{"id":163213,"date":"2007-02-20T00:00:00","date_gmt":"2007-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/uthirasamy-vs-state-represented-by-on-20-february-2007"},"modified":"2015-09-11T20:17:46","modified_gmt":"2015-09-11T14:47:46","slug":"uthirasamy-vs-state-represented-by-on-20-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/uthirasamy-vs-state-represented-by-on-20-february-2007","title":{"rendered":"Uthirasamy vs State Represented By on 20 February, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Uthirasamy vs State Represented By on 20 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n           IN THE HIGH COURT OF JUDICATURE AT MADRAS\n                              \n                      DATED:20.02.2007\n                              \n                            CORAM\n                              \n          THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN\n                              &\n           THE HON'BLE MRS.JUSTICE PRABHA SRIDEVAN\n                              \n\n                   CRL.APP.NO.986 OF 2005\n                              \n\n\nUthirasamy                         \t..Appellant\n\n\n                             Vs.\n                              \n\nState represented by\nInspector of Police\nKolathur Police Station\nSalem District                           ..Respondent\n\n\n\n      Prayer:  Criminal  appeal against the  judgment  dated\n14.11.2005  passed by the learned Principal Sessions  Judge,\nSalem in S.C.No.250\/2005.\n\n\n          For Appellant            : Mr.K.V.Sridharan\n\n          For Respondent           : Mr.N.R.Elango, APP\n\n\n\n\n                          JUDGMENT\n<\/pre>\n
(Judgment of the court was delivered by Justice R.Balasubramanian)<\/p>\n
      The  appellant  in  this appeal  stands  convicted  in<\/p>\n
S.C.No.250\/2005 on the file of the Court of Sessions,  Salem<\/p>\n
under sections 302, 307 and 324 I.P.C., for which, he stands<\/p>\n
sentenced to undergo imprisonment for life together  with  a<\/p>\n
fine of Rs.1,000\/-, carrying a default sentence; seven years<\/p>\n
rigorous  imprisonment, together with a fine of  Rs.1,000\/-,<\/p>\n
carrying   a   default  sentence  and  six   months   simple<\/p>\n
imprisonment respectively.  Hence he is before this court in<\/p>\n
this    appeal    challenging   his    conviction.     Heard<\/p>\n
Mr.K.V.Sridharan,   learned  counsel   appearing   for   the<\/p>\n
appellant  and  Mr.N.R.Elango,  learned  Additional   Public<\/p>\n
Prosecutor appearing for the State.\n<\/p>\n<\/p>\n
       2. The prosecution case is that, at about 7.30 p.m on<\/p>\n
14.01.2005, the accused, in the context of his prior  enmity<\/p>\n
with  the  victim, fatally attacked Ragupathi  resulting  in<\/p>\n
his death and therefore triable under section 302 I.P.C.  In<\/p>\n
the  course  of  the  same transaction, when  the  witnesses<\/p>\n
stepped  in to intervene, he made an attempt on the life  of<\/p>\n
P.W.2   and  attacked  P.W.4  and  therefore  triable  under<\/p>\n
sections  307 and 324 I.P.C respectively.   To  prove  their<\/p>\n
case, the prosecution examined P.Ws.1 to 21, besides marking<\/p>\n
Exs.P.1 to P.33  and M.Os.1 to 18.  The defence neither  let<\/p>\n
in any oral nor documentary evidence.\n<\/p>\n<\/p>\n
      3.  P.W.1 is a child witness.   P.Ws.2 and 5  are  the<\/p>\n
mother  and  father of P.W.1.   P.Ws.2 and 5 are working  in<\/p>\n
the agricultural land of Rakkiappa Gounder  examined in this<\/p>\n
case  as  P.W.4.  They were lessees.  At about 7.30  p.m  on<\/p>\n
14.01.2005 when P.W.2 was selling short eats opposite to her<\/p>\n
house,  P.W.1 and her younger sister were there taking  some<\/p>\n
eats  provided  to them by their mother.  At that  time  the<\/p>\n
deceased  came  there.    P.W.2 asked  the  deceased  as  to<\/p>\n
whether  he  would  like  to  have  some  food,  for  which,<\/p>\n
Ragupathy  (since  deceased) answered  in  the  affirmative.<\/p>\n
Accordingly,  P.W.2 started serving some food  to  Ragupathi<\/p>\n
(since  deceased).  At that time the accused came there  and<\/p>\n
called all of them to the temple.  They answered saying that<\/p>\n
as  it is night time, P.W.1 and her younger sister would not<\/p>\n
come  with  him to the temple.    The accused did  not  keep<\/p>\n
quiet but addressed P.W.2 stating that when she should serve<\/p>\n
food  to  all sundries, why not she serve food to him  also.<\/p>\n
To  this  question,  P.W.2 kept a total silence.   Ragupathy<\/p>\n
(since  deceased), who was already there, told   P.W.2  that<\/p>\n
the  accused is blabbering under the intoxication of liquor.<\/p>\n
The  accused was angered at this and immediately he went  to<\/p>\n
