{"id":23030,"date":"2007-11-22T00:00:00","date_gmt":"2007-11-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karuppaswamy-thevar-vs-the-state-rep-by-on-22-november-2007"},"modified":"2015-02-03T10:14:40","modified_gmt":"2015-02-03T04:44:40","slug":"karuppaswamy-thevar-vs-the-state-rep-by-on-22-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karuppaswamy-thevar-vs-the-state-rep-by-on-22-november-2007","title":{"rendered":"Karuppaswamy Thevar vs The State Rep. By on 22 November, 2007"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Karuppaswamy Thevar vs The State Rep. By on 22 November, 2007<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDated : 22\/11\/2007\n\n\nCORAM\nThe Honourable Mrs.Justice PRABHA SRIDEVAN\nand\nThe Honourable Mr.Justice S.NAGAMUTHU\n\n\nCrl.A.No. 299 of 2000\n\n\nKaruppaswamy Thevar \t\t..\tAppellant\n\n\nvs\n\n\nThe State rep. By\nInspector of Police\nThatchanallur Police Station\nTirunelvelei\t\t\t..\tRespondent\n\n\nCriminal Appeal  filed under Section 374 Crl.P.C. Against the judgment dated\n15.11.1999 rendered in S.C.No.62 of 1999 by the learned Principal Sessions\nJudge, Tirunelveli.\n\n\n!For Appellant \t\t...\tMr.A.John Stephen for      \t\t\t\t\n\t\t\t\tMr.R.Venkataraman\n\n\n^For Respondent\t\t...\tMr.Senthoor Pandian,\n                       \t\tAddl. Public Prosecutor\n\n\n:JUDGMENT\n<\/pre>\n<p>(The Judgment of the court was delivered by S.NAGAMUTHU,J)<\/p>\n<p>\t\tThe appellant is the sole accused in S.C.No.62 of 1999 on the file<br \/>\nof learned Principal Sessions Judge, Tirunelveli. He stands  convicted for an<br \/>\noffence under Section 302 I.P.C. and sentenced  to undergo imprisonment for life<br \/>\nby judgment dated 15.11.1999.Challenging the same, the appellant has come<br \/>\nforward with this appeal.\n<\/p>\n<p>\t\t2. The brief facts of the prosecution case is as follows:\n<\/p>\n<p>\ti) The appellant is the father of the deceased. P.Ws. 1 and 2  are the<br \/>\nwife and mother respectively of the deceased. P.W.3 is a relative of the<br \/>\ndeceased. P.Ws 1 and 2, the deceased and the appellant were living together<br \/>\nunder a common roof at Mangala Kudiyiruppu village. There used to occur frequent<br \/>\npetty quarrels between the appellant and P.W.2.  One week prior to the date of<br \/>\noccurrence, the appellant quarreled with P.W.2 and  took Rs.2,500\/- for his<br \/>\nexpenses and left the house. On 02.05.1998 at about 11.00 p.m., the deceased and<br \/>\nP.W.1 were sitting in &#8216;Mutram'(Kw;wk; ) of the house chatting with each other<br \/>\nand P.W.2 was sitting inside the house. At that time, the appellant came and<br \/>\ndeveloped quarrel with P.W.2. The deceased questioned the appellant as to why<br \/>\nshould he indulge in such kind of quarrel even after having received Rs.2,500\/-<br \/>\nfrom P.W.2.  The appellant questioned the authority of the deceased to<br \/>\nintervene, when he was talking to his mother-P.W.2. In the said quarrel, the<br \/>\nappellant suddenly took out an Aruval and cut the deceased on his left small<br \/>\nfinger, ring finger, right hand and neck. When P.W.1 raised alarm, the appellant<br \/>\nfled away from the scene. The occurrence was witnessed by P.W.3, who had gone to<br \/>\nthe house of the deceased as a guest.\n<\/p>\n<p>\t\tii) P.W.1 took the injured to the Tirunelveli Medical College<br \/>\nHospital. P.W.7 admitted him as in patient at 11.50 p.m. The deceased was<br \/>\nconscious and told that he was assaulted by a known person at about 11.00 p.m.