IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.4.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.1661 of 2003 P.Prabhakaran .. Appellant Vs. State by Inspector of Police, Thalaignaryeru Police Station, Nagapattinam Thanjavur District. (Crime No490 of 2001) .. Respondent Criminal Appeal against the judgment dated 27.10.2003 in S.C.No.152 of 2003 on the file of the District and Sessions Court, Nagapattinam. For appellant : Mr.D.Veerasekaran For respondent: Mr.S.Rajendiran, Govt. Advocate (Crl. Side) JUDGMENT
The Criminal Appeal is filed against the judgment of conviction and sentenced, dated 27.10.2003 in S.C.No.152 of 2003 on the file of the District and Sessions Court, Nagapattinam, wherein the appellant/accused was convicted for the offence under Section 304 (Part 2) IPC and sentenced to undergo six years’ rigorous imprisonment and to pay a fine of Rs.1,000/- in default, to undergo one year rigorous imprisonment and he was also convicted for the offence under Section 323 IPC and sentenced to undergo six months’ rigorous imprisonment.
2. The case of the prosecution is as follows:
(a) The deceased Pakirisamy borrowed Rs.1,000/- from the appellant/accused and he repaid Rs.800/- and the balance due is Rs.200/-. On the fateful day, i.e. on 31.8.2001 at about 6.15 p.m., when P.W.1, the wife of the deceased Pakirisamy and the deceased Pakirisamy were at the house and the deceased Pakirisamy was having his dinner, at that time, the appellant/accused approached P.W.1 and the deceased Pakirisamy and demanded the balance amount, and due to this, the deceased Pakirisamy got wild and questioned as to why he should not be given respect for his age, and attempted to take one pole/branch of drum-stick tree and at that time, the appellant/accused took one pole/branch of neem tree and assaulted the deceased on his head and the deceased sustained injury on his head.
(b) After hearing the alarm, P.Ws.2 and 3 rushed to the place of occurrence and then P.W.4 took the deceased to P.W.5 Dr.Kalyanam @ Kalyanasundaram, Homoeopathic Doctor at 7 p.m. on the same day and he gave first aid to the deceased Pakirisamy.
(c) During night hours, the deceased developed Epilepsy and hence, on the very next day morning, P.W.1 took him to Government Hospital, Nagapattinam, where Dr.Tamilarasi P.W.13 gave treatment to the deceased and also treated P.W.1 and issued Ex.P-10 accident register in respect of P.W.1 and issued Ex.P-7 medical memo to the concerned Police. She also issued death intimation of the deceased in Ex.P-8.
(d) P.W.12 Head Constable, received Ex.P-8 death intimation and informed the factum of death of the deceased to the concerned Police Station.
(e) After the death of her husband, P.W.1 gave Ex.P-1 complaint before P.W.15 Inspector of Police, who received the complaint and registered a case in Crime No.490 of 2001 for the offences under Sections 302 and 323 IPC and prepared Ex.P-12 FIR.
(f) P.W.15 went to the place of occurrence and in the presence of P.W.7 Subramanian and one Govindaraj, prepared Ex.P-4 observation mahazar and drew Ex.P-13 rough sketch and he seized the material objects, M.Os.2 and 3, the blood stained clothes, under Ex.P-5 mahazar.
(g) Then, P.W.15 Inspector of Police conducted inquest over the body of the deceased and prepared inquest report Ex.P-14. He arrested the accused in the presence of P.W.6 VAO and the admitted portion of the confession of the accused is marked as Ex.P-2. On the basis of the confession, M.O.1 was seized under Ex.P-15 mahazar.
(h) After the inquest was over, the body of the deceased was sent for autopsy through P.W.11 Head Constable. P.W.14 Dr.Valluvan conducted autopsy and issued Ex.P-11 post-mortem certificate. P.W.11 Head Constable handed over the belongings of the deceased, namely M.Os.4 and 5, to the investigating officer under Ex.P-6 special report and the body of the deceased, to his relatives.
(i) P.W.15 investigating officer examined the witnesses and recorded their statements and he concluded the investigation and filed the charge sheet against the appellant/accused for the offences under Section 323 IPC for causing injury on P.W.1 and under Section 302 IPC for having caused the murder of the deceased Pakirisamy.
3. The learned Judicial Magistrate, Thiruthuraipoondi, took the case and furnished the copies of documents to the accused and committed PRC.No.16 of 2003 to the Sessions Court, Nagapattinam. The trial Court, after framing charges and since the accused pleaded not guilty, examined P.Ws.1 to 15 and marked Exs.P-1 to P-15 and incriminating materials were placed before the accused who denied the same and on the side of defence, D.W.1 was examined and Ex.D-1 was marked. After considering the oral and documentary evidence, the trial Court convicted and sentenced the appellant/accused as stated above.
