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2004 DIGILAW 1698 (MAD)

Palani & Another v. State by Inspector of Police

2004-12-13

R.BANUMATHI

body2004
Judgment :- Appellants are the Accused in S.C.No.123 of 1997 on the file of Principal Sessions Judge, Nagappattinam. By the Judgment (dated 07.01.1998), the Principal Sessions Judge, Nagappattinam has convicted the Appellants / Accused under Sec.304(II) I.P.C and sentenced them to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.15,000/- each and in default, to undergo Rigorous Imprisonment for a further period of two years. The fine amount of Rs.30,000/- collected from the Accused was ordered to be paid as compensation to P.W.1-Vasanthi. 2. Case of Prosecution could be stated thus: P.W.1-Vasanthi, P.W.2-Muniyandi-Father of P.W.1, Deceased-Ramalingam - Husband of P.W.1 were living at Annappanpettai. They are having wet lands at Tirunagari, which is at a distance of about 4 K.M. from Annappanpettai. The Accused belonged to Tirunagari village. On 27.03.1997 at about 12.00 Noon, P.Ws.1 and 2 and the Deceased-Ramalingam went to Tirunagari village to irrigate their lands. P.W.2 saw four Cattle grazing the field where blackgram had been cultivated. He asked the Deceased – Ramalingam to drive away the Cattle and he had driven away the Cattle from the field. On seeing the same, the Accused came there, questioning the Deceased about the beating and driving away of the Cattle. The Accused started beating the Deceased indiscriminately on his Head with Hands. When the Deceased had fallen down, both the Accused had trampled on his Neck, Chest and all over the body with Legs. On seeing the attack on Ramalingam, P.Ws.1 and 2-Wife and Father-in-law of Deceased, P.W.3-Vellaiya Thevar and P.W.4-Natarajan ran to the place of occurrence. On seeing them, the Accused had run away. 3. Blood was found oozing from the Left Ear and the Nose of the Deceased-Ramalingam. He was unable to talk. P.Ws.1 and 2 carried the Deceased to the field of one Kaliyamoorthy, where the Deceased died after developing some convulsions. After leaving P.W.2 near the body, P.W.1-Vasanthi went to Annappanpettai and informed her mother and villagers about the occurrence and the death of her Husband-Ramalingam. The villagers came to the place – field of Kaliyamoorthy where the body was lying. 4. Registration of the case and Investigation:- On the same day – 27.03.1997, P.W.1 went to Tiruvengadu Police Station and gave Ex.P.1-Complaint to P.W.8-Sub Inspector of Police at about 05.45 p.m. Ex.P.1 was received by the Magistrate at about 09.15 p.m on 27.03.1997. The villagers came to the place – field of Kaliyamoorthy where the body was lying. 4. Registration of the case and Investigation:- On the same day – 27.03.1997, P.W.1 went to Tiruvengadu Police Station and gave Ex.P.1-Complaint to P.W.8-Sub Inspector of Police at about 05.45 p.m. Ex.P.1 was received by the Magistrate at about 09.15 p.m on 27.03.1997. On the basis of Ex.P.1, a case was registered in Crime No.117 of 1997 under Sec.302 I.P.C under Ex.P.6-F.I.R. 5. P.W.9-Inspector of Police, Poombuhar Police Station in charge of Tiruvengadu Police Station has taken up the Investigation. He commenced the Investigation on the morning of 28.03.1997 – 06.00 a.m. Ex.P.6-Photographs were taken on the body and the place where the body was lying. The place was inspected in the presence of P.W.5-Srinivasan and one Rangarajan; Ex.P.2-Observation Mahazar, Ex.P.7-Rough Plan were prepared regarding the scene of occurrence. From 07.30 a.m to 10.00 a.m., Witnesses were examined in the presence of Panchayatars and the Inquest was held on the body of Deceased-Ramalingam. Ex.P.8 is the Inquest Report. After the Inquest, the body was sent to Autopsy through P.W.7-Jeyaraj. 6. Pursuant to requisition from Inspector of Police, P.W.6-Pasupathi has conducted the Autopsy on the body of Deceased-Ramalingam. He has noted Fracture on the Fourth rib on the Left side; Second and Third Ribs on the Right Side; Haemotoma on the Left and Right Lung and also Fracture on the front parietal region. P.W.6 opined that the Deceased died of shock and haemorrhage due to Injury to the Vital organs and to the Skull and issued Ex.P.3-Post Mortem Certificate and Ex.P.4-Final Opinion. 