<br \/>\nat his house with Aruval, while he was sleeping. He found the following injuries<br \/>\non the body of the deceased:\n<\/p>\n<p>&#8220;1. A cut injury involving left hand little and ring finger with bleeding;\n<\/p>\n<p>2. A linear cut injury over right side frontal the neck 10 X 5 cm exposing blood<br \/>\nvessels muscles air leacked;\n<\/p>\n<p>3. A incised cut injury 10cm X 3 cm X 1 cm over the right arm upper lateral<br \/>\naspect;\n<\/p>\n<p>4. 2 cut injury 3 cm X 2 cm over dorsum right hand over middle and ring finger.&#8221;<br \/>\nEx.P.4 is  the accident register.\n<\/p>\n<p>\t\tiii) On receiving intimation from the hospital, P.W.9, a Head<br \/>\nConstable attached to outpost Police Station at Tirunelveli Medical College<br \/>\nHospital went to the hospital and recorded the statement of P.W.1 at 1.30 a.m.<br \/>\non 03.05.1998 and forwarded the same to Thachanallur Police Station. Mr.Babu<br \/>\nRaj, since deceased, who was the then Sub Inspector of Police at the said Police<br \/>\nStation,  registered a  case in Crime No.183 of 1998 under Section 307 I.P.C.<br \/>\nagainst the appellant.  Ex.P.9 is the First Information Report. He forwarded<br \/>\nEXs.P.1 and P.9 to the jurisdictional Magistrate, who in turn received the same<br \/>\nat 6.00 a.m. on 03.05.1998.\n<\/p>\n<p>\t\tiv) P.W.14, who was the Inspector of Police attached to Thachanallur<br \/>\nPolice Station, took up the investigation,  visited  the place of occurrence at<br \/>\n5.30  a.m.  and prepared Ex.P.2  Observation Mahazar  and rough sketch  Ex.P.18<br \/>\nin the presence of P.W.5 and  another witness. Then he recovered  blood stained<br \/>\nearth-M.O.3 and sample earth-M.O.4 in the presence of the same witnesses under<br \/>\nMahazar Ex.P.3. He examined P.Ws 1 to 4, 5 and few other witnesses  on the same<br \/>\nday. At about 10.00 am. on the same day, he arrested the accused  in the<br \/>\npresence of P.W.6 and another witness at Karaiyiruppu bus stop. On such arrest,<br \/>\nthe accused volunteered a confession,  which was reduced into writing and the<br \/>\nadmissible portion of the same is Ex.19. In the said statement, he disclosed<br \/>\nthat he would identify  the place where he had hidden the Aruval near<br \/>\nThachanallur Uchi Mahali Amman Temple and produce the same. In pursuant to the<br \/>\nsaid disclosure statement, he took P.W.14 and  the  witnesses to a place near<br \/>\nThachanallur Uchi Mahali Amman Temple  and took out M.O.1 Aruval from a bush.<br \/>\nP.W.13 recovered the same in the presence of the same witnesses under Ex.P.20,<br \/>\nMahazar. Thereafter,  the accused was sent for judicial remand.\n<\/p>\n<p>\t\tv) Continuing the investigation, P.W.14, examined few more<br \/>\nwitnesses.  On 26.06.1998 at about 5.30 p.m. the deceased died in the hospital<br \/>\nand on receiving Ex.P.3 intimation from the hospital, P.W.14 prepared an express<br \/>\nreport  adding Section 302 I.P.C  under Ex.P.11 and forwarded the same to the<br \/>\njurisdictional Magistrate. On the same day between 9 a.m. and 12 p.m. he<br \/>\nconducted inquest on the body of the deceased and prepared the inquest report<br \/>\nEx.P.21. He forwarded the dead body to the doctor for conducting autopsy through<br \/>\nP.W.12. with a requisition.\n<\/p>\n<p>\t\tvi) P.W.10, who was the then Tutor in Forensic Medicine, Tirunelveli<br \/>\nMedical College Hospital, on receiving  the said requisition, conducted post<br \/>\nmortem  at 2.15 p.m. on 26.06.1998. He found the following injuries:<br \/>\n&#8220;1. Healed cut injury (sutured and suture removed) on the front of right side of<br \/>\nneck, 8cmX 1 cm X muscle deep on dissection it was muscle deep.