4. Challenging the conviction and sentence passed by the trial Court, learned counsel appearing for the appellant/accused submitted that the trial Court has not considered Ex.P-11 post-mortem certificate and the evidence of P.Ws.1 to 3. The evidence of P.W.1 is not trustworthy and his attitude clearly shows that her evidence is not trustworthy and hence, her evidence has to be discarded. He further submitted that there is no nexus between the alleged occurrence and the cause of death. He further contended that the trial Court committed error in convicting the accused for the offence under Section 323 IPC, because, P.W.1’s evidence clearly proved that she has not sustained any injury in the alleged incident. He also stated that there is a delay in registering the case, as the alleged occurrence took place at about 6.15 p.m. on 31.8.2001 and the complaint has been lodged only on 1.9.2001 at 6 p.m. This factum has not been considered by the trial Court and he prayed for setting aside the conviction and sentence passed by the trial Court.
5. Learned counsel for the appellant/accused further stated that if the Court comes to the conclusion that the appellant/accused is guilty of the offences alleged against him, leniency may be shown in the imprisonment, because, at the time of occurrence, the appellant/accused not completed the age of 21 years and was an adolescent.
6. Repudiating the said contentions, learned Government Advocate (Criminal Side) appearing for the respondent-Police submitted that even though the charge has been framed against the appellant/accused for the offence under Section 302 IPC, the trial Court considered the evidence and properly appreciated and discussed the evidence and came to the correct conclusion that the appellant/accused is guilty of the offence under Section 304 (Part 2) IPC and the same does not warrant any interference. He further stated that the evidence of P.W.1 is sufficient to conclude that the appellant/accused is guilty of the offence under Section 323 IPC. He prayed for dismissal of the Criminal Appeal.
7. Now, this Court has to consider as to whether the trial Court’s finding that the appellant/accused is guilty of the offences under Sections 323 and 304 (Part 2) IPC, is correct or not ?
8. It is admitted that the deceased borrowed Rs.1,000/- from the appellant/accused and he repaid Rs.800/- and when the balance Rs.200/- was demanded by the appellant/accused on the fateful day, at that time, the occurrence took place.
9. P.Ws.2 and 3 even though they were mentioned as eye-witnesses, it is pertinent to note that only after hearing the noise, they rushed to the place of occurrence. P.W.2 stated that the appellant/accused assaulted on his head once, but admittedly, when he made a request demanding Rs.200/-, as per the version of P.Ws.1 and 2, the deceased questioned the accused as to why he was not giving respect to him, the deceased attempted to bring one branch of drum stick and at that time, the appellant/accused got wild and took the branch of neem tree and assaulted the deceased on his head, which shows that there was no intention on the part of the appellant/accused to commit the murder. Furthermore, to safeguard himself, the appellant/accused took the branch of neem tree M.O.1 and assaulted the deceased on his head. Admittedly, the deceased sustained only simple injury on his forehead and immediately, he was taken by P.W.4 to P.W.5 Doctor who treated him and gave first aid by dressing the wound.
10. Admittedly, P.W.1 has not given any complaint. During night hours, the deceased developed epilepsy and hence, he was taken to Government Hospital, Nagapattinam, by P.W.9 where P.W.13 Doctor treated the deceased and in Ex.P-9 accident register, no external injury was stated.
11. Learned counsel appearing for the appellant/accused mainly focussed upon his contention that P.W.5 is not an Allopathy Doctor and he is family friend of the deceased family and so, he has given evidence and the same has to be eschewed.
12. Admittedly, P.W.13 Doctor has not stated any injury in Ex.P-9 accident register, but while perusing Ex.P-11 post-mortem certificate, it is seen that the following external injuries are noted:
“A 1cm length bone depth marge centrally placed informed scalp.
1cm length bone depth irregular edge 2 cm to left of 1 would depressed fracture frontal bone beneath the 1 wound”
So, the above external injuries show that merely because P.W.13 Doctor has not mentioned any injury, that will not given the benefit to the appellant/accused. From the evidence of P.W.14 Doctor who conducted post-mortem, it is clear that the death of the deceased is not natural or suicidal and it is homicidal or accidental.
13. Learned counsel appearing for the appellant/accused submitted that there is a delay in preferring the complaint. Admittedly, in rustic villages, the people are illiterate and since they thought it is only a simple injury, they went to P.W.5 Doctor for first-aid treatment of the deceased and got his injury dressed. Only after the death, they realised that the injuries are serious in nature and then only P.W.1 gave complaint and therefore, the delay has been properly explained by P.W.1 in her evidence and hence, the delay in lodging the FIR, is not fatal to the case of the prosecution.
