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2009 DIGILAW 4618 (MAD)

Dayalan v. State rep. by Inspector of Police

2009-11-02

ARUNA JAGADEESAN

body2009
Judgment : Per MS. ARUNA JAGADEESAN, J. This Criminal Appeal has been preferred by the appellant against the judgment of the learned Additional Sessions Judge and Fast Track Court No.1, Chengalpattu in S.C. No.393 of 2000 dated 29. 2002. 2. The appellant herein stands convicted under Section 304 (ii) and was sentenced to undergo three years Rigorous Imprisonment and to pay a fine of Rs. 1,000/- in default to undergo three months Rigorous Imprisonment. 3. The brief facts, which are necessary for the disposal of this Criminal Appeal, are recapitulated as under:- On 24. 2000 at about 7.15 a.m., in Maraimalai Nagar, NH-I Thiruvalluvar Salai in front of Srinivasa Tea Stall, the accused on prior motive with regard to sale of lottery tickets had a quarrel with the deceased and fisted on the chest of the deceased, who fell down and fainted. P.W.1, who is the brother-in-law of the deceased had seen the incident from his house and immediately, he had rushed to the spot and at the same time, P.W.2 who had been passing the road on his walking exercise in the morning had witnessed the occurrence and both of them had taken the deceased in an auto driven by P.W.3 to Dr. Balusamy, Modern Clinic, Maraimalai Nagar, P.W.5 is Dr. Balusamy had asked P.W.1, to get medicine. By the time, he returned with the medicine he was informed that the deceased had already died. Immediately, P.W.1 had gone to the Maraimalai Nagar Police Station and lodged a complaint. The said complaint was given to P.W.6, Head Constable, Maraimalai Nagar at 10 a.m on the same day and who in turn registered the case in Crime No. 195 of 2000 under Section 302 of IPC had prepared Exhibit P-4, printed FIR. 4. P.W.7, the Inspector of Police, who was in-charge of Maraimalai Nagar Police Station took the case for investigation, proceeded to the place of occurrence at 11 a.m and inspected the place and preferred Exhibit P-5, Observation Mahazar and rough plan, Exhibit P-6. He conducted inquest on the body of the deceased in the presence of the Panchayators and prepared inquest report, Exhibit P-7. He arrested the accused on 24. 2000 at 10 a.m., and remanded him to judicial custody. He conducted inquest on the body of the deceased in the presence of the Panchayators and prepared inquest report, Exhibit P-7. He arrested the accused on 24. 2000 at 10 a.m., and remanded him to judicial custody. Thereafter, the regular Inspector of Police, P.W.8 took the case for investigation and examined the Doctor who conducted autopsy and after completion of evidence, laid down the charge sheet against the accused under Section 302 of IPC. 5. Before the trial Court, P.W.1 to 8 were examined as witnesses on the side of the prosecution and Exhibit P-1 to 7 were marked as exhibits. 6. On the basis of the evidence on record, the trial Court came to the conclusion that the offence under Section 302 of IPC was not made out, instead Section 304 (ii) of IPC was made out against the appellant as the appellant had been proved to have inflicted the injury on the chest of the deceased with the knowledge that it is likely to cause death. He was convicted for the said offence and sentenced to undergo three years R.1. and to pay a fine of Rs. 1,000/- in default to undergo three months Rigorous Imprisonment. 7. Aggrieved by the order of conviction and sentence passed by the trial Court, the accused has preferred this appeal. 8. Looking at the materials on record, I find that the statements of P.W.1 and 2 are reliable. They had seen the incident and had narrated the incident in detail. P.W.1 is the brother-in-law of the deceased and he has categorically stated that he has seen the incident from the first floor of his house. It is his case that the tea stall where the incident has taken place is in front of his house. I do not find anything to discredit their testimonies. 9. Thus, apparently enough, the evidence of P.W.1 and 2 clearly pointed out that the accused had voluntarily caused hurt to the deceased. The medical evidence also pointed out that the deceased had died of the injuries inflicted on his chest. P.W.4, Dr.Murugesan had conducted the Post-mortem and found the following injuries:- “Ante-mortem injuries noted: Contusion 8x6x1 cms on the front of left side of chest over the 3rd, 4th intercostals space. The medical evidence also pointed out that the deceased had died of the injuries inflicted on his chest. P.W.4, Dr.Murugesan had conducted the Post-mortem and found the following injuries:- “Ante-mortem injuries noted: Contusion 8x6x1 cms on the front of left side of chest over the 3rd, 4th intercostals space. Heart is diffusely enlarged in size 3x2 cms pale yellowish area of old fibrotic changes with surrounding hy peraemic bone is seen in the anterior wall of the left ventricle 2 cms above the apex of heart. 2x1 cm old pale yellowish area of old fibrotic changes with surrounding hy peraemic bone seen in the interior wall of the left ventricle. Both ventricles were thickened in size. Inter ventricles septum was thickened in size. Inter ventricles septum was thickened in size. Both coronary ostiea were narrowed in size.” Therefore, it is established by the prosecution that the deceased had died of the injuries sustained by him on his chest by first blow given by the accused/appellant. 