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2008 DIGILAW 1853 (MAD)

Murugesan v. State by Inspector of Police

2008-06-18

K.N.BASHA, P.D.DINAKARAN

body2008
Judgment :- K.N. BashA, J. The sole accused Murugesan has come forward with this appeal challenging the conviction and sentence passed by the learned Principal District and Sessions Judge, Vellore, Vellore District by the Judgment dated 05.04.2006 in S.C.No.213/2004 convicting the appellant for the offence under section 302 IPC and sentencing him to life imprisonment and also imposing a fine of Rs.1,000/-carrying with the default sentence of six months simple imprisonment. 2. The occurrence in this case is shown to have taken place on 010. 2001 at about 3.00 p.m. near the land of one Duraisamy at Pallampattikollai village as the accused beat the deceased Moorthy on his head with a stick-M.O.1, resulting the death of the deceased on 010. 2001 and thereby, the accused said to have committed the offence under section 302 IPC. 3. The prosecution in order to substantiate its case, examined P.Ws.1 to 7, filed Exs.P.1 to 9 and marked M.O.1. 4. The facts of the case unfolded through the evidence adduced by the prosecution are as follows:- [a] P.W.1 is the father-in-law of the deceased. The accused and the deceased belonged to the same village called Pallampattikollai. P.W.2 who also hails from the same village, contested for the Village Panchayat President post. The deceased along with his father-in-law, P.W.1 and others worked for P.W.2 and canvassed vote. The accused questioned the deceased as to whom he would vote and for that the deceased replied that he knows only P.W.2 and as such, he would vote only for P.W.2. The accused supported one Muthu and told the deceased that he would vote only for the said Muthu. Thereafter, the accused demanded the deceased to settle the amount of Rs.10/-borrowed from him two years prior to the occurrence and thereafter, beat the deceased with the stick-M.O.1 on his head. The deceased fell down. P.W.1 and others took the deceased to the house of P.W.2 and P.W.2 stated that he would take care of the deceased. P.W.1 returned to his house. [b] On the next day, P.W.2 came to the house of P.W.1 at 6.00 a.m. and informed him that the deceased was unconscious and thereafter, P.W.1 went to the house of P.W.2 and found the deceased lying dead. P.W.1 and others took the body of the deceased to the house of the accused and sent message through one Balaraman to P.W.3, the Village Administrative Officer. P.W.1 and others took the body of the deceased to the house of the accused and sent message through one Balaraman to P.W.3, the Village Administrative Officer. [c] Thereafter, P.W.3 went to Jamunamarathur Police Station and gave a report which was recorded by P.W.6, the Sub-Inspector of Police under Ex.P.1. He registered the cae in Crime No.224/2001 under section 302 IPC. Ex.P.7 is the Express First Information Report [FIR]. He sent the same to the higher officials and to the Court. [d] P.W.7, the Inspector of Police took up investigation in this case after receiving the FIR on 110. 2001. He went to the scene and prepared Ex.P.2-rough sketch. He held inquest on the dead body of the deceased from 4.30 p.m. to 6.00 p.m. Ex.P.9 is the Inquest Report. He sent the body for Postmortem. [e] Dr. Ramalingam, P.W.4, attached to the Government Hospital, Polur, conducted Post-Mortem on the dead body of the deceased on 110. 2001 as per requisition under Ex.P.3 at 1.00 p.m. He found the following injuries:- "APPEARANCES FOUND AT THE POSTMORTEM:- Moderately built male body lying on its back. Foul smell emanates from the body. Bloated. Peeling of cuticle almost all over present. Moving Maggots present almost all over the body. Scalp hair loosened. Eyes:Balls bulging. Mouth-Partially opened. Tongue-inside. EXTERNAL INJURIES- A contusion over left side of occipital area present size 6cm x 6cm, reddish brown." Ex.P.4 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died due to head injury sustained 5 to 6 days prior to the commencement of autopsy. [f] P.W.7, the Inspector of Police, in continuation of his investigation examined P.Ws.1,2 and others and recorded their statements. On 110. 2001 at 5.30 a.m., he arrested the accused near Jamunamarathur Bus stand. In pursuance of the admissible portion of the confession of the accused under Ex.P.5, he recovered M.O.1-stick. After receiving Ex.P.4-Postmortem Certificate and after completion of investigation, he filed the charge sheet against the accused for the offence under section 302 IPC on 312. 2001. 5. When the accused was questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied each and every circumstances, he has come forward with the version of total denial. He has not chosen to examine any witness or mark any document on his side. 6. 2001. 5. When the accused was questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied each and every circumstances, he has come forward with the version of total denial. He has not chosen to examine any witness or mark any document on his side. 6. Mr. E. Kannadasan, learned counsel for the appellant contended that the prosecution has not come forward with the clear and cogent evidence. It is contended that there are contradictions in material particulars between the evidence of P.Ws.1 and 2. Learned counsel for the appellant would contend that P.W.1 is the father-in-law of the deceased and P.W.2, who was supported by the deceased and P.W.1 in the Panchayat election, is closely associated with the deceased and as such, both P.Ws.1 and 2 are interested witnesses. Learned counsel also contended that there is an unexplained delay in giving the report to the police and the deceased was not given immediate treatment and he was simply taken by P.W.1 and left him at the house of P.W.2 and as such, the conduct of P.Ws.1 and 2 is unnatural and abnormal and it is not safe to place reliance on their evidence. It is contended by the learned counsel for the appellant that without prejudice to his earlier contention, even assuming that the accused is responsible for causing the death of the deceased, he could not have been imputed with the intention of causing the death as the occurrence took place due to a sudden quarrel without any premeditation. 