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2009 DIGILAW 877 (MAD)

Kuppusamy v. Inspector of Police, Erode Dist

2009-03-31

C.NAGAPPAN, T.SUDANTHIRAM

body2009
Judgment T. Sudanthiram, J. The appellant herein who is the accused No. 1 in S.C. No. 77 of 2003, on the file of the Additional Sessions Judge (FTC-III), Dharapuram, stands convicted for an offence under Sections 302, 506(ii) read with 34 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default to undergo one year rigorous imprisonment. Aggrieved by the said conviction and sentence, the appellant had preferred this appeal. 2. The case of the prosecution in brief is that the deceased is the father of P.W.1 and husband of P.W.4. The deceased Murugasamy Gounder and the (second accused in this case Kandasamy are brothers. The first accused/appellant herein is the son of the second accused and third accused is the wife of the second accused. The deceased family and the accused family were living in the adjacent fields and they were owning their respective lands. There was a dispute with regard to the common path-way. Once while P.W.1 walked on the common pathway, he was assaulted by the firsts accused and a case was filed against him and a fine was imposed. Subsequently, a civil case was, also filed in which the Judgment was given in favour of the accused party. An appeal has been preferred by the deceased party and it is pending. Therefore, the accused and the deceased were not in talking terms. On 23. 2003 at about 8.a.m., the deceased brought a tractor of P.W.2 and was ploughing the land. P.W.2 was driving the tractor and the deceased was sowing the seeds. All the three accused came and objected for driving the tractor near the common path. The deceased told them that the tractor was driven only in their field. The accused warned the deceased that the tractor should not come on the common path. At about 9.15 a.m., the first accused with an aruval, the second accused with a stick and the third accused with a stone came to the scene of occurrence. The accused came near the deceased and the second accused attacked the deceased with the stick third accused attacked the deceased on his left shoulder. The first accused attacked the deceased with an aruval and as the deceased warded of, he sustained injury on the left hard and the left little finger was cut. The accused came near the deceased and the second accused attacked the deceased with the stick third accused attacked the deceased on his left shoulder. The first accused attacked the deceased with an aruval and as the deceased warded of, he sustained injury on the left hard and the left little finger was cut. Again the first accused attacked him on the right shoulder, upper arm, right and left knee. As P.W. 1 and others tried to go near the deceased, they were threatened by the accused. After attacking the deceased, the accused had gone to their house. The occurrence was witnessed by P. Ws. 1 , 2 and 3. The deceased died at the spot. 3. Then P.W.1 went to the police station along with P.W.2 and gave complaint Exhibit P1 to P.W.12 Sub Inspector of Police of Kundadam police station. P.W.2 on receiving the complaint registered the case in crime No. 47 of 2003 under Section 302 IPC and prepared the FIR Exhibit P-13. P.W.13 Inspector of Police on receiving the telephone message at 11.00 a.m., came to the police station and received the copy of the FIR and went to the scene of occurrence and prepared the observation mahazar/Exhibit P-2 and rough sketch Exhibit P- 4 in the presence of P.W.5 and recovered the blood stained sample earth and one pair of Cheppal under Exhibit P-5 mahazar. P.W.8 photographer took photographs at the scene of occurrence. M.12 series are the photographs including negatives. P. W.13 held the inquest and examined the witnesses and prepared the inquest report. 4. The body was sent for post mortem examination and P.W.7 Doctor on receiving the requisition held autopsy at 5.00 p.m., and noted the following injuries: (1) A cut injury extending from right anterior axillary fold runs above the shoulder and ends on right posterior axillary fold fracturing the head of humerus and exposing the glenoid cavity of the right scapula and all the muscles attached to the humerus is cut along the line. (2) A deglowing injury extending each below the right greater trouchanter to the level of lower 1/3 of middle 1/3 junction of right humerus injury the lateral compartment muscles of right arm. (3) A cut injury is running through the right knee joint and hence the right leg is hanging with a tag of tern its posterior aspect. (2) A deglowing injury extending each below the right greater trouchanter to