IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04/08/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.359 of 1996
Palani .. Appellant
-Vs-
State by Inspector of
Police, Kallavi P.S.,
Dharmapuri .. Respondent
This criminal appeal is preferred under Sec.374 of The Code of
Criminal Procedure against the judgment of the Sessions Judge, Charmapuri at
Krishnagiri made in S.C.91/92 and dated 18.4.1996.
!For Appellant : Mr.N.Mohideen Basha
for Mr.R.Rajan
^For Respondent : Mr.V.Jaya Prakash Narayanan
Government Advocate (Crl. Side)
:JUDGMENT
The appelant who stood charged and tried under Ss 302 and 323 of I.
P.C. along with three others and found guilty under Sec.304(Part II) of
I.P.C. has brought forth this appeal. A-2 to A-4 were acquitted of the
charge against them.
2. The brief facts necessary for the disposal of this appeal are as
follows:
(a) The first accused is the son of A-3. A-2 is the son-in-law of
A-3, while A-4 is the daughter of A-3. The deceased Sabapathy and one Murugan
were the sons of Duraisamy. P.W.1 Vasantha is the wife of the deceased.
P.W.2 Gnanasounthari is the daughter of Murugan. There was a common well from
which A-3 and the deceased Sabapathy were to take water in turn for the
purposes of irrigation. Often there were disputes between them as to the
drawing of water. On the date of occurrence, namely 13.1.1992 at 3.30 P.M.,
Duraisamy, his son Sabapathy and Sabapathy’s wife P.W.1 went to irrigate their
fields. At that time they found the accused were taking water for their
lands, and the same was objected to by Sabapathy stating that it was their
turn to take water that day. The accused refused to stop taking water.
Sabapathy went to switch of the motor. Enraged over this, A-1 took M.O.1
kavaithadi which was laid in support of the pipe and beat the deceased
Sabapathy on his right side head. Sabapathy fell down. On the alarm raised
by P.W.1, A-2 to A-4 came there and beat Duraisamy with hands. Duraisamy also
fell down. At that time P.W.2, P.W.3 Ramamurthy, Appavu and Nandan came
there. On seeing them, the accused sped away. A-1 ran away with M.O.1
kavaithadi. P.W.3 took Sabapathy in a cycle to Kallavi Hospital. P.W.1 and
Duraisamy went to the same hospital at 4.00 P.M. On the said day at about
3.45 P.M., P.W.8 Dr. Kamalanathan, attached to Kallavi Primary Health Centre
examined Sabapathy. He made an entry in Ex.P8 O.P. register, which is marked
as Ex.P9. On the basis of Ex.P10 entry, the Doctor gave Ex.P11 O.P. Chit and
sent him to Oothangarai Hospital for further treatment. P.Ws.1, 3 and
Duraisamy took Sabapathy to Oothangarai Hospital. At 4.50 P.M. P.W.9
Dr.Subramaniam examined Sabapathy medically and found the following injuries:
1. Contusion 10 cm x 6 cm over right temporal region head. Skin swollen
Depression over right Parietal region 6 x 1 cm present horizontally.
A copy of the accident register is marked as Ex.P12. P.W.9 Doctor referred
Sabapathy for taking X-rays and further treatment to Dharmapuri Chief
Hospital. Ex.P13 was the O.P. chit. P.W.9 Doctor sent intimation to the
Police Station under Ex.P14.
(b) P.W.1 and Duraisamy took Sabapathy to Oothangarai Hospital at 7.00
P.M. P.W.10 Dr.Sundaramurthy examined Sabapathy and found the following
injuries:
Responds to pain by going for decerebrate posturing. Throat secretion more
present. Respiration is irregular and shallow. Pupils both dilated and very
sluggishly reacting pulse – 92/mt BP.120/80 mm hg CVS NAD abd soft R.S.Bilat.
crep present.
