Bakkiaraj and another vs State

M. Karpagavinayagam, J.—This appeal is directed against a judgment in S.C. No. 113 of 1989 on the file of the Principal Sessions Judge,

Ramanad at Madurai convicting the appellants for the offence u/s 304, Part II read with Section 34, I.P.C. and sentencing them to Rigorous

Imprisonment for eight years. The appellants were originally tried for the offence u/s 302 read with Section 34, I.P.C. on the file of the Principal

Sessions Judge, Ramanad at Madurai, on the allegation that on 11-3-1988 at about 4:45 p.m. both the appellants pushed the deceased

Lakshmana Nadar from the steps of the staircase in the house, due to which the deceased Lakshmana Nadar fell on the stepping stone

''Padikkal''), the deceased with the result the deceased Lakshmana Nadar died on 12-3-1988 at about 8:50 a.m. at Madurai Rajaji Government

Hospital. Therefore, they were liable to be tried u/s 302 read with Section 34, I.P.C.

On behalf of prosecution, P.Ws. 1 to 9 were examined, exhibits P. 1 to 15 were marked and listed M.O.I. The facts leading to the conviction

are as follows :-

P.W. 1 Gurusamy is the son the deceased Lakshmana Nadar, The deceased along with his family was residing at Door No. 3/53, Maliamman

Kovil Street, Thalavaipuram Village. The first appellant is the son of the second appellant. The house of the appellants is situate next to the house

of the deceased. There are vacant spaces at the backyard of both the houses. For about 50 years, the backyard of these two houses fell vacant

without constructing any wall. Recently, the appellants attempted to construct a wall at the backyard of their house. This was objected to by the

deceased Lakshmana Nadar and his son P.W. 1 since it would affect the flow of water from the house of the deceased. Due to this,

misunderstanding arose between the two families. On 10-3-1988 the second appellant began to construct a wall. At that time the deceased alone

was available in the house. P.W. 1 and his wife had been away. The deceased objected again to the construction of a wall at the backyard. So

there was a wordy quarrel. On the same night P.W. 1 and his wife came back. The deceased informed about the quarrel that took place between

the deceased and the second appellant.

On 11-3-1988 at about 1:00 p.m. both the appellants alongwith the second appellant''s wife Pachiammal came in front of the house of the

deceased and scolded both deceased and P.W. 1 as to how they could demolish the wall constructed by them in the backyard. Then the deceased

Lakshmana Nadar came rushing to the accused. Then both the accused and Pachiammal beat the deceased. At that point of time P.W. 1 his wife

and neighbours namely. Kethayya, Ganesan, came, intervened and separated them. On the same day, 11-3-1988, at 4:45 p.m. again both the

appellants came in front of the house of P.W. 1, and scolded the deceased in a filthy language. The second accused asked deceased (Vernacular

matter omitted) Then the deceased told (Vernacular matter omitted) and so saying the deceased came to the stepping stone at the house of the

appellants and entered into their house. On seeing this, the first appellant said as follows : (Vernacular matter omitted) and then both the appellant

forcibly pushed him by saying (Vernacular matter omitted) There is a stepping stone (''Padikkal'') nearby the house. Due to pushing, the victim

deceased fell on the stepping stone, facing downwards on the floor. Due to this, the deceased sustained injuries on the forehead and the chin.

Blood was oozing out from the nose. Then the second accused kicked on the left hip and made him to roll down on the street. In this process, the

deceased sustained abrasions on the hands and the knees and the accused ran away from the place of occurrence. This was witnessed by P.W. 2,

P.W. 1''s wife, Ganesan and Kethayya. As soon as the victim fell down, he became unconscious. Therefore, P.W. 1 and other took the victim at

5:50 p.m. to the Rajapalayam Government Hospital.

P.W. 4 Dr. Radha examined the victim deceased at 5:50 p.m. and he found the following eight injuries on the victim :

(1) Irregular injury of 6 x 2 x 2 cm. Rt. forehead, fresh bleeding present fracture Rt. frontal.

