{"id":260426,"date":"2009-12-10T00:00:00","date_gmt":"2009-12-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shajee-vs-state-represented-by-on-10-december-2009"},"modified":"2018-01-08T06:22:15","modified_gmt":"2018-01-08T00:52:15","slug":"shajee-vs-state-represented-by-on-10-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shajee-vs-state-represented-by-on-10-december-2009","title":{"rendered":"Shajee vs State Represented By on 10 December, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Shajee vs State Represented By on 10 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 10\/12\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE R.REGUPATHI\nAND\nTHE HONOURABLE MR.JUSTICE R.SUBBIAH\n\nCRIMINAL APPEAL No.1503 of 2002\n\n1.Shajee\n2.Nandakumar\t\t\t\t\t...  Appellants\/A.1 and A.2\n\nVs.\n\nState represented by\nThe Inspector of Police,\nNithiraivelai Police Station. \t\t\t... Respondent\/\n\t\t\t\t\t\t    Complainant\n\nPrayer\n\nAppeal filed under section 374<\/a> of the Code of Criminal Procedure,\nagainst the judgment dated 27.09.2002 in S.C.No.65 of 2000 passed by the learned\nAdditional Sessions Judge, Nagercoil.\n\n!For Appellants  ... Mr.K.P.S.Palanivel Rajan\n^For Respondent  ... Mr.Issac Manueal\n\t\t     Additional Public Prosecutor\n\n* * * * *\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was made by
\nR.REGUPATHI, J.)<\/p>\n
\tThe appellants\/accused are brothers.  After trial by the Additional
\nSessions Judge, Nagercoil, in S.C.No.65 of 2000, as against the accused on the
\nallegation that on 04.05.1998 at 11.30 a.m., they indulged in quarrel with the
\ndeceased, pushed him down and stamped him, as a result thereof, the deceased
\nsuccumbed to the injuries on 07.05.1998 while getting treatment in the hospital
\nand in the same transaction, when P.W.1 attempted to prevent the accused from
\nassaulting the deceased, he was manhandled; by judgment dated 27.07.2002, they
\nwere convicted under Section 302<\/a> I.P.C and sentenced to undergo life
\nimprisonment and to pay a fine of Rs.10,000\/- with default sentence for causing
\nthe death of one Krishnan and further convicted under Section 323<\/a> I.P.C and
\nsentenced to undergo rigorous imprisonment for six months, for causing injuries
\non P.W.1\/Krishna Kumar and both the sentences were ordered to run concurrently.\n<\/p>\n
\t2. Aggrieved against the order of conviction and sentence passed by the
\ntrial Court, the present appeal is preferred by the accused.\n<\/p>\n
\t3. To substantiate the case of the prosecution, P.Ws.1 to 21 were
\nexamined, Exs.P.1 to P.16 were marked and M.Os.1 to 3 were produced.\n<\/p>\n
\t4. The facts, as unfurled from the evidence of witnesses, are narrated
\nbelow in a compact manner:\n<\/p>\n
\ta) P.W.1, the son-in-law of the deceased deposed that on 04.05.1998, at
\n11.00 a.m, the deceased was proceeding towards the provisional shop of P.W.5 for
\npurchasing the provisions and on the way, the accused along with some other boys
\nwere sitting in the wall and chatting by the side of the street and while the
\ndeceased was crossing them, they passed comments against him.  Thereafter, while
\nthe deceased was returning after purchasing the provisions, the accused
\nobstructed and abused him, for which, the deceased spat against them, whereupon,
\nthe accused reacted by saying that if such act was repeated, he would be
\nfinished off.  On the deceased spitting again, the first accused kicked the
\ndeceased on the hip while the second accused fisted him on the right cheek and
\nthe attack fell on the forehead of the deceased.  After the deceased falling
\ndown, A.2 kicked him and when P.W.1 came to the rescue of the deceased, he was
\nalso assaulted by both the accused.  On hearing the noise, P.Ws.2 to 4 came to
\nthe scene of occurrence and on seeing them, the accused ran away from the scene
\nof occurrence.  P.W.1, took the deceased in the taxi driven by P.W.6 and while
\nproceeding towards the police station, they stopped at the place of P.W.7 who
\ndrafted the complaint signed by the deceased.  At 2.30 p.m, P.W.18, Head
\nConstable at Nithiraivelai Police Station, received the complaint Ex.P.1, given
\nby the deceased accompanied by P.W.1 and treated the same as Petition Enquiry
\nNo.105 of 1998 and sent the deceased and P.W.1 with police memo to the Hospital
\nfor treatment after making entry in the General Diary as per Ex.P.10.\n<\/p>\n
\tb) P.W.16, the Medical Officer attached to the Government Hospital,
\nKuzhithurai, on 04.05.1998, at 03.00 p.m, examined the deceased and it was said
\nto him that the injuries were sustained on the same day at 11.30 a.m. due to
