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2016 DIGILAW 1931 (MAD)

T. Murugan v. State rep. By Inspector of Police

2016-06-20

S.NAGAMUTHU, V.BHARATHIDASAN

body2016
JUDGMENT : S.Nagamuthu, J The appellant is the sole accused in S.C.No.358/2011, on the file of the learned Principal District and Sessions Judge, Coimbatore. He stood charged for offence under Section 302 I.P.C. The trial Court, by judgment dated 18.01.2013, convicted the accused for offence under Section 302 I.P.C., and sentenced him to undergo imprisonment for life (no fine amount was imposed by the trial Court). Challenging the said conviction and sentence, the appellant is before this Court with this Criminal Appeal. 2. The case of the prosecution, in brief, is as follows:- The deceased in this case was one Mr.Balan @ Balakrishnan. P.W.13 was running a Bakery in Coimbatore. In which, P.W.1 was working as a Cashier; the deceased and the accused were working as Tea Masters; P.W.2 was working as Supplier and P.W.3 was also working as a co-employee in the said Bakery. In due course of time, the deceased was complaining to P.W.13 that the accused was not preparing Tea well to the satisfaction of the customers. Enraged over the said complaint made by the deceased to P.W.13 frequently, the accused scolded him. The accused, by birth, is a physically challenged person. The deceased citing the same used to tease him. The accused was unhappy with the deceased making such tease and by making remarks citing his impairment. This is stated to be the motive for the occurrence. It is the further case of the prosecution that P.W.13 rented a house for the employees to stay. In the said house, the accused and the deceased and the other employees of P.W.13 were staying. On 29.07.2011, after the shop was closed, P.Ws.1 to 3, the deceased and the accused had gone to the said house. They were all sleeping. Around 12.45 am on 30.07.2011, when the deceased was sleeping, the accused took a wooden log (karlakattai) and attacked the deceased repeatedly. This was witnessed by P.W.1. P.Ws.2 & 3 were sleeping in a different room of the same house. On hearing the alarm raised by the deceased, they rushed to the place where the deceased was sleeping and they found the deceased lying with injuries. They saw the accused fleeing away from the place of occurrence, with a wooden log, in his hand. 3. P.Ws.1 to 3 immediately contacted 108 ambulance service. 108 Ambulance arrived, within a short while. They took the deceased to the Government Hospital. They saw the accused fleeing away from the place of occurrence, with a wooden log, in his hand. 3. P.Ws.1 to 3 immediately contacted 108 ambulance service. 108 Ambulance arrived, within a short while. They took the deceased to the Government Hospital. P.W.6 Dr.Karuppusamy, examined the deceased and admitted him as inpatient at 1.15 am on 30.07.2011. Ex.P.4 is the Accident Register. Then, P.W.1 went to B.4, Race Cource Police Station and made a complaint on 30.07.2011 at 3.00 am. P.W.21, the then Sub Inspector of Police received the same and registered a case in Crime No.1278/2011 for offence under Section 307 I.P.C. Ex.P.1 is the complaint and Ex.P.17 is the F.I.R. P.W.21 sent both the documents to Court which were received by the learned Judicial Magistrate on 30.07.2011 at 6.00 am. 4. The case was taken up for investigation by P.W.22. He went to the place of occurrence and prepared an observation mahazar and a rough sketch, in the presence of witnesses. He also recovered the blood stained material objects, such as, pillow and mat, from the place of occurrence. He arranged for a photographer to take photograph at the place of occurrence. On the same day at 11.00 am, he arrested the accused in the presence of witnesses and on such arrest, the accused made a voluntary confession, in which, he disclosed the place where he had hidden the Karlakattai. In pursuance of the said disclosure statement, he took the Police and witnesses to the place of hide out and produced M.O.1 (Karlakattai). P.W.22 recovered the same under a mahazar. 5. On 06.08.2011 at about 4.15 am, the deceased died in the hospital. On receiving intimation, at 7.30 am on 06.08.2011, P.W.22 altered the case into one under Section 302 I.P.C., and forwarded Alteration Report to the Court. He conducted inquest on the body of the deceased and thereafter, he sent the same for post mortem. 6. P.W.8 Dr.Kulandaivelu conducted autopsy on the body of the deceased on 06.08.2011 and found the following injuries:- “1.Abrasion with black scab 1x1 cm noted on right temporo parietal region 2. Abrasion with black scab 2x1 cm noted on right temporo parietal region, just 1 cm above to wound No.1 3. Partially healed wound 3x0.5 cam noted over right mastoid region 4. "C" shaped surgical sutured wound 24 cm in length noted over left fronto temporo parietal region 5. Abrasion with black scab 2x1 cm noted on right temporo parietal region, just 1 cm above to wound No.1 3. Partially healed wound 3x0.5 cam noted over right mastoid region 4. "C" shaped surgical sutured wound 24 cm in length noted over left fronto temporo parietal region 5. On dissection of scalp, skull and Dura: Sub scaped contusion 26x15 cm noted over both fronto parieto temporal region. Depressed fracture 8x0.5 cm noted over left parieto occipital bones. Horizontal oblique crack fracture 18 cm in length extending from the depressed fracture noted over right parietal bones and continuous in to the right fronto temporal suture line and ending into the anterior part of right middle cranial fossa. Communited fracture noted over right zygomatic arch with surrounding tissue contusion. Bony defect 8x8 cm noted over left temporo parietal bone, the underlying dura found surgically incised. Sub dual clot weighing about 25 grams noted over left parieto occipito temporal region. Diffuse sub dural and sub arachnoid hemorrhage noted over both parieto occipital and left temporal region. 