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2003 DIGILAW 1935 (MAD)

R. Murugesan v. State rep. By Inspector of Police

2003-11-25

M.THANIKACHALAM, P.SATHASIVAM

body2003
Judgment :- M. Thanikachalam, J. The first accused in S.C.No.219/93 on the file of the II Additional Sessions Judge, Tiruchirapalli, unable to resist the case successfully, suffered conviction and sentence under Sections 302 and 324 (two counts) I.P.C., which are assailed in this appeal. 2. The appellant and one Muniappan were brought before the trial Court, to face the trial for the offences under Sections 302 r/w 109 and 324 I.P.C. on the grounds, that on 5.9.92 at about 6.00 p.m., due to previous enmity, the first accused assaulted one Nagarajan, using the handle of a spade, over his head, for which the second accused was also the cause and that in the same transaction, the first accused assaulted one Ramasamy (P.W.2) and Muniammal (P.W.1), with the same spade handle, causing injuries and Nagarajan succumbed to the injuries on 7.9.92 at about 9.30 a.m., despite the best treatment given and therefore, both are liable to be dealt, with accordingly. 3. The learned II Additional Sessions Judge, Tiruchirapalli took the case for trial, after framing charges. Since the charges were not conceded by both the accused, the prosecution marched in 14 witnesses, seeking support from 17 documents and 4 material objects, to prove its case. 4. Upon scanning the above material, the Additional Sessions Judge, Tiruchirapalli, came to the conclusion, that the offence reported against the second accused was not proved, whereas the charges against the accused/appellant, under Sections 302 & 324 (2 counts) I.P.C. were proved. In this view, he convicted and sentenced the first accused/appellant, to undergo life imprisonment, for the offence under Section 302 I.P.C. and six months RI for the offence under Section 324 I.P.C. (2 counts), each concurrently. 5. The first accused felt that the conviction slapped upon him, is not sustainable, when the co-accused was acquitted on the same evidence, the further fact being, there are unexplained and inconsistent materials available on record. In this view, he has preferred the appeal, questioning conviction and sentence before us. 6. The prosecution case in brief: (a) The accused/appellant and P.W.1-Tmt. Muniyammal are the brother and sister and their father is Thiru Ramasamy (P.W.2). Tmt. Palaniammal (P.W.4) is the daughter of P.W.1. P.W.4 married one Nagarajan. Between these two families, there were some disputes regarding money transaction, as well as in grazing the goats, in the lands. 6. The prosecution case in brief: (a) The accused/appellant and P.W.1-Tmt. Muniyammal are the brother and sister and their father is Thiru Ramasamy (P.W.2). Tmt. Palaniammal (P.W.4) is the daughter of P.W.1. P.W.4 married one Nagarajan. Between these two families, there were some disputes regarding money transaction, as well as in grazing the goats, in the lands. (b) On 5.9.92 at about 6.00 p.m., P.W.1, Nagarajan, and P.W.4 were sitting in front of their house. At that time, both the accused came there, questioned the conduct of Nagarajan, as well as regarding the previous incident, when they were prevented from grazing the cattle, in the field. At that time, the first accused challenging Nagarajan, assaulted over his head with M.O.1, thereby causing head injury. Not satisfied with that, once again, the first accused assaulted Nagarajan over his thigh, thereby causing fracture also. When P.W.1 attempted to prevent the same, the first accused assaulted her, by using the same weapon, causing fracture on her right hand. P.W.2 the father of the accused and P.W.1, on seeing that his grand daughter's husband was attacked, attempted to prevent the same, but he was not spared. A1 assaulting him, caused injury. For the above said activities of the first accused, the second accused also aided. After causing injuries, both the accused left the scene of crime. This incident was witnessed by, not only the injured, P.W.1 and P.W.2, but also by P.W.4, the wife of Nagarajan. (c) P.W.1 with the help of one Selvaraj (P.W.5) took the injured to Musiri Hospital, where he was given treatment by P.W.3 at about 11.00 p.m., on the same day. P.W.3 incorporated the injuries noticed by him in Ex.P.2. Thereafter, the injured was taken to Trichy Hospital, where he was admitted, as inpatient by P.W.12. The fact that Nagarajan was admitted in the hospital due to the quarrel between the parties, after sustaining injuries, was informed to the police station. On information, P.W.11, went to Trichy Hospital, examined P.W.1, recorded her statement under Ex.P.1, since the injured was not in