Research › Search › Judgment

Madras High Court · body

2004 DIGILAW 264 (MAD)

Karuppusamy v. State by the Inspector of Police

2004-02-23

R.BANUMATHI

body2004
Judgment :- By the judgment-dated 17.7.97 in S.C.226/96 the II Additional Sessions Judge, Coimbatore convicted the Appellant/Accused under Section 304(II) I.P.C and sentenced him to undergo rigorous imprisonment for five years. Aggrieved over the verdict of conviction, Appellant/Accused has preferred this appeal. 2.Witnesses and deceased are related as under:- | ------------------------------------------- Nachimuthu Gounder Ramathal (deceased) (PW3) | | | | ---------------------- Muthulakshmi | | (PW4) Subramaniam Murugasamy (PW1) (PW2) 3. P.Ws.1 and 2 are residing in Kannimar Koil Thottam. Deceased Nachimuthu Gounder was living with them. P.Ws.3 and 4 are residing at K-Iyampalayam. The house of the accused is on the western side of the house of P.W.3. On the northern side of both the houses, there is a pathway. There was a dispute between the family of P.W.3-Ramathal and the accused in using the said pathway. About 4-5 days prior to 12.4.95 i.e., date of occurrence; accused Karuppusamy had picked up quarrel with P.W.3, questioning her conduct in using the pathway on the northern side. P.W.3 went to Kannimarkoil Thottam and reported the same to her brother deceased Nachimuthu Gounder. Deceased Nachimuthu Gounder asked P.W.3 to wait for few days that he would come to Iyampalayam and ask the accused after some time. 4. Occurrence: On 12.4.95-7.00 p.m. while P.W.3 was white washing her walls, the accused again questioned her in using the disputed vacant space which resulted in wordy quarrel between them. On the same day, at about 8.00-8.30 p.m P.W.3-Ramathal went to Kannimarkoil Thottam and reported the same to her brother Nachimuthu Gounder. Thereafter the deceased came along with his sons P.Ws.1 and 2 accompanied by P.W.3 to Iyampalayam. P.W.1-Subramaniam asked accused-Karuppusamy how he could question his aunt about using the pathway when it is meant for her. At that time deceased also had intervened and told the accused that he purchased the house site 30 years back and put up the house for his sister with every right to enjoy the pathway. Enraged over the same, the accused saying "cd; cld; gpwe;jtSf;fhf rg;nghh;l;Lf;F tUfpwhah" threw M.O.1-Stone upon Nachimuthu Gounder which hit his left side head. Nachimuthu Gounder swooned and slided down. P.Ws.1 to 3 have taken Nachimuthu Gounder to Palladam Government Hospital. At about 11.30 p.m P.W 10-Dr.Marimuthu had examined Nachimuthu Gounder and declared him dead. 5. Registration of case: On the death of Nachimuthu Gounder, Ex.P10-Death Intimation was sent to Palladam Police Station. Nachimuthu Gounder swooned and slided down. P.Ws.1 to 3 have taken Nachimuthu Gounder to Palladam Government Hospital. At about 11.30 p.m P.W 10-Dr.Marimuthu had examined Nachimuthu Gounder and declared him dead. 5. Registration of case: On the death of Nachimuthu Gounder, Ex.P10-Death Intimation was sent to Palladam Police Station. On receipt of Ex.P10, P.W.11-Sub-Inspector of Police went to Palladam Government Hospital at 11.40 p.m. He recorded Ex.P1 statement from P.W.1. On the basis of Ex.P1, a case was registered in Crime No.185/95 under Section 302 I.P.C at 00.30 hours on 13.4.95. Since Palladam Inspector was on other duty, F.I.R was sent to P.W.12-Inspector of Police, Avinashipalayam who was in charge of Palladam Police Station. 6. Investigation: Upon receipt of the copy of the F.I.R, P.W.12 had taken up the investigation. He went to the place of occurrence at 2.00 a.m. Scene of occurrence was inspected in the presence of P.W.6-Palanisamy and one Senthilkumar. Ex.P2-Observation Mahazar and Ex.P12-Rough Plan were prepared on the scene of occurrence. M.O.1-Stone, M.O.2-Towel and M.O.3-Chappals were seized under Ex.P3-Mahazar. 7. Inquest: On 13.4.95 from 4.00 a.m to 7.00 a.m in Palladam Government Hospital witnesses-P.Ws.1 to 5 and one Vedasamy were examined in the presence of Panchayatars and inquest was held on the body of deceased Nachimuthu Gounder. After inquest, body was sent to Autopsy along with Ex.P4-Requisition. 