{"id":193767,"date":"2003-08-04T00:00:00","date_gmt":"2003-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/palani-vs-state-by-inspector-of-on-4-august-2003"},"modified":"2016-04-05T21:31:42","modified_gmt":"2016-04-05T16:01:42","slug":"palani-vs-state-by-inspector-of-on-4-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/palani-vs-state-by-inspector-of-on-4-august-2003","title":{"rendered":"Palani vs State By Inspector Of on 4 August, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Palani vs State By Inspector Of on 4 August, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 04\/08\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nC.A.No.359 of 1996\n\nPalani                                                 .. Appellant\n\n-Vs-\n\nState by Inspector of\nPolice, Kallavi P.S.,\nDharmapuri                                              .. Respondent\n\n        This criminal appeal  is  preferred  under  Sec.374  of  The  Code  of\nCriminal  Procedure  against the judgment of the Sessions Judge, Charmapuri at\nKrishnagiri made in S.C.91\/92 and dated 18.4.1996.\n\n!For Appellant :  Mr.N.Mohideen Basha\n                for Mr.R.Rajan\n\n^For Respondent :  Mr.V.Jaya Prakash Narayanan\n                Government Advocate (Crl.  Side)\n\n:JUDGMENT\n<\/pre>\n
        The appelant who stood charged and tried under Ss 302 and  323  of  I.
\nP.C.   along  with  three  others  and  found guilty under Sec.304(Part II) of
\nI.P.C.  has brought forth this appeal.  A-2  to  A-4  were  acquitted  of  the
\ncharge against them.\n<\/p>\n
        2.   The  brief facts necessary for the disposal of this appeal are as
\nfollows:\n<\/p>\n
        (a) The first accused is the son of A-3.  A-2  is  the  son-in-law  of
\nA-3, while A-4 is the daughter of A-3.  The deceased Sabapathy and one Murugan
\nwere the  sons  of  Duraisamy.    P.W.1  Vasantha is the wife of the deceased.
\nP.W.2 Gnanasounthari is the daughter of Murugan.  There was a common well from
\nwhich A-3 and the deceased Sabapathy were  to  take  water  in  turn  for  the
\npurposes of  irrigation.    Often  there  were disputes between them as to the
\ndrawing of water.  On the date of occurrence, namely 13.1.1992 at  3.30  P.M.,
\nDuraisamy, his son Sabapathy and Sabapathy’s wife P.W.1 went to irrigate their
\nfields.   At  that  time  they  found  the accused were taking water for their
\nlands, and the same was objected to by Sabapathy stating  that  it  was  their
\nturn to  take  water  that  day.    The  accused refused to stop taking water.
\nSabapathy went to switch of the motor.  Enraged  over  this,  A-1  took  M.O.1
\nkavaithadi  which  was  laid  in  support  of  the  pipe and beat the deceased
\nSabapathy on his right side head.  Sabapathy fell down.  On the  alarm  raised
\nby P.W.1, A-2 to A-4 came there and beat Duraisamy with hands.  Duraisamy also
\nfell down.    At  that  time  P.W.2,  P.W.3 Ramamurthy, Appavu and Nandan came
\nthere.  On seeing them, the accused sped  away.    A-1  ran  away  with  M.O.1
\nkavaithadi.  P.W.3  took  Sabapathy in a cycle to Kallavi Hospital.  P.W.1 and
\nDuraisamy went to the same hospital at 4.00 P.M.  On the  said  day  at  about
\n3.45 P.M.,  P.W.8 Dr.  Kamalanathan, attached to Kallavi Primary Health Centre
\nexamined Sabapathy.  He made an entry in Ex.P8 O.P.  register, which is marked
\nas Ex.P9.  On the basis of Ex.P10 entry, the Doctor gave Ex.P11 O.P.  Chit and
\nsent him to Oothangarai  Hospital  for  further  treatment.    P.Ws.1,  3  and
\nDuraisamy took Sabapathy  to  Oothangarai  Hospital.    At  4.50  P.M.   P.W.9
\nDr.Subramaniam examined Sabapathy medically and found the following injuries:\n<\/p>\n
1.  Contusion 10 cm x 6 cm over right temporal  region  head.    Skin  swollen
\nDepression over right Parietal region 6 x 1 cm present horizontally.