a position to speak. (d) Thiru Natarajan, P.W.13, the then Sub Inspector of Police, Thathaiyangar Police Station, on receipt of Ex.P.1 from P.W.11, registered a case in Cr.No.408/92 for the offences under Sections 326, 324, 323 I.P.C., for which he submitted the printed F.I.R. to the court concerned. (d) Thiru Natarajan, P.W.13, the then Sub Inspector of Police, Thathaiyangar Police Station, on receipt of Ex.P.1 from P.W.11, registered a case in Cr.No.408/92 for the offences under Sections 326, 324, 323 I.P.C., for which he submitted the printed F.I.R. to the court concerned. Taking the case for investigation, P.W.13 inspected the scene of crime, on 6.9.92 at about 3.00 p.m., prepared observation mahazar and sketch in the presence of the witnesses. From the scene of crime, he recovered M.Os.2 to 4 under the cover of mahazar. When the investigation was on the way, in the hands of P.W.13, Nagarajan who was admitted in the Trichy Hospital, succumbed to the injury on 7.9.92 and this fact was intimated to the police, thereby the case was altered to Section 302 I.P.C. under Ex.P.16. (e) The Inspector of Police, (P.W.14) on receipt of the information that a case was altered under Section 302 I.P.C., commenced the investigation. In that process, went to the hospital, conducted inquest between 2.00 p.m. and 4.00 p.m. and the results are incorporated under Ex.P.17. In order to know the cause of death of Nagarajan, an arrangement was made by P.W.14 for an autopsy. (f) P.W.10 at the request of the investigating officer, conducted autopsy over the body of Nagarajan, on 8.9.92 at about 12.30 p.m., which revealed the following external injuries and the corresponding internal injuries also: 1.A sutured wound over Rt. Parietal region of Calvarium 2.5 cms. Length. 2.Contusion over Rt. Frontal thigh at middle 6cm x 4 cm. 3.A fracture in calvarium over the right fronto parietal region- stellate fractures 5 pieces with linear depression 16 cm x 10 cm. 4.Contusion over Rt. Fronto-thigh was subcutaneous haematoma The doctor considering the effect of the injuries, opined in Ex.P.11, that the deceased would appear to have died, due to vital organ injury viz., brain - blood accumulation intra cerebral subdural and extradural. (g) P.W.14 in continuation of the investigation, examined the witnesses 1 to 4 and others, recorded their statements then and there. On information, he arrested both the accused on 10.9.92, near Powthiram-Musiri Division Road. The first accused when he was examined by P.W.14, disclosed the concealment of the weapon, used by him, under Ex.P.5 and in pursuance of the same, M.O.1 was recovered in the presence of P.W.8. The properties recovered were also sent for chemical examination, through Court and reports were obtained. The first accused when he was examined by P.W.14, disclosed the concealment of the weapon, used by him, under Ex.P.5 and in pursuance of the same, M.O.1 was recovered in the presence of P.W.8. The properties recovered were also sent for chemical examination, through Court and reports were obtained. The materials so collected and the evidence recorded by the investigating officer then and there, revealed the fact, that the accused/appellant and another were the cause for the death of Nagarajan, as well as for sustaining injuries by P.Ws.1 & 2. In this view, P.W.14 filed a final report, leading to trial, ending in conviction, as far as the appellant/accused is concerned, giving cause of action for this appeal. (h) The learned trial Judge has come to the conclusion, on the basis of the evidence, that the motive projected by the prosecution is proved, to the satisfaction, that the witnesses who have witnessed the incident, are not only related to the deceased, but also related to the accused and in this view, there is no reason to discard their oral testimony, that Nagarajan died only due to the injury inflicted by the first accused, that no case was made out against the second accused, that the first accused alone is responsible, for causing injuries to P.Ws.1 & 2. Thus concluding, the learned Additional Sessions Judge, Tiruchirapalli while acquitting the second accused, convicted the first accused/appellant. 7. Heard the learned counsel for the appellant, Mr. A. Padmanabhan and the learned Government Advocate (Crl. side), who took the pain of taking us through the oral, as well as documentary evidence, in respect of their rival contentions. 