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2009 DIGILAW 1335 (MAD)

Kuppan v. State by the Inspector of Police

2009-04-22

R.BANUMATHI, RAJA ELANGO

body2009
Judgment Raja Elango, J. 1. This appeal arises out of the judgment made in S.C.No.113 of 2006 by the District & Sessions Judge, Thiruvannamalai convicting the appellant/ accused for an offence under Section 302 IPC., and sentencing him to undergo life imprisonment and also to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for two years. 2. Brief facts of the prosecution case are as follows: (i) On 010. 2002 at about 10.00 p.m., when the deceased Poongavanam was sitting out side of his house at Eachur and shouted that a false complaint has been lodged against him; that on hearing the same the accused who rushed to the deceased armed with a stick started assaulting the deceased believing that the deceased refers to him alone, on his chest and stomach. As a result of which the deceased fell down and thereafter, the accused sat on the body of the deceased and started assaulting the deceased with a stone on his chest, stomach and on both legs repeatedly; that on seeing the same, witness Maheswari intervened in order to pacify the situation, but the accused not only pushed her aside, but also the other witnesses who came in rescue of the deceased; he threatened the witnesses with dire consequences and criminally intimidated them by showing the stone. The deceased has been rushed to the Government Hospital at Vandhavasi then transferred to the Government Hospital, Chengalpattu. On 010. 2003 and on 010. 2007 at about 09.30 a.m., he died of injuries that have been caused by the accused. (ii) P.W.1 set the law in motion. On the basis of complaint lodged by P.W.1 case was registered in Cr.No.806/2002 under Section 302.I.P.C. (iii) P.W.12 Inspector of Police had taken up investigation, he inspected scene of occurrence and prepared Ex.A6 Observation Mahazar and Ex.P12 Rough Sketch. In the Government Hospital, Chengalpattu inquest was held on the body of the deceased Poongavanam and Ex.P13 is the inquest report. On requisition from investigating officer P.W.9 Dr. Parasakthi had conducted autopsy on the body of deceased and noted depressed communited injuries in the head and stomach. P.W.9 opined that death was due to chest and stomach injury and issued Ex.P10 Post mortem certificate. (iv) On 010. 2002 at about 3.00 P.M., the accused was arrested by P.W.12-Investigating Officer. On requisition from investigating officer P.W.9 Dr. Parasakthi had conducted autopsy on the body of deceased and noted depressed communited injuries in the head and stomach. P.W.9 opined that death was due to chest and stomach injury and issued Ex.P10 Post mortem certificate. (iv) On 010. 2002 at about 3.00 P.M., the accused was arrested by P.W.12-Investigating Officer. Confession statement of accused led to recovery of M.O.1 stick and M.O.2 stone under Ex.P4 Seizure Mahazar. P.W.12. Investigating officer examined the witnesses and recorded their statements. P.W.13- successor Inspector of Police examined the Doctor who conducted the autopsy and recorded his statement and on completion of investigation final report was filed against the accused on 04.03.2006 for the offence under Section 302, 304 and 506(II) I.P.C. 3. To substantiate charges against the accused, in the trial Court, the prosecution examined P.Ws.1 to 13, Exs.P.1 to P.13 and M.Os.1 to 3 were marked. 4. When the accused was questioned under Section 313 Cr.P.C., in respect of the incriminating materials appearing against him, he denied the same as false and pleaded not guilty. Upon analysis of evidence, the trial Judge convicted the appellant/accused for the offence under Section 302 I.P.C. and sentenced him to undergo life imprisonment and imposed fine. 5. The learned counsel appearing for the appellant/accused submitted that the learned Sessions Judge erred in believing the evidence of PWs.2,3 and 7 and their presence in the place of occurrence is highly doubtful and further they are related to the deceased. The learned counsel for the appellant/accused further contended that there is an inordinate delay in lodging the complaint, i.e., the occurrence on 010. 2002, where as the complaint was lodged on 010. 2002, the complaint was also received by the Magistrate on 010. 2002. The learned counsel for the appellant/accused further contended that there are lot of improvements and discrepancies in the evidence adduced by the above said witnesses. 6. We carefully examined the evidence adduced by the prosecution, the wife of the accused (P.W.1) even though she turned hostile, she supported the case of the prosecution to some extent. By perusal of Ex.P2 marked through P.W.4 would indicate that P.W.1 Maheswari who admit the deceased in the hospital, where she stated that one known person assaulted her husband (since deceased). 7. By perusal of Ex.P2 marked through P.W.4 would indicate that P.W.1 Maheswari who admit the deceased in the hospital, where she stated that one known person assaulted her husband (since deceased). 7. As far as the evidence of P.W.2, 3 and 7 are concerned, careful perusal of the evidence would indicate that they have deposed in the Court in one voice regarding the presence of the accused. The Possession of weapon and the manner of attack and the time of occurrence cogently. Some discrepancies mentioned by the learned counsel for the appellant are negatived in the course of cross examination and the witnesses reiterated their stand regarding (i) The motive for the occurrence (ii) Presence of the accused (iii) Place of occurrence (iv) Manner of attack. 