\nA copy  of  the  accident register is marked as Ex.P12.  P.W.9 Doctor referred
\nSabapathy  for  taking  X-rays  and  further  treatment  to  Dharmapuri  Chief
\nHospital.  Ex.P13 was  the  O.P.    chit.  P.W.9 Doctor sent intimation to the
\nPolice Station under Ex.P14.\n<\/p>\n
        (b) P.W.1 and Duraisamy took Sabapathy to Oothangarai Hospital at 7.00
\nP.M.  P.W.10 Dr.Sundaramurthy  examined  Sabapathy  and  found  the  following
\ninjuries:\n<\/p>\n
Responds to  pain  by  going for decerebrate posturing.  Throat secretion more
\npresent.  Respiration is irregular and shallow.  Pupils both dilated and  very
\nsluggishly  reacting pulse – 92\/mt BP.120\/80 mm hg CVS NAD abd soft R.S.Bilat.
\ncrep present.\n<\/p>\n
A copy of the accident register under Ex.P16 was issued by P.W.10.   Sabapathy
\ndied on  14.1.1992 at 2.15 A.M.  On 14.1.92 P.W.11 Jayagopal, Sub Inspector of
\nPolice, Kallavi Police Station received the wireless message at 3.00 A.M.   He
\nwent to  the  Dharmapuri  Government  Hospital  at 4.30 A.M.  and recorded the
\nstatement of P.W.1.  On the complaint under Ex.P1, he  registered  a  case  in
\nCrime No.21\/92 under  Ss  302 and 323 of I.P.C.  Ex.P18 F.I.R.  was despatched
\nto the concerned Judicial Magistrate’s Court, while the copies  were  sent  to
\nthe higher officials.\n<\/p>\n
        (c)  On  14.1.92  P.W.12 Rangasamy, Inspector of Police, on receipt of
\ninformation went to Government Hospital, Dharmapuri, received the copy of  the
\nF.I.R.  and  took  up  the  investigation.  He conducted inquest over the dead
\nbody of Sabapathy and prepared Ex.P19 inquest report.  He examined  P.Ws.1  to
\n3, Duraisamy  and  Kothanan  during inquest and recorded their statements.  He
\nmade arrangements  to  conduct  the  postmortem.      On   requisition   P.W.4
\nDr.Paramanandhan conducted the autopsy and noticed the following injury:
\nA contusion 2″ x 2″ over the right parietal area present.
\nThe hyoid bone  is intact.  Thorax No rib fractures.  The right lung 3 00 gms.
\nLeft lung 250 gms.  Paler.  The heart weighed 150 gms paler, Empty  Intestines
\nare dirended and gas.   The stomach is empty.  Liver weighed 1200 gms.  Pales.
\nGall bladder is empty.  Spleen 100 gms paler, Kidneys weighed 100  gms  paler.
\nBladder is  empty.    Scalp on reflecting, Sub-cutaneous clots over 2″x2″ area
\nover right parietal and right temporal area.  Fracture of parietal bone for 4″
\nfrom right side, in front of right ear, upwards, access towards the left side.
\nOn opening the skull, a haematoma 3″x2″ in size, compressing the right earbral
\nhemisphere present.  Brain weighed 1200 gms paler.\n<\/p>\n
The Doctor has issued Ex.P3 postmortem certificate and  has  opined  that  the
\ndeceased  would  appear  to  have  died of shock and haematoma compressing the
\nexterbral hemisphere about 12.30 hours prior to autopsy.\n<\/p>\n
        (d) P.W.12 Investigating Officer proceeded to the site of  occurrence,
\nmade  an  inspection  and prepared Ex.P4 observation mahazar attested by P.W.5
\nTheerthagiri, Village Administrative Officer and Rajamanickam.  Ex.P20 is  the
\nrough sketch   prepared  by  the  Investigating  Officer.    P.W.7  Maadhu,  a
\nConstable, handed over M.O.2 lungi and M.O.3 waist card to P.W.12, who  seized
\nthem under Form  95.   On 14.1.92 at 5.00 P.M.  on information in the presence
\nof P.W.5 and Rajamanickam, the Investigating Officer arrested the accused  and
\nrecorded their  voluntary  statements  separately.    Ex.P5  is the admissible
\nportion of the statement given by A-1.    A-1  took  them  to  his  house  and
\nproduced M.O.1  which  was  seized under Ex.P6 mahazar.  Both the confessional
\nstatement and the seizure mahazar were attested  by  P.W.5  and  Rajamanickam.