8. The learned counsel for the appellant submits, that the motive part of the case, does not find any acceptable evidence and therefore, its acceptance by the trial Court, is unwarranted. It is the further submission of the learned counsel for the appellant, that there are unexplained inconsistency, coupled with improbability and this would nullify the entire evidence and in this view, the oral evidence of P.Ws.1 and 4 is to be eschewed. It is further pointed out that there is no material to sustain the conviction, the fact being P.W.2 and P.W.6 have not supported the case of the prosecution, thereby they have treated as hostile witnesses. It is further pointed out that there is no material to sustain the conviction, the fact being P.W.2 and P.W.6 have not supported the case of the prosecution, thereby they have treated as hostile witnesses. As final submission, the learned counsel submits, that assuming a case was made out, the offence committed by the accused/appellant would not come under Section 302 I.P.C. and if at all, it should come only under 304 I.P.C., since the entire incident should come within the exception IV of 300 I.P.C. 9. In opposing the above contentions, the learned Government Advocate would submit that the oral evidence of P.Ws.1 & 4 are solid in nature, and nothing is materially elicited to erase the effect of evidence and therefore, the conclusion of the trial Court, finding guilty, has to be accepted. It is the further case of the learned Government Advocate that there is no delay of any kind, while preferring the complaint and the entire evidence is, only on the basis of the first information report, without much contradiction and in this view, he supported the findings and conviction of the trial Court. 10. P.W.1, Tmt. Muniyammal, is the sister of A1 and mother-in-law of the deceased Nagarajan i.e., the mother of P.W.4, who is the wife of Nagarajan. As sister, she had no grudge, over her brother, except this incident or the incident said to have taken place prior to 5.9.92. As rightly observed by the trial Court, nothing was suggested concretely, to doubt about the veracity of P.W.1's evidence and the information given by her in Ex.P.1. P.W.4 being the wife of the deceased, if she was present at the scene of crime, bound to say, how the incident had taken place and only in this view, she has picturised the incident, without much contradictions. From the cross examination of P.Ws.1 & 2, it is seen, that the presence of the first accused was admitted. It is suggested to P.W.1, that the deceased Nagarajan demanding amount from the first accused, went to the extent of saying, that the amount should be paid at least by sending his wife to somebody. It was suggested to P.W.4, that since the incident had taken place during night hours, she had no chance to witness the same. P.W.1 was also injured in the incident, which was not contradicted. It was suggested to P.W.4, that since the incident had taken place during night hours, she had no chance to witness the same. P.W.1 was also injured in the incident, which was not contradicted. From the above it could be seen, P.W.1 and accused were present together, at the time of incident. 11. As expected, the father, P.W.2 went to the side of the son, instead of preferring the daughter, and that is why despite the fact, he also sustained injury in the same incident, has not supported the case of the prosecution, exhibited his ignorance, as if nothing was known to him, which could not be correct. He admits, that the husband of her grand daughter died in the incident, further admitting that in the incident, he has also sustained injury. The incident had taken place at about 6.00 p.m. and therefore, there is every possibility of this man knowing, who assaulted the deceased. Only in order to save the son, as father, he turned hostile and there is nothing strange. Thus fixing the presence of the accused, at the time of the incident, as well as fixing the presence of P.Ws.1, 2 & 4, we have to see next, what is the value of their evidence. 12. P.W.1 has categorically deposed, without any variation or much contradiction affecting the case, that on the date of the incident, the first accused assaulted her son in law, over his head, by using the handle of the spade (M.O.1), which has an iron ring also. It is the further case of P.W.1, that when she attempted to prevent the first accused, from assaulting further, once again he beat Nagarajan, over his thigh and not only that, he also beat her, over the right hand. The above evidence stands as rock, which is supported by the oral evidence of P.W.4. P.W.4 also had implicated the first accused, very specifically giving the overt act, which caused the injuries to Nagarajan. M.O.1-weapon was recovered only on the basis of the confession given by A2, which we will discuss infra and the same was identified by P.W.4. 