the land of P.W.4, from where, he came back with a knife and<\/p>\n
cut  Ragupathy on the rear side of his head.  At  that  time<\/p>\n
when  P.W.2  asked the accused as to why he  had  done  like<\/p>\n
that,  the  accused responded by cutting P.W.2 on her  right<\/p>\n
hand  and   left side neck  resulting in injuries to  P.W.2.<\/p>\n
P.W.4  also stepped in questioning the accused on  his  act.<\/p>\n
The  accused did not spare him also and cut him on his right<\/p>\n
hand.  P.W.2 escaped and entering the house of P.W.4, bolted<\/p>\n
the  door from inside.  The accused challenged P.W.2 to come<\/p>\n
out  stating that he would not spare her life and saying so,<\/p>\n
he kicked the door.  Hearing the commotion, P.W.8 and others<\/p>\n
came.   P.W.4  asked  the  witnesses  to  tie  the  accused.<\/p>\n
However   the  accused,  criminally  intimidating  all   the<\/p>\n
witnesses  for  about  ten minutes, made  good  his  escape.<\/p>\n
Thereafterwards, P.W.2, by opening the door, came out.   All<\/p>\n
the  injured were taken to the hospital.  On receipt of  the<\/p>\n
information,  police arrived at the scene and  by  examining<\/p>\n
P.W.1,  recorded her statement.  After reading  it  over  to<\/p>\n
her,  her signature was obtained in it.  Ex.P.1 is the  said<\/p>\n
complaint.   P.W.1  was  examined by  the  Magistrate  under<\/p>\n
section  164 of the Code of Criminal Procedure.   Ex.P.2  is<\/p>\n
the said statement.\n<\/p>\n<\/p>\n
     4. P.W.2 is the mother of P.W.1 and wife of P.W.5.  Her<\/p>\n
evidence,  on  the  assault perpetrated by  the  accused  on<\/p>\n
Ragupathi;  the attack made on her life and the  assault  on<\/p>\n
P.W.4  are  on  the same lines as spoken to by  P.W.1.   She<\/p>\n
would identify M.Os.2 and 3 as the blood stained blouse  and<\/p>\n
blood stained saree, which she was wearing and they came  to<\/p>\n
be  recovered  under a mahazar.   She was  examined  by  the<\/p>\n
Magistrate  under  section  164  of  the  Code  of  Criminal<\/p>\n
Procedure.    Ex.P.3 is her statement.  M.O.1 is the  weapon<\/p>\n
used  by  the  accused in inflicting injuries  on  Ragupathi<\/p>\n
(since deceased) and P.W.2.   P.W.3 is another child witness<\/p>\n
and  she  is  the  younger sister of P.W.1 and  daughter  of<\/p>\n
P.Ws.2  and 5.  Her evidence on the material aspects of  the<\/p>\n
prosecution  case is as spoken to by P.W.1.  Ex.P.4  is  her<\/p>\n
statement recorded by the Judicial Magistrate under  section<\/p>\n
164  of  the  Code  of  Criminal Procedure.   P.W.4  is  the<\/p>\n
landlord,  in  whose  land P.Ws.2 and 5 are  cultivating  as<\/p>\n
lessees.  He is the grandfather of the deceased as well.  He<\/p>\n
found  the accused and the deceased talking with each  other<\/p>\n
on  the  occurrence day evening and immediately the accused,<\/p>\n
by  picking  up  an  aruval from the  house  of  P.W.4,  cut<\/p>\n
Ragupathi  on  his  head.  Ragupathi,  after  receiving  the<\/p>\n
injury,  ran  to a distance and fell down.  The accused  had<\/p>\n
also  cut  P.Ws.2 and 4.  M.O.1 is the weapon  used  by  the<\/p>\n
accused.  Ex.P.5 is the statement recorded by the Magistrate<\/p>\n
under  section 164 of the Code of Criminal Procedure.  P.W.5<\/p>\n
is  the husband of P.W.2 and father of P.Ws.1 and 3.  He had<\/p>\n
only  heard a commotion and then saw the accused making good<\/p>\n
his  escape  with the weapon of offence towards  south.   He<\/p>\n
witnessed the recovery of M.Os.2 and 3 under Ex.P.6.  Ex.P.7<\/p>\n
is  his  statement recorded by the Magistrate under  section<\/p>\n
164  of  the Code.  M.O.1 is the weapon used by the accused.<\/p>\n
P.W.6 is another witness, who, after hearing a commotion  in<\/p>\n
the garden land of P.W.4, went to the crime scene, where, he<\/p>\n
found the accused challenging P.W.2 to come out of the house<\/p>\n
stating  that  he  would not spare her life.   Though  P.W.4<\/p>\n
tried  to  cool down the accused, yet, the accused proceeded<\/p>\n
to  break  open the door of P.W.4’s house.  P.W.4 asked  the<\/p>\n
witnesses  to tie the accused and on seeing the  crowd,  the<\/p>\n
accused  made  good  his escape.  Ex.P.8  is  his  statement<\/p>\n
recorded  by the Magistrate under section 164 of  the  Code.<\/p>\n
P.W.7  is  the wife of the deceased.  When she was returning<\/p>\n
from  the temple on the occurrence day evening, she heard  a<\/p>\n
commotion in the garden land of P.W.4.  When she turned that<\/p>\n
side,  she  found  the accused kicking the door  of  P.W.4’s<\/p>\n
house.   Shouting  that he would not spare  Gunavathi\/P.W.2,<\/p>\n
who  was  already inside the house, from being  killed,  the<\/p>\n
accused  made  good his escape.   P.W.8 was  also  returning<\/p>\n