\nP.W.1  2  Investigating  Officer  again  examined  Duraisamy and sent him with
\nEx.P15 memo to Oothangarai Government Hospital for treatment.    On  the  same
\nday,  P.W.6  Dr.Devaraj  attached  to Oothangarai Government Hospital examined
\nDuraisamy, who informed him that he  was  assaulted  by  3  known  persons  on
\n13.1.92 at  3.00 P.M.  The Doctor issued Ex.P7 a copy of the accident register
\npertaining to the injuries found on  Duraisamy.    The  Investigating  Officer
\nexamined P.Ws.4,  6,  8  and  9  Doctors  and  recorded  their statements.  On
\ncompletion of the investigation, he laid a charge sheet against the accused on
\n2.4.92 under Ss 302 and 323 of I.P.C.\n<\/p>\n
        3.  In order to prove the accusation levelled against  the  appellant\/
\nA-1  and  three  others,  the  prosecution examined 12 witnesses and marked 20
\nexhibits and 3 material objects.  On completion of the evidence on the side of
\nthe prosecution, the accused were questioned under Sec.313 of Cr.P.C.   as  to
\nthe  incriminating  circumstances  found  in  the  evidence of the prosecution
\nwitnesses, which they  flatly  denied  as  false.    No  defence  witness  was
\nexamined.   Neither any exhibit nor any material object was marked on the side
\nof the defence.  On consideration of the rival submissions made  and  scrutiny
\nof the materials available, the learned Sessions Judge found the appellant\/A-1
\nguilty under  Sec.304  (Part  II)  of  I.P.C.    and  sentenced him to undergo
\nimprisonment as stated supra, while it acquitted all the accused including A-1
\nin respect of  the  charge  under  Sec.323  of  I.P.C.    Aggrieved  over  the
\nconviction and sentence, A-1 has brought forth this appeal.\n<\/p>\n
        4.   Advancing  his  arguments on behalf of the appellant, the learned
\nCounsel interalia made the following submissions:\n<\/p>\n
        The trial Court without proper appreciation of evidence has found  him
\nguilty under  Sec.304(ii)  of  I.P.C.  having accepted the defence version and
\nacquitted all the accused in respect of the other charges.   The  trial  Court
\nshould have  acquitted  A-1  also in respect of the charge in question.  There
\nwas an inordinate and huge delay in  lodging  the  complaint,  which  remained
\nunexplained.   According to the prosecution, the occurrence has taken place at
\n3.30 P.M., but the case was registered at 4.30 A.M.  next morning,  and  thus,
\nthere was  delay  of  13  hours  noticed.    Even  P.W.9  Doctor  attached  to
\nOothangarai Hospital has categorically spoken that an intimation was given  to
\nthe police.    P.W.3 has deposed that while the deceased and the other injured
\nwere in Oothangarai Hospital, the police came over there  and  recorded  their
\nstatements,  and thus, both would indicate that the prosecution has suppressed
\nthe first information, and now what is available before the Court was only the
\ninformation that was given subsequently.  Even assuming that  the  prosecution
\nhas  proved  its  case  in  respect  of  the alleged attack made by A-1, P.W.4
\nPostmortem Doctor has categorically spoken to the effect that M.O.1  would  be
\nsuffice to cause such an injury on the skull, and this would indicate that A-1
\nhad not  the  knowledge  that  the  said injury would cause the death.  In the
\nordinary course of things, it would be sufficient to cause death,  and  hence,
\nunder such circumstances, the case would not fall under Sec.304(ii) of I.P.C.,
\nbut would  fall  under Sec.324 of I.P.C.  Therefore, the judgment of the lower
\nCourt has got to be set aside.\n<\/p>\n
        5.   Opposing  strongly  the  above  contentions  put  forth  by   the
\nappellant’s  side,  the  learned  Government Advocate would submit that in the
\ninstant case, there was no delay at all;  that  when  the  deceased  sustained
\ninjuries,  he  was  taken to Kallavi Hospital and attended by P.W.8 Doctor who
\nreferred him to Oothangarai Hospital, where he was attended by  P.W.9  Doctor,
\nand  then, he was again referred to Dharmapuri Government Hospital, and he was
\ngiven treatment, and thus, P.W.1, the wife would be more interested in  saving
\nher  husband  rather  than going to the Police Station and giving a complaint;
\nthat the delay was caused only by natural events; that apart  from  that,  the