\nassault by two known persons and the wound certificate issued by the Medical
\nOfficer is Ex.P.6.  He also examined P.W.1 for the injuries sustained by him and
\nissued the wound certificate\/Ex.P.7.\n<\/p>\n
\tc) P.W.2, though cited as an eyewitness, did not support the case of the
\nprosecution insofar as the actual occurrence is concerned, however, stated that
\nhe had seen both the accused running away from the scene of occurrence.\n<\/p>\n
\td) P.W.3, the wife of P.W.1, who was cited as an eyewitness in the case,
\ncorroborated the evidence of P.W.1.  P.W.4, the wife of the deceased in her
\nevidence,  stated that on coming to know about the quarrel between the accused
\nand the deceased, she rushed to the scene of occurrence and witnessed the
\nincident.  P.W.5, who was examined to substantiate that the deceased had visited
\nhis shop for purchasing the provisions, did not support the case of the
\nprosecution and therefore, he was treated as hostile.\n<\/p>\n
\te) P.W.6 took the deceased and P.W.1 to the police station in his taxi and
\nthereafter, to the Hospital and for which, he was paid Rs.120\/-.  P.W.7 was
\nexamined to substantiate that he had written the complaint\/Ex.P.1 to the
\ndictation of the deceased, but subsequently, he changed his version that such
\ncomplaint was drafted by him to the dictation of P.W.1 and therefore, he was
\ntreated as hostile.\n<\/p>\n
\tf) On 05.05.1998, at 11.20 p.m, P.W.9, the Medical Officer, Government
\nHospital, Nagercoil, examined the deceased who was forwarded from the Government
\nHospital, Kuzhithurai and the Accident Register issued is Ex.P.3.  On
\n06.05.1998, P.W.10, the Radiologist took X-rays\/M.O.1 series for the
\ninjured\/deceased and the X-ray report\/Ex.P.4 revealed “Fracture of neck of right
\nfemur”.\n<\/p>\n
\tg) P.W.11\/Medical Officer found the injured unconscious on 06.05.1998 and
\nin spite of the treatment, the deceased died on 07.05.1998, at 6.30 p.m,
\nwhereupon, the death intimation under Ex.P.5, was sent to the police.\n<\/p>\n
\th) P.Ws.12 and 13, who were examined to speak about the occurrence, did
\nnot support the prosecution case, hence, they were treated as hostile.\n<\/p>\n
\ti) P.W.19, deposed that on 05.05.1998, based on Ex.P.1, he registered a
\ncase in Cr.No.223 of 1998 for  offences punishable under Sections 341<\/a> and 323<\/a>
\nI.P.C and prepared the F.I.R, Ex.P.11 and forwarded the same to Judicial
\nMagistrate No.2, Kuzhithurai and copies thereof to superior police officers.  On
\n06.05.1998, at 9 a.m, he visited the scene of occurrence and prepared  the
\nObservation Mahazar and Rough Sketch, Exs.P.2 and P.12 respectively, attested by
\nP.W.8.  Thereafter, he visited the Government Hospital, Nagercoil, and recorded
\nthe statement of the deceased.  On 07.05.1998, he received the death intimation
\nfrom the Hospital and subsequently, assisted the Investigating Officer\/P.W.20,
\nwho took up investigation.\n<\/p>\n
\tj) P.W.20, the Investigating Officer, after receiving the copy of the
\nF.I.R. on 07.05.1998, altered the offence as one under Section 302<\/a> I.P.C on
\nreceipt of the death intimation and prepared Ex.P.15, Special Report and
\nforwarded the same to the Judicial Magistrate and thereafter, took up the
\ninvestigation and examined the witnesses.  He conducted inquest over the dead
\nbody of the deceased in the presence of the witnesses and Ex.P.16 is the inquest
\nreport.  He sent Ex.P.8\/requisition through P.W.15 for conducting post-mortem.\n<\/p>\n
\tk) P.W.17, the Medical Officer attached to the Government Hospital,
\nNagercoil, conducted post-mortem on 07.05.1998 at 3.30 p.m on the dead body of
\nthe deceased and issued Ex.P.9, the post-mortem certificate, wherein, he noticed
\nthe following:\n<\/p>\n
\t“INJURIES:\n<\/p>\n
\t1.Contusion & swelling 1 cm diameter on right frontal region of scalp near
\neye-brow.  No fracture beneath on exploration.\n<\/p>\n
\t2.Abrasion 1 cm diameter on right palm.\n<\/p>\n
\t3.Contusion & swelling 10 cm diameter on the right hip joint on
\nexploration of the wound haemotoma was present over the right hip joint
\nextending into the upper third of right thigh. There was fracture neck of femur.\n<\/p>\n
\t4.An abrasion 2 cm diameter on the right foot.\n<\/p>\n
\tR.M. present in all four limbs. Appear to have died 8 to 10 hours prior to
\nP.M.\n<\/p>\n
\tHeart: Wt.200 g.m. Chambers empty. c\/s Pale.\n<\/p>\n
\tLungs: right 350 g.m. L-300 g.m c\/s pale Hyoid bone was intact. Brain:1300
\ng.m. c\/s pale-stomach 120 g.m. 100 ml. of dark coloured fluid was found. Liver –
\nwt.1300 g.m c\/s. pale. Spleen : 90 g.m. c\/s Pale. Kidneys – 90 g.m. each c\/s.