7. Per contra Mr. N.R. Elango, learned Additional Public Prosecutor contended that the evidence of the eyewitnesses P.Ws.1 and 2 is quite clear and natural and there is no contradictions in material particulars. It is submitted that the evidence of the eyewitnesses P.Ws.1 and 2 is also corroborated by the medical evidence through the doctor P.W.4, as the doctor found the corresponding injury on the head in respect of the overt act alleged against the accused. It is submitted that as per the opinion of the doctor, the deceased died due to head injury. Therefore, it is submitted that the prosecution has proved its case beyond reasonable doubt in all aspects. 8. It is submitted that as per the opinion of the doctor, the deceased died due to head injury. Therefore, it is submitted that the prosecution has proved its case beyond reasonable doubt in all aspects. 8. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinized the evidence available on record and perused the impugned Judgment of conviction. 9. The prosecution heavily placed reliance on the evidence of the eyewitnesses P.Ws.1 and 2 though P.W.1 is the father-in-law and P.W.2 is closely known to the deceased and P.W.1 and further P.W.1 and the deceased worked for the panchayat election of P.W.2. Their evidence cannot be rejected on that score. The only requirement is to consider their evidence with great care and caution. 10. A perusal of the evidence of P.Ws.1 and 2 does not disclose any infirmity or inconsistency. Both P.Ws.1 and 2 categorically stated that the accused beat the deceased with stick on his head. It is pertinent to be noted that the version of P.Ws.1 and 2 is also clearly corroborated by the medical evidence as the doctor P.W.4 found the corresponding injury on the head of the deceased and further opined that the deceased died due to the head injury. Therefore, there is no difficulty in coming to the conclusion that the deceased died due to the homicidal violence and that too, at the hands of the accused. 11. Now, we are left with the crucial question of nature of offence said to have been committed by the accused. 12. It is the categorical version of P.Ws.1 and 2 that the entire occurrence was preceded by a wordy quarrel between the accused and the deceased. It is also specifically mentioned in the earliest document, viz., Ex.P.1-report that there was a wordy quarrel between the accused and the deceased in respect of canvassing for the panchayat election and the demand of repayment of loan of Rs.10/- and only thereafter, the accused took the stick-M.O.1 and beat the deceased on his head. It is pertinent to be noted that earlier to the quarrel, the accused was admittedly unarmed. P.W.2 went one step further and stated in his cross-examination that the occurrence took place suddenly for a dispute in respect of payment of Rs.10/-and he has not stated anything about the election dispute during his examination by the police. It is pertinent to be noted that earlier to the quarrel, the accused was admittedly unarmed. P.W.2 went one step further and stated in his cross-examination that the occurrence took place suddenly for a dispute in respect of payment of Rs.10/-and he has not stated anything about the election dispute during his examination by the police. It is also pertinent to be noted that the accused has dealt only with a solitary blow and thereafter, he has not made attempt to give any further blows. Therefore, the sequence of events as stated above makes it crystal clear that the entire occurrence took place due to a sudden quarrel in respect of a flimsy dispute without any pre-meditation or pre-plan and the accused who was unarmed, suddenly took the stick which was lying on the spot and attacked the deceased on the spur of the moment, that too, with a single blow. 13. We are of the considered view that the accused could not have been imputed with the intention of causing the death of the deceased and he had beat the deceased with the knowledge that he was likely, by such act, to cause the death of the deceased and as such, he is liable to be convicted only for the offence under section 304[Part II] IPC. 14. Accordingly, the appeal is allowed in part and the conviction and sentence imposed on the appellant for the offence under section 302 IPC by the learned Principal District and Sessions Judge, Vellore, Vellore District dated 05.04.2006 in SC.No.213/2004 is hereby set aside and instead, the appellant is convicted under section 304[II] IPC and sentenced to undergo five years rigorous imprisonment. 15. It is reported that the appellant/accused is on bail. The Sessions Judge concerned is directed to take steps to secure the presence of the accused and commit him in prison to undergo the remaining period of sentence. Any sentence already undergone by the appellant pursuant to his original conviction would be set off against him.