\nwitnesses  have  clearly  deposed  and  given  a cogent evidence regarding the
\noccurrence; that the medical evidence has also supported the ocular testimony;
\nthat there is no question of any information that was recorded by  the  Police
\nat  Oothangarai Government Hospital; that P.W.3 was not a competent witness to
\nspeak about the fact; that the case came to be registered at the  instance  of
\nP.W.1,  and not even one question was put to P.W.1 in respect of any statement
\nalleged to have been recorded by the  Police  at  Oothangarai  Hospital;  that
\nP.W.1  has categorically spoken to the fact that Ex.P1 was the report given by
\nher, on the strength of which a case was registered, and  hence,  taking  into
\nconsideration the manner of attack made by A-1 with kavaithadi marked as M.O.1
\non  the skull and the opinion of both the Doctors that the injury in the skull
\ncould have been caused by M.O.1 kavaithadi, and it  caused  the  fracture  and
\ndeath  of Sabapathy, the lower Court was perfectly correct in finding that the
\ncase would fall under Sec.304(ii) of I.P.C., and in view  of  the  above,  the
\njudgment of the lower Court has to be sustained.\n<\/p>\n
        6.   After  careful  consideration  of the rival submissions and close
\nscrutiny of the materials available, the Court is  unable  to  appreciate  the
\ncase of the appellant\/A-1 as recorded above.\n<\/p>\n
        7.  According to the prosecution case, following a quarrel between the
\ndeceased  and  A-1  and others as to the taking of water from the common well,
\nA-1 has attacked the deceased on his head with M.O.1 Kavaithadi.    This  fact
\nhas  been clearly spoken to by P.W.1 who has clearly given a graphic narration
\nof the incident.  M.O.1, which according to the  prosecution  was  the  weapon
\nused  by the accused, was recovered, pursuant to a confessional statement made
\nby A-1 voluntarily on his arrest.  The medical evidence adduced through  P.W.8
\nDoctor  attached  to  Kallavi  Primary Health Centre, P.W.9 Doctor attached to
\nOothangari Hospital, P.W.10 Doctor attached to Dharmapuri Government  Hospital
\nand  P.W.4  Postmortem  Doctor,  who  found  the  injuries on the skull of the
\ndeceased and a fracture thereon and the opinion of the Doctors namely  P.Ws.4,
\n9  and  10  that the injury found on the deceased in the skull would have been
\ncaused by a weapon like M.O.1 and that the said injury would have  caused  the
\ndeath  of  Sabapathy  are  very  clear,  and  thus,  the  medical evidence has
\nsupported the ocular testimony.  Hence, the prosecution has clearly proved  by
\nthe  above  said  evidence  the act committed by A-1 by attacking the deceased
\nwith M.O.1 weapon on the skull which led to his death.  The lower  Court  only
\non  appreciation  of the evidence has not believed the case of the prosecution
\nin respect of the other charge levelled against A-1 and three others.\n<\/p>\n
        8.  The contention of the appellant’s side that  there  was  delay  in
\nlodging the complaint cannot be countenanced for the simple reason that P.W.1,
\nwho  was present at the time of occurrence, immediately has taken the deceased
\nSabapathy to Kallavi Hospital, where he was given continuous treatment, and he
\nwas referred to Oothangari Hospital, where also treatment was  given  to  him,
\nand  again  he  was  referred to Dharmapuri Government Hospital, where further
\ntreatment was given to him, and he succumbed to injuries.  It is pertinent  to
\npoint  out  that  though  the  intimation  was  originally  given, there is no
\nevidence that it was acted upon.  Even a perusal of the intimation cannot lead
\nto any inference that no serious injury was caused, and it would indicate  the
\nlethargic attitude of the police to take action immediately.  Hence, the Court
\nis unable to agree with the contention of the appellant’ s side that the delay
\nremained unexplained.   The Court is of the view that the delay was caused due
\nto the natural course of events.\n<\/p>\n
        9.  So far as the second contention of the appellant’s side  that  the
\nearliest  first information has been suppressed by the prosecution cannot also
\nbe accepted.  According to the appellant’s side, P.W.3 has  deposed  that  the
\npolice  people  came  over  to  Oothangarai Hospital and recorded a statement.