from the temple on the occurrence day evening and he noticed<\/p>\n
the  accused armed with a weapon banging the house  door  of<\/p>\n
P.W.4  stating that if Gunavathi (P.W.2) comes out, he would<\/p>\n
kill her.  On noticing the crowd gathering, the accused made<\/p>\n
good his escape.\n<\/p>\n<\/p>\n
      5.  P.W.20  is  the Sub-Inspector  of  Police  in  the<\/p>\n
Investigating  Police  Station.   At  about  8.00   p.m   on<\/p>\n
14.01.2005,  a  person,  without  disclosing  his  identity,<\/p>\n
telephoned  to him that the accused had murdered Raghupathy;<\/p>\n
attacked  Gunavathi (P.W.2) and Rakkiappa  Gounder  (P.W.4).<\/p>\n
He  made an entry in the general diary and then he proceeded<\/p>\n
to  the  crime scene accompanied by a police constable.   He<\/p>\n
verified  from  the   crime  scene whether  the  information<\/p>\n
received  by  him is correct.  Then by examining  P.W.1,  he<\/p>\n
recorded her statement.  He came back to the police  station<\/p>\n
and  recorded  that complaint as Ex.P.1 in  Crime  No.9\/2005<\/p>\n
under  sections  302,  307 and 324 I.P.C.   Ex.P.30  is  the<\/p>\n
printed  first  information report.   He  sent  the  express<\/p>\n
records  to  the  court as well as to the higher  officials.<\/p>\n
P.W.21  is  the  Investigating  Officer,  who  received  the<\/p>\n
express records registered by P.W.20.  He reached the  crime<\/p>\n
scene  at  00.45 a.m on 15.01.2005 i.e., on the  intervening<\/p>\n
night  of  14.01.2005 and 15.02.2005 and in the presence  of<\/p>\n
witnesses, he prepared Ex.P.31, the rough sketch.  From 2.15<\/p>\n
a.m  till 7.15 a.m., he conducted inquest over the dead body<\/p>\n
in  the presence of panchayatdars and witnesses.  Ex.P.32 is<\/p>\n
the  inquest  report.  Then he sent the  dead  body  with  a<\/p>\n
requisition  to  the  hospital  for  post  mortem.    During<\/p>\n
inquest, he examined P.Ws.1, 3, 4, 5 and others by recording<\/p>\n
their statements.  He sent P.W.4 with a police medical  memo<\/p>\n
to  the Government Hospital at Mettur for treatment. At 7.20<\/p>\n
a.m., from the place where the dead body was found lying, he<\/p>\n
recovered  M.O.14 under a mahazar.  At 8.00 a.m.,  from  the<\/p>\n
place  where  Ragupathi  came to be attacked,  he  recovered<\/p>\n
blood  stained  earth, sample earth and blood stained  stone<\/p>\n
under  a  mahazar attested by the same witnesses.   At  8.30<\/p>\n
a.m.,  from  opposite  to the house of P.W.2,  he  recovered<\/p>\n
blood  stained earth and sample earth under a  mahazar.   At<\/p>\n
8.45  a.m., from near the house of P.W.4, he recovered blood<\/p>\n
stained earth and sample earth under a mahazar.  By using  a<\/p>\n
swab,  he  collected  blood from the  wound  of  P.W.4.   He<\/p>\n
proceeded  to  the hospital by 12.00 noon and  by  examining<\/p>\n
P.W.2,  he  recorded her statement.  He  recovered  a  blood<\/p>\n
stained blouse and saree produced by her at that time in the<\/p>\n
presence  of  witnesses  under  a  mahazar.   All  the  case<\/p>\n
properties  were  sent to the court with  a  requisition  to<\/p>\n
subject the same for chemical examination.<\/p>\n
     6. P.W.9 is the constable, who accompanied P.W.2 to the<\/p>\n
Government  Hospital at Mettur for treatment.   He  observed<\/p>\n
the  dead body of Ragupathi in the hospital.  P.W.10 is  the<\/p>\n
auto  driver, in whose autorickshaw P.W.2 was taken  to  the<\/p>\n
Government Hospital at Mettur by P.W.9 and another.   P.W.11<\/p>\n
was  the President of Chitrapatti Village Panchayat.  On the<\/p>\n
morning  of 17.01.2005, the accused appeared before him  and<\/p>\n
confessed that he murdered Raghupathi at about 7.30  p.m  on<\/p>\n
14.01.2005   and  also  attacked  Gunavathi  and  Rakkiappan<\/p>\n
(P.Ws.2  and  4), who tried to intervene.  The accused  also<\/p>\n
confessed  that he had screened himself in the nearby  hilly<\/p>\n
area; he came  to know that Raghupathi is dead; going by his<\/p>\n
conscience  and  fearing  police torture,  he  had  appeared<\/p>\n
before P.W.11.  On that, P.W.11 gave his report (Ex.P.9)  to<\/p>\n
the  Inspector of Police.  He also witnessed the  arrest  of<\/p>\n
the  accused and  recording of his statement, the admissible<\/p>\n
portion of which is Ex.P.10.\n<\/p>\n<\/p>\n
     7. P.W.12 is the duty Doctor in the Government Hospital<\/p>\n
at  Salem.   P.W.2  was referred to that hospital  from  the<\/p>\n
hospital  at  Mettur.   P.W.2  was  brought  by  P.W.9.   He<\/p>\n
examined her and admitted her as an in-patient.   Ex.P.11 is<\/p>\n
the  accident  register.  Ex.P.12 is the  accident  register<\/p>\n
issued  by  the  Government Hospital  at  Mettur.   She  got<\/p>\n
