Elangovan and Jayaraman vs State

T. Sudanthiram, J.—The appellants herein are the accused in S.C. No. 299 of 2006 on the file of the learned Principal Sessions Judge, Cuddalore, and they stand convicted for an offence u/s 304 Part II r/w 34 IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 2000/- in default to undergo rigorous imprisonment for three months. Challenging the said conviction and sentence, the appellants have preferred this criminal appeal before this Court. The case of the prosecution, in brief, is as follows:--

On 02.03.2005 at about 9.30 p.m., the deceased Kulanthaivelu, PW-1 his brother, PW-4 his wife, PW-5 his sister were all standing in their paddy field. At that time, the accused 1 and 2 were irrigating their field by using the hose pipe connected to the motor pump of PW-17. There was a leakage through the holes in the pipe and the water was leaking and flowing in the land of the deceased. At that time, the deceased questioned the accused, as standing crops were spoiled, for which the second accused abused the deceased and stated to the first accused that the deceased should be done to death. The second accused caught hold the deceased and the 1st accused attacked the deceased by using spade handle. The deceased fell down. Thereafter, both the accused tried to strangulate the deceased. At that time the deceased shouted and therefore, nearby persons reached the spot and the accused rushed away from the scene of occurrence. The deceased informed his brother PW-1 that he was having chest pain and therefore, the deceased was taken to the private hospital at Kattumannarkovil. PW-2, doctor examined the deceased and informed that the deceased was semi-conscious. Hence the Doctor suggested the brother of the deceased PW-1 to take the deceased to the Government Hospital, Chidambaram. Hence, the deceased was taken to the Govt. Hospital, Chidambaram. The Doctor, PW-14, examined the deceased and informed that he was brought dead. Ex.P.5 is the accident register. PW-1, the brother of the deceased went to Kattumannarkoil Police station and gave a complaint Ex.P.1. Thereafter, PW-19, Sub-Inspector of Police registered a case in Crime No. 83 of 2005 under Sections 341 and 302 IPC and prepared the FIR. PW-24 Inspector of Police took up the investigation in this case and went to the scene of occurrence and recorded statement of witnesses. He also prepared the observation mahazar Ex.P.2 and rough sketch Ex.P.30. Then he held inquest on the body of the deceased and Ex.P.31 is the inquest report. He sent requisition for conducting post mortem Ex.P.6.

(ii) PW-15 Doctor held autopsy on the body of the deceased and issued Ex.P.7 postmortem certificate. The Doctor opined that the deceased would appear to have died due to cardiac arrest.

(iii) PW-25 Inspector of Police took up further investigation in this case and recorded the statements of witnesses. He arrested the accused 1 and 2 on 04.03.2005. He recorded the confession statement from the accused and in pursuance of the confession, he recovered M.O.1 wooden handle of spade. As the first accused took treatment in the hospital. The Doctor examined the first accused and noticed injury on his left hand and issued Ex.P.12 wound certificate. PW-25 after completing the investigation, laid the final report against the accused.

In order to prove the case, the prosecution examined P.Ws. 1 to 25, marked Exs.P.1 to P.31 and produced M.Os. 1 to 5. The accused were questioned u/s 313 Cr.P.C. with regard to the incriminating circumstances and they denied their complicity. The accused did not choose to examine any witness on their side nor marked any documents.

The Trial Court, after analyzing the oral and documentary evidence, convicted and sentenced both the accused as already stated above.

The learned counsel appearing for the appellant submitted that as per the medical opinion given by the Doctor, the deceased had died only due to cardiac arrest. Even according to the evidence of witnesses, there was quarrel and the 1st accused also sustained injury during the quarrel, and it was admitted that the deceased bitten the 1st accused. The learned counsel for the accused further submitted that the death of the deceased was only due to natural cause.

Per contra, the learned Additional Public Prosecutor submitted that the deceased died because of pressure and it is stated in the evidence of PWs - 1, 4 and 5 that the deceased was attacked by the accused 1 by wooden handle of spade on the chest and neck was pressed by both accused.

This Court considered the submissions made by the learned counsel on either side and perused the records.

The occurrence had taken place while the deceased was in his paddy field. The accused 1 and 2 were irrigating in their field. From the evidence, it is revealed that there was a quarrel and there was a scuffle among the accused 1 and 2 and the deceased. The deceased has not sustained any external or internal injury as per the medical certificate, though it is claimed by the prosecution witnesses that the deceased was attacked by spade handle. On the other hand, the 1st accused sustained injury. As per Ex.P.12 accident register copy, the 1st accused informed the Doctor that he was bitten by one person. Though there was a scuffle among accused and the deceased, the deceased did not sustain any injury at all. After the occurrence the deceased talked to his brother PW-1 and informed that he was having chest pain. Thereafter, he was taken to the Doctor, PW-2. PW-2 stated that deceased was serious and referred him to Government Hospital, Chidambaram, and deceased died later. As per postmortem report and opinion of the Doctor PW-15, the deceased died only due to cardiac arrest and there is no evidence from medical report that the death of the deceased was due to the attack of the accused 1 and 2.

Hence, the conviction imposed on the appellants/accused 1 and 2 by the trial Court for the offence u/s 304 Part-II r/w. 34 I.P.C is set aside. Instead, they are convicted u/s 323 IPC.

It is now brought to the notice of this Court by the learned counsel for the appellants/accused 1 and 2 that the accused had already served the sentence of imprisonment nearly 80 days.

Considering the fact that the occurrence had taken place in the year 2005 and the first accused sustained injury, the sentence of imprisonment imposed by the trial Court on both the accused is reduced to the period of imprisonment already undergone by them. The fine amount imposed by the trial Court is confirmed. In the result, the Criminal Appeal is partly allowed.