7. On 29.03.1997 at 11.00 a.m, A-2-Harikrishnan was arrested at Periyamedu near Acobana Aquaculture Farm in the presence of P.W.5. When being questioned, A-2 had voluntarily given a Confession Statement. A-2 was remanded to Judicial Custody. On 01.04.1997 - 04.00 p.m., A-1-Palani was arrested near Puduthurai Bus Stop in the presence of P.W.5. A-1 was interrogated. A-1 was found to be having small injuries. He was sent to Sirkazhi Government Hospital for treatment. Ex.P.9 is the Wound Certificate of the First Accused. P.W.10-Inspector of Police, who has joined the duty has taken up the further Investigation. Witnesses were examined and on completion of the Investigation, Charge Sheet was filed against the Accused 1 and 2 for the offence punishable under Sec.302 I.P.C. 8. He was sent to Sirkazhi Government Hospital for treatment. Ex.P.9 is the Wound Certificate of the First Accused. P.W.10-Inspector of Police, who has joined the duty has taken up the further Investigation. Witnesses were examined and on completion of the Investigation, Charge Sheet was filed against the Accused 1 and 2 for the offence punishable under Sec.302 I.P.C. 8. In the Trial Court, to substantiate the Charge against the Accused, P.Ws.1 to 10 were examined. Exs.P.1 to P.9 were marked. M.Os.1 to 6 were produced. The Accused was questioned under Sec.313 Crl.P.C about the incriminating evidence and circumstances. Denying all of them, the Accused had stated that a false case is foisted against them. Onbehalf of the Accused, D.W.1 was examined. Through D.W.1, it was sought to be established that P.Ws.1 and 2 were attending Marriage of P.W.1’s Brother’s Brother-in-law at Sirkazhi and that P.Ws.1 and 2, Brother of P.W.1 and other relations attended the marriage between 07.30 a.m and 09.00 a.m. Only at that time, P.Ws.1 and 2 were informed that Ramalingam was beaten near the Toddy Shop and he was found lying there. On hearing the same, P.Ws.1 and 2 started for Tirunagari. 9. In consideration of the evidence, learned Sessions Judge found that the evidence of P.Ws.1 and 2 inspires the confidence of the Court. Learned Sessions Judge has found that the delay in preferring the Complaint has been properly explained by the Prosecution. Likewise, the explanation by P.W.9 that he could not immediately take up the Investigation on the night of 27.03.1997 was accepted. Learned Sessions Judge rejected the defence version set forth through D.W.1. On those findings, the Appellants / Accused were found guilty under Sec.304(II) I.P.C and sentenced them as aforesaid in para (1). 10. Aggrieved over the Judgment, the Appellants have preferred this Appeal. Assailing the findings and conclusion of the Trial Court, it is contended that the Trial Court erred in believing the interested testimony of P.Ws.1 and 2 and unnatural conduct of P.W.1 in leaving her Father near the body and not taking him to the Police Station. Laying emphasis upon the evidence of D.W.1, presence of P.Ws.1 and 2 in the scene of occurrence is attacked. Laying emphasis upon the evidence of D.W.1, presence of P.Ws.1 and 2 in the scene of occurrence is attacked. It is the further contention that P.Ws.1 and 2 have not actually witnessed the occurrence, but were attending the marriage of P.W.1’s Brother’s Brother-in-law at the time of occurrence at Sirkazhi, which is main reason for the delay of Five hours in lodging the Complaint. Prosecution case is mainly attacked on the delay of nearly Five hours when the distance between the place of occurrence and the Police Station is only 6 K.M. 11. Countering the arguments of the Appellants / Accused, learned Government Advocate has submitted that on the consistent evidence of P.Ws.1 and 2, learned Sessions Judge has rightly held the Appellants / Accused responsible for the Murder of Deceased-Ramalingam. Drawing the attention of the Court to the evidence of P.Ws.1 and 2, it is submitted that the delay in lodging the Complaint has been properly explained and that there is no possibility of any exaggeration. Contending that the reasonings for conviction are well supported, it is submitted that there is no reason warranting in the verdict of conviction and sentence of Imprisonment. 