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2006 DIGILAW 510 (MAD)

Chandran v. State by Inspector of Police

2006-02-27

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- (Appeal filed under Section 374 of Criminal Procedure Code against the Judgment dated 23.10.1998 made in S.C.No.285 of 1997 on the file of the Principal Sessions Court, Salem, convicting the appellant for the offence under Section 304 Part II I.P.C. to undergo 7 years rigorous imprisonment.) The appellant is the sole accused in S.C.No.285 of 1997 on the file of the Principal Sessions Court, Salem. This appeal is directed against the conviction and sentence of seven years imposed on the accused for the offence under Section 304 Part II IPC as per Judgment dated 23.10.1998. 2. The facts led to the filing of this appeal are as follows:- "(a) P.W.2-Thangam is the wife of the deceased Kaliyappan. P.W.3 is the sister of P.W.2. P.W.1 is residing in the opposite house of the deceased. For the past one year prior to the occurrence, the deceased and his wife P.W.2 used to quarrel and accordingly they also quarreled on the day of occurrence at 4.30 p.m. P.W.1, who is residing opposite to the house of the deceased, P.W.3 sister of P.W.2 and P.W.1's husband by name Karuppan, who died during the pendency of the case and one and half month before P.W.1 gave evidence, went to the house of the deceased. The accused also came there and questioned P.W.1 and P.W.3 and the husband of P.W.1 as to why they have been keeping quiet even after seeing the quarrel between the deceased and his wife P.W.2. During which time, the deceased pushed the accused out of his house by catching hold of his neck. Whereupon the accused picked up the stone-M.O.1 from near the house of the deceased and threw the same, which hit on the deceased and thereby the deceased fell down. The accused had run away from the occurrence place. The matter was informed to the panchayat President P.W.4, who came to the scene of occurrence and sent the husband of P.W.1, namely Karuppan to Karipatti Police Station, who gave the complaint Ex.P-6 to P.W.7, the Sub Inspector of Police attached to the said station. (b) On receipt of the complaint Ex.P-6, P.W.7, the Sub Inspector of Police attached to Karipatti Police Station, registered case in Crime No.733 of 1996 for the offence under Section 302 IPC. The printed First Information Report is marked as Ex.P-5. (b) On receipt of the complaint Ex.P-6, P.W.7, the Sub Inspector of Police attached to Karipatti Police Station, registered case in Crime No.733 of 1996 for the offence under Section 302 IPC. The printed First Information Report is marked as Ex.P-5. Further investigation was taken up by P.W.8, the Inspector of Police attached to Karipatti Police Station. P.W.8 upon taking up the case went to the scene of occurrence and prepared the Observation Mahazar Ex.P-1 and Rough Sketch Ex.P-7. He then conducted inquest on the body of the deceased in the presence of the panchayatdars and the witnesses. The inquest report is Ex.P-8. Thereafter, he sent the body for post mortem to P.W.5, the Doctor. (c) The Doctor, P.W.5, conducted autopsy on the body of the deceased and found the following injuries:- "1.Bruising on the front of left side of chest wall, 12 cms x 7 cms - Dark red. 2. Bruising of the 4th and 5th intercostal muscles, on the front of left side of chest, 4 cms x 2 cms and 7 cms x 2 cms respectively – Dark red. 3. Bruising of the upper part of lower lobe of left lung on the front, 8 cms x 5.5 cms – Dark red. 4. laceration of lower part of upper lobe of left lung, 2 cms x 2 cm x 1 cm with surrounding area bruising – Dark red. Left side of thoracic cavity contains 400 ml of fluid blood with clots. Left lung is found collapsed. Right lung on cut section congested. Right side of thoracic cavity – empty. 5. Diffusion of blood in the chest wall of the front of left side of chest." The Doctor P.W.5 has opined that the deceased died of injuries to left side of chest and its corresponding internal injuries. (d) After post-mortem, P.W.6, Grade-I Police constable handed over M.Os.2 to 4 to P.W.8. In continuation of the investigation, P.W.8 recovered M.O.1-Stone under Mahazar Ex.P-2. He then examined the witnesses and recorded their statements. After completion of the investigation, he filed the final report against the accused." 3. In order to prove the charges levelled against the accused, the prosecution examined P.Ws.1 to 8 and marked Exs.P-1 to P-8 and M.Os.1 to 4. 4. In continuation of the investigation, P.W.8 recovered M.O.1-Stone under Mahazar Ex.P-2. He then examined the witnesses and recorded their statements. After completion of the investigation, he filed the final report against the accused." 3. In order to prove the charges levelled against the accused, the prosecution examined P.Ws.1 to 8 and marked Exs.P-1 to P-8 and M.Os.1 to 4. 4. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating evidence made available against him by the prosecution, he denied the case of the prosecution and stated that false case has been foisted against him. 5. The trial Court in appreciation of such evidence recorded the finding that the offence under Section 302 IPC is not attracted and only an offence under Section 304 Part-II IPC is made out, inasmuch as the entire occurrence has occasioned while the accused tried to mediate the deceased and his wife P.W.2 who was quarrelling in the house and that the deceased pushed the accused outside his house, whereupon the accused took the stone from near the house of the deceased and threw the same, which fell on the chest of the deceased, resulting in his instantaneous death. Accordingly, convicted and sentenced the accused as set out above, which is challenged in this appeal. 6. The learned counsel for the appellant for the accused in taking this Court through the entire evidence argued that even an offence under Section 304 Part-II IPC is not attracted and at best only an offence under Section 324 IPC will be attracted since the ingredients of Section 304-II IPC is not made out. It is further submitted by the learned counsel that in trying to mediate the quarrel between the deceased and his wife P.W.2, since the accused was pushed outside the house of the deceased, in a heat of passion the accused attacked the deceased with M.O.1-stone without any intention to cause bodily injury likely to cause death. The learned counsel also referred to the evidence relating to P.W.1 to P.W.3 with regard to the occurrence and also the injuries spoken to by the post-mortem Doctor P.W.5 and the injuries noted by the Doctor found in the post-mortem certificate Ex.P-4. 7. Learned Government Advocate submitted that satisfactory evidence was let on the side of the prosecution through P.W.1 to P.W.3. 7. Learned Government Advocate submitted that satisfactory evidence was let on the side of the prosecution through P.W.1 to P.W.3. That at the time of occurrence the accused attacked the deceased with M.O.1-stone on the chest, which resulted in the immediate death of the deceased and the act was done pursuant to the sudden fight between the accused and the deceased. Hence, the offence under Section 304 Part-II IPC as found by the Sessions Court need not be disturbed. 8. In the complaint Ex.P-6 made by one Karuppan, the husband of P.W.1, it is stated that he and his wife P.W.1 and P.W.3 went to the house of the deceased who was quarrelling with his wife P.W.2, during which time the accused also came there and shouted at them and at that time the deceased stated that it was a quarrel between the husband and wife and requested him to go away and in the course of the said transaction pushed him outside the house, whereupon the accused took up a small stone and threw the same which hit on the chest of the deceased and he fell down. He, P.W.1 and P.W.3 lifted the deceased and found him dead. P.W.1, P.W.2 the wife of the deceased and P.W.3 also stated so in their evidence. It is also the evidence of P.W.2 in chief examination that there was a gap of 10 feet in between her husband, the deceased and the accused, during which time the accused took up a stone and threw the same at a distance of about 10 feet. 9. Therefore, it is clear from the complaint Ex.P-6 and the evidence let in through P.W.1 to P.W.3 that at the time of occurrence, since the deceased shouted at the accused and pushed him out of the house, the accused out of sudden heat of passion took a stone and threw the same from a distance of about 10 feet and as such, he could not have aimed the deceased to attack on the vital part, more particularly, the chest and incidentally it appears that the said stone hit on the chest of the deceased causing his immediate death. 10. 10. It is clear that the accused acted in such manner due to sudden fight and in the heat of passion upon sudden quarrel between him and the deceased and therefore, such act of the accused cannot be said as cruel or unusual manner and the act was done without any intention of causing bodily injury which is likely to cause death. Even the offence under Section 304 Part-II IPC is not attracted, inasmuch as the accused threw the stone which hit on the chest of the deceased and due to the injuries caused on the chest and the left lung which resulted in the death of the deceased, only an offence under Section 324 I.P.C. is made out. The learned Government Advocate (Criminal side) submits that the appellant/accused was in jail for 131 days. Therefore, the sentence is modified as that of the sentence already undergone, besides imposing fine of Rs.10,000/-, in default to undergo rigorous imprisonment for six months and on such payment of fine, in view of the fact that in the occurrence, P.W.2 lost her husband, the deceased Kaliyappan by reason of throwing the stone M.O.1 by the accused on the deceased, the entire amount of fine is ordered to be paid to P.W.2 Thangam. 11. In the result, the appeal is partly allowed modifying the conviction and sentence to that of the sentence already undergone and further directing to pay a fine of Rs.10,000, in default to undergo six months rigorous imprisonment and on such payment, the entire fine amount is ordered to be paid to P.W.2, the wife of the deceased Kaliyappan. The fine amount is directed to be paid within two months in the Principal Sessions Court, Salem and if the same is not paid in time, the Principal Sessions Judge, Salem, is directed to secure the custody of the appellant/accused to undergo the sentence of six months rigorous imprisonment.