{"id":263078,"date":"2011-02-04T00:00:00","date_gmt":"2011-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-mohan-vs-the-state-on-4-february-2011"},"modified":"2017-03-04T04:15:53","modified_gmt":"2017-03-03T22:45:53","slug":"d-mohan-vs-the-state-on-4-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-mohan-vs-the-state-on-4-february-2011","title":{"rendered":"D.Mohan vs The State on 4 February, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
D.Mohan vs The State on 4 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED :  4.2.2011\n\nCoram\n     \nThe Hon'ble Mr. Justice A.ARUMUGHASWAMY \n\n Criminal Appeal  No.967 of 2004 \n\n\n1.D.Mohan\n\n2.D.Prakash\t\t\t\t\t\t... Appellants\n\n Vs.\n\nThe State \nrep. by Inspector of Police\nMarakkanam Police Station\t\t\t... Respondent\n\n\n\tCriminal Appeal filed under Section  374<\/a> of Cr.P.C.  against  the judgment of the Additional District and Sessions Judge, (Fast  Track Court No.1), Dindivanam in S.C.No.190 of 2003 dated 15.7.2004. \n\t\t  For Appellants:- Mr.S.Ashokkumar, Senior Counsel \n\t\t \t                 For  Mr.A.Sasidharan\n\t           For   Respondent  :-  Mr.N.Kumanan                                                               \t\t\t\t                 Govt.   Advocate (Crl. Side)  \nJUDGMENT\n<\/pre>\n
\t\tThe  first appellant\/A-1 stands convicted  for the offence under Section 304 Part II   and  sentenced to undergo  rigorous imprisonment for  ten years and to pay a fine of Rs.2000\/- in default to undergo rigorous imprisonment for one year and the appellants stand convicted for the offence under Section  324<\/a>  IPC  and sentenced to undergo  rigorous imprisonment for  two years each and to pay a fine of Rs.1000\/-  each in default to undergo rigorous imprisonment for three months   by the  judgment of the learned Additional District and Sessions  Judge, Dindivanam in S.C.No.190 of 2003 dated 15.7.2004.  Challenging the said conviction and sentence,  the appellants have  come forward with the present appeal.\n<\/p>\n
\t2. The short facts necessary for the disposal of the appeal  can be stated as follows:-\n<\/p>\n
\tP.W.1  and the deceased are husband and wife. P.Ws.1 to 3 are their  son and daughter. A-1 to  A-3 are the sons of A4 and A5.   On  17.9.2002 at about 7.30 a.m. P.W.1  and his sister P.W.3  were   watering  the newly constructed house. At that time A2 who came across  their house  caught hold of the shirt of P.W.1 and quarrelled with him. On hearing the noise,  P.W.2 came and separated them. At that time ,  the other accused also joined together and entered into the scene. A1,A2 and A4 were having casuarina stick and A3 was having iron pipe.  A1 hit P.W.1 on the  forehead; A-2 gave a blow on the front and back  side of the head.   When  the deceased intervened in order to prevent the accused from beating P.W.1, A-1 attacked the deceased with the  casuarina stick on her head as a result of which she fell down. Again A4 attacked the deceased on her chest and  right hand with stick.  When P.W.1 intervened and  lifted her mother, A-3 attacked P.W.1 with iron pipe on his left ankle, right thigh ,   right forearm and chest.  Thus,  A1 to A3 attacked P.W.1 with  casuarina  stick and iron pipe all over the body.   The mother of P.W.1 became unconscious. Thereafter P.W.1   was taken to the Government Hospital, Dindivanam for treatment of the injuries sustained by him.   P.W.13 is the Doctor who gave treatment to P.W.1 in  Dindivanam Government Hospital. P.W.16  Inspector  of police  who was  on  duty regulating the traffic, received a phone call from the  Sub Inspector P.W.15 regarding the occurrence and he rushed to the spot. P.W.16 directed P.W.15 to  get the complaint from P.W.1 who was by then hospitalised. Thereafter, P.W.15 registered   a case in Cr.No. 432\/02    for the offences under Sections 147<\/a>, 148<\/a>, 323<\/a>, 324<\/a>, 506(2)<\/a> and 302<\/a> IPC Ex.P23 is the  F.I.R.\n<\/p>\n
\t3.On  receipt of  the FIR, P.W.16  the Inspector of Police took up investigation and proceeded to the scene of occurrence  and prepared observation Mahazar Ex.P2  and a rough sketch Ex.P24. He  further conducted inquest on the dead body of  Saroja  in the presence of witnesses and panchayatdars and  prepared Ex.P25 inquest report. Following the same, he recovered the blood  stained brick and earth viz., M.Os.1 and 2  and sample earth M.O.3 under a cover of mahazar.  Then he gave a requisition to the hospital authorities through  P.W.14 Head constable.    P.W.7 is the  Village Administrative Officer  P.W.8 is the Assistant of P.W.7  who turned hostile. P.Ws.9 and 10 are the neighbours who turned hostile.  P.W. 11 is  the Head Clerk of Principal Subordinate Court, Villupuram.   P.W.16 Inspector took up the investigation and laid charge sheet under Sections  147<\/a>, 148<\/a>, 326<\/a>, 324<\/a>, 302<\/a>, 302<\/a> read with 149  and 302 read with 109  IPC<\/a>.\n<\/p>\n