\nBut, this part of the evidence has no factual foundation,  since  no  question
\nwas  put  either to P.W.1, the informant to the police or to P.W.11 or P.W.12,
\nwho according to the defence, recorded the statement at Oothangarai  Hospital,
\nin  respect  of  any  earlier  statement  alleged to have been given by P.W.1.
\nHence, what is now available before the trial  Court  cannot  be  taken  as  a
\nsubsequent information.    The  lower Court only on proper appreciation of the
\nevidence has come to the conclusion that A-1 has  committed  an  act,  thereby
\ncausing homicidal  death.   The lower Court has found the appellant\/A-1 guilty
\nunder Sec.304 (Part II) of I.P.C.  The contention of the appellant’s side that
\nhe could not have got the knowledge so as to  make  the  case  to  come  under
\nSec.304 of  I.P.C.  cannot be accepted, because at the time of attack, A-1 has
\nused M.O.1 kavaithadi, and  the  blow  was  made  on  the  head  causing  such
\nfracture.   Hence,  it  should  have  been  well  within his knowledge that by
\ncausing such injury, there is possibility of result of death  to  the  person,
\nwho received  the  blow  at  the  time  of  occurrence.    There is nothing to
\ninterfere in the conviction passed by the Court below.\n<\/p>\n
        10.  Coming to  the  question  of  punishment,  the  lower  Court  has
\nsentenced the  appellant\/A-1  to  undergo  R.I.  for five years under Sec.304(
\nPart II) of I.P.C.  In view of the facts and circumstances of  the  case,  the
\nCourt  is of the view that the reduction of the substantive sentence from five
\nyears R.I.  to four years R.I.  would meet the ends of justice.   Accordingly,
\nthe sentence has got to be modified.\n<\/p>\n
        11.  In  the  result,  the sentence of five years R.I.  awarded by the
\nlower Court to  the  appellant\/A-1  under  Sec.304(Part  II)  of  I.P.C.    is
\nmodified, and  the  appellant\/  A-1  shall  undergo  four years R.I.  In other
\nrespects, the judgment of the lower  Court  is  confirmed.    With  the  above
\nmodification, this  criminal  appeal  is  dismissed.  The Sessions Judge shall
\ntake steps to commit the appellant\/A-1 to prison, if he is on bail, to undergo
\nthe remaining period of sentence.\n<\/p>\n
Index:  Yes
\nInternet:  Yes<\/p>\n
To:\n<\/p>\n
1) The Principal Sessions Judge, Dharmapuri.\n<\/p>\n
2) The Judicial Magistrate, Uthangarai.\n<\/p>\n
3) The Judicial Magistrate, Uthangarai,
\nThro’ The Chief Judicial Magistrate, Dharmapuri.\n<\/p>\n
4) The Superintendent, Central Prison, Vellore.\n<\/p>\n
5) The Public Prosecutor, High Court, Madras.\n<\/p>\n
6) The D.I.G.  of Police, Chennai 4.\n<\/p>\n
7) Mr.V.Jaya Prakash Narayanan, Government Advocate
\n(Crl.  Side), High Court, Madras.\n<\/p>\n
8) The Inspector of Police, Kallavi Police Station,
\nDharmapuri.\n<\/p>\n
nsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Palani vs State By Inspector Of on 4 August, 2003 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 […]<\/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-193767","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPalani vs State By Inspector Of on 4 August, 2003 - 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\/palani-vs-state-by-inspector-of-on-4-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Palani vs State By Inspector Of on 4 August, 2003 - 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