13. The learned counsel for the appellant also failed to persuade us, pointing out any materials, on what ground, the oral evidence of P.Ws.1 & 4 could be ignored as unworthy of acceptance. M.O.1-weapon was recovered only on the basis of the confession given by A2, which we will discuss infra and the same was identified by P.W.4. 13. The learned counsel for the appellant also failed to persuade us, pointing out any materials, on what ground, the oral evidence of P.Ws.1 & 4 could be ignored as unworthy of acceptance. Therefore, we have no option except to accept and act upon the evidence of P.Ws.1 & 4, which is inspiring, deserving meritorious acceptance. Their evidence is further supported by the medical evidence. 14. The doctor, P.W.10, has noticed a contusion on the right front thigh, at middle 6 cm x 4cm. On opening the scalp, he has noticed fractures, which caused damage to brain and accumulation of blood. These two injuries are spoken by P.Ws.1 and 4. It is also the opinion of the doctor, that these injuries could have been caused by using M.O.1, like weapon. The head injury proved to be fatal and the same was caused by the first accused, and therefore, his act comes within the meaning of murder, generally, unless any exception comes, as contemplated under Section 300 I.P.C. Under the above circumstances, we conclude, that the first accused alone is the cause for the death of Nagarajan. 15. The fact P.Ws.1 & 2 sustained injuries, in the same incident is not very much in dispute. As evidenced by Ex.P.2, P.W.2 suffered an incised injury, as well as a laceration around the incised injury. P.W.1 has spoken about the assault by the first accused/appellant, over his right hand, using the handle of the spade. Though medical certificate is not produced, the fact that P.W.1 sustained injury is not challenged, as seen from the cross examination. Therefore, we are constrained to conclude, that the first accused by his act, caused simple injury to P.Ws.1 & 2, using more or less a deadly weapon (M.O.1), which has iron portion also. Therefore, the above act should come within the ambit of Section 324 I.P.C. as correctly concluded by the trial Court, which is not very much challenged before us, also. In this view, the conviction slapped upon the accused/appellant for the offences under Section 324 (2 counts) is to be confirmed as such. 16. In Ex.P.1 complaint, the entire incident including the presence of the witnesses, are neatly given by P.W.1, which was recorded by P.W.11. In this view, the conviction slapped upon the accused/appellant for the offences under Section 324 (2 counts) is to be confirmed as such. 16. In Ex.P.1 complaint, the entire incident including the presence of the witnesses, are neatly given by P.W.1, which was recorded by P.W.11. This was recorded on 6.9.92 at about 11.00 a.m., at General Hospital, Trichy and thereafter, the case was registered, at 1.00 p.m. on the same day. Though the incident had taken place on 5.9.92 at about 6.00 p.m., the complaint came to be registered, only on 6.9.92 at about 11.00 a.m. and the case was registered at about 1.00 p.m. Since the parties were interested in saving the life of the deceased, in taking him to different hospitals, there was no compelling necessity for them, to prefer a complaint forthwith. When the fact was informed by the hospital authorities to the police station concerned, it was recorded without any delay, as spoken by P.W.11, not challenged. Therefore, there is no question of wanton delay or implication of the accused, due to previous enmity, in order to wreak vengeance. In this view, we find no ground to doubt about the genuineness of Ex.P.1 and its contents, which are fully supported by P.Ws.1 and 4. 17. The main thrust of the learned counsel for the appellant is, that the act of the first accused will not attract Section 302 I.P.C. and if at all, the same will come within the ambit of Section 304 I.P.C. It is the further contention of the learned counsel for the appellant, placing reliance upon the decision in Rajan & Others v. State rep. by Inspector of Police (2002-2-L.W.(Crl.) 769, that the prosecution has failed to prove the nexus between the death and the injury, by producing case sheet and in this view, the benefit of doubt should go to the accused. by Inspector of Police (2002-2-L.W.(Crl.) 769, that the prosecution has failed to prove the nexus between the death and the injury, by producing case sheet and in this view, the benefit of doubt should go to the accused. In the above case, a Bench of this Court has held : "The non examination of the Doctor, who treated the deceased at the C.M.C. Hospital, Coimbatore and failure to produce the case sheet would come to rescue of the accused from being found guilty under Section 302 I.P.C. As rightly pointed out by the learned counsel for the appellant, had the case sheet been marked and the Doctor who treated the deceased was examined, the accused would have been in a position to examine the same and cross examine on the aspects required. 