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2015 DIGILAW 838 (MAD)

A. Ashok Kumar v. Sunder Singh

2015-02-11

A.SELVAM, T.MATHIVANAN

body2015
Judgment 1. The conviction and sentence dated 29.04.2013 passed in Sessions Case No. 260 of 2012 by the Principal District and Sessions Court, Thoothukudi are being challenged in the present Criminal Appeal. 2. The case of the prosecution is that due to previous animosity on 31.07.2011, at about 18.00 hours, near cemetery of Kallathikinaru, the accused has deterred the de facto complainant by name Ashok Kumar and his brother by name Johnson. In the place of occurrence, with intention to murder the said Johnson, the accused has attacked him by using a deadly weapon and thereby caused fatal injuries on his person and subsequently passed away. In the place of occurrence, the accused with intention to murder the de facto complainant Ashok Kumar, has attakced on his person, by using the very same weapon and thereby caused injuries. Further the accused has attacked him and thereby caused grievous injuries. The accused has also threatened the de facto complainant and others. After occurrence, the de facto complainant has given Ex.P.1, the complaint to the Inspector of Police (P.W.13) and the same has been registered in Crime No.71 of 2011 under Sections 341, 307, 324 and 506(ii) of the Indian Penal Code. 3. On receipt of Ex.P.1, P.W.13 has conducted initial investigation and after the demise of the deceased, Section of law has been changed and also made arrangements to conduct autopsy on the body of the deceased and the doctor by name Selvamurugan (P.W.11) has conducted autopsy and he found the following external and internal injuries: “1. An oblique suture of length 6cm seen over left parietal region. On removal if appear as a heavy cut injury measuring 6 x 2 cm x cavity deep. On dissection of Head: Scalpal contusion of size 15 x 10 cm seen over left tempero parietal and occipital regions. Crack fracture of length 7 cm extending from posterior and of the cut parietal bone. The cut injury enters into the cranial cavity and makes a cut injury of length 6 cm over diameter and cuts the underlying left parietal lobe of brain of size 6 x 1 x 1 cm. 2) Abrasions: 3 x 2 cm over back of left shoulder. 4 x 4 cm over left knee. 3 x 1 cm over right big toe. 2 x 1 cm over left big toe. 3 x 1 cm over left ankle”. 2) Abrasions: 3 x 2 cm over back of left shoulder. 4 x 4 cm over left knee. 3 x 1 cm over right big toe. 2 x 1 cm over left big toe. 3 x 1 cm over left ankle”. The Postmortem Report has been marked as Ex.P.12. After completing investigation, P.W.15, Inspector of Police, has filed a final report on the file of the Judicial Magistrate's Court No. II, Kovilpatti and the same has been taken on file in P.R.C.No.15 of 2012. 4. The Judicial Magistrate No. II, Kovilpatti after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Thoothukudi Division and the same has been taken on file in Sessions Case No.260 of 2012. 5. The trial Court after hearing both sides and upon perusing the relevant records has framed first charge against the accused under Section 341 of the Indian Penal Code, second charge under Section 302 of the Indian Penal Code, third charge under Section 307 of the Indian Penal Code, fourth charge under Section 326 of the Indian Penal Code and fifth charge under Section 506(ii) of the Indian Penal Code and the same have been read over and explained to him. The accused has denied the charges and claimed to be tried. 6. On the side of the prosecution, P.Ws.1 to 15 have been examined and Exs.P.1 to P.20 and M.Os.1 to 4 have been marked. 7. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. However no oral and documentary evidence have been let in on the side of the accused. 8. The trial Court, after evaluating the evidence available on record, has found the accused guilty under Section 341 of the Indian Penal Code and sentenced him to undergo one month simple imprisonment and he has been found guilty under Section 304 Part II of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment and he has also been found guilty under Section 307 of the Indian Penal Code and sentenced to undergo five years rigorous imprisonment. In order to enhance the punishment awarded by the trial Court, the present Criminal Appeal has been preferred at the instance of the de facto complainant as appellant. 