\n<\/p>\n<p>2. Healed sutured cut injury (suture removed) seen on the back of upper 1\/3 of<br \/>\nright arm 13 cm X 1 cm X muscle deep. On dissection it was muscle deep.\n<\/p>\n<p>3. Vertical cut found (tracheostomy surgical procedure)3 cm X 1 cm X trachea<br \/>\ndeep (wind pipe)  seen on the lower of front of neck.\n<\/p>\n<p>4. Healed wound 5 cm X 1 cm X muscle deep on the back of right hand at the base<br \/>\nof middle and ring finger. On dissection it is muscle deep.\n<\/p>\n<p>5. Healed wound 5 cm X 1 cm X muscle deep seen on the back of left hand at the<br \/>\nbase of little and ring finger. On dissection, it is muscle deep.&#8221;<br \/>\nHe finally opined that the deceased would appear to have died of complications<br \/>\nof multiple injuries.  Ex.P.8 is the post mortem certificate.\n<\/p>\n<p>\t\tvii) P.W.14, thereafter, examined the doctor who conducted the post<br \/>\nmortem and  other witnesses and forwarded the material objects to the Court. He<br \/>\nwas transferred on 07.07.98. So, P.W.15, who succeeded him, took up the<br \/>\ninvestigation and examined P.Ws.10 and 12. At his request material objects were<br \/>\nsent for chemical analysis. Exs.P.16 and 17 are the Chemical Analysis reports.\n<\/p>\n<p>\tviii) On completing investigation, he laid charge sheet against the<br \/>\nappellant  under Section 302 I.P.C. on 30.07.1998.\n<\/p>\n<p>\t\t3. The Learned Principal Sessions Judge Tirunelvei framed a single<br \/>\ncharge against the appellant under Section 302 I.P.C. Since the appellant<br \/>\npleaded not guilty, he was put on trial.\n<\/p>\n<p>\t\t4. During trial, on the side of prosecution 15 witnesses were<br \/>\nexamined and 22 documents were exhibited and four material objects were marked.\n<\/p>\n<p>\t\t5. When the appellant was questioned under Section 313 Cr.P.C. in<br \/>\nrespect of incriminating evidence available against him, he denied the same. He<br \/>\nhas neither examined any witness nor marked any document on his side.\n<\/p>\n<p>\t\t6. Having considered the materials available on record, learned<br \/>\nPrincipal Sessions Judge has found the appellant guilty and has imposed<br \/>\npunishment as aforesaid. The appellant challenges the same in this appeal.\n<\/p>\n<p>\t\t7. The learned counsel for the appellant would submit that P.Ws 1 to<br \/>\n3 would not have  witnessed the occurrence, since it was very late night. He<br \/>\nwould further submit that the deceased had told P.W.7, Dr.Kandasamy that on<br \/>\n02.05.1998 at about 11.00 p.m. he was attacked by a known person at his home<br \/>\nwhen he was sleeping. The learned counsel would submit that the said statement<br \/>\nof the deceased would indicate that while  all the inmates were fast asleep, the<br \/>\ndeceased would have been attacked and therefore, the assailants would not have<br \/>\nbeen known to anybody. The  learned counsel would further submit that since P.Ws<br \/>\n1 and 2  were enraged over the frequent quarrels of the appellant, they have<br \/>\nfalsely implicated  the appellant in this case.\n<\/p>\n<p>\t\t8. The learned counsel would further submit that there is delay  in<br \/>\nforwarding the complaint to the Court, which  creates doubt in the case of the<br \/>\nprosecution. The learned counsel would further submit that the doctor who<br \/>\ntreated the injured between 02.05.1998 to 26.06.1998 has not been examined and<br \/>\nno medical  record has been produced and thus the cause of the death could not<br \/>\nbe ascertained with certainty. The learned counsel would further submit that the<br \/>\nopinion of P.W.10, Dr.Selvlaraj, that the deceased died due to complications,<br \/>\ncannot be given much weightage. Thus according to the learned counsel for the<br \/>\nappellant, the cause of death has not been duly proved  by the prosecution in<br \/>\nthis case.