{"id":137485,"date":"2004-02-13T00:00:00","date_gmt":"2004-02-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subbiah-vs-state-represented-by-inspector-of-on-13-february-2004"},"modified":"2015-03-15T23:17:27","modified_gmt":"2015-03-15T17:47:27","slug":"subbiah-vs-state-represented-by-inspector-of-on-13-february-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subbiah-vs-state-represented-by-inspector-of-on-13-february-2004","title":{"rendered":"Subbiah vs State Represented By Inspector Of … on 13 February, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Subbiah vs State Represented By Inspector Of … on 13 February, 2004<\/div>\n
Bench: R Banumathi<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
1. Accused in S.C.159\/1995 on the file of Principal Sessions Judge, Trichy is the Appellant. By the Judgment dated 26.06.1996, the trial court convicted the Appellant \/ Accused under Section 304(ii) IPC (acquitting him under Section 302 IPC) and sentencing him to undergo Rigorous Imprisonment for five years.\n<\/p>\n
2. Brief facts relevant for disposal of this Appeal could be stated thus:-\n<\/p>\n
 P.W.3 – Thirugnanam is the husband of Thamizharasi – deceased in this case. The accused Subbiah is the brother of P.W.3. Father of P.W.3 and accused died in or about 1982. After death of his father for about eight years, there had been differences between the brothers with regard to partitioning of the family properties. That apart, in 1990 elections were held for the Cooperative Society of the Village – Valeeswaram. Deceased Thamizharasi was a nominated Member of the Society. She supported one Chithrakudi Sundararaj against the wishes of the accused and other Reddiar people. The said Chithrakudi Sundararaj, whom the deceased supported, won the elections and therefore the accused developed enmity towards deceased Thamizharasi and P.W.3. A Civil Suit is also pending between them with regard to the pathway. There was also criminal case filed against the accused. Thus there was deep differences between both the families.\n<\/p>\n
3. On 29.01.1994 in front of the house of Thamizharasi in Valeeswaram Village, the accused picked up a wordy quarrel with deceased Thamizharasi. P.W.1 – Vaiyapuri is the paternal uncle of deceased. P.W.2 – Kumaravel, resident of Thuraiyur working in Kumanan Textiles in Thuraiyur. P.W.1 accompanied by P.W.2 went to Valeeswaram Village on 29.01.1994 to invite Thamizharasi for a function in his house. When he went there, he heard the noise near the house of deceased. When P.Ws.1 and 2 went near, they saw the accused beating the deceased Thamizharasi on her head with a spade (M.O.1). She fell down with bleeding injuries. The occurrence was known to Balamani, mother of the deceased also. P.W.2 – Kumaravel had also witnessed the occurrence. The deceased Thamizharasi died on the spot.\n<\/p>\n
4. P.W.1 – Vaiyapuri went to Thuraiyur Police Station and lodged Ex.P.1 – Complaint. On the basis of Ex.P.1 – Complaint, Sub Inspector of Police, Thuraiyur had registered the case in Crime No.52\/1994 under Sec. 302 IPC under Ex.P.14 – First Information Report on 29.01.1994 – 1.30 PM.\n<\/p>\n
5. P.W.7 – Inspector of Police had taken up the investigation. Scene of occurrence – Valeeswaram Village and the house of P.W.3 was inspected in the presence of P.W.4 – Village Administrative Officer. Ex.P.2 – Observation Mahazar and Ex.P.9 – Rough Plan were prepared on the scene of occurrence. M.O.2 – blood stained cement mortar and M.O.3 sample cement mortar were seized under Ex.P.3 – Seizure Mahazar. On the same day – 29.01.1994 – 4.00 PM to 7.15 PM, P.W.7 – Inspector of Police examined the witnesses in the presence of Panchayatdars and held the inquest on the body of deceased Thamizharasi. Ex.P-10 is the Inquest Report. After inquest, the body was sent to autopsy along with Ex.P.7 – Requisition.\n<\/p>\n
6. Pursuant to the requisition from P.W.7 – Investigating Officer, P.W.6 – Dr.Vijaya had conducted the autopsy and noted<\/p>\n
(a) a lacerated injury ….near the anterior aspect of the skull;\n<\/p>\n
(b) a lacerated injury …. over the parietal region of the scalp at the centre.\n<\/p>\n