(2) Fresh bleeding from nose.

(3) Abrasion of 1 cm. in dia Lt. elbow.

(4) Contusion of 1 cm in dia Lt. Knee Joint.

(5) Multiple abrasions of Rt. dorsal foot.

(6) Abrasion of 1 x 0.5 cm. Rt. II toe.

(7) Abrasion of 1 cm. in dia Rt. elbow.

(8) Irregular injury of 1 cm. in dia near chin.

Then P.W. 4 sent intimation to the Rajapalayam Town Police Station about the same. P.W. 8, Sub-Inspector of Police, Rajapalayam, South

Police Station received an intimation Ex.P. 4 and went to the hospital at 7:30 p.m. and recorded the statement from P.W. 1 since the victim was in

unconscious stage. Then he obtained signature from P.W. 1 in Ex.P. 1. Ex.P. 1 was attested by one Santhanam. Then P.W. 8 Sub-Inspector of

Police returned to the Police Station registered a case in Cr. No. 61 of 1988 u/s 307, I.P.C. and then prepared first information report. On the

same day he despatched the copy of the F.I.R. to the Court as well as to the senior officials. Printed First Information Report is Ex.P. 12.

Since the Doctor, P.W. 4 felt that the condition of the deceased was serious, he referred to the Madurai Rajaji Government Hospital. The victim

was admitted in the hospital. But, on the next day, i.e. 12-3-1988 at about 8:50 a.m. he died. P.W. 5, the Doctor at the Madurai Rajaji

Government Hospital sent the death intimation. In the meantime P.W. 9, the Inspector of Police on receipt of the first information report, for the

offence u/s 307, I.P.C., on 12-3-1988 took up the investigation and went to the spot at 7 a.m., prepared Observation Mahazar Ex.P. 2 and Ex.P.

13 rough sketch in the presence of P.W. 3 and another. At 4:00 p.m. on the same day, P.W. 9 on receipt of the death intimation Ex.P. 5 altered

the First Information Report into one u/s 302, I.P.C. and sent the copies of altered Express Information Report Ex.P. 14 to the Court. On 13-3-

1988 P.W. 9 Inspector of Police went to the Madurai Rajaji Government Hospital and conducted inquest between 6:00 a.m. and 10:00 a.m. and

examined P.W. 1 and others, Ex.P. 15 is the inquest report. Then he sent the dead body along with Ex.P. 10 requisition to P.W. 7 for

postmortem. During inquest P.W. 9 Inspector of Police recovered M.O. 1 the dhoti of the deceased. P.W. 7 on 13-3-1988 on receipt of the

requisition Ex.P. 10, he commenced postmortem at 1:45 p.m. and found the following injuries :-

Sutured lacerated injury right side forehead 8 cm. x 2 cm. x bone deep on dissection, crack fracture of right frontal bone 4 cms. length.

Lacerated injury front of chin (centre) 2 cm. x 1 cm. On opening scalp; contusion right parieto-frontal area 10 x 8 cms. On opening skull, due

;extradural haemorrhage right parieto-temporal area 10 x 8 cms. Subdural haemorrhage 20 x 15 cms. with 80 cms. of blood clots.

haemorrhage left parietal temporal 18 x 8 cms. with 50 gms. of blood, Fracture middle cranial fossa right to left 14 cms. in length.

Contusion front of chest left side 6 x 4 cms. On dissection; fracture ribs 5 and 6 close to costochondral junction.

Multiple abrasions noted in the following areas.

(a) Left elbow 4 x 3 cms. Inner side.

(b) Left knee 3 x 4 cms. with surrounding contusion.

(c) Right foot dorsum 4 x 4 cms.

(d) Right 2nd toe 2 x 1 cms.

(e) Right elbow 3 x 3 cms.