the level of lower 1/3 of middle 1/3 junction of right humerus injury the lateral compartment muscles of right arm. (3) A cut injury is running through the right knee joint and hence the right leg is hanging with a tag of tern its posterior aspect. (4) Left little finger is hanging with a tag of skin on its palmer aspect due to a out on a posterior aspect of the base of little finger. (5) A cut injury is seen over the posterior aspect of the left knee between the (nc) there by muscles are seen cut along the cut injury. (6) 3 cm diameter contusion seen on lateral aspect of middle of left arm. (7) 2 cm x 1/2 cm x bone depth cut injury seen on the middle left leg at its anterior surface. hyoid bone normal. Thorax: normal-Plueral, Pericardial and Cardiac chambers empty. Lungs Normal, cut Sections pale. Abdomen stomach: Surface of mucosa pale, empty small and large intestine pale, surface (?) distended with fluid air (nc). Kidneys — Normal size pale, Spleen-Normal size pale Section, Liver- normal cut Section pale, gall bladder — half full. Urinary bladder—empty. Scalp no injury. Skull bones — normal, Brain and its coverings — normal pale. Base of the skull normal." The Doctor opined that the deceased appears to have died of shock and haemorrhage due to injury to the joints. P.W.7 Doctor issued post mortem certificate Exhibit P-6. 5. On 22. 2006, at about 6.00 a.m., P.W.13 arrested the accused near Suryanallur bus stop and also recorded the confession given by the accused in the presence of P. W.6. Exhibit P-4 is the signature of P.W.6. In pursuance of the confession, the accused produced the stick, aruval and blood stained banian and blood stained underwear and blood stained lungi M.Os. 1 to 5. On 23. 2003, the accused 2 and 3 surrendered before the Inspector of Police and they were arrested. 6. The Inspector of Police sent a requisition to the Court for sending the properties for chemical analysis. Exhibit P-9 is the chemical analyst report and Exhibit P-10 is the serological report. On completing the investigation, P.W.13 laid the final report on 14. 2003 against the accused for offence under Section 302, 506 read with 34 IPC. 7. 6. The Inspector of Police sent a requisition to the Court for sending the properties for chemical analysis. Exhibit P-9 is the chemical analyst report and Exhibit P-10 is the serological report. On completing the investigation, P.W.13 laid the final report on 14. 2003 against the accused for offence under Section 302, 506 read with 34 IPC. 7. The prosecution examined 13 witnesses, marked 1.4 exhibits and produced 13 material objects. When the accused were questioned with regard to the incriminating circumstances available against them, they have denied the complicity. The first accused filed written statement under Section 233(ii) Cr.P.C. No witnesses were examined on the side of the defence and no documents were marked. 8. The trial Court after considering the evidence, acquitted the accused 2 and 3 but convicted and sentenced the first, accused/appellant herein alone as already stated above. 9. The learned counsel Mr. Chakravarthy appearing for the appellant submitted that the trial Court had acquitted the second and third accused disbelieving the version of the eye-witnesses P.Ws.1 to 3. Having disbelieved the eye-witnesses in respect of the second and third accused, the trial Court has erroneously convicted the appellant under Section 302 IPC believing their version. The occurrence had not taken place in the manner spoken by the prosecution, but the occurrence had taken place only in the manner as put forward by the defence. The first accused also filed a written statement narrating the sequences of the occurrence. The learned counsel further submitted that it was only the deceased who was aggressor and the deceased only attempted to attack with aruval. The defence version only is probable and not the prosecution case. In view of the statement made by the first accused, the offences would fall only under Section 304 IPC and not under Section 302 IPC. It was only the deceased who had abused in filthy language and attempted to attack the accused. Exception 1 and 2 of Section 300 IPC are to be applied to the acts and circumstances of the case. 10. It was only the deceased who had abused in filthy language and attempted to attack the accused. Exception 1 and 2 of Section 300 IPC are to be applied to the acts and circumstances of the case. 10. The learned counsel for the appellant further submitted that the injuries on the deceased were not caused on any vital part and there was no premeditation for the accused to cause the death of the deceased and there was no intention for the appellant to kill the deceased and as such, the injuries were caused on the deceased not with the intention of the murdering the deceased and therefore, the offence would fall only under Section 304 IPC. The learned counsel also cited the decision of the Honourable Supreme Court in Soman v. State of Kerala 2009 SAR (Criminal) 3. 