BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17/03/2010
CORAM
THE HONOURABLE MR. JUSTICE P.MURGESEN
and
THE HONOURABLE MR. JUSTICE T.MATHIVANAN
CRL.A.(MD)No.1148 of 2003
Mookkan alais Mookkayya ... Appellant/1st Accused
Vs
State by Inspector of Police,
Kurangani Police Station.
Theni District. ...Respondent/Complainant
Criminal Appeal filed under Section 374 Cr.P.C against the judgment of
conviction and sentence passed by the learned Additional District and Sessions
Judge, Fast Track Court No.4, Madurai at Periyakulam, dated 11.02.2003, made in
S.C.No.298 of 2002.
!For Appellant ... Mr.K.Jeganathan
for Mr.M.Vijayakumar
^For Respondent ... Mr.Isaac Manuel
Additional Public Prosecutor
*****
:JUDGMENT
(Judgment of the Court was passed by P.MURGESEN, J)
This Criminal Appeal is directed against the conviction and sentence
imposed by the learned Additional District and Sessions Judge, Fast Track Court
No.4, Madurai at Periyakulam, dated 11.02.2003, made in S.C.No.298 of 2002, on
the appellant/1st accused.
2.The case of the prosecution is as under:-
P.W.1-Kathammal is the wife of deceased Paramasivam and the resident of
Kuppinayakkanpatti. P.W.2-Anbumani is the sister of P.W.1. P.W.3-Sithu Bommu is
the sister-in-law of deceased Paramasivam.
3.There was a land dispute between the deceased Paramasivam and Rasu
Thevar. Rasu Thevar sold his property in favour of 2nd accused Sivan Kalai and
his son 1st accused Mookan. From the date of purchase Sivan Kalai was
cultivating his land. There was a dispute between the parties regarding
watering the saplings. On the fateful day, i.e., on 05.12.2000 at 10.30 A.M.,
when P.Ws.1 and 2 and the deceased went to their land, they saw the
appellant/1st accused removing the saplings. When it was questioned by the
deceased, there was a quarrel between the complainant party and the 1st accused
and the 1st accused attacked the deceased with Aruval. Due to the attack,
Paramasivam died on the spot. After the occurrence, P.W.4-Veeranan and P.W.5-
Ramu Thevar went to the place of occurrence.
4.Then, P.W.1 went to the Kurangani police station and informed the same
to P.W.9-R.Selvaraj, Head Constable. P.W.9 recorded Ex.P.2-statement of P.W.1.
and registered a case in Crime No.34 of 2000 under Section 302 I.P.C. Ex.P.2 is
the signature of P.W.2 in Ex.P.1 and Ex.P.8 is the printed F.I.R. Then he
despatched the printed F.I.R. to the Judicial Magistrate and the copies to the
higher officials through P.W.10-Mahalingam, Police Constable.
5.After receiving the copy of the F.I.R., P.W.13-Nagamanickam, Inspector
of Police, on 05.12.2000 at 4.00 hours, visited the scene of occurrence and
prepared Ex.P.3-Observation Mahazar and Ex.P.13-Rough Sketch in the presence of
Kannan and P.W.6-Rajendran. Then at 4.30 hours, he recovered M.O.2-Bloodstained
Earth, M.O.3-Ordinary Earth, M.O.4-Lunar Hawai slippers, M.O.5-Paragon Hawai
Slippers, M.O.6-Lungi and M.O.7-Towel in the presence of the said witnesses
under Mahazar Ex.P.4. Then at 5.00 P.M. to 7.30 P.M. he conducted inquest over
the body of the deceased and prepared Ex.P.14-Inquest Report. Then, he sent the
body of the deceased for conducting postmortem through P.W.11-Murugiah, Police
Constable.
6.Postmortem was conducted by P.W.8-Dr.Sulochana Krishnan. On 06.12.2000,
at 9.10 A.M., she examined the body of deceased Paramasivam. On examination she
found the following:
“External Injuries: 1. incised wound of about 7cm x 2cm x bone deep – extending
from Right cheek to Right occipital region crossing Right ear lobe.
2. incised wound of about 7cm x 2cm x bone deep – extending from left cheek to
left occipital bone crossing left ear lobe.
3. Cut – slanting wound of about 20cm x 8cm x 6cm – nape of the neck just below
the occipital bone upto the lower border of the nape of the neck lateral
extension Between the sternomostoid muscles – wound exposing the muscles,
nerves, Blood vessels, Spines and Trachea.
On Dissection Fracture and Dislocation of C3, C4 & C5 Spines present spinal cord
cut.”
The doctor opined that the deceased would appear to have died of shock and
haemorrhage due to the injuries sustained. Ex.P.7 is the postmortem certificate
issued by her.
7.After postmortem, P.W.11 recovered M.O.8-Full Hand Shirt and M.O.9-
Trouser from the body of the deceased and handed over the same to the
investigating officer. On 07.12.2000, the first accused surrendered before the
Judicial Magistrate, Madurai. On 08.12.1995, P.W.13 arrested the third accused
Kolunthammal. On 12.12.2000, he took the 1st accused to Police custody and
enquired him. At 4.30 P.M. on that day, he recorded the voluntary confession
statement of the first accused in the presence of P.W.7-Thangapandi and Kannan.