\n<\/p>\n<p>\t\t9. Per contra, the learned Additional Public Prosecutor would submit<br \/>\nthat in this case, there is no delay in preferring the complaint by P.W.1 and<br \/>\nthat there are no reasons for P.Ws 1 to 3  to falsely implicate the appellant in<br \/>\nthis case. The reason stated by the appellant that since he was quarrelsome,<br \/>\nP.Ws 1 and 2 have chosen to falsely implicate him in this case, is too big a<br \/>\nthing to swallow.\n<\/p>\n<p>\t\t10. The learned Additional Public Prosecutor would further submit<br \/>\nthat the argument of the learned counsel for the appellant that normally, the<br \/>\ninmates P.Ws 1 and 2 would have been sleeping since it was late night,  cannot<br \/>\nbe given weightage, since P.Ws 1 to 3 have specifically stated that they were<br \/>\nnot sleeping as they were chatting with each other. He  would further submit<br \/>\nthat though the doctor, who treated the injured in the hospital has not been<br \/>\nexamined,  when P.W.10 has given an opinion that the death was attributable to<br \/>\nthe injuries, it is to be held that the prosecution has proved that the injuries<br \/>\ncaused on the deceased  alone have resulted in death.\n<\/p>\n<p>\t\t11. We have considered the rival contentions and also perused the<br \/>\nrecords carefully.\n<\/p>\n<p>\t\t12.  Admittedly, P.Ws 1 to 2, the deceased and the accused were<br \/>\nliving together under a common roof. The alleged time of occurrence is 11.00<br \/>\np.m. It is quite natural that P.Ws 1 and 3 could have been at their house at<br \/>\nthat time. It is not even suggested  by the defence that P.Ws 1 to 3 were not<br \/>\npresent at the time of occurrence. The deceased had told P.W.7, when he was<br \/>\ntaken to the hospital that he was attacked by a known person at his house at<br \/>\n11.00 p.m. when he was sleeping. May be true that the deceased was sleeping when<br \/>\nthe first attack was mounted on him. But, it is not necessary to infer that the<br \/>\nother inmates like P.Ws 1 to 3  would have also been sleeping at the relevant<br \/>\ntime. Thus the presence of P.Ws 1 to 3 and that they were not sleeping at the<br \/>\ntime of alleged occurrence has been established by the prosecution, through the<br \/>\nevidences of P.Ws 1 to 3 and other circumstances.\n<\/p>\n<p>\t\t13. P.Ws 1 to 3 have categorically stated about the overt acts of<br \/>\nthe appellant. The evidence of P.W.7  would corroborate the evidence of P.Ws 1<br \/>\nto 3. There are no reasons to reject the evidence of P.Ws 1 to 3. The argument<br \/>\nof the learned counsel for the appellant that since the appellant was indulging<br \/>\nin frequent quarrels with P.W.2-mother, P.Ws 1  and 2 were enraged over the<br \/>\nsame,  and  so they have chosen to falsely implicate the appellant in this case,<br \/>\ncan hardly be accepted.\n<\/p>\n<p>\t\t14. As pointed out earlier, in the statement made to P.W.7, the<br \/>\ndeceased himself has stated that he was assaulted by a known person at his house<br \/>\nat 11.00 p.m.  This statement is a dying declaration falling under Section 32 of<br \/>\nthe Evidence Act, requiring much weightage. This dying declaration also<br \/>\ncorroborates the evidence of P.Ws 1 to 3. Thus, in our considered opinion, the<br \/>\nprosecution has proved that the injuries on the deceased were caused only by<br \/>\nthis appellant.