A copy of the accident register under Ex.P16 was issued by P.W.10. Sabapathy
died on 14.1.1992 at 2.15 A.M. On 14.1.92 P.W.11 Jayagopal, Sub Inspector of
Police, Kallavi Police Station received the wireless message at 3.00 A.M. He
went to the Dharmapuri Government Hospital at 4.30 A.M. and recorded the
statement of P.W.1. On the complaint under Ex.P1, he registered a case in
Crime No.21/92 under Ss 302 and 323 of I.P.C. Ex.P18 F.I.R. was despatched
to the concerned Judicial Magistrate’s Court, while the copies were sent to
the higher officials.
(c) On 14.1.92 P.W.12 Rangasamy, Inspector of Police, on receipt of
information went to Government Hospital, Dharmapuri, received the copy of the
F.I.R. and took up the investigation. He conducted inquest over the dead
body of Sabapathy and prepared Ex.P19 inquest report. He examined P.Ws.1 to
3, Duraisamy and Kothanan during inquest and recorded their statements. He
made arrangements to conduct the postmortem. On requisition P.W.4
Dr.Paramanandhan conducted the autopsy and noticed the following injury:
A contusion 2″ x 2″ over the right parietal area present.
The hyoid bone is intact. Thorax No rib fractures. The right lung 3 00 gms.
Left lung 250 gms. Paler. The heart weighed 150 gms paler, Empty Intestines
are dirended and gas. The stomach is empty. Liver weighed 1200 gms. Pales.
Gall bladder is empty. Spleen 100 gms paler, Kidneys weighed 100 gms paler.
Bladder is empty. Scalp on reflecting, Sub-cutaneous clots over 2″x2″ area
over right parietal and right temporal area. Fracture of parietal bone for 4″
from right side, in front of right ear, upwards, access towards the left side.
On opening the skull, a haematoma 3″x2″ in size, compressing the right earbral
hemisphere present. Brain weighed 1200 gms paler.
The Doctor has issued Ex.P3 postmortem certificate and has opined that the
deceased would appear to have died of shock and haematoma compressing the
exterbral hemisphere about 12.30 hours prior to autopsy.
(d) P.W.12 Investigating Officer proceeded to the site of occurrence,
made an inspection and prepared Ex.P4 observation mahazar attested by P.W.5
Theerthagiri, Village Administrative Officer and Rajamanickam. Ex.P20 is the
rough sketch prepared by the Investigating Officer. P.W.7 Maadhu, a
Constable, handed over M.O.2 lungi and M.O.3 waist card to P.W.12, who seized
them under Form 95. On 14.1.92 at 5.00 P.M. on information in the presence
of P.W.5 and Rajamanickam, the Investigating Officer arrested the accused and
recorded their voluntary statements separately. Ex.P5 is the admissible
portion of the statement given by A-1. A-1 took them to his house and
produced M.O.1 which was seized under Ex.P6 mahazar. Both the confessional
statement and the seizure mahazar were attested by P.W.5 and Rajamanickam.
P.W.1 2 Investigating Officer again examined Duraisamy and sent him with
Ex.P15 memo to Oothangarai Government Hospital for treatment. On the same
day, P.W.6 Dr.Devaraj attached to Oothangarai Government Hospital examined
Duraisamy, who informed him that he was assaulted by 3 known persons on
13.1.92 at 3.00 P.M. The Doctor issued Ex.P7 a copy of the accident register
pertaining to the injuries found on Duraisamy. The Investigating Officer
examined P.Ws.4, 6, 8 and 9 Doctors and recorded their statements. On
completion of the investigation, he laid a charge sheet against the accused on
2.4.92 under Ss 302 and 323 of I.P.C.
3. In order to prove the accusation levelled against the appellant/
A-1 and three others, the prosecution examined 12 witnesses and marked 20
exhibits and 3 material objects. On completion of the evidence on the side of
the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to
the incriminating circumstances found in the evidence of the prosecution
witnesses, which they flatly denied as false. No defence witness was
examined. Neither any exhibit nor any material object was marked on the side
of the defence. On consideration of the rival submissions made and scrutiny
of the materials available, the learned Sessions Judge found the appellant/A-1
guilty under Sec.304 (Part II) of I.P.C. and sentenced him to undergo
imprisonment as stated supra, while it acquitted all the accused including A-1
in respect of the charge under Sec.323 of I.P.C. Aggrieved over the
conviction and sentence, A-1 has brought forth this appeal.