8. Postmortem: Pursuant to the requisition from the Inspector of Police, P.W.7 Dr.Sundararajan had conducted Autopsy. He has noted blood injury on the left side head and further noted:- "skin superficial fascia injury. Haemorrhage was diffused over both hemisphere. After removing the fluid blood the arachnoid use found torn in the cerebral area. Pia matter covering the brain intact. Dark coloured fluid blood 20 ml. seen underneeth the brain. After removing the blood the cerebellum and medulla removed entirely and found intact." P.W.7 opined that the death was due to compression of brain due to sub defuse and sub arachnoid haemorrhage resulting the stoppage of all vital systems. Ex.P5 is the Postmortem Certificate. 9.Arrest of the accused: On 13.4.95-11.00 a.m, on intimation, P.W.12-Inspector of Police arrested the accused at Chettipalayam Road, near Elanthakuttai-Rangasamudram Division. The accused was sent to judicial custody. 10.P.W.13-Regular Inspector of Police of Palladam Police Station had taken up further investigation. The seized material objects were sent for chemical analysis. Ex.P5 is the Postmortem Certificate. 9.Arrest of the accused: On 13.4.95-11.00 a.m, on intimation, P.W.12-Inspector of Police arrested the accused at Chettipalayam Road, near Elanthakuttai-Rangasamudram Division. The accused was sent to judicial custody. 10.P.W.13-Regular Inspector of Police of Palladam Police Station had taken up further investigation. The seized material objects were sent for chemical analysis. On completion of formalities of investigation, Final Report was filed against the accused under Section 302 I.P.C before the Judicial Magistrate, Palladam on 27.5.95. 11.To substantiate the charge against the accused, in the trial court, P.Ws.1 to 13 were examined. Exs.P1 to P13 were marked. M.Os.1 to 3 were remanded to the court. The accused was questioned under Section 313 Crl.P.C about the incriminating circumstances and evidence. Denying the same, the accused stated that there was previous enmity between his father and Nachimuthu Gounder for more than ten years and due to previous enmity a false case is foisted against him. 12.Upon consideration of the evidence, the learned Sessions Judge found that though P.Ws.1 to 4 are related, they are reliable witnesses and that there is nothing to discard their evidence. The learned Sessions Judge further found that the prosecution has proved that M.O.1-Stone was thrown against the head of the deceased Nachimuthu Gounder by the accused. Trial court rejected defence version that Ex.P1-Complaint and Ex.P11-F.I.R were concocted after deliberation. Finding that the accused had no intention of causing death of Nachimuthu Gounder and that the injury was caused in a sudden fight and considering the nature of injuries the learned Sessions Judge convicted the accused under Section 304(II) I.P.C sentencing him to imprisonment as aforesaid. 13.Assailing the evidence of P.Ws.1 to 4, the learned Senior Counsel submitted that P.Ws.1 to 4 being related witnesses, it is unsafe to base the conviction on their interested testimony. Pointing out the nature of injury sustained by the deceased, it is submitted that the evidence of P.Ws.1 to 4 is not consistent with the medical evidence. Prosecution Case is further attacked on the ground of delay in receipt of the F.I.R in the Judicial Magistrate Court, Palladam (11.30 a.m on 13.4.95) which remains unexplained. Conviction under Section 304(II) I.P.C is assailed. Prosecution Case is further attacked on the ground of delay in receipt of the F.I.R in the Judicial Magistrate Court, Palladam (11.30 a.m on 13.4.95) which remains unexplained. Conviction under Section 304(II) I.P.C is assailed. It is submitted that when M.O.1-Small Stone is alleged to have been thrown by the accused, the accused cannot be imputed with the knowledge to cause death nor the wielding of the stone with the knowledge that it was imminently dangerous to cause death. In this regard reliance is placed upon AIR 1993 SC 1977 . 14.Taking me through the evidence of P.Ws.1 to 4, the learned Government Advocate has submitted that the trial court has well considered their evidence and had the necessary caution in its mind in appreciating their evidence. Further submitting that their evidence is well in consistency with the medical evidence and taking into consideration the various circumstances of the case, the trial court rightly convicted the accused under Section 304(II) I.P.C, which warrants no interference. 