\npale.\n<\/p>\n
\tOpinion: Appear to have died of shock & haemorrhage due to multiple
\ninjuries.”\n<\/p>\n
\tl) The Investigating Officer forwarded the material objects collected, to
\nthe Court for receiving opinion and examined the witnesses and received opinions
\nfrom the Medical Officers.\n<\/p>\n
\tm) P.W.21, took over the investigation from P.W.20 and on 23.04.1999,
\nexamined the witnesses and he came to know that the accused surrendered before
\nthe Court on 03.07.1998 and, on conclusion of the investigation on 27.09.1998,
\nhe filed final report against the accused under Sections 302<\/a> and 323<\/a> I.P.C.\n<\/p>\n
\t5. With reference to the incriminating materials adduced by the
\nprosecution, the accused were questioned  under Section 313<\/a> Cr.P.C, for which,
\nthey pleaded ‘not guilty’ and claimed innocence. No evidence was let in on the
\nside of the accused except marking a receipt dated 04.05.1998 issued at
\nNithiravelai Police Station as Ex.D.1.  The learned trial Judge, on perusal of
\nthe materials available and after hearing the submissions made by both sides,
\nconvicted the appellants\/A.1 and A.2 and passed the order of conviction and
\nsentence as aforementioned; hence, the present appeal.\n<\/p>\n
\t6. Learned Counsel for the petitioner submits that the independent
\nwitnesses, who are said to have witnessed the occurrence, did not support the
\ncase of the prosecution and that the learned trial Judge relied on the evidence
\nof P.W.1, son-in-law of the deceased, P.Ws.3 and 4, the wife of P.W.1 and the
\nwife of the deceased respectively, insofar as the actual occurrence is concerned
\nthough their evidence, which is self-contradictory and discrepant in material
\nparticulars, does not deserve acceptance so as to convict the accused.
\nAdmittedly, P.W.4 came to the scene of occurrence after hearing noise and the
\npresence of P.W.3 at the scene of occurrence was not mentioned in Ex.P.1, the
\ncomplaint given by the deceased.  Though the deceased is said to have given the
\ncomplaint to the police, there are contradictions as to who actually lodged the
\ncomplaint.  The deceased, who was admitted in the hospital, was alive for a
\ncouple of days and it seems, no serious effort was taken to record the dying
\ndeclaration of the deceased; therefore, the presumption is that the occurrence
\nmight not have taken place in the manner as put forth by the prosecution.\n<\/p>\n
\t7. In the alternative, it is submitted that there was no premeditation and
\nintention on the part of the accused to cause the death of the deceased.