On internal examination, there is a fracture of the skull over anterior aspect. Shape of skull is depressed and extended upto the frontal bone or temporal bone; brain matter surrounded with haemorrhage.\n<\/p>\n
P.W.6 has opined that the deceased would appear to have died of shock and haemorrhage. Ex.P-8 is the Post Mortem Certificate.\n<\/p>\n
7. P.W.7 had continued further investigation. On 30.01.1994 – 6.00 AM near Palakkarai Bus Stop at Thuraiyur, the accused was arrested in the presence of P.W.3. When interrogated, the accused had voluntarily confessed to his guilt. Admissible portion of his confession statement – Ex.P.4 led to the recovery of M.O.1 – spade from one Idumban Maize Garden under Ex.P.5 – Seizure Mahazar. Blood stained clothes of the accused – M.O.4-Dhoti and M.O.5-Banian were also seized. The seized material objects were sent for chemical analysis. On completion of the investigation, the accused was charge sheeted for the offence punishable under Sec. 302 IPC.\n<\/p>\n
8. To substantiate the charge against the accused, in the trial court, P.Ws.1 to 7 were examined. Exs.P-1 to P-14 were marked. M.Os.1 to 12 were remanded to the court. During the questioning under Sec. 313 of Crl.P.C., the accused had not totally denied the occurrence. In a statement filed in writing, the accused had stated that the deceased hurled vulgar abuses and also posed vulgar gestures. Enraged over the same and out of provocation, the accused reacted to the same in hitting and the accused prayed for absolving his criminal responsibility.\n<\/p>\n
9. Upon consideration of the evidence, the learned Sessions Judge found that the previous enmity on account of the civil suit dispute and election of the President of the Cooperative Society and other enmity is well proved by the evidence of P.W.3. Accepting the presence of P.Ws.1 and 2 in Valeeswaram Village at the time of occurrence, evidence of P.Ws.1 and 2 was accepted as reliable. On the evidence of P.Ws.1 to 3, the learned Sessions Judge found the accused responsible for causing the bodily injury – skull bone fracture to deceased Thamizharasi. However, pointing out the surrounding circumstances that the single blow was given by the accused and by the non-blade portion of the spade, the trial court acquitted the accused under Sec. 302 IPC; but found him guilty under Sec. 304(II) IPC and sentenced him to imprisonment as aforesaid.\n<\/p>\n
10. Aggrieved over the conviction and the sentence of imprisonment, Appellant \/ Accused has preferred this Appeal. The accused was originally represented by the counsel Mr.Babu. There was no representation for the Appellant continuously for two hearings. Thereafter, Mr.Philip Ravindran Jesudoss was appointed as the counsel through the Legal Services Authority.\n<\/p>\n
11. The learned counsel for the accused contended that when the presence of P.Ws.1 and 2 is highly doubtful, the trial court erred in accepting their evidence as reliable and credible. Pointing out that non-examination of the mother of deceased Thamizharasi, who was very well available during the occurrence, it is contended that non-examination of Balamani seriously affects the Prosecution case. Variation in the time and delay in lodging of the complaint is yet another point urged by the Appellant \/ accused.\n<\/p>\n
12. Counteracting the arguments of the Appellant, the learned Government Advocate (Criminal Side) submitted that the presence of P.Ws.1 and 2 is well explained and that the trial court has rightly accepted their evidence as reliable. Drawing the attention of the court to the nature of the injury caused, the learned Government Advocate submitted that the oral evidence is well corroborated by the medical evidence and the reasonings for conviction are based upon the evidence and that there is no reason warranting interference.\n<\/p>\n
13. (i) Whether accused is proved to be responsible for the homicidal death of deceased Thamizharasi ?\n<\/p>\n
and<\/p>\n
(ii) Whether conviction under Sec. 304(ii) IPC suffers from any infirmity warranting interference ? are the points that arise for consideration in this Appeal.\n<\/p>\n