\n<\/p>\n<p>\t\t 15. In respect of the cause of death, the prosecution relies on the<br \/>\nevidence of P.W.10. Admittedly, the deceased had undergone treatment as<br \/>\ninpatient in the hospital for about 53 days. The prosecution has not chosen to<br \/>\neither examine the doctors who treated the deceased in the hospital during  the<br \/>\nsaid period  or to produce medical records. In the absence of the same, we are<br \/>\nnot able  to know the condition of the deceased in the hospital during the said<br \/>\nperiod. Though it is a flaw in the case of prosecution, on that score alone, the<br \/>\nentire case of the prosecution cannot be thrown out.\n<\/p>\n<p>\t\t16. P.W.10, has stated that he found as many as 5 external injuries<br \/>\non the body of the deceased.  Injury No.3 was a surgical one made for<br \/>\ntracheostomy.  Therefore, Injury Nos.1, 2, 4 and 5 alone were caused by the<br \/>\nappellant. He also stated that the said four injuries and also the tracheostomy<br \/>\nwound were found healed. But bed sore wound was found on the  upper part of back<br \/>\nof right thigh. The doctor has not stated that the death was directly<br \/>\nattributable to the injuries. He has only opined  that  the death was due to the<br \/>\ncomplications of the multiple injuries.  Insofar as the condition of lungs is<br \/>\nconcerned, P.W.10 has mentioned as follows:\n<\/p>\n<p>&#8221; Both lungs found adherent to the chest wall. Apex of right lung; cut section-<br \/>\nshows greenish white material surrounded by fibrous tissues. Base of the left<br \/>\nand right lung found consolidated. Cut section pus material oozing out.&#8221;\n<\/p>\n<p>\t\t17. The doctor has opined that the death is due to complications due<br \/>\nto the injuries. He has not elaborated as to what  are the complications, which<br \/>\nresulted in the death of the deceased. For this reason only, we feel that the<br \/>\ntreatment records and the evidences of doctors, who treated the injured in the<br \/>\nhospital, would be of more help to know as to what was the condition of the<br \/>\ninjured in the hospital during treatment and what was the complication and<br \/>\nwhether the same was due to the injuries. As seen from the post mortem<br \/>\nCertificate and also from the evidence of P.W.10, we could infer that all the<br \/>\ninjuries including the surgical one  were found healed  and there was no<br \/>\ninfection anywhere near the said injuries. But there was infection only in the<br \/>\nlungs. In our considered view, in the absence of any connection between these<br \/>\ninjuries and the infection to lungs, it cannot be concluded with certainty that<br \/>\nthe complications stated by P.W.10 are only due to the injuries. A careful<br \/>\nscrutiny of the evidence of P.W.10 would also go to show that  it is not his<br \/>\nopinion that the said injuries are sufficient in the ordinary course of nature<br \/>\nto cause death. In view of the said position, we are not convinced that the<br \/>\nexternal injuries i.e injury Nos.1,2 and 4 found on the deceased, would be<br \/>\nsufficient to cause death in the ordinary course of nature.  However, there can<br \/>\nbe no second opinion that the injury No.1 found on the neck would be likely to<br \/>\ncause death.\n<\/p>\n<p>\t\t18. Now, we have to analyse whether the  offence  would fall under<br \/>\nSection 302 I.P.C. To bring the act of the appellant within the fourth limb of<br \/>\nSection 300 I.P.C., the prosecution is obliged to prove that the appellant had<br \/>\nknowledge that the bodily injury which he has caused is likely to cause death.