According to the Doctor, age of the deceased was roughly about 75 years. He opined that the deceased would appear to have died of head injury

sustained by him. He issued postmortem certificate Ex.P. 11. Then on 14-3-1988 at 5:30 a.m. P.W. 9 arrested both the appellants. P.W. 6 on

receipt of Ex.P. 6 requisition, he sent M.O. 1 dhoti for chemical analysis, as per Ex.P. 7, letter. Ex.P. 8 is the Chemical Report and Ex.P. 9 is the

Serologist report which were received by the Court on 26-9-1988 and 16-2-1989 respectively. Then after finishing investigation, P.W. 9 filed a

charge-sheet against both the appellants on 26-5-1988, u/s 302, I.P.C.

After the evidence adduced by the prosecution, the appellants were questioned u/s 313, Cr.P.C. to explain the circumstances which are

incriminating against him, the appellants chose to deny their complicity in the crime. He further added that the first accused constructed a new wall

at the backyard of his house and that the deceased Lakshmana Nadar after demolishing the wall filed a false case against him. Second accused

also reiterated the same. However, no witness was examined.

Mr. K. Asokan, learned counsel for the appellants took me through the entire evidence and contended that eye-witnesses could not be believed

because the occurrence could not have been taken place in the manner alleged by these witnesses, that in the earlier document, i.e. wound

certificate P.W. 1 stated that the deceased was beaten by three persons, but in the evidence he stated only two persons, and that the important

witnesses who are independent and neighbours who were mentioned in the First Information Report were not examined in Court, whereas P.W. 2

Pannerselvam whose name was not mentioned in the F.I.R. was examined as a witness in the Court. Moreover, he pointed out that in the First

Information Report it has been stated that only the first accused pushed, but in the evidence it is stated that both the accused pushed the deceased.

It is also pointed out that in the evidence of P.W. Doctor, and that in the evidence of P.W. 1, that blood was coming out from the injuries. But

curiously no bloodstain was found in the stepping stone (Padikkal) as per the Observation Mahazar and no blood stain was found by the Inspector

who inspected the spot. Learned counsel for the appellants has also pointed out that there was a correctness in Ex.P. 1 and Ex.P. 12 for which no

proper explanations have been put-forth by the prosecution, and that P.W. 2 who is the so-called independent witness was examined by the Police

only five days later, but there is no material to show that how P.W. 2 was traced during the course of investigation. On these submissions learned

counsel for the appellants requested this Court to consider the evidence and then give the benefit of doubt to the accused. On the contrary, Mr.

Manisaran, learned Government Advocate appearing for the State countered his submission by pointing out various portions in the evidence and

submitted that there are ample materials available connecting the appellants with the commission of crime and as such the verdict given by the trial

Court need not be disturbed as there is no illegality in the conclusion arrived at by the trial Court.

There are two eye-witnesses, viz., P.Ws. 1 and 2, P.W. 2 is the person residing in the local village. A reading of the evidence of P.W. 2, and

the other documents with reference to the presence of P.W. 2 and other various circumstances as found in the evidence of P.Ws. 1 and 9 and 10,

would make it clear that P.W. 2 could not have been present at the time of occurrence.

In Ex.P. 1, P.W. 1 did not refer about P.W. 2. In fact, P.W. 1 referred about so many other independent witnesses with their names, viz.,

Ganesan, Kathayya, Marimuthu''s wife Yogamani, Selvaraj''s wife Meena. Curiously these persons have not been examined in the Court. But

P.W. 2 Panneerselvam whose name has not been mentioned in the First Information Report has been examined in Court. There is no reason as to

why those persons whose names are mentioned in the F.I.R. are dispensed with and Panneerselvam alone was examined. P.W. 9 admits that P.W.

1 did not mention about the name of Panneerselvam not only in the F.I.R., but also in the consequent statement during investigation. So I am at a

loss to understand how P.W. 2 was traced to obtain the statement from him with regard to the incident as correctly pointed out by Counsel for

petitioner. As such, at the outset, I have no hesitation to reject the evidence of P.W. 2. P.W. 2 has been deliberately introduced in order to adduce

a corroborative evidence, to strengthen the version of P.W. 1. So, the remaining witness is only P.W. 1. According to P.W. 1 in the F.I.R. he has

stated (Vernacular matter omitted) (Deceased) (Vernacular matter omitted) and so saying, the first accused Bakkiaraj pushed the deceased down.