14. Enmity:- Dispute between the brothers and ill-will in the mind of the accused on account of the differences is clearly brought out from the evidence of P.W.3. Their father died about eight years ago. Since then, there were differences between the brothers due to partitioning of the properties. That apart, a civil suit was also filed regarding the pathway. In connection with the dispute regarding the pathway, a criminal case was also filed against the accused and he was acquitted. The Tahsildar, Thuraiyur has declared the pathway as a common one.\n<\/p>\n
15. Added to the differences between the brothers on account of the land dispute, is the dispute regarding election to the Cooperative Society, Valeesswaram. In the year 1990, elections were held for the Cooperative Society. During the election, the accused and other Reddiar people supported one Chithrakudi Karunakaran. Deceased Thamizharasi was a nominated Member of that Society. She has supported Chithrakudi Sundararaj, who won the election. Differences between the brothers further deepened due to winning of election by Chithrakudi Sundararaj, whom the family of P.W.3 supported. From the evidence of P.W.3, the Prosecution has clearly brought out the enmity between the brothers regarding the enjoyment of pathway and election to the Cooperative Society. The election dispute and the differences thereon further swelled up in the mind of the accused. The enmity between the brothers heightens the probability of the occurrence.\n<\/p>\n
16. P.w.3 and deceased Thamizharasi are residents of Valeeswaram. The house of the accused in Door No.1\/2 is on the southern side. House of deceased (P.W.3) – Door No.1\/1 is on the northern side. On the eastern side, there is kitchen for the house of deceased. Further on the southern side is the in-completed house site of P.W.3 – Thirugnanam, which is on the opposite side of the house of the accused. The scene of occurrence is the space in between the eastern portion and the western portion near the house of the deceased which shows that the accused had gone near the house of the deceased at the time of occurrence.\n<\/p>\n
17. P.W.1 – Vaiyapuri is the paternal uncle of the deceased. P.W.2 – Kumaravel is working in Kumanan Textiles. Both are residents of Thuraiyur. The occurrence is in Valeeswaram. P.W.1 – Vaiyapuri has clearly explained his presence in the Village at the time of occurrence stating that he had gone to Valeeswaram for inviting his niece Thamizharasi to a family function in his house. P.W.2 – Kumaravel had also accompanied P.W.1. Absolutely, there is no reason to doubt their presence in Valeeswaram at the time of occurrence. It is relevant to note that names of P.Ws.1 and 2 and Balamani (mother of the deceased) are clearly mentioned as eye witnesses in clause XV of Ex.P.10 – Inquest Report. The contention urged doubting the presence of P.Ws.1 and 2 was rightly rejected by the trial court.\n<\/p>\n
18. Evidence of P.Ws.1 and 2 when tested for its credibility, their evidence remains unshaken. Presence of P.Ws.1 and 2 cannot be denied at all since they are stated to be the eye witnesses in Ex.P.10 – Inquest Report. Reliability of P.W.1 is further ensured by his prompt lodging the complaint at 1.30 PM on 29.01.1994. On the basis of Ex.P.1 – Complaint, there was prompt registration of First Information Report in Crime No.52\/1994 even at 1.30 PM. Such prompt registration of First Information Report also lends assurance to the credibility of P.Ws.1 and 2. Despite cross examination, nothing substantial was brought out shaking their version. Neither their presence nor their evidence could be doubted on the ground that P.W.1 is related and residing in Thuraiyur.\n<\/p>\n
19. When P.Ws.1 and 2 were proceeding in the lane nearing the house of deceased, they heard Thamizharashi’s shouting. P.Ws.1 and 2 hurriedly ran towards the house of the deceased and saw the accused hitting Thamizharasi with handle of the spade on her head. Thamizharasi sustained severe bleeding injuries on her head and had fallen down. P.Ws.1 and 2 have clearly narrated the occurrence.\n<\/p>\n
20. Evidence of P.Ws.1 and 2 on the overt act of the accused that he had hit the deceased with handle of the spade on her head is well corroborated by the medical evidence. During autopsy, P.W.6 – Dr.Vijaya noted external injuries –\n<\/p>\n