18. On the strength of the above decision, a submission was made, as if, the case sheet was not produced or the doctor who treated the deceased was not examined, thereby depriving the right of the accused. This defence is not available to the accused, in our considered opinion, in view of the fact that the case sheet is marked and the doctor has been examined and gave evidence. Dr. Swaminathan, P.W.12 had admitted the deceased in the hospital, treated him, when he was inpatient. He had produced the case sheet and the accident register, which is exhibited as Ex.P.12, which contains the details regarding the treatment given to the deceased, from the date of admission, till the date of death. When the doctor was in the box, nothing was suggested to him, that the injury is not the cause for the death or the same has no nexus to the death of the deceased, etc. Therefore, the opportunities said to have been denied to the accused, as contended by the learned counsel for the appellant before us, is unavailable to him and on the basis of the above decision, we are unable to doubt about the cause of death. Hence this contention is rejected. 19. The incident had taken place on 5.9.1992 at about 6.00 p.m. The injured succumbed to the injuries on 7.9.1992 at about 9.30 a.m. The weapon used in this case, is not so deadly, whereas it is only a handle of a spade, which has a ring on its top. Hence this contention is rejected. 19. The incident had taken place on 5.9.1992 at about 6.00 p.m. The injured succumbed to the injuries on 7.9.1992 at about 9.30 a.m. The weapon used in this case, is not so deadly, whereas it is only a handle of a spade, which has a ring on its top. It was suggested to P.W.1, that the deceased provoked the first accused, to assault, because of that provocation alone, the first accused assaulted the deceased, without any intention to commit murder and therefore, his act would not come within the meaning of 302 I.P.C., whereas it should come under exception IV of Section 300 I.P.C., then taking to the punishment under Section 304 I.P.C. In aid the learned counsel for the appellant relied on a decision in Surinder Kumar v. Union Territory, Chandigarh reported in AIR 1989 SC 1094 . In that case, it seems there was a sudden quarrel between the accused and the deceased and the accused caused injuries, that too, not adopting any cruel manner. It seems he inflicted only one injury, that proved to be fatal. Considering the facts and circumstances of that case, the Apex Court has ruled: "Thus where in a case of quarrel between the deceased and the accused regarding possession of premises, it was reasonable to infer from the facts that the deceased must have intervened on the side of his brother and in the course of the scuffle he received injuries, one of which proved fatal, the accused would be entitled to the benefit of the Exception 4 to S.300. Merely because three injuries were caused tot he deceased during the scuffle it could not be said that he had acted in a cruel and unusual manner. Under such circumstances, the accused could be convicted under S.304, Part I." Taking clue from the above decision, it was urged that if at all the accused should be dealt with only under Section 304 I.P.C. and not under Section 302 I.P.C. In order to find out whether the offence would come under Section 304 I.P.C. or not, we have to see under what circumstances, this incident had taken place, and what is the nature of the weapon deployed, by the accused and the nature of the injuries inflicted by him. 21. 21. The investigating officer would state, that he arrested the accused on 10.9.1992 and on the confession given by him, i.e. Ex.P.5, M.O.1 was recovered under the cover of mahazar. This evidence is not very much challenged, except throwing some unacceptable suggestion. P.W.8 has also spoken about the arrest and the disclosure statement given by the first accused, under Ex.P.5 and the recovery of M.O.1 in pursuance of the same under Ex.P.6. Because of the recovery, on the basis of the confession, since P.W.4 had already seen this weapon, identified the same and therefore, it should be construed, this weapon alone should have been used by the accused, for causing the injuries. 