11. Mr. Balasubramaniam, learned Additional Public prosecutor submitted that the prosecution case has been established by the evidence of P.Ws. 1 to 3 who are the eyewitnesses to the occurrence and among them, P.W.2 is only an independent witness who is the driver of the tractor and who had been present at the time of occurrence. The occurrence had taken place at 9.15 a.m., and the complaint had been given at 10.30 a.m., without any delay. The learned Additional Public Prosecutor further submitted that the acquittal of the second and third accused by the trial Court would not affect the prosecution case and as far as the overt act attributed to the appellant herein has been well corroborated by the medical evidence. 12. The learned prosecutor further submitted that none of the exception under Section 300 IPC could be applied to this case. The version of the accused has not been supported by any material and it is only an imaginary and such version is made only to escape from the clutches of law. 13. This Court considered the submissions made by both parties and perused the records carefully. P. Ws.1 to 3 are the eye-witnesses to the occurrence. P.W.1 immediately after the occurrence has given the complaint. The evidence of P.W. 1 is corroborated by the evidence of P.Ws.2 and 3. P.W.2 is an independent witness who had come to the scene of/occurrence along with tractor for ploughing the land. P.W.2 had no animosity to depose falsely against the accused. P.W.1 immediately after the occurrence has given the complaint. The evidence of P.W. 1 is corroborated by the evidence of P.Ws.2 and 3. P.W.2 is an independent witness who had come to the scene of/occurrence along with tractor for ploughing the land. P.W.2 had no animosity to depose falsely against the accused. Even in the cross examination, nothing was brought out to discredit the evidence of P.W.2. Of course, the trial Court had acquitted the accused 2 and 3 giving the benefit of doubt, since though it is alleged by the prosecution that the second accused attacked the deceased with stick and third accused attacked the deceased with stone, no corresponding injuries were found and the benefit of doubt was given to them. In the said circumstance, the acquittal, of A.2 and A.3 would not in any way help the accused/appellant herein and it would not discredit the evidence of P. Ws.1 to 3. As far as the appellant is concerned, all the witnesses P.Ws.1 to 3 had spoken that the deceased was attacked by the appellant with deadly weapon aruval. The deceased also sustained number of injuries and those injuries are also possible by M.O.I aruval. Therefore, we have to hold that the first accused/appellant herein had attacked the de-ceased with aruval and caused his death. 14. Though it is contended by the learned counsel for the appellant that exception 1 and 2 of Section 300 IPC is attracted, there is no material available in support of the version of the defence. Though a written statement is filed by the accused, supporting that statement, no answer is elicited from anyone of the witnesses to the occurrence. Though specific suggestions are put to the witnesses by the defence, they have been categorically denied. P. W.2 in-dependent witness also has not supported the defence version. In the said circumstances, this Court is unable to accept the defence version to apply either exception (i) or (ii) of Section 300 IPC. 15. With regard to the nature of the offence, the learned counsel for the appellant relied on the decision of the Honourable Supreme Court in Soman v. State of Kerala (supra) in which. Their Lordships of the Apex Court have observed as follows: "19. We are fortified in our view by a decision of this Court in Kapur Singh v, State of Pepsu AIR 1956 SC 654 . Their Lordships of the Apex Court have observed as follows: "19. We are fortified in our view by a decision of this Court in Kapur Singh v, State of Pepsu AIR 1956 SC 654 . In that case, the appellant was convicted for offence punishable under Section 302, IPC. According to the prosecution case, the appellant had caused death of the deceased while one Chand Singh held the victim. Eighteen injuries were inflicted on the deceased on the arms and legs with gandasa. 