12. In consideration of submissions of both sides, Judgment of the Trial Court, evidence and other materials available on record, the only point that arises for consideration is : Whether the assessment of the evidence suffer from any infirmity and whether the verdict of conviction of the Appellants / Accused under Sec.304(II) I.P.C suffers from any serious error warranting interference? 13. Deceased-Ramalingam is the Husband of P.W.1-Vasanthi. P.W.2-Muniyandi is the Father of P.W.1. They are Residents of Annappanpettai. The Deceased-Ramalingam owns lands in Tirunagari – S.No.137/2C, which is on the Southern Side of Pudhuthurai – Tirunagari Main Road. On 27.03.1997 at about 12.00 noon, P.Ws.1 and 2 and Deceased – Ramalingam went to Tirunagari village to irrigate their lands and to attend agricultural work. P.W.2 saw four Cattle grazing the field where Blackgram had been cultivated. He asked Ramalingam to drive away the Cattle. Ramalingam had driven away the Cattle from the field. At that time, the Accused came there questioning the Deceased as to why he was beating the Cattle and started beating the Deceased indiscriminately on his Head with Hands. P.W.2 saw four Cattle grazing the field where Blackgram had been cultivated. He asked Ramalingam to drive away the Cattle. Ramalingam had driven away the Cattle from the field. At that time, the Accused came there questioning the Deceased as to why he was beating the Cattle and started beating the Deceased indiscriminately on his Head with Hands. When the Deceased had fallen down on the field, both the Accused have trampled on his Neck, Chest and all over the body with their Legs. On seeing the occurrence, P.Ws.3 and 4 had come running to the scene of occurrence. On seeing them, the Accused had run away from the place. P.W.1-Wife of Deceased and P.W.2-Father-in-law of Deceased have consistently spoken about the occurrence. 14. Evidence of P.Ws.1 and 2 is to be tested for its credibility and acceptance. Their evidence is mainly attacked on the ground that they are closely related to Deceased-Ramalingam. Merely because P.Ws.1 and 2 are related Witnesses, their evidence cannot be viewed with suspicion. All that is required upon the Court is to view it with caution. The Injured Ramalingam was taken and when they went near the field of one Kaliyamoorthy, he developed convulsion and died there itself. According to P.W.1, she has left her Father near the body and went to Annappanpettai and informed her Mother and the villagers and the villagers came in gathering to the place where the body was lying. Thereafter, P.W.1-Vasanthi went to Tiruvengadu Police Station to lodge the Complaint. Evidence of P.W.1 is attacked on the ground of unnaturalness that she would not have left her Father-P.W.2 near the body and would not have gone alone to the Police Station. It is nothing unnatural for P.W.1 to have gone to the village and informing the villagers and thereafter going alone to the Police Station to inform about the occurrence. 15. Ex.P.1-Complaint was self-written by P.W.1 herself. Reliability of Ex.P.1 is very much attacked on the ground of improbability that P.W.1 being the Wife of the Deceased would not have mental composure to write the Complaint by herself. Pointing out the improbability, learned counsel for the Appellants has drawn the attention of the Court to “ X “ - mark below the contents of Ex.P.1 and submitting that the Trial Court ought to have compared the signature of P.W.1 with the writings in Ex.P.1. Pointing out the improbability, learned counsel for the Appellants has drawn the attention of the Court to “ X “ - mark below the contents of Ex.P.1 and submitting that the Trial Court ought to have compared the signature of P.W.1 with the writings in Ex.P.1. In the light of the definite answers of P.W.1, this contention has no force. P.W.1 has clearly stated that she knows to read and write and that she herself had written the Complaint - When P.W.1 was in the know of the things, it is nothing unnatural for her to write Ex.P.1 – Complaint by herself. 