the forehead with casuarina stick, which was available at P.W.1’s house. A2 attacked P.W.1 on the front and backside of the head. When A1 attacked P.W.1, it fell on the deceased who intervened in the clash, due to which she sustained injury on the head and succumbed to instantaneous death within less than five minutes.
9. The learned counsel appearing for the accused would elaborate his argument that the occurrence took place as spoken by the defence that the blow was given by A1 only on P.W.1 and P.W.1 retaliated A1 with another stick and at that time the deceased intervened and she received the blow and due to that injury she succumbed to death. Therefore, the theory that A1 purposely gave the blow on deceased has been falsified.
10. The next contention of the learned counsel appearing for the appellants is that the earlier complaint was suppressed and he prayed that the appeal has to be allowed on this ground also. P.W. 16 in his evidence would state that on 17.9.2001 while he was on traffic duty at about 7 a.m. he received the message from the Sub Inspector of Police P.W.15 and he rushed to the scene of occurrence at 8.45 a.m. From the evidence of P.W.16 it is clear that they waited till 1 p.m. to receive the FIR . Further P.W.16 has stated in his evidence that , he has not commenced any investigation before the receipt of F.I.R. P.W.3 in her evidence would state that after receiving the information over phone, the Police came to the scene of occurrence at 10 a.m . Further she has added that she was examined by the police and she signed in that statement. She has not stated at what time she was examined. Merely because she said that police arrived at 10 a.m. and consequently she was examined does not mean that she has been examined prior to receipt of FIR. Therefore, I am of the view that as per the evidence of P.W.3 she has been examined only subsequent to FIR and her evidence cannot be eschewed and it cannot be said that her statement is perverse and not believable.
11. The next contention of the learned Government Advocate is that immediately after the receipt of the incident, P.W.1 was rushed to the Hospital. P.W.13 Doctor who examined P.W.1 in his evidence would state that P.W.1 came to the Hospital at 9.50 a.m. and specifically mentioned that he was attacked by 8 known persons at about 7 a.m. P.W. 13 noted six injuries. From the said evidence I am of the view that P.W.1 has mentioned 8 persons whereas in the charge sheet it has been mentioned as five persons. One Manoharan whose name finds place in the evidence has not been implicated in the charge sheet. Merely because P.W.1 has stated 8 known persons, I am of the view that the entire case cannot be falsified and one cannot disbelieve the evidence of P.W.1. In this case the overt act attributed against A1 and A2 in respect of the deceased as well as P.W.1 has been proved. Therefore, I am of the view that the occurrence has been proved by the prosecution.
12.The next contention of the learned counsel appearing for the accused is that the entire family of the accused has been falsely implicated for the act of giving one blow which if at all would attract only the offence under Section 324 for which the accused cannot be sentenced to undergo imprisonment for ten years. Hence the punishment has to be modified.
13. The learned Government Advocate (Criminal Side) contended that from the evidence it is clear that P.W.1 sustained injury on the head caused by stick and iron pipe and though initially on 17.9.2002 he took treatment in Government Hospital, later on the same day evening he was taken to Pondicherry Institute of Medical Sciences , where one Dr.Ashok gave treatment. Though the X rays of P.W.1 have not been produced it has been noticed by the Doctor that P.W.1 has only sustained fracture. Since nature of injuries has not been proved the trial court has convicted A2 for the offence under Section 324 and not under Section 326. Further so far as A1 is concerned he gave only one blow on the deceased who intervened in the clash when P.W.1 and A1 quarrelling with each other and the deceased became unconscious and succumbed to death ultimately. As per the evidence of P.W.3, P.W.16 Inspector has commenced investigation immediately at 8.45 a.m which is not correct. In such circumstances, I am of the view that conviction made under Section 304 (II) is correct but the sentence of 10 years is excessive and it requires modification.
14. In view of the above facts and circumstances, as regards A1 the sentence of ten years is modified as 5 years for the offence under Section 304 Part II and as regards A2 the sentence of two years is modified as six months and in respect of remaining aspects the judgment of the trial court is confirmed.
15. In the result the judgment of the trial court is modified on the above terms and the appeal is partly allowed. The bail bond if any shall stand cancelled. The trial court is directed to take steps to secure the presence of the accused to undergo the remaining period of sentence. Krr/ To 1. The Additional District and Sessions Judge, (Fast Track Court No.1), Dindivanam 2. The Public Prosecutor High Court