\t 4. Before the trial court  on the side of the prosecution P.Ws.1 to 16  were examined, Exs.P1 to P25 were filed and    M.Os. 1 to 9  were  marked.\n<\/p>\n
\t5. When the accused was questioned under Section 313<\/a> Cr.P.C. in respect   of the incriminating  materials appearing against them through the evidence adduced by the prosecution, the accused denied their complicity. The trial court on consideration  of the oral and documentary evidence placed before it  found the accused guilty, convicted and sentenced them as stated  above   and acquitted   A3,A4 and A5  of the charges  levelled against him.  Hence the present appeal.\n<\/p>\n
\t6. The vehement contention of the learned counsel appearing for the appellant  is that  P.W.16 the Inspector of Police who is the investigating officer  rushed to the spot at  8.45  am, complaint was  received  after 10 am and the FIR has been registered at 12 noon and took up investigation at 1 p.m.  The evidence  reveals that  he has recorded  the statement of several witnesses before 12 noon. Thus the above  events  would show that the complaint came into existence after much delay.  Therefore   giving benefit of doubt  to the accused  the complaint as well as the FIR has to be rejected.\n<\/p>\n
\t7.  The learned Government Advocate (Criminal side) for the    prosecution assisted by the learned counsel appearing for the defacto complainant contended  that even though  the investigating officer has visited the scene of occurrence earlier  to the  complaint,  he commenced the investigation only after receipt of the  FIR and till receipt of FIR he was  engaged in maintaining the law and order problem. Hence the argument advanced by the learned counsel appearing  for the appellants  has to be  rejected  in toto.\n<\/p>\n
\t8. The relationship between the parties is not disputed. Further the fact on  17.9.2002 P.Ws.1 and 3  were watering their newly constructed house is not in dispute.  From the evidence as well as from the  case of the prosecution it is seen that there was difference of  opinion  among these two families on various  issues such as local body election and  division of the  properties.  On the occurrence day at about 7.30 a.m,  according to  accused  only P.W.1 voluntarily called A4 and picked up a wordy quarrel, whereas according to the case of prosecution it is  only the accused who invited the problem with P.W.1.   From the evidence it is seen that accused alone was liable to pay money to P.W.1. for the use of the tractor by A4. Therefore,   as seen from the evidence while P.Ws.1 and 3 were watering their newly constructed house, P.W.1 demanded  money from A4  for the use of the tractor by A4 and at that time  a wordy quarrel arose between A4 and P.W.1 and the quarrel continued  for some time.  On hearing this noise, the other accused as well as the parents of P.W.1,  viz.,P.W.2 and the deceased   also intervened.  As per the evidence A1 to  A3 attacked P.W.1 and caused several injuries.  But the trial court has acquitted A3 to A5. From the evidence,  it is seen that A1 attacked P.W.1 on the forehead  with casuarina stick,  which was available  at P.W.1’s house.  A2 attacked P.W.1 on the front and backside of the head. When A1 attacked P.W.1,  it fell on the deceased who intervened in the clash, due to which she sustained injury on the head and succumbed to instantaneous death within less than five minutes.\n<\/p>\n
\t 9. The learned counsel appearing for the accused would elaborate his argument  that   the occurrence  took place as spoken by the defence   that   the blow was given  by A1 only on P.W.1 and P.W.1 retaliated A1 with another stick  and  at that time the deceased intervened  and she received the blow and due to that  injury she succumbed to death. Therefore,  the theory that A1 purposely gave the blow on deceased  has been falsified.\n<\/p>\n
\t10. The next contention of the  learned counsel appearing for the appellants is that  the earlier complaint was suppressed and he prayed that the appeal has to be allowed on this ground also.   P.W. 16  in his evidence would state  that on  17.9.2001 while  he was on traffic duty at about  7 a.m.  he received  the message from the Sub Inspector of Police P.W.15  and he rushed to the scene of occurrence at 8.45 a.m.  From the evidence of P.W.16  it is clear that  they waited till 1 p.m.  to receive the FIR .  Further P.W.16   has stated in his evidence that , he has not commenced any investigation  before the receipt of F.I.R.   P.W.3 in her evidence would state that  after receiving the  information  over phone, the Police came to the  scene of occurrence at 10 a.m . Further she has added that she  was examined by the police and she signed  in that statement.  She has not  stated at what time  she was examined.  Merely because she said that police  arrived at 10 a.m. and consequently she was examined does not mean that she has been examined  prior to receipt of FIR.   Therefore,   I am of the view that as per the evidence of P.W.3 she has been   examined only subsequent to  FIR and  her evidence cannot be eschewed and it cannot be said  that  her statement  is perverse and  not  believable.\n<\/p>\n