10. Now the important point that has to be analysed in this case is whether the accused/appellant has inflicted the alleged injuries on the person of the deceased with the knowledge that it was likely to cause his death. The evidence available on record does not point out to any such injury which was so grievous as to constitute knowledge in the mind of the accused that by infliction of such injuries, he was likely to cause the death of the deceased. P.W.5, Dr.Balusamy before whom the deceased was taken for treatment immediately after occurrence, has stated that there was no external injuries. Further he has stated that the blood pressure as well as pulse rate was low. 11. Though the Post-mortem Doctor Dr.V.Murugesan has stated that the death was the resultant of the chest injury sustained by the deceased, but this resultant could not be attributed to the knowledge of the accused because of the obvious fact that the alleged injury found on the person of the deceased was not such as to constitute knowledge on the part of the accused. 12. 12. In an offence punishable under Section 304(ii) of IPC “Knowledge” is an important element, but I find from the evidence adduced by the prosecution that this is missing in the instant case and hence, it remains simplicitor an offence of ‘voluntarily causing hurt’ as defined under Section 321 of IPC, the said commission of offence punishable under Section 323 of IPC. 13. The learned counsel for the appellant drew the attention of this Court to the decisions of the Division Bench In re. Arumugham and Others (1992) MLJ (Crl.) 198 wherein, the Division Bench has held that when there are several causes for the perforation of illenum, it will be difficult to hold that it was as a result of the alleged kicking of the appellant on the pubic region. It is not possible to exclude the perforation of illenum could have been due to the deceased being addicted to alcohol or any of the other causes. In the said case, the Division Bench has held that the accused was punishable under Section 323 of IPC instead of Section 302 IPC. 14. In another case Thomas v. State of Kerala (1992) CrLJ 581, the Division Bench of Kerala High Court has held that the fist blow given to the victim during scuffle and the death caused due to subdural haematoma, the knowledge that the act was likely to cause death was absent and the accused could be convicted only under Section 323 IPC. in another case, rendered by the Andhra Pradesh High Court in Kadapagunta Swaminatha Reddy v. State of Andhra Pradesh (1996) CrLJ 1387, it was held that there was nothing on record in regard to the injuries found on the deceased to show that it was grievous and it pointedly show that the Act of the accused was not done with the knowledge that his act is likely to cause his death. Though the death was the resultant, that resultant cannot be attributed to the knowledge of the accused so as to punish him under Section 304(ii) IPC. In the said case, it was held the accused is punishable under Section 323 of IPC. 15. Though the death was the resultant, that resultant cannot be attributed to the knowledge of the accused so as to punish him under Section 304(ii) IPC. In the said case, it was held the accused is punishable under Section 323 of IPC. 15. Accordingly, in the instant case, there is evidence to show that there was a scuffle between the accused and the deceased and in the said course of altercation, the accused has fisted on the chest of the deceased and in such circumstances, no mens rea could be imputed to the appellant/accused except to say that he had caused hurt to the deceased in the cause of the quarrel. Taking into consideration of the above facts, I am of the considered view that the appellant can be found guilty only under Section 323 of IPC instead of 304 (ii) of IPC. 16. Accordingly, the conviction and sentence imposed upon the appellant under Section 304 (ii) of IPC stands set aside and the appellant is convicted under Section 323 of IPC and sentenced to undergo one month Rigorous Imprisonment and to pay a fine of Rs.25,000/-. On such fine being paid, the entire sum of Rs.25,000/- shall be paid to the widow of the deceased on proper identification as compensation under Section 357(1)(b) of Cr.P.C. Imposition of fine of Rs.1,000/-by the trial Court is confirmed. In the result, this criminal appeal is partly allowed. The conviction and sentence of the accused/appellant for an offence under Section 304 (ii) IPC imposed by the learned Additional Sessions Judge and Fast Track Court No.1, Chengalpatt in S.C. No.393 of 2000 dated 29. 2002 is set aside and instead he is convicted for the offence punishable under Section 323 IPC and sentenced to undergo Rigorous Imprisonment for a period of one month and also, to pay a fine of Rs.25,000/-apart from Rs.1,000/- (with the default sentence) in default, to undergo three months Rigorous Imprisonment. The bail bond if any executed by the appellant shall stand terminated. Appeal partly allowed.