Ex.P.5 is the admissible portion of the confession statement of the 1st accused.
Based on that, he recovered M.O.1 Bloodstained Aruval under Mahazar Ex.P.6. Then
he sent the 1st accused to Judicial custody. He also sent the material objects
to Court. On 15.12.2000, 4th accused Sudha surrendered before the Court.
8.On 19.12.2000, the investigating officer gave Ex.P.9-Requisition Letter
to the Judicial Magistrate to send the material objects to forensic lab for
chemical examination. P.W.12-Balachandran is the Head Clerk of District Munsif
cum Judicial Magistrate Court, Bodi. Ex.P.10 is the office copy of the letter
sent by the Magistrate to the Forensic Lab. Ex.P.11 is the Chemical Analysis
Report and Ex.P.12 is the Serological Report received by the Court. After
enquiring the witnesses and after completing the investigation, on 31.01.2001,
P.W.13 filed charge sheet against the accused Nos.1 to 4 under Section 302 r/w
109 I.P.C.
9.Before the trial Court, P.Ws.1 to 13 were examined and Exs.P.1 to P.14
and M.Os.1 to 9 were marked. All the incriminating pieces of evidence let in by
the prosecution witnesses were put to the accused under Section 313(1) of the
Code of Criminal Procedure questioning the accused, and the accused denied the
same as false. There was no oral or documentary evidence adduced on the side of
the accused.
10.On consideration of the evidence on record, the learned Additional
District and Sessions Judge, Fast Track Court No.4, Madurai at Periyakulam,
found the 1st appellant/1st accused guilty under Section 302 I.P.C. and
sentenced him to undergo life imprisonment and to pay a fine of Rs.10,000/- in
default to undergo Rigorous Imprisonment for a further period of one year.
However, the learned Additional District and Session Judge, acquitted accused
No.2 to 4 against the charges framed against them.
11.Challenging the judgment of the learned Additional District and
Sessions Judge, Fast Track Court No.IV, Madurai at Periyakulam, the present
Criminal Appeal has been filed by the appellant/1st accused.
12.Now the question that needs to be answered in this appeal is whether
the 1st accused/1st appellant could be held guilty under Section 302 I.P.C.?
13.The motive portrayed and projected by the prosecution is the land
dispute. Deceased Paramasivam and Rasu Thevar were having adjacent lands and
there was a dispute between them regarding the boundary. Rasu Thevar sold his
land in favour the 1st accused Mookan and his father 2nd accused Sivankalai.
From the date of purchase, Sivankalai was cultivating his lands. There was a
dispute between the parties regarding watering the saplings. Due to that, the
saplings in the land of the deceased were removed by the 1st accused and this
was questioned by the deceased. Due to that there was exchange of words and
after that the occurrence took place.
14.The evidence of P.Ws.1 to 3 would show that there was a quarrel between
deceased Paramasivam and the first accused Mookan and due to that the occurrence
took place. Further, their evidence would disclose that there was no
predetermination or intention on the part of the 1st accused to murder the
deceased and due to the wordy quarrel between the 1st accused and the victim,
the 1st accused lost the balance of mind and attacked the deceased. The
occurrence took place in a spur of a moment and the victim sustained the
following three external injuries and he died:
“1. incised wound of about 7cm x 2cm x bone deep – extending from Right cheek to
Right occipital region crossing Right ear lobe.
2. incised wound of about 7cm x 2cm x bone deep – extending from left cheek to
left occipital bone crossing left ear lobe.
3. Cut – slanting wound of about 20cm x 8cm x 6cm – nape of the neck just below
the occipital bone upto the lower border of the nape of the neck lateral
extension Between the sternomostoid muscles – wound exposing the muscles,
nerves, Blood vessels, Spines and Trachea.”
Hence, we find the 1st appellant/1st accused is liable to be punished only under
Section 304(i) instead of Section 302 I.P.C.
15.Accordingly, the Criminal Appeal is partly allowed and the conviction
of the 1st appellant/1st accused under Section 302 I.P.C. by the Trial Court is
modified to one under Section 304(i) I.P.C. and the sentence of life
imprisonment with a fine of Rs.10,000/- in default to undergo Rigorous
Imprisonment for a period of one year imposed by the trial Court under Section
302 I.P.C. stands modified to 6 years Rigorous Imprisonment with a fine of
Rs.10,000/- in default to undergo Rigorous Imprisonment for a period of one
year. The period of imprisonment already undergone by the appellant/1st
accused shall be given set off. The respondent is directed to take steps to
procure the accused for undergoing remaining period of sentence.
sj
To
1.The Additional District and Sessions Judge,
Fast Track Court No.IV,
Madurai at Periyakulam.
2.The Inspector of Police,
Kurangani Police Station.
Theni District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.