\nAdmittedly, the accused were not armed with any weapon and even as per the
\nevidence of P.W.1, it was the deceased who spat against the accused and in spite
\nof the caution given by the accused, the deceased again spat at them, and only
\nunder such circumstances, the provoked accused manhandled the deceased, hence,
\nthe offence under Section 302<\/a> I.P.C is not attracted and the appellants may be
\nconvicted for a lesser offence.\n<\/p>\n
\t8. Per contra, learned Additional Public Prosecutor submits that P.W.1,
\nthough related to the deceased, is an injured eyewitness and the evidence of
\nP.Ws.3 and 4  cannot be doubted merely on the meak reason that they are related
\nto the deceased, because, the place of occurrence and the residence of the
\ndeceased was at a close proximity.  Though P.W.2 was treated as hostile, he
\nadmitted that he saw the accused running away from the scene of occurrence.  It
\nis the case of the prosecution that the complaint was drafted as per the
\ndictation of the deceased and the deceased signed in Ex.P.1.  Inasmuch as the
\nfact remains that both the deceased and P.W.1 were assaulted by the accused, the
\ncontradiction pointed out stating that it is not clear as to who actually
\ndictated Ex.P.1, does not appear to be serious so as to affect the prosecution
\ncase, for P.W.7, the scribe of the complaint Ex.P.1, admitted that he was the
\nperson who wrote down the same.  The evidence  of the Medical Officers and the
\nwound certificate issued to the deceased also reveals the information regarding
\nthe place of occurrence and about the assault on the deceased by known
\npersons\/accused.  The injuries sustained have been described in the wound
\ncertificate recorded on the same day and even before treatment was given to the
\ndeceased and P.W.1, Ex.P.1, the complaint came into existence and subsequently,
\nF.I.R was registered.  Learned Additional Public Prosecutor submits that even
\nthough the accused did not intend to kill the deceased, they had knowledge
\nhaving regard to their overt acts against the deceased, an aged person, their
\nact may cause the death of the deceased.\n<\/p>\n
\t9. We have given our thoughtful consideration to the rival submissions
\nmade on either side having regard to the materials available on record.\n<\/p>\n
\t10. It is the case of the prosecution that the accused were sitting and
\nchatting along with their friends by the side of the street and the deceased, at
\nthe time of crossing them, is said to have spat towards the direction in which
\nthe accused were sitting.  As per the statement made by the deceased in Ex.P.1,
\nthe actual occurrence is said to have taken place at the time when he was
\nreturning after purchasing the provisions. It must be borne in mind that Ex.P.1,
\nthe complaint, was given by the deceased himself and it would amount to a dying
\ndeclaration.  It is stated therein that  the accused picked up a quarrel with
\nthe deceased by questioning him as to how he could spit against them and  though
\nit was replied that there was no reason for him to spit against the accused, a
\nwordy quarrel ensued in which both the accused manhandled the deceased and
\nkicked him fiercely after he fell down.\n<\/p>\n
\t11. The evidence of P.W.1, slightly proceeds differently and it is stated
\nthat the accused abused the deceased, for which, the deceased spat against them,
\nwhereupon, the accused cautioned the deceased not to do so and in spite of that,
\nthe deceased spat against them again, whereupon the accused assaulted the
\ndeceased.  Though it is the evidence of P.W.1 that the deceased was ridiculed by
\nmentioning the community he belonged to, no such allegation finds place in
\nEx.P.1.  Even though P.W.7 admitted that it was he who drafted the complaint,
\nthere is contradiction as to on whose dictation such complaint was prepared by
\nhim.\n<\/p>\n
\t12. Under such circumstances, we are of the considered opinion that the
\norigin and genesis of the prosecution case, has not been correctly and clearly
\nput forth. The fact remains that the accused, who were sitting and chatting
\nalong with other friends, were not armed and they assaulted the deceased with
\nhands and legs and for which, the deceased also contributed by spitting against
\nthe accused and thereby provoked them. Initially both the accused assaulted the
\ndeceased with hands and subsequently, when he fell down, they stamped him on the
\nhip resulting in injury No.3 which turned to be fatal.  The occurrence took
\nplace on 05.05.1998 and in spite of the treatment given, the deceased succumbed
\nto the injuries on 07.05.1998.\n<\/p>\n
\t13. Though there are contradictions in the testimonies of the witnesses,
\nthey are not so material to discard the entire case of the prosecution, for, the
\ninvolvement of the accused in the occurrence and the overt acts attributed to
\nthem have been corroborated through the Medical evidence.  P.W.16 examined both
\nthe deceased and P.W.1 on the same day and issued the wound certificates
\nwherein, it is clearly mentioned that the injured were assaulted at 11.30 a.m by
\ntwo known persons near their residence with hands and legs.  Even before P.W.16
\nexamined the deceased and P.W.1, the complaint was drafted by P.W.7 and it was
\nreceived by P.W.18 and subsequently, a case was registered by P.W.19 without any
\nloss of time and thereafter only, they were taken to the hospital for treatment.\n<\/p>\n
\t14. Even though the involvement of both the accused and the overt acts
\nattributed to them cannot be disputed, it must be taken note of that the accused
\nwere not armed with any weapon and there was no premeditation on the part of the
\naccused to cause the death of the deceased.   The deceased would have eased the
\nsituation acting wisely by not repeating the act, for it is the evidence of
\nP.W.1 that he aggravated the situation by spitting against them in spite of the
\naccused telling him not to do so and the provoked accused, after the deceased
\nfell down, stamped him on hip and the injury resulted on account of such
\nstamping turned to be fatal since the deceased was already fragile.  Under such
\ncircumstances, we are of the view that the offence alleged under Section 302<\/a>
\nI.P.C is not made out.  However, the accused had knowledge that if such assault
\nwas made on the deceased, an old man aged 75 years, it would result in grievous
\ninjury or cause his death and unmindful of the same, they assaulted him.\n<\/p>\n
\t15. In this context, it is relevant to rely upon the observations made by
\nthe Honourable Supreme Court in Muthu v. State<\/a> reported in (2008) 1 MLJ (Crl)
\n1410 (SC), wherein it has been held as follows:\n<\/p>\n
\t“11. No doubt, even in the heat of the moment or fit of anger one should
\nnot attack somebody since human beings are different from animals inasmuch as
\nthey have the power of self-control.  Nevertheless, the fact remains that in the
\nheat of the moment  and in a fit of anger people some times do acts which may
\nnot have been done after premeditation.  Hence the law provides that while those
\nwho commit acts in the heat of the moment or fit of anger should also be
\npunished, their punishment should be lesser than that of premeditated offences.