discharged  against  medical advice.   P.W.13  is  the  duty<\/p>\n
medical  officer in the Government Hospital at  Mettur.   At<\/p>\n
11.00 or 11.30 a.m on 15.01.2005, P.W.4 appeared before  him<\/p>\n
with  a  medical  memo  for  injuries  shown  to  have  been<\/p>\n
sustained by him at 7.30 p.m on 14.01.2005.  Ex.P.13 is  the<\/p>\n
wound  certificate issued by him.  P.W.14  is  another  duty<\/p>\n
Doctor  in  the Government Hospital at Salem,  before  whom,<\/p>\n
P.Ws.1 and 3 were brought for examination as to whether they<\/p>\n
have reached the age of understanding things.  He found both<\/p>\n
of  them  to  be competent to understand what  is  happening<\/p>\n
around  them.  Ex.P.14 is the certificate issued by him  for<\/p>\n
P.W.3  and  Ex.P.15  is the certificate issued  by  him  for<\/p>\n
P.W.1.   P.W.15  is  the duty Doctor,  who,  on  receipt  of<\/p>\n
Ex.P.16  (requisition)  and the dead  body,  commenced  post<\/p>\n
mortem  on the dead body at 2.15 p.m on 15.01.2005.   During<\/p>\n
post  mortem, he found various symptoms as noted by  him  in<\/p>\n
Ex.P.17, the post mortem report.   The symptoms noted by him<\/p>\n
are as hereunder:\n<\/p>\n<\/p>\n
          “Injuries:\n<\/p>\n
        1)   Abrasion on left deltoid region 7.5 x 0.5 cms.<\/p>\n
2)   Gapping curved cut injury of right tempro parieto
\noccipital region of scalp 20 x 4 x 3.5 cms cavity deep.\n<\/p>\n
3)   Cut fracture of right tempro parietal bone 18 x 3 cms
\ncavity deep.\n<\/p>\n
4)   Cut injury of dura torn 4 x 3 cms.\n<\/p>\n
5)   Cut injury on brain 4 x 3.5 cms on right temporal lobe.\n<\/p>\n
6)   Fracture of right zygoma present.\n<\/p>\n
7)   Sub-dural and sub-arachnoid haemorrhage over the right
\ntemporal cerebral hemisphere of brain (antimortem).\n<\/p>\n<\/p>\n
          Heart: Chambers and valves normal.  Cavities<\/p>\n
     empty.  Coronary Vessels: Patent.  Great Vessels:<\/p>\n
     Normal.  Lungs:  Both on C\/s  pale.  Hyoid  bone:<\/p>\n
     Intact.   Stomach: Contained 300  gms  of  partly<\/p>\n
     digested  cooked  food with  no  specific  smell.<\/p>\n
     Mucosa  pale.  Small intestine: Yellowish  chyme.<\/p>\n
     No  specific smell.  Mucosa pale.  Liver,  Spleen<\/p>\n
     and  Kidneys: All are C\/s pale.  Bladder:  Empty.<\/p>\n
     Pelvis,   Membranes  spinal  column:    All   are<\/p>\n
     intact.”\n<\/p>\n
Doctor opined that death would have occurred 12 to 24  hours<\/p>\n
prior to autopsy as a result of shock and haemorrhage due to<\/p>\n
head  injuries.  A weapon like M.O.1 could have  caused  the<\/p>\n
injuries noted by him on the dead body.\n<\/p>\n<\/p>\n
      8.  P.W.21  continued  his  investigation  further  by<\/p>\n
examining  witnesses and recorded their statements.   P.W.11<\/p>\n
produced  the  accused  before him on  17.01.2005  with  his<\/p>\n
report.   P.W.21 examined the accused at that time  and  the<\/p>\n
accused  gave a voluntary confession statement.  Ex.P.10  is<\/p>\n
the  admissible portion of the confession statement  of  the<\/p>\n
accused.    Pursuant  to  the  same,  various  incriminating<\/p>\n
objects  came  to  be recovered at his instance.   The  case<\/p>\n
properties  and  the  accused were  brought  to  the  police<\/p>\n
station.  Then, the accused was sent for judicial remand and<\/p>\n
the   case  properties  were  sent  to  the  court  with   a<\/p>\n
requisition  to  subject the same for chemical  examination.<\/p>\n
P.W.16  is  the Assistant Engineer of Tamil Nadu Electricity<\/p>\n
Board  during  the  relevant  time  and  in-charge  of   the<\/p>\n
occurrence village.  He would depose that from 6.00  p.m  on<\/p>\n
14.01.2005 till 6.00 a.m on 15.01.2005, there was  no  power<\/p>\n
disruption.  Ex.P.18 is the report given by him.  Ex.P.19 is<\/p>\n
the  copy of another official record to show that there  was<\/p>\n
continuous  power supply.  P.W.17 witnessed the  preparation<\/p>\n
of  Ex.P.20, the observation mahazar; recovery of M.Os.4 and<\/p>\n
5  under  Ex.P.21; recovery of M.Os.6 and 7  under  Ex.P.22;<\/p>\n
recovery  of  M.Os.8  and 9 under Ex.P.23  and  recovery  of<\/p>\n
M.Os.10 and 11 under Ex.P.24 as already spoken to by P.W.21.<\/p>\n
P.W.18  witnessed the examination of the accused;  recording<\/p>\n
his confession statement, the admissible portion of which is<\/p>\n
Ex.P.10 and  recovery of M.Os.1, 12 and 13 under Ex.P.25  as<\/p>\n
already spoken to by P.W.21.  P.W.19 is the court staff, who<\/p>\n
speaks  about the receipt of the case properties along  with<\/p>\n
Ex.P.26 (requisition) given by the Inspector of Police.   As<\/p>\n
an  enclosure to Ex.P.27, the case properties were  sent  to<\/p>\n
the  laboratory.  Ex.P.28 is the serologist’s report.    The<\/p>\n