(a) a lacerated injury near the anterior aspect of the skull;\n<\/p>\n
(b) a lacerated injury over the parietal region of the scalp at the centre.\n<\/p>\n
On internal examination, there is a fracture of the skull scar centre fontanelle. Shape of skull is fractured and depressed, extended upto the frontal bone or temporal bone; brain matter is surrounded with haemorrhage. …(vide Ex.P-8). P.W.6 has opined that the deceased would appear to have died of shock and haemorrhage. Causing fracture of the skull scar centre fontanelle evidently shows forcible wielding of M.O.1 – spade. Thus oral evidence is well consistent with the medical evidence.\n<\/p>\n
21. The accused was arrested on 30.01.1994. On the basis of his confession statement (admissible portion – Ex.P.4), M.O.1 spade was recovered from a thorny bush near Idumban Maize Garden. ‘A’ group blood was detected in M.O.7 – blouse of the deceased Thamizharasi. Detection of the same blood group – ‘A’ group blood in M.O.1 – spade is a strong incriminating circumstance against the accused. The accused has not explained the recovery of M.O.1 – spade with ‘A’ group blood on the same.\n<\/p>\n
22. The following objective finding during investigation also lends assurance to the Prosecution;-\n<\/p>\n
(a) blood was found to be splattered and the same is noted in Ex.P.2- Mahazar as @gpnujk; fplf;Fk; rpkpz;l; jiuapy; ,uj;jk; fiu goe;J cs;sJ\/\/\/@\/<\/p>\n
(b) presence of human blood in M.O.2 cement plaster pieces;\n<\/p>\n
presence of ‘A’ group blood in the Banian – M.O.5 and human blood in M.O.4 – Dhoti (clothes of the accused) The above objective findings during investigation and the presence of blood as noted above is the strong militating circumstance against the accused. In the absence of any explanation for detection of ‘A’ group blood on M.O.5 – banian, the accused cannot escape the criminal responsibility. Bare denial of arrest is not sufficient to discard the unimpeachable scientific evidence forthcoming.\n<\/p>\n
23. Main contention urged on behalf of the Appellant is the variation in the time of attestation by P.W.4 – Village Administrative Officer in Ex.P.2 – Observation Mahazar. As per the First Information Report, time of occurrence was at 12.00 Noon. P.W.1 has lodged the Complaint on 29.01.1994 at 1.30 PM. On the basis of which, Ex.P.14 – First Information Report was registered at 1.30 PM. P.W.4 – Village Administrative Officer has stated that he has attested Ex.P.2 – Observation Mahazar at 12.00 Noon; whereas Ex.P.2 was actually prepared at 2.30 PM. Drawing the attention of the Court to such variation in the time, the learned counsel for the Appellant contended that this contradiction on the time of preparation of Ex.P.2 – Observation Mahazar throws serious doubt on the Prosecution case.\n<\/p>\n
24. No doubt, P.W.4 – Village Administrative Officer has stated that he has signed in Ex.P-2 even at 12.00 Noon, while the case itself was registered at 1.30 PM. It is to be noted that P.W.4 – Village Administrative Officer has deposed in the court nearly two years after the occurrence, he might not have exactly remembered the time of attestation in Ex.P-2. That apart, when the Village Administrative Officer is pre-occupied with various other work, any variation on the time of attestation in Ex.P-2 would not in any way undermine his evidence or the case of the Prosecution. On the chronometric sense, generally the people are prone to vary. Computerised or scientific sense of time cannot be expected from the witnesses, who are deposing before the Court after a long time. Margin has to be necessarily given. The contention urged on the time aspect cannot be sustained.\n<\/p>\n