20. Converting conviction of the accused from Section 302,to Section 304 Part I, this Court observed: "it is significant that out of all the injuries which were thus inflicted none was inflicted on a vital part of the body. The appellant absconded and his companion was in the meantime convicted of in offence under Section 302 and a sentence of transportation for life was imposed on him, which was confirmed by the High Court. The appellant was arrested thereafter and his trial resulted in his conviction under Section 302. The learned Sessions Judge awarded him a sentence of death subject to confirmation by the High Court. The High Court, in due course, confirmed the death sentence." 21. The Court further observed; "The fact that no injury was inflicted on any vital part of the body of the deceased goes to show in the circumstances of this case that the intention of the appellant was not to kill the deceased outright. He inflicted the injuries not with the intention of murdering the deceased, but caused such bodily injuries as, he must have known, would likely cause death having regard to the number and nature of the injuries." 22. Thus, though eighteen injuries were caused and the deceased met with death, this Court held that since the injuries were caused on arms and legs, the case could be said to be covered by Part 1 of Section 304, IPC and accordingly, conviction of the appellant was converted into Section 304, Part I from Section 302, IPC." The decision cited by the learned counsel for the appellant is not applicable to the facts of this case. 16. In the decision Kapur Singh v. State of Pepsu AIR 1956 SC 654 totally there were six accused in that case and six injuries were caused on the deceased and the death was the result of combined effect of injuries. 16. In the decision Kapur Singh v. State of Pepsu AIR 1956 SC 654 totally there were six accused in that case and six injuries were caused on the deceased and the death was the result of combined effect of injuries. It is not the case of the prosecution in that case that all the injuries were caused only by the Accused No. 1. Accused Nos. 2 to 6, who were convicted for the offence under Section 302 read with Section 34 IPC were acquitted by the High Court. It is observed in paragraphs 17 and 18 of the decision cited above as follows: 18. Looking to the injuries sustained by the deceased which were not on head, face or vital part of the body, but on arms, legs etc. coupled with the fact that in all, there were six accused and though all of them were convicted by the trial Court, the High Court extended benefit of doubt to accused Nos. 2-6, in our opinion, the counsel is right in submitting that on the facts and in the circumstances of the case, it cannot be said that the appellant herein had committed an offence punishable under Section 302 IPC. Even the trial Court did not convict the appellant substantively for an offence punish-able under Section 302 IPC. He was convicted with other accused for an offence punishable under Section 302 read with Section 34, IPC. In our view, on the facts of the case and injuries sustained by the de-ceased, the case is covered by Section 304 Part I, IPC." "17. It was stated that combined effect of injury Nos. 1, 3, 4 and 5 was sufficient in the ordinary course of nature to cause death. 17. In this case, the deceased sustained injuries in the shoulder, hand and legs. According to injury No. 1, there was a fracture on the head of humerus and as per injury No. 3, cut injury was running through the right knee joint and right leg was hanging with a tag of torn. Injury Nos. 1 and 3 are the serious injuries. P.W.7-Dr. Chandrasekaran also opined that the deceased died due to the injury to the Joints. Section 300 IPC defines murder which reads as follows: "300. Injury Nos. 1 and 3 are the serious injuries. P.W.7-Dr. Chandrasekaran also opined that the deceased died due to the injury to the Joints. Section 300 IPC defines murder which reads as follows: "300. Murder:- Except in the cases herein-after excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly :....................... 4thly :...................... Illustrations: (a).......... (b)........................... (c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Zs death. (d) …." The appellant/accused caused the injuries intentionally on the body of the deceased using deadly weapon. The death was instantaneous. By causing such serious the appellant had known that the injuries to be likely to cause the death of the deceased. As such, Section 300 IPC is made out against the appellant. 18. In the result, the conviction and sentence imposed on the appellant/accused No. 1 in S.C. No. 77 of 2003 on the file of the Additional Sessions Judge, Fast Track Court No. 3, Dharapuram is confirmed and the Appeal is dismissed.