4. Advancing his arguments on behalf of the appellant, the learned
Counsel interalia made the following submissions:
The trial Court without proper appreciation of evidence has found him
guilty under Sec.304(ii) of I.P.C. having accepted the defence version and
acquitted all the accused in respect of the other charges. The trial Court
should have acquitted A-1 also in respect of the charge in question. There
was an inordinate and huge delay in lodging the complaint, which remained
unexplained. According to the prosecution, the occurrence has taken place at
3.30 P.M., but the case was registered at 4.30 A.M. next morning, and thus,
there was delay of 13 hours noticed. Even P.W.9 Doctor attached to
Oothangarai Hospital has categorically spoken that an intimation was given to
the police. P.W.3 has deposed that while the deceased and the other injured
were in Oothangarai Hospital, the police came over there and recorded their
statements, and thus, both would indicate that the prosecution has suppressed
the first information, and now what is available before the Court was only the
information that was given subsequently. Even assuming that the prosecution
has proved its case in respect of the alleged attack made by A-1, P.W.4
Postmortem Doctor has categorically spoken to the effect that M.O.1 would be
suffice to cause such an injury on the skull, and this would indicate that A-1
had not the knowledge that the said injury would cause the death. In the
ordinary course of things, it would be sufficient to cause death, and hence,
under such circumstances, the case would not fall under Sec.304(ii) of I.P.C.,
but would fall under Sec.324 of I.P.C. Therefore, the judgment of the lower
Court has got to be set aside.
5. Opposing strongly the above contentions put forth by the
appellant’s side, the learned Government Advocate would submit that in the
instant case, there was no delay at all; that when the deceased sustained
injuries, he was taken to Kallavi Hospital and attended by P.W.8 Doctor who
referred him to Oothangarai Hospital, where he was attended by P.W.9 Doctor,
and then, he was again referred to Dharmapuri Government Hospital, and he was
given treatment, and thus, P.W.1, the wife would be more interested in saving
her husband rather than going to the Police Station and giving a complaint;
that the delay was caused only by natural events; that apart from that, the
witnesses have clearly deposed and given a cogent evidence regarding the
occurrence; that the medical evidence has also supported the ocular testimony;
that there is no question of any information that was recorded by the Police
at Oothangarai Government Hospital; that P.W.3 was not a competent witness to
speak about the fact; that the case came to be registered at the instance of
P.W.1, and not even one question was put to P.W.1 in respect of any statement
alleged to have been recorded by the Police at Oothangarai Hospital; that
P.W.1 has categorically spoken to the fact that Ex.P1 was the report given by
her, on the strength of which a case was registered, and hence, taking into
consideration the manner of attack made by A-1 with kavaithadi marked as M.O.1
on the skull and the opinion of both the Doctors that the injury in the skull
could have been caused by M.O.1 kavaithadi, and it caused the fracture and
death of Sabapathy, the lower Court was perfectly correct in finding that the
case would fall under Sec.304(ii) of I.P.C., and in view of the above, the
judgment of the lower Court has to be sustained.
6. After careful consideration of the rival submissions and close
scrutiny of the materials available, the Court is unable to appreciate the
case of the appellant/A-1 as recorded above.
7. According to the prosecution case, following a quarrel between the
deceased and A-1 and others as to the taking of water from the common well,
A-1 has attacked the deceased on his head with M.O.1 Kavaithadi. This fact
has been clearly spoken to by P.W.1 who has clearly given a graphic narration
of the incident. M.O.1, which according to the prosecution was the weapon
used by the accused, was recovered, pursuant to a confessional statement made
by A-1 voluntarily on his arrest. The medical evidence adduced through P.W.8
Doctor attached to Kallavi Primary Health Centre, P.W.9 Doctor attached to
Oothangari Hospital, P.W.10 Doctor attached to Dharmapuri Government Hospital
and P.W.4 Postmortem Doctor, who found the injuries on the skull of the
deceased and a fracture thereon and the opinion of the Doctors namely P.Ws.4,
9 and 10 that the injury found on the deceased in the skull would have been
caused by a weapon like M.O.1 and that the said injury would have caused the
death of Sabapathy are very clear, and thus, the medical evidence has
supported the ocular testimony. Hence, the prosecution has clearly proved by
the above said evidence the act committed by A-1 by attacking the deceased
with M.O.1 weapon on the skull which led to his death. The lower Court only
on appreciation of the evidence has not believed the case of the prosecution
in respect of the other charge levelled against A-1 and three others.