15.Upon careful consideration of the evidence and judgment under appeal and other materials on record and the submissions, the following points arise for consideration in this appeal: (i) Whether the reasonings of the trial court in basing the conviction upon the testimony of P.Ws.1 to 4 suffers from any erroneous approach? (ii) Whether the conviction under Section 304(II) I.P.C is to be altered on the submissions advanced on behalf of the accused? (iii) Whether the conviction of the Appellants/Accused warrants any interference? 16.Motive: P.W.3-Ramathal and P.W.4-Muthulakshmi being mother and daughter and are widows residing at K-Iyampalayam. A common east-west pathway is on the northern side. House of P.W.3-Door No.2/45 (Serial No.7) in Ex.P12-Plan is east facing. House of the accused-Door No.2/42 is on the western side-shown as Serial No.3 in Ex.P12-Plan. There is a vacant site/lane in between the houses of P.W.3 and the accused. On enjoyment of which there is a dispute between them. Accused was questioning P.W.3 as to how she could use the vacant space on the northern side as the pathway, which resulted in frequent quarrel between them. P.Ws.3 and 4 have spoken about the enmity and frequent quarrel between them and the accused. 17.About two years prior to the occurrence P.W.3 repaired the house. For maintaining the house and for cleaning the northern sidewall, she was using the vacant space on the western side. P.Ws.3 and 4 have spoken about the enmity and frequent quarrel between them and the accused. 17.About two years prior to the occurrence P.W.3 repaired the house. For maintaining the house and for cleaning the northern sidewall, she was using the vacant space on the western side. Few days prior to the occurrence when P.W.3 was cleaning and removing the cobweb, the accused threatened her with dire consequences. P.W.3 informed the same to her brother-Nachimuthu Gounder. Nachimuthu Goudner told P.W.3 to wait that he would come and ask the accused within few days. 18.Beforeever Nachimuthu Gounder could come K.Iyampalayam, the dispute, which led to the occurrence, arose on 12.4.95 between P.W.3 and the accused. In the night at about 8.00 p.m, P.W.3 was white washing her walls. The accused stated P.W.3 "eP ,q;F te;jhy; bfhd;W nghLntd;". Fearing the accused, P.W.3 immediately went to Kannimarkoil Thottam and informed the threat of the accused to her brother Nachimuthu Gounder. Realising the seriousness of the situation, Nachimuthu Gounder immediately came to K.Iyampalayam along with his sons P.Ws.1 and 2. P.W.3 accompanied them. P.W.1 questioned the conduct of the accused in preventing P.W.3 from using the pathway. Deceased Nachimuthu Gounder also questioned the conduct of the accused saying "eP rg;nghh;l;Lf;fh tUfpwha;". The accused took M.O.1-Odaikal stone and hit on the deceased Nachimuthu Gounder. The deceased had fallen and swooned. In Palladam Government Hospital he was declared dead. Evidence of P.Ws.1 to 4 on the enmity and motive is cogent and consistent. 19.P.W.3 is the widow. P.W.4-Muthulakshmi, her daughter is also widow and both are living in K-Iyampalayam. Her brother Nachimuthu Nadar is residing in Kannimarkoil Thottam which is about 1-1/2 kilometers away from K-Iyampalayam. Since the accused was frequently picking up quarrel, on the date of occurrence-12.4.95 when being informed about the conduct of the accused, it is quite natural for Nachimuthu Gounder to have come down to K-Iyampalayam in support of his widowed sister and questioned the accused. Since Nachimuthu Gounder was aged nearly 69 years, it is more probable that his sons P.Ws.1 and 2 also accompanied them. Presence of P.Ws.1 and 2 in the scene of occurrence on the night of 12.4.95 is probable and convincing. Presence of P.Ws.1 and 2 cannot be doubted at all. Since Nachimuthu Gounder was aged nearly 69 years, it is more probable that his sons P.Ws.1 and 2 also accompanied them. Presence of P.Ws.1 and 2 in the scene of occurrence on the night of 12.4.95 is probable and convincing. Presence of P.Ws.1 and 2 cannot be doubted at all. 20.Contending that the dispute