22. The accused, in order to question the conduct of the deceased, as well as P.W.1, regarding the previous incident, had been to the house of P.W.1, and questioned them. While going there, it seems, he took the handle of the spade. When there was heat of passion, provoked by the words said to have been used by the deceased, the accused assaulted Nagarajan over his head and thigh. If really, he had pre-planned to murder the deceased, he ought to have gone there, with some other deadly weapon, to cause fatal injuries. This is not the case here. The evidence would suggest that the accused had been to the place of the deceased or P.W.1, only to question their conduct, since they have questioned the conduct of the accused, regarding the previous incident. During exchange of words, unexpectedly, the accused impelled by animosity, unmindful of the consequences, used the weapon, caused the injuries and this act should come, as rightly pointed out by the learned counsel for the appellant, under Exception 4 of Section 300 I.P.C. which says, "culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner." The suggestion put to P.W.1, though not accepted, would have prompted anyone, to act in a heat of passion, that too in the usual manner, as human conduct commands. Therefore, in our opinion, the case should come, under exception IV of 300 I.P.C., thereby attracting Section 304 I.P.C.. 23. Therefore, in our opinion, the case should come, under exception IV of 300 I.P.C., thereby attracting Section 304 I.P.C.. 23. Section 304 (I) I.P.C. would be attracted, if the act by which the death is caused, is done with the intention of causing death, or of causing such bodily injury is likely to cause death. The accused had no intention, to commit the murder of the son in law of her sister, except the petty quarrels, which may not be the basis, to commit murder, in the ordinary course. Therefore, if at all, A1 ought to have been provoked by the deceased, which impelled to act him, spontaneously, without any intention to cause death or to cause such bodily injury, as is likely to cause death. Therefore, as rightly contended by the learned counsel for the appellant, which is not challenged by the Government Advocate, in our considered opinion, the act of the accused comes under the latter part of 304 I.P.C. which is generally called 304 (II) I.P.C. The trial Court, though this point was urged, has failed to take into consideration, which appears in our view, incorrect. Thus, considering the facts and circumstances of the case, we find that material available on record would suggest that the offence would come only under Section 304 (II) I.P.C. not under Section 302 I.P.C. and in this view, the conviction and sentence has to be modified, accordingly. 24. According to the prosecution, prior to the date of occurrence, there was some dispute between the parties regarding grazing of the goat. Aggrieved by that, it is the case of P.W.1 that the incident had taken place. The motive so alleged appears to be very flimsy and it may not be the basis for causing the murder. Even in the absence of motive, if the incident is otherwise proved, according to the impact of the incident, the party who is the cause for the consequences, must be dealt with and in this view, we have fully analysed the evidence ignoring the motive, bringing the act of the accused under Section 304 Part II of I.P.C. Then the only point remaining is the question of sentence. 25. The accused deployed only an ordinary handle of a spade and caused injuries to the deceased, when he had been to the scene of crime, to question the conduct of Nagarajan. 25. The accused deployed only an ordinary handle of a spade and caused injuries to the deceased, when he had been to the scene of crime, to question the conduct of Nagarajan. As we have already discussed, this would indicate that he had no intention of any kind to murder the deceased. As spoken by the doctor, only two injuries were noticed; one over the head and another on the thigh. Unfortunately, the assault fell on the head, proved to be fatal, not immediately, but later on. The deceased was attacked on 5.9.1992 and he succumbed to the injuries on 7.9.1992. This is also a factor to conclude that the injury was not so severe causing instantaneous death. In this view of the matter, having regard to the other attending circumstances, a normal imprisonment would serve the ends of justice. In this case, the accused was in custody from the date of judgment till he was released on bail by this Court on 26.4.1999 i.e. more than four years. We feel the period already undergone by the accused would serve the ends of justice. In the result, the conviction slapped by the trial Court is modified under Section 304 (II) I.P.C. instead of 302 I.P.C. and the accused is left free with the period of imprisonment that he had already undergone. The bail bond executed, if any, shall stand discharged. The appeal is allowed to the above said extent.