constable present during post mortem removed M.Os.15  to  18<\/p>\n
from  the  dead  body  and  handed  over  the  same  to  the<\/p>\n
Investigating Officer, who recovered the same under Form 95.<\/p>\n
After  completing the investigation, P.W.21 filed the  final<\/p>\n
report  in  court  against the accused on  14.02.2005  under<\/p>\n
sections 302, 307 and 324 I.P.C.\n<\/p>\n<\/p>\n
     9. When the accused was questioned under section 313 of<\/p>\n
the   Code  of  Criminal  Procedure  on  the  basis  of  the<\/p>\n
incriminating materials made available against  him,  though<\/p>\n
he  denied  the materials placed against him  as  false  and<\/p>\n
contrary  to facts, yet, in the written statement  filed  by<\/p>\n
him,  he had admitted his involvement but explained his  act<\/p>\n
as  due to provocation.  We summarise hereunder the contents<\/p>\n
of his written statement:\n<\/p>\n<\/p>\n
          “On  the occurrence day night when I was  on<\/p>\n
    my  way  to the  house, I noticed P.W.2’s children<\/p>\n
    taking  some food outside P.W.2’s house; therefore<\/p>\n
    I  also went there; as I was talking to P.W.2  and<\/p>\n
    others, the deceased sarcastically commented  that<\/p>\n
    I   am   blabbering  under  the  intoxication   of<\/p>\n
    liquor;  out  of  anger, I  took  a  weapon  lying<\/p>\n
    nearby and cut Ragupathi; the nearby persons  also<\/p>\n
    received  injuries; I went home;   my  house  door<\/p>\n
    was  broke  open; I was pulled out and  lodged  in<\/p>\n
    the prison; I have no enmity with the deceased;  I<\/p>\n
    had  never any intention to kill him; even on  the<\/p>\n
    occurrence day, the deceased called me as  a  deaf<\/p>\n
    person  blabbering  under  the   intoxication   of<\/p>\n
    liquor;  therefore, in a fit of anger, I  attacked<\/p>\n
    him; I have no enmity against P.Ws.2 and 4; I  had<\/p>\n
    no   intention   to  injure  them;   during    the<\/p>\n
    occurrence time, I was  aged 38 years;  a  coconut<\/p>\n
    fell  from the tree on my head four or five  years<\/p>\n
    before,   affecting  my  hearing  ability   to   a<\/p>\n
    considerable extent; the deceased is my  neighbour<\/p>\n
    in  residence;  whenever people from  outside  the<\/p>\n
    village  had  visited  my  house  proposing  their<\/p>\n
    daughter  in  marriage  to me,  the  deceased  had<\/p>\n
    always  told them very bad about me saying that  I<\/p>\n
    am   deaf,  a  crack and a mentally  sick  person;<\/p>\n
    therefore  they could not give their  daughter  in<\/p>\n
    marriage  to  me;  because of the  abuses  of  the<\/p>\n
    deceased,  nobody  came  forward  to  give   their<\/p>\n
    daughter  in  marriage  to me;  the  deceased  was<\/p>\n
    behaving  like this for several years  by  telling<\/p>\n
    those  who come to my house and thus prevented  my<\/p>\n
    marriage  from  taking place;  on  the  occurrence<\/p>\n
    day,  I  had  taken liquor and when  the  deceased<\/p>\n
    called  me  as a deaf person blabbering under  the<\/p>\n
    intoxication   of  liquor,  I  was   annoyed   and<\/p>\n
    therefore I cut him.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
Written  argument was filed on behalf of the accused  before<\/p>\n
the  lower  court  and  in the written  argument  also,  the<\/p>\n
accused had pleaded not only the facts as narrated by him in<\/p>\n
the written statement but also pleaded that his act may fall<\/p>\n
under section 304-II I.P.C as far as the death of Raghupathi<\/p>\n
is concerned.\n<\/p>\n<\/p>\n
     10. Mr.K.V.Sridharan, learned counsel appearing for the<\/p>\n
appellant,  going by the written statement  of  the  accused<\/p>\n
filed at the end of his questioning and the written argument<\/p>\n
filed  on his behalf by his counsel before the lower  court,<\/p>\n
would fairly state that he is confining his argument only to<\/p>\n
the  extent  of  brining   the  act  of  the  accused  under<\/p>\n
Exception  1 to section 300 I.P.C.  In other words,  learned<\/p>\n
counsel  for  the appellant  is not disputing  his  client’s<\/p>\n
involvement in the crime.   Appreciating the fairness in the<\/p>\n
submission  made  by the learned counsel  as  stated  above,<\/p>\n
which  would  save  a lot of judicial time,  we  proceed  to<\/p>\n
analyse  the case only from the angle argued by the  learned<\/p>\n
counsel  for the appellant.   Before doing that, we conclude<\/p>\n
that the medical evidence available in this case establishes<\/p>\n
beyond  doubt  that death of Raghupathi is due to  homicidal<\/p>\n
violence, the accused made an attempt on the life  of  P.W.2<\/p>\n
and P.W.4 sustained simple hurt at the hands of the accused.<\/p>\n