16. Credibility of P.Ws.1 and 2 is assailed on the ground that P.W.1 had no blood stains on her clothes. From the evidence, it came to know that there was Oozing of blood from the Ear and Nose of Deceased-Ramalingam. P.Ws.1 and 2 have carried the body of Ramalingam to the field of Kaliyamoorthy at a distance of about two furlong. It is contended that when P.Ws.1 and 2 have carried the Injured – Ramalingam to a distance of about two furlong, it is quite unbelievable that clothes of P.Ws.1 and 2 would not have had blood stains. This contention is to be appreciated in the light of evidence on record. Nothing has been brought out from the evidence of P.W.6-Dr.Pasupathi about the profused bleeding from the Ear and Nose of the Deceased-Ramalingam. It is not known whether there was spillage of blood / profused bleeding to leave the clothes of P.Ws.1 and 2 stained. Under such circumstances, evidence of P.Ws.1 and 2 cannot be disbelieved on the ground that their clothes were not stained with blood. 17. P.W.3-Vellaiya Thevar and P.W.4-Natarajan – Eye Witnesses have turned hostile. Case of Prosecution is also attacked on the ground of hostility of P.Ws.3 and 4 and that the evidence of P.Ws.1 and 2 lacks corroboration from independent source, which throws serious doubt on the prosecution case. P.W.4-Natarajan has turned completely hostile. Though P.W.3 has been treated hostile, his evidence refers to the running of the Accused and the Deceased lying with bleeding injuries from the Ear and Nose. The hostility of P.Ws.3 and 4 cannot go to the advantage of the Appellants / Accused. P.W.4-Natarajan has turned completely hostile. Though P.W.3 has been treated hostile, his evidence refers to the running of the Accused and the Deceased lying with bleeding injuries from the Ear and Nose. The hostility of P.Ws.3 and 4 cannot go to the advantage of the Appellants / Accused. In a small village like Annappanpettai / Tirunagari, the villagers – P.Ws.3 and 4 might not have been firm enough to come forward to support the prosecution case. In view of their infirmity, perhaps, they preferred to remain indifferent either to save the Appellants / Accused or to avoid taking sides. Evidence of P.Ws.1 and 2 cannot be tested in the light of hostility of P.Ws.3 and 4. 18. Further, it is not as if the evidence of P.W.3 is not totally in support of the Prosecution case. In his evidence, P.W.3 has stated that, From his evidence, the presence of the Accused in the scene of occurrence and that the Deceased had fallen at the hands of the Accused comes to be known. The above evidence of P.W.3 substantially corroborates the version of P.Ws.1 and 2. 19. Onbehalf of the Accused, D.W.1-Neduncheziyan has been examined. In his evidence, D.W.1 has stated that on 27.03.1997, marriage of Brother-in-law of P.W.1’s Brother was conducted at Sirkazhi and that D.W.1 attended the said marriage. Further, according to D.W.1, the marriage was celebrated between 07.30 a.m. and 09.00 a.m, and P.Ws.1 and 2 and other relatives attended the marriage and only during the marriage, one person came and informed them that Ramalingam was attacked near the Toddy Shop and that he was found lying there. Thereafter, P.Ws.1 and 2 and others started for Tirunagari. D.W.1 has appeared before the Court on his own onbehalf of the Accused and not pursuant to issuance of any summons. His evidence has to be scrutinised carefully. D.W.1 has not produced any Marriage Invitation Card, showing the marriage at Sirkazhi on 27.03.1997. The version of D.W.1 that the occurrence was near Toddy shop has no basis. From Ex.P.2-Observation Mahazar, it is seen that the body was found in the field of one Kaliyamoorthy – Blackgram harvest land. The relevant observations in Ex.P.2 reads thus: Evidence of D.W.1 remains unsupported by any other materials and shattered with improbabilities. There is no necessity for P.Ws.1 and 2 to foist a false case against the Accused when there is no enmity between them. The relevant observations in Ex.P.2 reads thus: Evidence of D.W.1 remains unsupported by any other materials and shattered with improbabilities. There is no necessity for P.Ws.1 and 2 to foist a false case against the Accused when there is no enmity between them. It is to be noted that P.Ws. 8 and 9 – Investigating Officers have clearly denied having received any telegram on the foisting of false case against the Accused. 