relates to common pathway on the northern side, it is submitted that the accused could not have raised any serious objection for user of the same by P.W.3. It is further submitted that P.W.3 is residing in the house for 30 years and the accused for about 7-8 years and when the parties are amicably living, there is no possibility of friction as alleged by the prosecution. The learned Senior Counsel further submitted that the circumstances only suggest the possibility of free fight and the deceased falling down on a blunt object-falling on Ml;Lf;fy; shown in Ex.P12-Plan. The ill-will was locked up in the mind of the accused. The accused was being questioned by Nachimuthu Gounder and his sons at the odd hours. Even the slightest ill-will towards P.W.3 could have made the accused to react in hitting the deceased. The contention urged on the improbability of the motive has no force. Their presence cannot be doubted. 21. Credibility of P.Ws.1 to 4 is seriously assailed on the ground that they are closely related to deceased Nachimuthu Gounder and they are interested in securing the conviction. Of course P.Ws.1 to 4 are closely related to the deceased Nachimuthu Gounder. There is no rule of law or provision to discard the testimony of the interested witnesses. Prudence only requires to scrutinise their evidence carefully. Referring to number of decisions, the learned Sessions Judge had that caution in mind while scrutinising the evidence of P.Ws.1 to 4. The learned Sessions Judge has carefully analysed the evidence of P.Ws.1 to 4. There is no erroneous approach in accepting the evidence of P.Ws.1 to 4 as cogent and convincing. 22. Manner of occurrence, as stated by P.Ws.1 to 4 is very much attacked with reference to Ex.P10. In Ex.P10-Death Intimation "cause of death" is left blank. Likewise the column "where from" it stated "Kannimar Koil Thottam, K. Ayyam Palayam, Palladam." On this ground, reliability of P.Ws.1 to 4 is very much assailed contending that P.Ws.1 to 4 would not have been present and would not have witnessed the occurrence. In Ex.P10-Death Intimation "cause of death" is left blank. Likewise the column "where from" it stated "Kannimar Koil Thottam, K. Ayyam Palayam, Palladam." On this ground, reliability of P.Ws.1 to 4 is very much assailed contending that P.Ws.1 to 4 would not have been present and would not have witnessed the occurrence. It is further submitted that this point is further confirmed by the unexplained delay in the receipt of the F.I.R by the Judicial Magistrate, Palladam. The ground urged, attacking the credibility of P.Ws.1 to 4 has no substance. Even during the Inquest, P.Ws.1 to 4 are examined as eye-witnesses. That apart, in Ex.P1, while narrating the occurrence, P.Ws.1 to 4 are clearly named as the eye-witnesses. Their presence and evidence cannot be doubted. 23.P.W.7-Dr.Sundararajan had noted superficial fascia injury deep fascia intact. Drawing the attention of the court to Ex.P5-Postmortem Certificate, the learned Senior Counsel submitted that the injury sustained by the deceased was only superficial one which would not have endangered the life of the deceased. After drawing the attention of the court to M.O.1-Small Stone weighing about 250 grams, the learned Senior Counsel attacked the manner of the occurrence put forth by the prosecution and the credibility of P.Ws.1 to 4. 24.In this context, it is relevant to test the evidence of P.Ws.1 to 4 for its consistency with the medical evidence. During Autopsy P.W.7 Dr.Sundararajan has noted the following injuries: "Injury on the left side head and further noted only skin superficial fascia injury. Hemorrhage was difuse over both hemisphere. After removing the fluid blood the arachnoid use found torn in the cerebral area. Pia matter covering the brain intact ... haemorrhage seen after removing the brain dark coloured fluid blood 20 ml. seen underneeth the brain. After removing the blood the cerebellum and medulla removed entirely and found intact." P.W.7 opined that the death was due to compression of brain due to sub diffused and sub arachnoid haemorrhage resulting the stoppage of all vital systems. The injury noted on the body of the deceased clearly shows that M.O.1-Stone was wielded with force against the left