There is no reference about the second accused pushing. It is also not referred about the kicking by the second accused. Since there are some

injuries or abrasions found during the course of postmortem, while deposing in Court, P.W. 1 seems to have improved his version by implicating

the second accused also, the father of the first accused as if he also pushed and kicked on the flank of the deceased. So for this reason, the

evidence of P.W. 1 has to be rejected in respect of the involvement of the second accused as I am of the view that the evidence relating to the

second accused is clearly an improvement. But as regards the involvement of the first accused, I am of the view that the evidence of P.W. 1 has

been corroborated by the medical evidence adduced by P.W. 7. Of course, in the wound certificate it is mentioned as three persons. It is not a

detailed statement, but it is only a mere endorsement made by the Doctor, on the basis of the statement given by P.W. 1 to the Doctor. Since,

P.W. 1 referred both the incidents which took place at 4:00 p.m., and 4:45 p.m. he must have mentioned as three persons including the wife of the

second accused also. So, on the above reasons, the prosecution case as against the 1st accused cannot be rejected on a Doctor and the evidence

of P.Ws. 8 and 9, I am of the view that there are acceptable materials to show that the first accused pushed the deceased on the floor, due to

which he sustained injuries which ultimately caused the death next day in the hospital.

As regards the nature of the offence committed by the first accused, Mr. K. Asokan, learned counsel for the appellants pointed out several

materials to show that it will not come u/s 304 Part II, I.P.C., but it will come u/s 325, I.P.C. Though initially that the act of the first accused would

fall u/s 304, Part II, I.P.C., he finally conceded that on the basis of the material pointed out by Mr. K. Asokan, the offence would fall u/s 325,

I.P.C. According to P.W. 1, the first accused pushed the victim down. It is not the case of the prosecution that the accused pushed the deceased

on the stepping stone (Padikkal) in such a way for the victim to sustain injuries on his head. P.W. 9, Inspector of Police, in his evidence, in

consonance with the observation mahazar admitted that there is a reference about the availability of ''Jalikal''

It is also pointed out that according to the Doctor, blood was oozing out from the injuries. But there is no bloodstain found on the stepping stone

(Padikkal). So, there cannot be a conclusive proof to show that the victim would have sustained injuries only because he had fallen on the stepping

stone (Padikkal). At this stage, it is relevant to note that the evidence of the Doctor P.W. 7 who says as follows :-

So on this material, it will be very difficult to conclude that the first accused pushed the victim with the intention or knowledge to cause injuries as is

likely to cause death as pointed out by Mr. K. Asokan, learned counsel for the appellants which is also conceded by Mr. Manimaran, learned

Government Advocate. So I feel that the offence u/s 304, Part II, is not made out at the most it would be said that the offence u/s 325, I.P.C.,

alone is made out. On this fact situation, I am of the view that there are only materials available to convict and sentence the first accused for an

offence u/s 325, I.P.C. I set aside the conviction and sentence against the first accused instead I convict the first appellant for an offence u/s 325,

I.P.C. and sentence him to undergo Rigorous Imprisonment for one year. At this stage, it is brought to my notice that there are two Government

Orders, viz., G.O.Ms. No. 296 Home (Prison IV) Department dated 20-2-1993 and G.O.Ms. No. 206 Home (Persons IV) Department, dated

23-2-1994 under which the first appellant is entitled for remission. Learned Government Advocate does not dispute about this availability of

beneficial provision of the above referred G.Os. for the first accused. Therefore, the first appellant is convicted for an offence u/s 325, I.P.C. and

sentenced to undergo one year Rigorous Imprisonment. I feel that since the petitioner is entitled for one year remission which is covered by G.Os.

he need not surrender before the prison authorities. With these observations, the appeal is allowed in respect of the second accused and he is

acquitted and partly allowed in respect of the first accused, who is convicted and sentenced for the lesser offence namely 325, I.P.C.

Order accordingly.