\nIt is for this reason that Exceptions 1 and 4 have been inserted in Section 300<\/a>
\nI.P.C.\n<\/p>\n
\t12. We may also refer to Exception 4 to Section 300<\/a> I.P.C. which reads as
\nunder:\n<\/p>\n
\t“Exception 4 – Culpable homicide is not murder if it is committed without
\npremeditation in a sudden fight in the heat of passion upon a sudden quarrel and
\nwithout the offender having taken undue advantage or acted in a cruel or unusual
\nmanner”.\n<\/p>\n
\t13. The difference between Exception 1 and Exception 4 to Section 300<\/a> has
\nbeen explained by this Court in Pappu V. State of M.P<\/a>. AIR. 2006 SC 2659:(2006)7
\nSCC 391: (2006)2 MLJ(Crl) 734. In our opinion, the present case also comes under
\nException 4 to Section 300<\/a> I.P.C. since the ingredients of Exception 4 are all
\nsatisfied in the facts of the present case.\n<\/p>\n
\t14. In our opinion, throwing waste and rubbish inside the house or shop of
\nsomebody is certainly a grave and sudden provocation.  Everyone wishes to keep
\nhis premises neat and clean, and is likely to loose his self-control in such a
\nsituation.  The incident in question occurred in a sudden fight and a heat of
\npassion by a sudden quarrel without the appellant having taken undue advantage
\nor acted in a cruel or unusual manner.  Hence the appellant is entitled to the
\nbenefit of Exceptions 1 and 4 and the case comes under Section 304<\/a> I.P.C.”\n<\/p>\n
\t16. Applying the principle laid down in the above precedent to the facts
\nand circumstances of the present case, we set aside the conviction under Section
\n302<\/a> I.P.C. and hold that the appellants\/accused are guilty under Section
\n304<\/a>(Part II) I.P.C and accordingly, they are sentenced to undergo rigorous
\nimprisonment for three years.  Since the case of the prosecution is very clear
\nregarding the assault on P.W.1 at the hands of the accused, the conviction and
\nsentence passed against them under Section 323<\/a> I.P.C is confirmed.  Both the
\nsentences are ordered to run concurrently and for the period of imprisonment
\nalready undergone, both the accused are eligible for “set off”.\n<\/p>\n
\t17. It is reported that, while entertaining the appeal, the substantive
\nsentence of imprisonment was suspended by this Court, enlarging the
\nappellants\/accused on bail.  In view of the conclusion reached now, the bail
\nbonds executed by the accused before the Committal Magistrate shall stand
\ncancelled and the trial Court is directed to  forthwith take steps to secure the
\nappellants\/accused for committing them to custody so as to undergo the remaining
\npart of sentence, if any.\n<\/p>\n
\t18. With the above modification, this appeal is partly allowed.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
1.The Additional Sessions Judge, Nagercoil.\n<\/p>\n
2.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Shajee vs State Represented By on 10 December, 2009 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10\/12\/2009 CORAM THE HONOURABLE MR.JUSTICE R.REGUPATHI AND THE HONOURABLE MR.JUSTICE R.SUBBIAH CRIMINAL APPEAL No.1503 of 2002 1.Shajee 2.Nandakumar … Appellants\/A.1 and A.2 Vs. State represented by The Inspector of Police, Nithiraivelai Police Station. … […]<\/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-260426","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nShajee vs State Represented By on 10 December, 2009 - 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\/shajee-vs-state-represented-by-on-10-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shajee vs State Represented By on 10 December, 2009 - 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