side head of the deceased Nachimuthu Gounder. Death was due to compression of brain due to sub diffuse and sub arachnoid haemorrhage. The injury noted on the body of the deceased clearly shows that M.O.1-Stone was wielded with force against the left side head of the deceased Nachimuthu Gounder. Death was due to compression of brain due to sub diffuse and sub arachnoid haemorrhage. Though the external injury was only superficial, death was not only due to collection of blood; but also due to compression of brain due to sub diffused and sub arachnoid haemorrhage resulting the over all stoppage of the vital system. The medical evidence is fully consistent with the oral evidence of P.Ws.1 to 4. The learned Sessions Judge has well considered this point raised by the accused. The alternative submission made on behalf of the accused that the injury might have been caused due to fall and on account of old age was also well considered by the learned Sessions Judge. The reasonings and findings of the trial court is well balanced and in conformity with the medical evidence. 25.Main contention urged by the accused is the delay in receipt of the F.I.R-Ex.P11 by the Judicial Magistrate Court, Palladam Ex.P11-F.I.R was registered at the Wee hours on 13.4.95-00.30 hours. It was sent to the court through the Constable No.463. F.I.R was sent to the court immediately. But it was received in the Judicial Magistrate Court, Palladam only on 11.30 a.m. on 13.4.95. It is brought on record that the Judicial Magistrate Court and Palladam Police Station are adjacent to each other in the same compound. On this aspect arguments are advanced that the delay in receipt of the F.I.R is clearly suggestive of deliberation and in preparation of Ex.P1 and P11-F.I.R. On the aspect of delay, the case of the prosecution is attacked that the non-examination of the Police Constable who carry the F.I.R to the court adversely affects the prosecution case. This contention does not merit acceptance for two reasons: Firstly, the regular Inspector of Police, Palladam was on other duty in High Court, Madras. Only the Inspector of Police, Avinashi was in charge. This contention does not merit acceptance for two reasons: Firstly, the regular Inspector of Police, Palladam was on other duty in High Court, Madras. Only the Inspector of Police, Avinashi was in charge. The case in Crime No.185/95-under Section 302 I.P.C was registered as Express F.I.R. The Constable who carried the F.I.R might have thought fit firstly to go to Avinashi to entrust the copy of the Express F.I.R to the Inspector of Police who was then in charge and thereafter come to the court to hand over the same; Secondly, it is a matter of common experience that in the courts below, in cases of Express F.I.R, normally only the Judicial Officer would open the cover. Even if the cover had been entrusted earlier, the Judicial Officer might have signed in the same at 11.30 a.m. Receipt of Ex.P11-Express F.I.R in the court as 11.30 a.m does not in any way suggest the deliberation or an after thought, as contended by the accused. 26.Other contentions: The learned Senior Counsel has raised the other contentions assailing the prosecution case: Accused was arrested on 13.4.95-11.00 a.m by P.W.12-Inspector of Police. While responding to the question, P.W.1 has stated that the accused was taken by the police even at 3.00 p.m. On the surmised answer of P.W.1 elicited in the cross-examination, the consistent evidence of P.Ws.11 and 12 as to the arrest of the accused in Rangasamudram Junction near Chettipalayam Road at 12.30 noon on 13.4.95 cannot be doubted. 27. Further arguments are advanced on the basis of the entries in Ex.P10-Death Intimation. In Ex.P10-Death Intimation as against the Column "Where from" it is stated "Kannimar Koil Thottam, K.Ayyam Palayam, Palladam". In Ex.P10-Death Intimation it is stated that the body was brought dead. P.Ws.1 to 3 had taken the deceased to the hospital. When being questioned about their address, they might have stated their address as Kannimar Koil Thottam. On that basis, prosecution case regarding the scene of occurrence cannot be doubted. The scene of occurrence is well fortified by the evidence of P.Ws.1 to 3 and the objective findings during the investigation. The other points urged, attacking the prosecution case are only minor omissions/lacunas, which are bound to occur in any criminal case when truth is being projected through human agency. 