The  sheet  anchor of the submission made on behalf  of  the<\/p>\n
accused  to  bring his act under Exception 1 to section  300<\/p>\n
I.P.C  is   the  continuous nagging and  harassment  by  the<\/p>\n
deceased  in  sarcastically commenting the  accused  in  his<\/p>\n
various  facets  of  life.   The sum and  substance  of  the<\/p>\n
defence is that the deceased, at all times, used to make fun<\/p>\n
of  the accused describing him as a deaf person; whenever  a<\/p>\n
chance  arises,  he  would call him as a  drunkard  and  the<\/p>\n
deceased was putting a spoke in the accused getting  married<\/p>\n
by  telling  all those who come to see the groom namely, the<\/p>\n
accused,  in  his house that the accused is  a  man  of  bad<\/p>\n
character;  a  deaf  person; a drunkard  and  he  is  having<\/p>\n
connection with innumerable women.  This is the stand of the<\/p>\n
accused  in his written statement filed as well  as  in  the<\/p>\n
written argument.\n<\/p>\n<\/p>\n
      11.  Let  us  now find out whether this stand  of  the<\/p>\n
detenu  is supported by evidence on record.   P.W.21 is  the<\/p>\n
Investigating Officer.  He was cross examined by the defence<\/p>\n
with  reference to the statements of witnesses given earlier<\/p>\n
during investigation.  He had categorically admitted in such<\/p>\n
cross examination as hereunder:\n<\/p>\n<\/p>\n
          “P.W.5  during investigation stated that  the<\/p>\n
    accused told him that he is yet to be married;  his<\/p>\n
    marriage  getting postponed is solely  due  to  the<\/p>\n
    deceased in this case; the accused also told  P.W.5<\/p>\n
    that  whenever the bride’s family came to his house<\/p>\n
    to   see  him,  the  deceased  had  prevented   the<\/p>\n
    marriage  being put through by telling the  bride’s<\/p>\n
    family  that the accused is a deaf person and  that<\/p>\n
    he    is   short   of   hearing.    P.W.6,   during<\/p>\n
    investigation,   had  stated   that   the   accused<\/p>\n
    complained  to  him that he is not getting  married<\/p>\n
    and  in all the places where  brides are available,<\/p>\n
    they  refused  to  give  him  their  daughter   and<\/p>\n
    Raghupathi  – since deceased is solely  responsible<\/p>\n
    for   this.    P.W.6   had   also   stated   during<\/p>\n
    investigation  that  the  accused  told  him   that<\/p>\n
    Raghupathi is carrying tales to the brides’  family<\/p>\n
    about  the accused by telling them that he is  deaf<\/p>\n
    and  that he cannot hear.  P.W.7 is none else  than<\/p>\n
    the  wife  of  the deceased.  She had  also  stated<\/p>\n
    during  investigation  that the  accused  told  her<\/p>\n
    that whenever bride’s family came to his house  for<\/p>\n
    fixing  him  as the groom, the deceased had  always<\/p>\n
    condemned  the  accused  as  the  person   of   bad<\/p>\n
    character,   a deaf person, drunkard  and   he  has<\/p>\n
    illicit  intimacy  with all the  girls  coming  for<\/p>\n
    coolie  work;  he  is a crack and  so  saying,  his<\/p>\n
    marriage  proposals were thwarted.  P.W.8 had  also<\/p>\n
    disclosed  during  investigation that  the  accused<\/p>\n
    was  lamenting that he is not getting  married  and<\/p>\n
    the  cause is Raghupathi telling everybody that the<\/p>\n
    accused  is  deaf,  mad, drunkard and  that  he  is<\/p>\n
    having  illicit  affairs with all ladies  who  come<\/p>\n
    for coolie work.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
Therefore, even during investigation, the above referred  to<\/p>\n
witnesses  disclosed that the accused was  having  a  grouse<\/p>\n
against  the  deceased  that he is the  one  who  stands  in<\/p>\n
between the accused and his proposed marriage.<\/p>\n
      12. We looked at the evidence of the witnesses.  P.W.5<\/p>\n
in his cross examination had admitted that he had given such<\/p>\n
a  statement as elicited in the cross examination of P.W.21.<\/p>\n
P.W.7  had also admitted such a statement having been  given<\/p>\n
by  her during investigation.  P.W.8 also had admitted  that<\/p>\n
he  had given such a statement.  Therefore we have no  doubt<\/p>\n
at  all that the accused might have had  constant strain and<\/p>\n
tension in his mind that he would not get married solely due<\/p>\n
to  the  questionable activities of the deceased  describing<\/p>\n
the  accused as a  person of bad character with a disability<\/p>\n
and  not  a  fit one to get married.  Even at the occurrence<\/p>\n
time when the accused was addressing P.W.2 that when she can<\/p>\n
serve  food to all sundries why not she serve food  to  him,<\/p>\n
the deceased immediately stated to P.W.2 as hereunder:<\/p>\n
