{"id":225685,"date":"2008-01-04T00:00:00","date_gmt":"2008-01-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balan-alias-balasubramani-vs-the-state-on-4-january-2008"},"modified":"2015-12-05T22:07:27","modified_gmt":"2015-12-05T16:37:27","slug":"balan-alias-balasubramani-vs-the-state-on-4-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balan-alias-balasubramani-vs-the-state-on-4-january-2008","title":{"rendered":"Balan Alias Balasubramani vs The State on 4 January, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Balan Alias Balasubramani vs The State on 4 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 04\/01\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nand\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCriminal Appeal (MD) No.30 of 2006\n\n\nBalan alias Balasubramani\t\t\t.. Appellant\/\n\t\t\t\t\t\t   Accused\n\nVs.\n\nThe State,rep. by the Inspector of Police\nThennilai Police Station\nKarur District.\n(Crime No.52\/1998)\t\t\t\t.. Respondent\/\t\t\n\t\t\t\t\t\t   Complainant\n\n\n\t \tAppeal under Section 374(2) of the Code of Criminal Procedure\nagainst the judgment, dated 20.06.2003, of the learned  Principal Sessions\nJudge, Karur, in S.C.No.18 of 2003.\n\n\n!For Appellant\t\t\t... Mr.C.Rajakumar\t\t\n\n^For Respondent\t\t\t... Mr.P.N.Pandithurai,\n\t\t\t\t  Addl. Public Prosecutor.\n\n\n\n:JUDGMENT\n<\/pre>\n
\t\t\t(Delivered by M.CHOCKALINGAM,J)<\/p>\n
\t\t\tChallenging the judgment of the Principal Sessions Judge,
\nKarur, in Sessions Case No.18\/2003, the sole accused, who stood charged under
\nSections 342 and 302 IPC and found guilty under Section 302 IPC and sentenced to
\nundergo life imprisonment and also to pay a fine of Rs.1,000\/- with default
\nsentence thereunder, has brought forth this appeal.\n<\/p>\n
\t\t\t2.The short facts necessary for the disposal of this appeal
\ncan be stated thus.\n<\/p>\n
\t\t(a)P.W.2 Thiruman and P.W.3 Palaniammal are the parents of the
\ndeceased Natarajan and hey are residents of Kurukkathi Village within the
\njurisdiction of the respondent police.  P.W.13 Suresh is the friend of the
\ndeceased, who also resides in the same village.\n<\/p>\n
\t\t(b)On 16.08.1998, when P.W.1 Sabesan, Village Administrative Officer
\nof E.R.Puram, was in his office, one Kulanthaivel came to his Office of P.W.1
\nand informed him that a male dead body with severe injuries is found in his
\nfield.  On verification, P.W.1 went to Thennilai Police Station and gave a
\nreport under Ex.P-1.  On the strength of Ex.P-1, P.W.12, the Head Constable
\nattached to the said Police Station, registered a case in Crime No.52\/1998 under
\nSection 302 IPC and prepared Ex.P-15, the First Information Report, and sent the
\nsame to the Court through P.W.11 Head Constable.  He gave information to the
\nInspector of Police and desptached the copies of Ex.P-13 FIR to higher police
\nofficials.\n<\/p>\n
\t\t(c)P.W.14, the Inspector of Police, on receipt of information at
\nabout 1.15 p.m. on 16.08.1998, proceeded to Thennilai Police Station, obtained a
\ncopy of Ex.P-15 and took up the case for investigation.   He visited the place
\nof occurrence, made an observation and prepared Ex.P-2, the Observation Mahazar