9. The only point that has now winched to the fore in the present Criminal Appeal is as to whether the first respondent/accused is liable to be punished under Section 302 of the Indian Penal Code? 10. The learned counsel appearing for the appellant/de facto complainant has contended that the accused with intention to murder the deceased has attacked him by using a deadly weapon and further he attacked the de facto complainant twice and therefore the intention of the accused can easily be gathered and the trial Court without considering the motive for occurrence coupled with the intention of the accused as well as the weapon used by him, has erroneously found him guilty under Section 304 Part II of the Indian Penal Code and therefore the conclusion arrived at by the trial Court under Section 304 Part II of the Indian Penal Code is not factually correct and the first respondent/accused is liable to be punished under Section 302 of the Indian Penal Code. 11. In order to resile the contentions putforth on the side of the appellant/de facto complainant, the learned counsel appearing for the first respondent/accused has contended that in the instant case, motive has not been established on the side of the prosecution and further the first respondent/accused has had no intention to murder the deceased and further he has given a single blow on the head of the deceased and the same would not come within the contour of Section 300 of the Indian Penal Code and the trial Court after considering the overtact alleged to have been committed by the first respondent/accused has rightly invited conviction and sentence under Section 304 Part II of the Indian Penal Code and therefore the conviction and sentence passed by the trial Court under the said Section are not liable to be interfered with. 12. On the side of the prosecution replete oral and documentary evidence have been adduced for the purpose of proving the alleged motive. 12. On the side of the prosecution replete oral and documentary evidence have been adduced for the purpose of proving the alleged motive. Further for the purpose of establishing the occurrence on the side of the prosecution, the de facto complainant has been examined as P.W.1, injured witness and other eye witnesses namely Veerpandiand and Packianathan have been examined as P.Ws.2 and 3 and both of them have consistently stated in their evidence about the motive for occurrence and also details of occurrence. Further for the purpose of establishing the previous case registered against the first respondent/accused in C.C.No.349 of 2010, the complainant therein by name Kala has been examined as P.W.4. Therefore from the cumulative reading of the evidence given by P.Ws.1 to 4 coupled with Ex.P.1, the Court can easily come to a conclusion that the occurrence has taken place as pleaded on the side of the prosecution. Further the doctor who examined the de facto complainant (P.W.1) has deposed evidence as P.W.9 and he also filed copy of Accident Register as Ex.P.19. 13. The learned counsel appearing for the first respondent/accused has not touched the merit of the case putforth on the side of the prosecution. As pointed out earlier, the only point that has to be decided in the present Criminal Appeal is as to whether the conviction and sentence passed by the trial Court against the first respondent/accused under Section 304 Part II of the Indian Penal Code is factually and legally correct? 14. It is seen from the evidence given by P.W.1 that in the place of occurrence, the accused has tried to attack by using M.O.1, aruval. But however he managed to escape from the attack of the accused and accidentally the deceased has sustained injury on his head. Even in Ex.P.1, complaint, it has been stated to that effect. Therefore it is quite clear that the accused has mainly intended to attack the de facto complainant by using M.O.1. Since the de facto complainant has managed to escape from the attack made by the accused, unfortunately the deceased has sustained injury on his head. Therefore it is quite clear that the accused has had no intention to murder the deceased. 15. Since the de facto complainant has managed to escape from the attack made by the accused, unfortunately the deceased has sustained injury on his head. Therefore it is quite clear that the accused has had no intention to murder the deceased. 15. The learned counsel appearing for the first respondent/accused has drawn the attention of the Court to the decision in Buddhu Singh v. State of Bihar (Now Jharkhand) 2011 (1) L.W. (Crl.) 707, wherein the Hon'ble Apex Court has dealt with a case of similar nature and ultimately found that the act of the accused would come within the purview of Section 304 Part II of the Indian Penal Code. 16. If really, the accused has intended to murder the deceased, definitely he would have given some other attack on his body. But absolutely there is no evidence that again he attacked the deceased. 17. It has already been pointed out that only with intention to attack the de facto complainant, the accused has tried to attack him. But P.W.1 has managed to escape and unfortunately the deceased has sustained head injury. Therefore viewing from any angle, the accused has had no intention to murder the deceased. Since the accused has had no intention to murder the deceased, it is very clear that the conclusion arrived at by the trial Court under Section 304 Part II of the Indian Penal Code is perfectly correct and the same does not warrant interference and altogether the present Criminal Appeal deserves to be dismissed. 18. In fine, this Criminal Appeal deserves dismissal and accordingly is dismissed.