20. Case of Prosecution is mainly attacked on the ground of delay in registration of the case. The occurrence was at 12.00 Noon on 27.03.1997. Ex.P.1-Complaint was lodged by P.W.1 in Tiruvengadu at about 05.45 p.m. The case was registered in Crime No.117/97 under Ex.P.6-F.I.R. After the death of Ramalingam, P.W.1 went to the village and informed the villagers and the villagers came in gathering near the field of Kaliyamoorthy. Thereafter, P.W.1 went to the Police Station to lodge the Complaint at about 05.45 p.m. It is contended that when the distance between the place of occurrence and Tiruvengadu Police Station is only about 6 K.M, the delay of five hours in registration of the case throws considerable doubt on the prosecution case. In the circumstances of the case, there is no delay at all; even if there is any delay, the same is reasonably explained. In view of the reasonable time taken, this Court finds that there is no possibility of any exaggerated version in Ex.P.1. This is all the more so, when the family of P.Ws.1 and 2 have no motive or ill-will against the Accused. 21. In Ex.P.7-Rough Plan, scene of occurrence is shown as S.No.137/2C-field of Deceased-Ramalingam. In her evidence, P.W.1 has stated that her Husband had chased the Cattle to a distance and at the distance, he was beaten. In Ex.P.1, P.W.1 has clearly stated that Ramalingam had chased the Cattle to a distance and where he was beaten. P.W.1 clearly elaborates the small distance referred to in Ex.P.1. According to her, Ramalingam was beaten in the next field at about distance of 50 feet from the field where they have raised Blackgram. Regarding Scene of Occurrence, P.W.2 has stated that, ...vdJ kUkfid vjphpfs; moj;j ,lk; eluh$d; tay; Xukhf thug;gs;sj;J tha;f;fhy; mUfpy;...” It is contended that there is much contradiction in the scene of occurrence, which throws much doubts on the presence of P.Ws.1 and 2 in the scene of occurrence. Regarding Scene of Occurrence, P.W.2 has stated that, ...vdJ kUkfid vjphpfs; moj;j ,lk; eluh$d; tay; Xukhf thug;gs;sj;J tha;f;fhy; mUfpy;...” It is contended that there is much contradiction in the scene of occurrence, which throws much doubts on the presence of P.Ws.1 and 2 in the scene of occurrence. In this regard, it is submitted that there is no mention in the charge framed against the Accused. The place of occurrence where Ramalingam was attacked is the nearby field. P.Ws.1 and 2 have described the same according to their own perception and their individual way of describing the place. This court finds no inconsistency in the scene of occurrence. No doubt, in the charge framed against the Accused, the scene of occurrence is only stated as Tirunagari Village and the exact place is not indicated. As per Sec.464 Crl.P.C, any omission to refer the scene of occurrence in the charge would not cause any prejudice to the Accused. This is all the more so when the same was not raised before the Trial Court. The contradictions alleged on the scene of occurrence does not substantially affect the core of evidence of P.Ws.1 and 2. 22. Oral evidence of P.Ws.1 and 2 on the attack of Deceased-Ramalingam is also well supported by Medical Evidence. P.W.6-Dr. Pasupathi noted the following injuries on the person of Deceased-Ramalingam: “...1) Fracture of 4th Rib on the Left side 2) Fracture of 2nd and 3rd Ribs on the Right side 3) Haematoma in both lobes of the Left Lung 4) Haematoma in the lower lobe of the right Lung ..... On opening of Skin over the Skull; an Haematoma seen over the scalp over the right Frontoparietal region.....On opening of the Skull bone, a Subdural haematoma over the right fronto parietal region the Brain....” P.W.6-Dr.Pasupathi has opined that the Injuries are possible by kick on the Neck, Chest and all over the body. Evidence of P.Ws.1 and 2 is thus amply strengthened by the Medical Evidence. 