8. The contention of the appellant’s side that there was delay in
lodging the complaint cannot be countenanced for the simple reason that P.W.1,
who was present at the time of occurrence, immediately has taken the deceased
Sabapathy to Kallavi Hospital, where he was given continuous treatment, and he
was referred to Oothangari Hospital, where also treatment was given to him,
and again he was referred to Dharmapuri Government Hospital, where further
treatment was given to him, and he succumbed to injuries. It is pertinent to
point out that though the intimation was originally given, there is no
evidence that it was acted upon. Even a perusal of the intimation cannot lead
to any inference that no serious injury was caused, and it would indicate the
lethargic attitude of the police to take action immediately. Hence, the Court
is unable to agree with the contention of the appellant’ s side that the delay
remained unexplained. The Court is of the view that the delay was caused due
to the natural course of events.
9. So far as the second contention of the appellant’s side that the
earliest first information has been suppressed by the prosecution cannot also
be accepted. According to the appellant’s side, P.W.3 has deposed that the
police people came over to Oothangarai Hospital and recorded a statement.
But, this part of the evidence has no factual foundation, since no question
was put either to P.W.1, the informant to the police or to P.W.11 or P.W.12,
who according to the defence, recorded the statement at Oothangarai Hospital,
in respect of any earlier statement alleged to have been given by P.W.1.
Hence, what is now available before the trial Court cannot be taken as a
subsequent information. The lower Court only on proper appreciation of the
evidence has come to the conclusion that A-1 has committed an act, thereby
causing homicidal death. The lower Court has found the appellant/A-1 guilty
under Sec.304 (Part II) of I.P.C. The contention of the appellant’s side that
he could not have got the knowledge so as to make the case to come under
Sec.304 of I.P.C. cannot be accepted, because at the time of attack, A-1 has
used M.O.1 kavaithadi, and the blow was made on the head causing such
fracture. Hence, it should have been well within his knowledge that by
causing such injury, there is possibility of result of death to the person,
who received the blow at the time of occurrence. There is nothing to
interfere in the conviction passed by the Court below.
10. Coming to the question of punishment, the lower Court has
sentenced the appellant/A-1 to undergo R.I. for five years under Sec.304(
Part II) of I.P.C. In view of the facts and circumstances of the case, the
Court is of the view that the reduction of the substantive sentence from five
years R.I. to four years R.I. would meet the ends of justice. Accordingly,
the sentence has got to be modified.
11. In the result, the sentence of five years R.I. awarded by the
lower Court to the appellant/A-1 under Sec.304(Part II) of I.P.C. is
modified, and the appellant/ A-1 shall undergo four years R.I. In other
respects, the judgment of the lower Court is confirmed. With the above
modification, this criminal appeal is dismissed. The Sessions Judge shall
take steps to commit the appellant/A-1 to prison, if he is on bail, to undergo
the remaining period of sentence.
Index: Yes
Internet: Yes
To:
1) The Principal Sessions Judge, Dharmapuri.
2) The Judicial Magistrate, Uthangarai.
3) The Judicial Magistrate, Uthangarai,
Thro’ The Chief Judicial Magistrate, Dharmapuri.
4) The Superintendent, Central Prison, Vellore.
5) The Public Prosecutor, High Court, Madras.
6) The D.I.G. of Police, Chennai 4.
7) Mr.V.Jaya Prakash Narayanan, Government Advocate
(Crl. Side), High Court, Madras.
8) The Inspector of Police, Kallavi Police Station,
Dharmapuri.
nsv/