      “The  deaf person is blabbering under intoxication  of<\/p>\n
liquor.”\n<\/p>\n
\nIn  the  context of the other materials available on record,<\/p>\n
this  statement  made  by  the  deceased  at  the  time   of<\/p>\n
occurrence  is  definitely meant only for  the  accused  and<\/p>\n
cannot  be  for  anybody else.  P.W.1’s  evidence  is  that,<\/p>\n
immediately  the  accused was angered and  attacked  him  by<\/p>\n
picking  up  the weapon available in P.W.4’s land.   P.W.2’s<\/p>\n
evidence is also on the same lines.  P.W.2’s evidence as  to<\/p>\n
what  the  deceased stated at that time is as spoken  to  by<\/p>\n
P.W.1.  So is the statement of P.W.3.  Therefore it is clear<\/p>\n
that  the accused not only had a sudden provocation just  at<\/p>\n
the nick of time when he committed the crime but he was also<\/p>\n
having  a sustained provocation for a long time.  A Division<\/p>\n
Bench  of  this  court  in  the judgment  reported  in  1972<\/p>\n
L.W.Crl.Pg.34 (Vadivel Padayachi In re.) had laid down  very<\/p>\n
clearly as to what should be the approach of the court in  a<\/p>\n
given case, if  provocation is put up as the  defence and it<\/p>\n
is as follows:\n<\/p>\n<\/p>\n
           “A  hyper-sensitive person,  who  loses  his<\/p>\n
     power of self-control at the slightest provocation<\/p>\n
     would  not  be  entitled to  the  benefit  of  the<\/p>\n
     Exception  to  section 300 I.P.C.  Deprivation  of<\/p>\n
     the  power  of self-control must be the result  of<\/p>\n
     provocation,  which  is  both  sudden  and  grave.<\/p>\n
     Provocation is an external atimulus which  can  be<\/p>\n
     objectively gauged.  But, loss of self-control  is<\/p>\n
     a  subjective  phenomenon which  is  difficult  to<\/p>\n
     divine.   To peep into the mind of the accused  as<\/p>\n
     it  was  at  the relevant time is seldom possible.<\/p>\n
     The  state  of his mind can only be inferred  from<\/p>\n
     the surrounding circumstances, from the manner  in<\/p>\n
     which  he  reacted to the circumstances, and  most<\/p>\n
     important of all, from his own description of  the<\/p>\n
     state  of  his  mind.   His  description  of   his<\/p>\n
     subjective condition may be true or false, but the<\/p>\n
     truth or falsity of his description is fortunately<\/p>\n
     susceptible  of  verification  with  reference  to<\/p>\n
     relevant  objective facts.  Before embarking  upon<\/p>\n
     the  process of such verification, the court  must<\/p>\n
     imaginatively    reconstruct   the   psychological<\/p>\n
     situation  in  which  the  accused  found  himself<\/p>\n
     whilst  he  committed the crime  in  question  and<\/p>\n
     judge  his  behaviour unhampered by any inflexible<\/p>\n
     rule of thumb.”<\/p><\/blockquote>\n
      13. With great respect and without any hesitation,  we<\/p>\n
subscribe our view to the above proposition of law.  As said<\/p>\n
by  the Hon’ble Judges, it would be impossible for any court<\/p>\n
or  even  for  any human being to read the mind  of  another<\/p>\n
human being.  The argument advanced by Mr.N.R.Elango learned<\/p>\n
Additional  Public Prosecutor that on the established  facts<\/p>\n
as  stated  above namely, the deceased  always  nagging  the<\/p>\n
accused  on  all  possible occasions by  describing  him  as<\/p>\n
stated  earlier would not be sufficient to constitute either<\/p>\n
sudden or sustained provocation and therefore the benefit of<\/p>\n
Exception  1  to section 300 I.P.C cannot be  given  to  the<\/p>\n
accused, does not really appeal to us at all, if we consider<\/p>\n
his  argument  in the light of the judgment  of  this  court<\/p>\n
referred to supra.  As said in the judgment, we are also  of<\/p>\n
the  view  that   it would be impossible to read  the  human<\/p>\n
mind.   It  is impossible to judge as to how one  would  act<\/p>\n
and respond to a given situation and  it is not possible  to<\/p>\n
catalogue  the  circumstances, which alone would  constitute<\/p>\n
sudden or sustained provocation as it would depend on  facts<\/p>\n
available  in  each  case.  The  argument  of  the   learned<\/p>\n
Additional  Public Prosecutor that it is not as  though  the<\/p>\n
deceased made character assassination of the accused only on<\/p>\n
that  day when the crime was committed but from the evidence<\/p>\n
it  can  be seen that the accused was subjected to character<\/p>\n
assassination by the deceased for a long time and  therefore<\/p>\n
from that angle if the defence is examined, it must fail the<\/p>\n
test of Exception 1 to section 300 I.P.C.  We may state here<\/p>\n