\t11. The next contention of the  learned Government Advocate  is that immediately  after the receipt  of the incident, P.W.1 was rushed to the  Hospital. P.W.13 Doctor  who examined P.W.1 in his evidence would state that  P.W.1 came to the Hospital at 9.50 a.m. and specifically mentioned that  he was attacked by  8 known persons at about 7 a.m.  P.W. 13 noted  six injuries.  From the said evidence I am of the view that P.W.1 has mentioned 8 persons whereas in the  charge sheet it  has been mentioned  as five persons.  One Manoharan whose name finds place in the evidence   has not been implicated in the charge sheet.   Merely because P.W.1 has stated  8  known persons, I am of the view that the entire case cannot be falsified and one cannot disbelieve the evidence of P.W.1. In this case the  overt act attributed against  A1 and A2  in respect of the deceased as well as P.W.1 has been proved. Therefore, I am of the view that the occurrence  has been proved by the prosecution.\n<\/p>\n
\t12.The next contention of the  learned counsel appearing for the accused is that the entire family of the accused has been falsely implicated  for  the act of giving  one blow  which if at all  would attract only the offence under Section 324<\/a> for which  the accused cannot be  sentenced to undergo imprisonment for ten years. Hence the punishment has to be modified.\n<\/p>\n
\t13. The learned Government Advocate (Criminal Side) contended that  from the  evidence it is clear that P.W.1 sustained injury on the head caused by stick and iron pipe and though initially on 17.9.2002 he took treatment in Government Hospital, later on the same day evening he was taken to Pondicherry Institute of Medical Sciences , where  one Dr.Ashok gave treatment. Though the X rays of P.W.1  have not been produced  it has been noticed by the Doctor that P.W.1 has only sustained fracture.  Since nature of injuries has not been proved  the trial court has  convicted A2 for the offence under Section 324<\/a> and not under Section 326<\/a>.  Further so far as A1 is concerned he gave only one blow on the deceased who intervened in the clash when P.W.1 and A1 quarrelling with each other and the deceased became unconscious and succumbed to death ultimately. As per the evidence of P.W.3, P.W.16 Inspector  has commenced investigation immediately at 8.45 a.m which is not correct.  In such circumstances, I am of the view that conviction made under Section 304 (II) is correct but the sentence  of 10 years  is excessive and it requires modification.\n<\/p>\n
\t14. In view of the above facts and circumstances, as regards A1  the sentence of  ten years is modified as 5 years  for the offence under Section 304 Part II and as regards A2 the sentence of two years is modified as  six months and  in respect of remaining aspects the judgment of the trial court is confirmed.\n<\/p>\n
\t 15. In the result the judgment of the trial court is modified on the above terms and the appeal is partly allowed.    The bail bond if any shall stand cancelled. The trial court is directed to take steps to secure the presence of the accused to undergo the remaining period of sentence.\n\n\n\n\n\n\n\n\n\nKrr\/\n\nTo\n\n1. The Additional District and Sessions Judge,\n(Fast  Track Court No.1), Dindivanam \n\n2. The Public Prosecutor\nHigh Court\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court D.Mohan vs The State on 4 February, 2011 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 4.2.2011 Coram The Hon’ble Mr. Justice A.ARUMUGHASWAMY Criminal Appeal No.967 of 2004 1.D.Mohan 2.D.Prakash … Appellants Vs. The State rep. by Inspector of Police Marakkanam Police Station … Respondent Criminal Appeal filed under Section […]<\/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-263078","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nD.Mohan vs The State on 4 February, 2011 - 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\/d-mohan-vs-the-state-on-4-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"D.Mohan vs The State on 4 February, 2011 - 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