<br \/>\nIn the instant case,  the appellant  has caused an injury on the neck, that too,<br \/>\nwith lethal weapon. It is common knowledge that any injury caused on the neck<br \/>\nwith lethal weapon is likely to cause death. To that extent knowledge can be<br \/>\ncertainly attributed to the appellant. If that be so,  the act of the appellant<br \/>\nwould fall within the fourth limb of Section 300I.P.C.\n<\/p>\n<p>\t\t20. As it is clearly spoke to by  P.Ws 1 to 3, the act of the<br \/>\nappellant is not a premeditated one. After all, P.Ws 1  and 2, the deceased and<br \/>\nthe appellant were all along living under a common roof. Except  the frequent<br \/>\nquarrels between P.W.2 and the  appellant, there is no other evidence to suggest<br \/>\nthat they were on inimical terms. There is no evidence that the deceased and the<br \/>\nappellant ever had any quarrel on any previous occasion. Even at the time of<br \/>\noccurrence, the appellant did not develop any quarrel with the deceased, but<br \/>\nwhen the quarrel was going on between him and P.W.2, the deceased intervened,<br \/>\nwhich culminated in the assault made by the appellant  by lethal weapon. It is<br \/>\nto be noted that the appellant did not come there with lethal weapon. All these<br \/>\ncircumstances would go to show that the occurrence was not pre-medidated and it<br \/>\nwas only due to a petty and sudden quarrel  and a scuffle, in which the<br \/>\nappellant had attacked  the deceased. All these circumstances satisfy the<br \/>\nrequirements of exception 4 to Section 300 I.P.C. Thus the act of the appellant<br \/>\nwould only fall within  Exception 4 to Section 300 I.P.C., thereby bringing the<br \/>\noffence punishable under Section 304 (ii)I.P.C.\n<\/p>\n<p>\t\t21. The learned counsel for the appellant would submit that the<br \/>\nappellant is an old man facing the evening of his life and therefore, in the<br \/>\nmatter of punishment, leniency  may be shown to him.\n<\/p>\n<p>\t\t22. We have considered the said plea and also having regard to the<br \/>\nfacts and circumstances of the case, We deem it appropriate to impose a<br \/>\npunishment of Rigorous Imprisonment for five years.\n<\/p>\n<p>\t\t23. In the result, the appeal is partly allowed.  The conviction and<br \/>\nsentence imposed on the appellant under Section 302 I.P.C by the trial Court is<br \/>\nset aside and instead, the appellant is convicted under Section 304 (ii) I.P.C.<br \/>\nand sentenced to undergo R.I. for five years.  The sentence already undergone by<br \/>\nhim shall be given set off.  The lower Court is directed to issue necessary<br \/>\nwarrant to secure  the custody of the accused and to commit him to prison to<br \/>\nundergo the remaining period of sentence, if any.  In all the other aspects, the<br \/>\nappeal is dismissed.\n<\/p>\n<p>pal<\/p>\n<p>To\n<\/p>\n<p>1.The Principal Sessions Judge,<br \/>\n  Tirunelveli.\n<\/p>\n<p>2.Inspector of Police<br \/>\n  Thatchanallur Police Station<br \/>\n  Tirunelvelei\n<\/p>\n<p>3. The Public Prosecutor,<br \/>\n   Madurai Bench of<br \/>\n   Madras High Court,Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Karuppaswamy Thevar vs The State Rep. By on 22 November, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 22\/11\/2007 CORAM The Honourable Mrs.Justice PRABHA SRIDEVAN and The Honourable Mr.Justice S.NAGAMUTHU Crl.A.No. 299 of 2000 Karuppaswamy Thevar .. Appellant vs The State rep. By Inspector of Police Thatchanallur Police Station [&hellip;]<\/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-23030","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Karuppaswamy Thevar vs The State Rep. 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