in  answer  that  a  Division Bench of  this  court  in  the<\/p>\n
judgment reported  in 1972 L.W.Crl.Pg.86, found that  though<\/p>\n
Exception  1  to  section  300  I.P.C  speaks  only   sudden<\/p>\n
provocation, yet, found the theory of sustained  provocation<\/p>\n
also   would   be   comprised  within  the  phrase   “sudden<\/p>\n
provocation”  and  gave the benefit of  that  concept  i.e.,<\/p>\n
sustained provocation,  same to the accused in that case  on<\/p>\n
the  facts  noted therein.  As stated above by  us  earlier,<\/p>\n
facts will never be similar in two cases.  Therefore how far<\/p>\n
the  theory of sustained provocation  can be extended to  an<\/p>\n
accused facing trial under section 302 I.P.C would vary from<\/p>\n
case  to case depending upon the facts available.    To  the<\/p>\n
present  accused, his thought that his  marriage possibility<\/p>\n
is  getting  bleak day-in and day-out at the behest  of  the<\/p>\n
deceased  cannot be said to be a wholly unjustified material<\/p>\n
to  provoke  him.  If we accept the argument of the  learned<\/p>\n
Additional  Public Prosecutor that if in a  given  case  the<\/p>\n
accused  put up for trial for the offence under section  302<\/p>\n
I.P.C  had  been at the receiving end for quite a long  time<\/p>\n
and  yet he did not react at all but had reacted only on the<\/p>\n
occurrence  day  and therefore Exception 1  to  section  300<\/p>\n
I.P.C  cannot be extended to him, then we have no  doubt  at<\/p>\n
all  that we would be unsettling law laid down by this court<\/p>\n
in the judgment referred to supra i.e., 1972 LW (Crl.) Pg.86<\/p>\n
followed  consistently thereafter till now  by  this  court.<\/p>\n
In  other  words, we do not want to unsettle the law,  which<\/p>\n
has  stood the test of time over a period of 35 long  years.<\/p>\n
On  the facts noted above, we find that the accused had  not<\/p>\n
only  sustained  provocation but also  was  ignited  on  the<\/p>\n
occurrence day just at the nick of time by the deceased once<\/p>\n
again  repeating his nagging attitude by commenting  on  the<\/p>\n
disability   of  the  accused.    This,  in   our   opinion,<\/p>\n
definitely  attracts Exception 1 to section  300  I.P.C  and<\/p>\n
therefore  his conviction under section 302 I.P.C cannot  be<\/p>\n
legally  sustained.  However the accused cannot  escape  the<\/p>\n
clutches of law for murdering the victim as his act  can  be<\/p>\n
brought under section 304 – Part I   I.P.C.  There is  legal<\/p>\n
evidence  to sustain his conviction under sections  307  and<\/p>\n
324 I.P.C namely, for making an attempt on the life of P.W.2<\/p>\n
and  for causing injuries on P.W.4.  Accordingly, the appeal<\/p>\n
stands disposed of on the following lines:<\/p>\n
              “The  accused  is  acquitted  of  the<\/p>\n
        offence   under  section  302   I.P.C   and<\/p>\n
        instead,  he is found guilty under  section<\/p>\n
        304 – Part I     I.P.C, for which, he would<\/p>\n
        stand  sentenced  to  undergo  seven  years<\/p>\n
        rigorous imprisonment.  The fine amount, if<\/p>\n
        any,   imposed  on  him for his  conviction<\/p>\n
        under  section 302 I.P.C is maintained  for<\/p>\n
        his  conviction under section 304 –  Part-I<\/p>\n
        I.P.C.  The conviction and sentence imposed<\/p>\n
        on  the accused for offences under sections<\/p>\n
        307 and 324 I.P.C are sustained.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
vsl<\/p>\n
To<\/p>\n
1.The Principal Sessions Judge, Salem<\/p>\n
2.The District Collector, Salem<\/p>\n
3.The Director General of Police, Chennai<\/p>\n
4.The Public Prosecutor, High Court, Chennai<\/p>\n
5.The Superintendent, Central Prison, Coimbatore<\/p>\n
6.The State represented by the Inspector of Police,
\nKolathur Police Station,
\nSalem District<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Uthirasamy vs State Represented By on 20 February, 2007 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.02.2007 CORAM THE HON’BLE MR.JUSTICE R.BALASUBRAMANIAN & THE HON’BLE MRS.JUSTICE PRABHA SRIDEVAN CRL.APP.NO.986 OF 2005 Uthirasamy ..Appellant Vs. State represented by Inspector of Police Kolathur Police Station Salem District ..Respondent Prayer: Criminal appeal against the […]<\/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-163213","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nUthirasamy vs State Represented By on 20 February, 2007 - 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\/uthirasamy-vs-state-represented-by-on-20-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Uthirasamy vs State Represented By on 20 February, 2007 - 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