23. Medical evidence is assailed that mere hitting with hands and legs would not have caused such extensive injuries like Fracture of the Skull Bone and that it is highly improbable that the Deceased would have sustained injuries in the manner suggested by the Prosecution. Evidence of P.Ws.1 and 2 is thus amply strengthened by the Medical Evidence. 23. Medical evidence is assailed that mere hitting with hands and legs would not have caused such extensive injuries like Fracture of the Skull Bone and that it is highly improbable that the Deceased would have sustained injuries in the manner suggested by the Prosecution. As noted earlier, P.W.6 is of the definite opinion that when a person is voluntarily kicked, there is every possibility of Rib Bone Fracture and the Skull Bone Fracture being caused. Regarding this definite opinion, P.W.6 was not at all confronted. When that being so, it is not open to the Appellants / Accused to urge on the improbabilities of the injuries caused to the Deceased. 24. The Appellants / Accused are proved to be responsible for the death of Ramalingam. There is no previous enmity between the Accused and P.W.1. Chasing away of Cattle resulting in wordy quarrel between Ramalingam and the Accused. In that wordy quarrel, the Accused got enraged and caused injuries on the Head, Neck and Chest of the Deceased by kicking him. Since the death was caused in the sudden quarrel, learned Sessions Judge has rightly convicted the Appellants / Accused under Sec.304(II) I.P.C and the same is to be maintained. 25. For the conviction under Sec.304 (II) I.P.C, the Appellants / Accused were sentenced to undergo Rigorous Imprisonment for a period of Seven years each and to pay a fine of Rs.15,000/- each. The fine amount collected was ordered to be paid as compensation amount to P.W.1-Vasanthi. 26. Pointing out that even if the Appellants / Accused are found guilty, it is submitted that the sentence of Imprisonment of Seven years is unreasonable and harsh and learned counsel for the Appellants prayed for modification of the Sentence. 27. What ought to be the proper sentence in a given case is always at the discretion of the Trial Court. In an Appeal against conviction, it is open to the High Court to alter or modify or reduce the sentence after confirming the conviction, if the High Court is of the opinion that the sentence is heavy or unduly harsh. 28. In the case in hand, the occurrence was in a sudden quarrel. In an Appeal against conviction, it is open to the High Court to alter or modify or reduce the sentence after confirming the conviction, if the High Court is of the opinion that the sentence is heavy or unduly harsh. 28. In the case in hand, the occurrence was in a sudden quarrel. In the sudden quarrel, the Appellants / Accused voluntarily kicked the Deceased causing Fracture of 4th Rib on the Left Side; Second and Third Rib on the right side. Haematoma was noted on the Left Lung also. The Appellants / Accused had attacked the Deceased with violent kick, causing grievous injuries. However, there was no pre-plan or pre-meditation. In consideration of the facts and circumstances of the case, reduction of sentence from seven years to five years would meet the ends of justice. Learned Sessions Judge has imposed fine of Rs.15,000/- each and in default, to undergo Rigorous Imprisonment for two years. It is stated that the fine amount has not been paid. The fine amount imposed and the default sentence are to be maintained. 29. C.A.No.68 of 1998 :- The Judgment of the Principal Sessions Judge, Nagappattinam (dated 07.01.1998) in S.C.No.123 of 1997, convicting the Appellants / Accused under Sec.304(II) I.P.C is confirmed. The period of sentence of Rigorous Imprisonment of Seven years is reduced to Five years and this Appeal is partly allowed. The Fine amount of Rs.15,000/- each and the default sentence of two years are confirmed. 30. Since the Appellants/Accused are on bail, the Trial Court is directed to secure the custody of the Appellants/Accused and make them to undergo remaining period of sentence.