28. The prosecution has convincingly proved that the accused had thrown M.O.1 against the left side head of the deceased. The other points urged, attacking the prosecution case are only minor omissions/lacunas, which are bound to occur in any criminal case when truth is being projected through human agency. 28. The prosecution has convincingly proved that the accused had thrown M.O.1 against the left side head of the deceased. The prosecution has proved that the accused is responsible for the homicidal death of deceased Nachimuthu Gounder. Considering that M.O.1-Small stone was thrown in a heat of passion, the learned Sessions Judge has convicted the Appellant/Accused under Section 304(II) I.P.C. 29. Contending that the occurrence was in a sudden fight and that the accused is alleged to have used only M.O.1-Stone weighing about 250 grams and placing reliance upon AIR 1993 SC 1977 the learned Senior Counsel has submitted that knowledge cannot be attributed to the accused. Main contention is that the accused cannot be imputed with the knowledge that the injury would be so imminently dangerous that it would in all probability cause death. In this regard, further reliance is also placed upon a Division Bench judgment of this court in 2002-1-L.W.Crl.391. 30. In the light of the contention, it is to be considered whether the accused had knowledge that a hit with M.O.1-Stone would be imminently dangerous to cause death of deceased Nachimuthu Gounder. The occurrence was in a sudden fight. The deceased was aged about 69 years. As discussed earlier, though the external injury is only superficial fascia injury, it has caused grievous internal injuries resulting in compression of brain and sub diffused and sub arachnoid haemorrhage resulting the stoppage of all vital systems. The compression of brain clearly shows that M.O.1-Stone (though small) must have been wielded forcibly. The deceased was aged 69 years. Immediately after the hit he had swooned and slided down. The accused must have definitely had knowledge that M.O.1-Stone if hit forcibly would prove fatal to the fragile man, who was aged 69 years. On the above decisions, it cannot be concluded that the accused had no knowledge that his act was imminently dangerous to the deceased. Considering the factual situations of the case and of external injury caused, the conviction under Section 304(II) I.P.C is well-reasoned one and cannot be altered to any other lesser offence. 31. Now we are left with the question of sentence. Considering the factual situations of the case and of external injury caused, the conviction under Section 304(II) I.P.C is well-reasoned one and cannot be altered to any other lesser offence. 31. Now we are left with the question of sentence. For the conviction under Section 304 (II) I.P.C the learned Sessions Judge has imposed sentence of imprisonment of five years. In this case, there was no pre-meditation. The accused hit the deceased in the course of the sudden quarrel on a trivial issue arising on the enjoyment of the pathway. During the night-odd time, the accused was surrounded by three men and two women and was questioned. The accused was alone and unarmed and placed in that situation, it is quite natural that the accused got enraged. In a fit of anger the accused struck the deceased with the stone which he took up from the ground. Even one hit with M.O.1 proved to be fatal on the fragile man. In fact during questioning under Section 313 Cr.P.C the accused has also prayed for leniency. In that circumstance, reducing the sentence of five years to three years would meet the ends of justice. 32. Therefore the verdict of conviction of the II Additional Sessions Judge, Coimbatore in S.C.226/96 (dated 17.7.97) convicting the Appellant/Accused under Section 302(II) I.P.C is confirmed. The sentence of imprisonment of five years is reduced to three years and this appeal is partly allowed accordingly. The trial court is directed to take immediate steps by issuing warrant to secure the appellant to commit him to prison to serve the sentence.