\nand also drew Ex.P-16, the Rough Sketch, in the presence of witnesses.  At 2.15
\np.m., in the presence of witnesses the Investigator recovered M.O.3 Lungi and
\nM.O.5 Shorts under Ex.P-4 mahazar.  He also recovered M.O.1 bloodstained earth
\nand M.O.2 sample earth from the place of occurrence under Ex.P-3 mahazar.  He
\nconducted inquest over the body of the deceased in the presence of panchayatdars
\nand witnesses and prepared Ex.P-17, the Inquest Report, and thereafter sent the
\nbody for postmortem.\n<\/p>\n
\t\t(d)During investigation, P.W.14, the Investigator, came to know the
\ndeceased was the son P.Ws.2 and 3 and his name as Natarajan.  Through P.Ws.2 and
\n3, the parents of the deceased,  the Investigator came to know that on
\n15.08.1998 night the deceased went to watch Television in the village and did
\nnot return.\n<\/p>\n
\t\t(e)P.W.9, the Doctor Attached to Karur Government Hospital, on
\nreceipt of requisition under Ex.P-12, conducted autopsy on the body of the
\ndeceased and gave his postmortem report in Ex.P-13, where he narrated the
\nfollowing injuries.\n<\/p>\n
\t“1)An incised wound 1cm x 1\/4cm x Skin deep over left cheek.\n<\/p>\n
\t 2)An incised wound 2cm x 1\/4cm x Skin deep over right cheek.\n<\/p>\n
\t 3)An incised wound 10cm x 1\/4cm x 1cm over the centre of Throat region.\n<\/p>\n
\t 4)A punctured wound 2cm x 1cm x 2cm over lower part of Throat.\n<\/p>\n
\t 5)Right thigh 1-1\/2cm x 1\/4cm x Skin deep wound (incided wound).\n<\/p>\n
\t 6)Right scapular region 1cm x 1\/4cm x Skin deep incised wound.\n<\/p>\n
\t 7)Left scapular region 1cm x 1\/4cm x Skin deep incised wound.\n<\/p>\n
\t 8)Back of Neck 1cm x 1\/4cm x Skin deep incised wound.\n<\/p>\n
\t 9)Occipital region 2cm x 1cm x bone depth lacerated injury.
\n\tO\/D Skull intact.  Brain Pale and liquited.  Hyoid bone Fracture present
\nRight side Fracture.  Left side first 4 ribs.  Heart empty & congested.  Abdomen
\nbowels distended with gas Stomach 500 gms of undigested food particles.  All
\nother internal organs congested.”\n<\/p>\n
The doctor was of the opinion that the deceased would appear to have died of
\nshock and asphyxia due to throat injury about 36 hours to 40 hours prior to
\nautopsy.\n<\/p>\n
\t\t(f)In continuation of his investigation, the Investigator came to
\nknow through P.W.13 that this appellant\/accused and two other accused were
\ninvolved in the incident.  On the basis of the statement of P.W.13, the
\nInvestigator arrested the appellant and  the two other accused at 10.00 a.m. on
\n28.08.1998 and  recorded the confessional statement of the respective accused in
\nthe presence of witnesses. He sent P.W.13 to the Government Hospital for
\ntreatment.\n<\/p>\n
\t\t(g)Pursuant to the confessional statement of the appellant\/accused,
\nadmissible portion of which is marked as Ex.P-5, M.O.6, bloodstained shirt worn
\nby the deceased and M.O.7, bloodstained ‘soori’ knife, were recovered under Ex.-
\n6 mahazar. Investigator also recovered M.O.8, bloodstained Lungi, M.O.9,
\nbloodstained shirt and M.O.10, bloodsained aruval under Ex.P-18 mahazar from
\naccused Sekar.  M.O.11 Shirt and M.O.11 Aruval were also recovered by the
\nInvestigator under Ex.P-19 mahazar from the other accused Ashokumar.