8. P.W.2 while in his cross examination stated that P.W.3 in her answer to the Court question and P.W.7 brother in law of the deceased answer is also categorically implicate the accused with the crime committed. 9. The learned counsel appearing for the appellant/accused further contended that there is a delay in lodging the complaint, the delay in lodging the complaint is not always fatal to the prosecution. (i) The delay should be examined on the basis of the facts and circumstance of each and every case. (ii) Whether it caused any prejudice to the accused. (iii) Is there any possibility of improvement by way of lodging the complaint belatedly. 10. In the present case, the complaint was lodged after two days, due to the fact that the injured succumbed to death in the hospital on 010. 2002. The injuries sustained by the deceased were simple in nature and there is no grievous external injuries in the sudden quarrel. The complainant would not have felt it is necessary to lodge a complaint for a trivial occurrence. But on the demise of her husband she rightly lodged a complaint on 010. 2002. 11. Ex.P2 (Accident Register) which clearly contains the manner of attack and the weapon used involvement of one known person who caused the injury, the complaint also disclose the same. We do not any improvement or false implication. The delay in lodging the complaint has been satisfactorily explained by the prosecution. In view of the above, we are of the view that the delay is not fatal to the prosecution. 12. We do not any improvement or false implication. The delay in lodging the complaint has been satisfactorily explained by the prosecution. In view of the above, we are of the view that the delay is not fatal to the prosecution. 12. The prosecution examined P.W.10, the Magistrate received the complaint and wherein she has signed and put the date as 010. 2002. She categorically deposed in the Court that she inadvertently put the date as 010. 2002. But the perusal of the evidence shows that the other documents received along with the complaint contains the signature and date of the Magistrate as 010. 2003, which clearly shows that the complaint was immediately sent to the Court. 13. The other contention raised by the learned counsel appearing for the appellant/accused was that the recovery of material objects are highly doubtful which cannot be believed. When the oral-evidence adduced by the prosecution clinchingly connects the accused with the crime and the quality of the evidence given by the witnesses are sufficient to arrive at a conclusion that the accused is the person who committed the murder recovery of material objects is not of much significance. Further in this case, the alleged weapons are small stick and stones. Even if it is recovered that can also be questioned since because those material objects are available in plenty in a place like the place of occurrence. In view of the above the arguments advanced assailing the recovery of weapons is of no avail. 14. Hence, we are of the opinion that the conclusion of the trial Judge, regarding the commission of crime by the accused cannot be interfered with. Now the question before us whether the evidence adduced by the prosecution would attract an offence under Section 302 I.P.C. or it would fall under Exception to Section 300 IPC. 15. The accused was in the habit of using the land belonging to the deceased Poongavanam as a cattle shed and also for the purpose of disposal of cow dung and garbages, which was questioned by the deceased. The deceased was also under the impression that the accused has lodged a complaint against him as if that he is selling arrack. Few days prior to the occurrence, the deceased Poongavanam was released on bail. Hence, there has been an enmity between the accused and the deceased Poongavanam over the trivial issues. The deceased was also under the impression that the accused has lodged a complaint against him as if that he is selling arrack. Few days prior to the occurrence, the deceased Poongavanam was released on bail. Hence, there has been an enmity between the accused and the deceased Poongavanam over the trivial issues. Admittedly, on the date of occurrence that the accused Kuppan due to oral altercation with deceased Poongavanam, assaulted the deceased with stick and stones, the injuries sustained by Poongavanam are simple in nature and there was no visible external injuries. The weapon is also not lethal weapon. So the entire occurrence arises out of a sudden quarrel and he has caused injuries without any intention to cause the death of the deceased. 16. Hence, we are of the considered opinion that the act of the accused comes under Exception IV of Section 300 I.P.C. punishable under Section 304(II) I.P.C. 17. In the result, this appeal is allowed in part. The conviction of the appellant/ accused is modified under Section 304(II) IPC, instead of Section 302 IPC. Accordingly, the sentence of life imprisonment imposed under Section 302 IPC is modified and the appellant/accused is sentenced to undergo Rigorous Imprisonment for a period of five years for the offence under Section 304(II) IPC. The fine amount of Rs.10,000/- imposed by the trial Court for the offence under Section 302 IPC, shall be treated as the fine imposed by this Court for the offence under Section 304(II) IPC. 18. The learned Sessions Judge is directed to take steps to secure the accused and commit him to the prison to undergo the remaining period of sentence. The bail bond executed by the appellant/accused shall stand cancelled.