25. The learned counsel for the Appellant has further raised another contention on non-examination of Balamani, mother of the deceased. It is submitted that the scene of occurrence being just adjacent to the house of the deceased if really Balamani was inside the house, she would not have remained silent in the house when her daughter was attacked by the accused. Pointing out the same, the learned counsel submitted that the non-examination of Balamani undermines the Prosecution case. This contention does not merit acceptance. As noted earlier, during inquest Balamani, mother of the deceased was also examined as witness along with P.Ws.1 and 2. The Prosecution has not chosen to examine her during the trial. From the memo of evidence, it is seen that Balamani was aged 70 years at the time of occurrence. Perhaps on account of her age, the Prosecution may not have chosen to examine her during the trial. It cannot be said that the Public Prosecutor was unfair in exercising the discretion in dispensing the examination of witness Balamani.\n<\/p>\n
26. The Prosecution has clearly proved that the accused is responsible for causing the fatal injuries to deceased Thamizharasi. The accused filed statement in writing that deceased Thamizharasi hurled vulgar abuses and also posed vulgar gestures inviting provocation and that he was provoked to react the same. The contention of the accused is probabilised from the version of P.W.1, who has also stated that he heard the shouting of Thamizharasi while he was nearing the house. The learned Sessions Judge has accepted the contention of the accused that he acted in provocation. Only on that contention, the accused was convicted for the offence under Sec. 304(ii) IPC.\n<\/p>\n
27. The occurrence was unpremeditated and sudden quarrel. The vulgar abuses of deceased Thamizharasi provoked the accused. The accused used M.O.1 – spade in retaliation. In such provocation and in the course of sudden fight, the accused has inflicted single blow with the handle of the spade. Though the injury was caused with the handle of the spade, it has caused skull bone fracture causing fracture of anterior fontanelle of the skull. Further, causing fracture of the skull scar centre fontanelle. The depth of internal injury clearly shows that M.O.1 – spade was wielded forcibly. From the nature of injury, it is difficult to judge as to what was the nature of injury that the accused intended to cause. However, there is no difficulty in finding that the accused caused such bodily injury as is likely to cause death. Though the accused had knowledge, he had no intention of causing death. Considering the totality of circumstances and the nature of injuries, the learned Sessions Judge has rightly convicted the accused under Sec. 304(ii) IPC and the same is to be confirmed.\n<\/p>\n
28. For the conviction under Sec. 304(ii) IPC, the accused is sentenced to undergo five years of Rigorous Imprisonment. As discussed above, though it is a solitary blow, it has caused deep internal skull bone fracture. Due to the fracture of the bone, Thamizharasi died on the spot. The learned Sessions Judge has rightly exercised the discretion in imposing appropriate sentence. The sentence of five years Rigorous imprisonment is reasonable and cannot be said to be harsh or disproportionate warranting interference. The finding of guilt, conviction and the sentence of imprisonment are to be sustained and the Appeal is bound to fail.\n<\/p>\n
29. Therefore, the judgment of Principal Sessions Judge, Tiruchirapalli in S.C.159\/1995 (dated 26.06.1996) convicting the Appellant\/accused under Sec. 304(ii) IPC and the sentence of imprisonment are confirmed and this Appeal is dismissed. The trial court is directed to take immediate steps for securing the accused to commit him to prison for serving the remaining period of sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Subbiah vs State Represented By Inspector Of … on 13 February, 2004 Bench: R Banumathi JUDGMENT 1. Accused in S.C.159\/1995 on the file of Principal Sessions Judge, Trichy is the Appellant. By the Judgment dated 26.06.1996, the trial court convicted the Appellant \/ Accused under Section 304(ii) IPC (acquitting him under Section […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-137485","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSubbiah vs State Represented By Inspector Of ... on 13 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/subbiah-vs-state-represented-by-inspector-of-on-13-february-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Subbiah vs State Represented By Inspector Of ... on 13 February, 2004 - 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