\nThereafter, the Investigator sent all the accused to the judicial remand.  He
\ngave Ex.P-7 requisition to the Court to subject all the material objects for
\nchemical analysis and accordingly they were sent to Forensic Lab vide Court’s
\nLetter Ex.P-8.  Ex.P-9, the Chemical Examiner’s Report, Ex.P-10, the
\nSerologist’s Report and Ex.P-11, the Biological Report, were received in the
\nCourt.  On completion of the investigation, P.W.14, the Investigator, filed the
\nfinal report and the same was taken on file by the Judicial Magistrate.\n<\/p>\n
\t\t\t3.As one of the accused died pending committal and the case
\npertaining to another accused was split up, the in respect of the
\nappellant\/accused was committed to the Court of Sessions for trial.  Necessary
\ncharges were framed against the appellant\/accused.  To substantiate the charges
\nlevelled against the appellant\/accused, the prosecution examined as many as 14
\nwitnesses as P.Ws.1 to 14, besides marking Exs.P-1 to P-21 and M.Os.1 to 14.  On
\ncompletion of the evidence on the side of the prosecution, the accused\/appellant
\nwas questioned under Section 313 of the Code of Criminal Procedure about the
\nincriminating materials found against him in the evidence of prosecution
\nwitnesses and the accused\/appellant denied all of them as false.  No witness was
\nexamined on the side of the defence and also no document was marked.  The  trial
\ncourt heard the arguments advanced and on consideration of the evidence adduced,
\nfound the accused\/appellant guilty under Section 302 IPC and imposed life
\nimprisonment, however acquitted him of the charge under Section 342 IPC.  Hence,
\nthis appeal at the instance of the appellant.\n<\/p>\n
\t\t\t4.Advancing his arguments on behalf of the appellant, the
\nlearned counsel for the appellant would submit that in the instant case, the
\nprosecution has not proved its case at all.  In short, according to him, except
\nthe evidence of P.W.13, the alleged eye-witness, relied upon by the prosecution,
\nno other evidence or circumstances were available to the prosecution.  In so far
\nas the evidence of P.W.13 is concerned, learned counsel for the appellant would
\nsubmit the evidence of P.W.13 is highly unbelievable and the lower court ought
\nnot to have relied upon his evidence, but should have rejected the same.
\nLearned counsel added further that when the occurrence is said to have taken
\nplace on 15.08.1998,  P.W.13 had informed the police about the occurrence only
\non 28.08.1998, i.e. after a lapse of nearly 12 or 13 days and therefore it is
\nhighly unbelievable that P.W.13 had accompanied the deceased and witnessed the
\nincident.  He further submitted that had it been true, P.W.13 could have
\nimmediately informed the same either to others or to the police, but he has not
\ndone so and thus, in would be indicative of the fact that P.W.13 could not be an
\neye-witness and could not have seen the occurrence, but still the prosecution
\nrelied upon his evidence and the lower court has also accepted the same.  He
\nwould further submit that it is the case of the prosecution that some injuries
\nwere sustained by P.W.13 in the incident and had it been true, P.W.13 would have
\ntaken treatment but he has not done so and he kept quiet nearly  for a period of
\n13 days. and therefore the delay on the part of P.W.13 in informing the police
\nwould be sufficient to reject his evidence.  Apart from this, learned counsel
\nwould add that so far as the evidence in respect of recovery part is concerned,
\nit is highly unbelievable.  In such circumstances, the prosecution has no
\nevidence at all but the lower court believed the evidence of P.W.13 and found
\nthe appellant guilty and hence the appellant has got to be acquitted.\n<\/p>\n
\t\t\t5.Learned counsel for the appellant would further submit that
\nif the court is of the opinion that the prosecution has proved its case as to
\nthe factual position, the act of the appellant\/accused would not attract the
\npenal provision of murder, but it would attract Exception No.4 to Section 300
\nIPC.  As per the prosecution, there was a quarrel at the time of occurrence as
\nthe deceased refused to pay the amount demanded by the accused, in which, due to
\nsudden provocation the appellant\/accused attacked the deceased spontaneously
\nwithout any intention or pre-meditation to cause the death of the deceased and
\nthis aspect of the case has got to be considered by this Court.\n<\/p>\n
\t\t\t6.The Court heard the learned Additional Public Prosecutor for
\nthe State on the above contentions and paid anxious consideration on the
\nsubmissions made.\n<\/p>\n
\t\t\t7.The case of the prosecution, as could be seen, is that the
\noccurrence has taken place on 15.08.1998 when the appellant and two other
\naccused were standing in the occurrence place with two ladies for the purpose of
\ndoing immoral activities and at that time the deceased and the other person
\n(P.W.13) approached them and when the accused persons demanded money, there was