7. Ex.P.7 is the post mortem certificate. He opined that the injuries found on the deceased would have been caused by a weapon like M.O.1 (Karlakattai). He has further opined that the death was due to shock and hemorrhage due to the head injury. P.W.22 recovered the blood stained clothes from the body of the deceased and forwarded the same to Court. At his request, the Material Objects were sent for chemical examination. The report revealed that there was human blood on all the material objects recovered from the place of occurrence. But, M.O.1 (karlakattai) was not sent for chemical examination. On completing investigation, P.W.22 laid charge sheet against the accused. 8. Based on the above materials, the trial Court framed a lone charge for offence under Section 302 I.P.C., against the appellant. The appellant denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 22 witnesses were examined and 21 documents were exhibited, besides 6 Material Objects. 9. Out of the said witnesses, P.W.1 is the eye witness to the occurrence. He has vividly spoken about the entire occurrence. He has also spoken about the motive of the accused. 9. Out of the said witnesses, P.W.1 is the eye witness to the occurrence. He has vividly spoken about the entire occurrence. He has also spoken about the motive of the accused. P.Ws.2 & 3 have stated that on hearing the alarm raised when they rushed to the place where the deceased was sleeping, they found the deceased lying in a pool of blood with head injury and the accused fleeing away from the scene of occurrence with M.O.1 (karlakattai) in his hand. P.W.4 is the neighbour of the deceased and he has stated that on hearing the alarm raised by the deceased, he rushed to the place where the deceased was sleeping and he found the deceased lying with injury and the accused going over from the house of the deceased with M.O.1 in his hand. P.W.5 is the yet another neighbour and he has also stated so. P.W.6 Dr.Karuppusamy has stated that he admitted the deceased at the Government College & Hospital, Coimbatore at 1.15 am on 30.07.2011. At that time, the deceased was conscious. He told the Doctor that he was attacked by a known person on 30.07.2011 at 12.45 am, with Karlakattai. At that time, P.W.6 found the following injuries on the deceased:- “1.Bleeding through the right ear 2. Contusion below the right ear 3. A lacerated injury measuring 2 x 1 cmx0.5 cm on the right parietal region of the head” Ex.P.4 is the Accident Register. P.W.7 has spoken about the treatment given to the deceased and the fact that the deceased was died on 06.08.2011 at 4.15 am. P.W.8 has spoken about the post mortem conducted on the body of the deceased and his final opinion regarding the cause of death. P.W.9, the Junior Scientific Assistant has stated that he examined the material objects and found human blood on all the same. P.W.10, the wife of the deceased has stated that when she went to the hospital and enquired with the deceased, the deceased told her that the accused attacked him with karlakattai. P.W.11, the brother of the deceased has stated that when he went to the hospital, the deceased told him that the accused attacked him with karlakattai. P.W.10, the wife of the deceased has stated that when she went to the hospital and enquired with the deceased, the deceased told her that the accused attacked him with karlakattai. P.W.11, the brother of the deceased has stated that when he went to the hospital, the deceased told him that the accused attacked him with karlakattai. P.W.12, a yet another neighbour of the deceased has stated that on hearing the alarm raised by the deceased, when he went to the place where the deceased was sleeping, he found the deceased lying with injury in a pool of blood and the accused was fleeing away from the scene of occurrence with karlakattai, in his hand. P.W.13, is the employer of the deceased and the accused. He has stated that the deceased used to make complaints against the accused that he is not preparing Tea to the satisfaction of the customers. He has further stated that the deceased used to tease the accused by citing his impairment. In effect, his evidence is regarding the motive of the accused. P.W.14 has turned hostile and he has not supported the case of the prosecution in any manner. P.Ws.15 & 16 have stated about the arrest of the accused and the recovery of M.O.1 (karlakattai) on the disclosure statement made by the accused. P.W.17 has stated about the photographs taken by him at the place of occurrence on the request made by P.W.22. P.W.18 is the Medical Attendant working in 108 Ambulance. He has stated that he took the deceased from the place of occurrence to the Government Medical College & Hospital, Coimbatore for treatment. P.W.19 is a Translator who has stated that he translated the statements of P.Ws.10 & 11 who have known only Malayalam. P.W.20, the Constable has stated he took the dead body of the deceased to the Doctor for post mortem. P.W.21 has spoken about the registration of the case. P.W.22 has spoken about the investigation done and the final report filed in this case. 10. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not chose to examine any witness nor did he mark any documents on his side. 11. P.W.22 has spoken about the investigation done and the final report filed in this case. 10. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not chose to examine any witness nor did he mark any documents on his side. 11. Having considered all the above, the trial Court found the accused/appellant guilty under the said charge and accordingly, sentenced him as detailed in the first paragraph of this judgment. That is how the appellant is before this Court with this Criminal Appeal. 12. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully. 13. In this case, there is no denial of the fact that the deceased and the accused were all employees under P.W.13. P.Ws.1 to 3 have stated about the motive. We do not find any reason to reject the said evidences of P.Ws.1 to 3. From these evidences, we hold that the prosecution has proved that the accused had developed grudges against the deceased. 14. The prosecution in order to prove the actual occurrence mainly relies on the evidence of P.W.1. P.W.1 was staying along with the deceased. P.W.1 has stated that when the deceased was sleeping, at about 12.45 pm, he heard some unusual murmur and at that time, he woke up and found the accused attacking the deceased with karlakattai. There is no reason to reject the evidence of P.W.1. P.Ws.2 & 3 are also the co-employees of the deceased. They were sleeping in a different place in the same house. On hearing the alarm when they rushed towards the place where the deceased was sleeping, they found the deceased lying with head injury in a pool of blood and P.W.1 was also present and the accused fleeing away from the scene of occurrence with M.O.1 in his hand. The evidences of P.Ws.2 & 3 duly corroborate the eye witness account of P.W.1. 15. Then comes the evidences of P.Ws.4, 5 & 12. They are all neighbours of the deceased. They have sated that on hearing the alarm raised by the deceased, they rushed towards the place where the deceased was sleeping and they found the accused fleeing away with karlakattai in his hand. 15. Then comes the evidences of P.Ws.4, 5 & 12. They are all neighbours of the deceased. They have sated that on hearing the alarm raised by the deceased, they rushed towards the place where the deceased was sleeping and they found the accused fleeing away with karlakattai in his hand. Further, when they entered into the house, they found the deceased lying with injury in a pool of blood and P.Ws.1 to 3 were very much present at that time. The evidences of P.Ws.4,5 & 12 also duly corroborate the eye witness account of P.W.1. Thereafter, all these witnesses have taken the deceased to the hospital. P.W.6 Dr.Karuppusamy admitted the deceased at 1.15 am on 30.07.2011. At that time, the deceased was conscious. He told the Doctor that he was attacked by a known person with karlakattai at 12.45 am on 30.07.2011. Thus, the statement of the deceased made to P.W.6, which is a dying declaration also duly corroborates the eye witness account of P.W.1. 16. Then comes the evidences of P.Ws.10 & 11. They are the wife and brother of the deceased respectively. They have stated that the deceased told them when they met him in the hospital that it was this accused who attacked the deceased with karlakattai. There is no reason to reject the evidence of P.Ws.10 & 11 also. Their evidences also duly corroborate the eye witness account of P.W.1. From these evidences, the prosecution has clearly established that it was this accused who attacked the deceased with karlakattai (M.O.1) which resulted the death of the deceased. 17. Now, the question is, “What was the offence that was committed by the accused, by the said act ?”. It is in evidence that the accused is a physically challenged person. The deceased used to tease him frequently. At the time of occurrence also, it is inferable that there was a quarrel. Provoked by the words and deeds of the deceased citing his physical impairment, the accused would have lost his mental balance and attacked the deceased with karlakattai which was lying there. Thus, in our considered view, the act of the accused would squarely fall within the ambit of fourth limb of Section 300 I.P.C., and first exception to Section 300 I.P.C. Therefore, the accused/appellant is liable to be punished for offence under Section 304(ii) I.P.C. 18. Thus, in our considered view, the act of the accused would squarely fall within the ambit of fourth limb of Section 300 I.P.C., and first exception to Section 300 I.P.C. Therefore, the accused/appellant is liable to be punished for offence under Section 304(ii) I.P.C. 18. Now, turning to the quantum of punishment, admittedly, the accused is a physically challenged person and he is also a poor man. He had no bad antecedents. There was no strong motive. The occurrence was not a premeditated one and it was out of sudden provocation. The age of the accused is hardly 33 years. Having regard to these mitigating as well as aggravating circumstances, we are of the view that sentencing the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- would meet the ends of justice. 19. In the result, this Criminal Appeal is partly allowed and the conviction and sentence imposed on the appellant for offence under Section 302 IPC is set aside and instead, he is convicted for offence under Section 304(ii) IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for four weeks. It is directed that the period of detention already undergone by the accused/appellant shall be set off as required under Section 428 Cr.P.C.