14. The evidence of P.Ws.1 to 3 proved that due to sudden provocation, and since the deceased took the branch of the drum-stick tree, the accused immediately got wild and took the branch of the neem tree M.O.1 and assaulted the deceased on his head. In such circumstances, there is no mens-rea for the appellant/accused to cause the murder of the deceased. Furthermore, if the deceased would have taken treatment immediately, he would have survived. Admittedly, the treatment has not been given and on the very next day of the occurrence, at 10 a.m., he was admitted in the hospital and P.W.13 Doctor has clearly mentioned that his B.P. was very low, which could not be calculated. Considering the same, I am of the view that the trial Court has considered the evidence of P.Ws.2 and 3 and came to the correct conclusion that the appellant/accused is guilty of the offence under Section 304 (Part 2) IPC, due to the injuries sustained by the deceased, namely the fracture of the scalp with wound depressed on the brain, which caused death. Therefore, the trial Court is correct in holding that the appellant/accused is guilty of the offence under Section 304 (Part 2) IPC.
15. Now, this Court has to consider as to whether the trial Court is correct in holding the appellant/accused guilty of the offence under Section 323 IPC.
16. Admittedly, the evidence of P.W.1 is shabby and in her evidence, she has stated that she is having a bleeding injury and it was not treated and she was not treated by P.W.5 and she has intimated the factum of incident to P.W.5 on the same day at 7 p.m. and on the very next day, i.e. on 1.9.2001 at 10 a.m., when she admitted her husband in the Hospital, at that time, she has not intimated her injury and after the death of her husband, the deceased, a complaint was lodged and she was referred with a medical memo and then P.W.13 Doctor treated her and gave Ex.P-10 accident register, and since her husband died, P.W.1 would have dashed against the wall while crying and she would have sustained injury, which is quite possible. In such circumstances, I am of the view that the trial Court committed error in coming to the conclusion that the appellant/accused caused injury on P.W.1, and this aspect has not been proved by the prosecution beyond reasonable doubt and hence, the appellant/accused is liable to be acquitted of the charge under Section 323 IPC.
17. This Court is of the view that the appellant/accused is guilty of the offence under Section 304 (Part 2) IPC.
18. Now this Court has to consider as to whether the quantum of sentence awarded by the trial Court is fair and proper. At this juncture, it is appropriate to consider the argument advanced by learned counsel for the appellant/accused that at the time of incident, the appellant/accused has not completed 21 years of age and to prove the same, the accused examined D.W.1, his mother and through her, Ex.D-1 was marked, which shows that the date of birth of the appellant/accused is 13.6.1983 and the date of incident is 31.8.2001 and he has completed 18 years as on that date. It is true that he was at the stage of adolescence. When the appellant/accused demanded the balance loan amount of Rs.200/- from the deceased, when the deceased took a branch of drum-stick tree, the accused, out of sudden provocation and he being young blood, took the branch of the neem tree M.O.1 and immediately assaulted the deceased. In such circumstances, it has resulted in the death of the deceased. Admittedly, as already stated, the accused completed 18 years of age at the time of incident and if he is remanded to jail, his future would be spoiled and he was in jail for 135 days and instead of sentencing the appellant/accused to jail, it would be appropriate to award compensation to the victim’s family, which would meet the ends of justice.
19. Considering the said aspects, the sentence of rigorous imprisonment for six years for the offence under Section 304 (Part 2) IPC, shall be reduced to the period of sentence already undergone by him and the appellant/accused shall be directed to pay compensation of Rs.25,000/- to the family of the victim.
20. In the result:
(a) The Criminal Appeal is partly allowed.
(b) The conviction and sentence imposed on the appellant/accused for the offence under Section 304 (Part 2) IPC, are confirmed.
(c) The conviction and sentence imposed on the appellant/accused for the offence under Section 323 IPC, are set aside and he is acquitted of the same.
(d) The sentence of imprisonment is reduced to the one already undergone by him.
(e) The fine amount of Rs.1,000/- is enhanced to Rs.26,000/-, out of which, Rs.25,000/- is to be paid as compensation to P.W.1 victim’s family, within three months from today.
7.4.2011
Index: Yes
Internet: Yes
cs
To
1. District and Sessions Judge, Nagapattinam.
2. State by Inspector of Police,
Thalaignaryeru Police Station,
Nagapattinam Thanjavur District.
(Crime No490 of 2001).
3. The Public Prosecutor, High Court, Madras.
4. The Record Keeper, Criminal Section, High Court, Madras.
R.MALA,J
cs
Crl.A.No.1661 of 2003
7.4.2011