\nsome quarrel between the accused and the deceased and in which all the accused
\nattacked the deceased.\n<\/p>\n
\t\t\t8.From the evidence available, it could be seen that P.W.13
\nwas the only eye-witness to the occurrence.  Merely because the prosecution had
\nonly one witness to prove its case, it is not necessary that his evidence should
\nbe rejected or to be taken to be unbelievable.  In the instant case, according
\nto P.W.13, he, along with the deceased, went over to the place where the accused
\npersons and two ladies were standing and they were asking for the ladies for
\nimmoral purpose and there was a quarrel between them when demand of money was
\nmade by the accused and in that quarrel, the appellant\/accused, along with other
\ntwo accused, attacked the deceased and one of the accused, who was not before
\nthe Court, has also attacked him and he sustained injuries.  Immediately after
\nthe occurrence was over, due to fear P.W.13 fled away from the scene and  came
\nback to the village and informed the police on 28.08.1998.  It is not a matter
\nof surprise that a person, like P.W.13, who actually involved in such activities
\nand also sustained injuries,  due to fear of police would have fled away from
\nthe scene place and, therefore, merely because he has fled away from the
\nvillage, it cannot be taken that the entire prosecution case is false and could
\nnot be believed.  P.W.13 was categoric in the narration of events.\n<\/p>\n
\t\t\t9.The added circumstance is the recovery of M.O.7, Soori
\nKnife, from the appellant\/accused, with which he stabbed the deceased and the
\nsame was subjected to chemical analysis.  In so far as the evidence of witnesses
\nin respect of confession and recovery of weapons of crime, it remains intact.
\nUnder such circumstances, with this evidence, coupled with the evidence of of
\neye-witness to the occurrence, the Court has to necessarily accept the case of
\nthe prosecution that this appellant\/accused was involved in the occurrence in
\nwhich the deceased was done to death.  Even from the medical evidence, the
\ninjury found on the neck of the deceased was fatal and that it has caused his
\ndeath and the same has been caused by the appellant herein .  Hence when it was
\nthe injury that caused the death of the deceased, without any hesitation, on the
\nevidence and material available, the Court has to necessarily hold that it was
\nthe appellant\/accused who caused the death of the deceased.\n<\/p>\n
\t\t\t10.Coming to the question about the nature of the act of the
\nappellant\/accused is concerned, the Court is able to see force in the
\ncontention put-forth by the learned counsel for the appellant.  In the instant
\ncase, even as per the evidence of P.W.13, he, along with his friend, the
\ndeceased, approached the appellant\/accused who was in the company of two other
\naccused as they were involved in immoral activities with two ladies and there
\nwas a demand for money by the accused and this was questioned by the deceased
\nand therefore on hearing this, there was some quarrel and there ensued
\nprovocation and in that due to sudden provocation the accused attacked the
\ndeceased.  Hence,  it cannot be said that the appellant\/accused, either with
\npre-meditation or intention to cause death,  attacked the deceased.   Therefore,
\nthe attendant circumstances would attract the penal provision of Section 304(i)
\nIPC and awarding seven years rigorous imprisonment thereunder would be
\nsufficient.\n<\/p>\n
\t\t\t11.Accordingly, the the judgment of the trial court convicting
\nthe appellant\/accused under Section 302 IPC  and sentencing to undergo life
\nimprisonment is modified as one under Section 304(i) IPC and seven years
\nrigorous imprisonment is imposed on the appellant\/accused.  The sentence already
\nundergone by the appellant\/accused shall be given set off.\n<\/p>\n
\t\t\t12.With the above modification in the conviction and sentence,
\nthe appeal is dismissed.\n<\/p>\n
To:\n<\/p>\n
1. The Principal Sessions Judge
\n   Karur District, Karur.\n<\/p>\n
2. The Inspector of Police
\n   Thennilai Police Station
\n   Karur District.\n<\/p>\n
3. The Additional Public Prosecutor
\n   Madurai Bench of Madras High Court
\n   Madurai.\n<\/p>\n
gb<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Balan Alias Balasubramani vs The State on 4 January, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04\/01\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal (MD) No.30 of 2006 Balan alias Balasubramani .. Appellant\/ Accused Vs. The State,rep. by the Inspector of Police Thennilai Police […]<\/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-225685","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nBalan Alias Balasubramani vs The State on 4 January, 2008 - 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\/balan-alias-balasubramani-vs-the-state-on-4-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balan Alias Balasubramani vs The State on 4 January, 2008 - 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