Kumaresan vs The State

T. Sudanthiram, J.—The Appellant herein is the accused in S.C. No. 61 of 2002 on the file of the Principal Sessions Judge,

Ramanathapuram and he stands convicted for an offence u/s 302 I.P.C and sentenced to undergo imprisonment for life and also to pay a fine of

Rs. 10,000/-, in default to pay the fine amount shall undergo further six months rigorous imprisonment. Challenging the conviction and sentence, the

Appellant has preferred this Criminal Appeal.

The case of the prosecution, in brief, is as follows:

The deceased -Arumugam is the daughter of P.W.1 -Sonai. She married one Muniyandi and begotten two children. Subsequently, Muniyandi had

eloped with one lady. The deceased returned to the house of P.W.1 and she was residing there. At that time, the accused Kumaresan promised to

marry and took her to Madurai from Voorakudi. They were living as husband and wife. The deceased gave birth to a male child. Thereafter, the

accused left the deceased at Madurai and returned to his home village. The deceased came to Voorakudi and compelled the accused to live with

her. The accused refused to join her and said that he would live peacefully only after murdering her. On the date of occurrence viz., on 20.10.2001

at about 10.00 a.m the accused pushed down the deceased and kicked on her stomach. The persons who were assembled there prevented the

accused from attacking her further. P.W.1 took the deceased from the place of occurrence to a nearby school. Since the deceased was shouting

due to pain, she was taken to Government Hospital, Paramakudi.

P.W.6 -Dr. Ramdoss attended to the deceased. At that time, the deceased was conscious and she informed the Doctor that she was assaulted

with leg by known person. The Doctor noticed Abdomen distended present. Ex.P.3 is the Accident Register. The Doctor sent her for further

treatment to Government Hospital, Ramanathapuram. On 20.10.2001 at about 10.00 p.m., the deceased was brought to the Government

Hospital, Ramanathapuram. P.W.7 -Dr. Abdul Kudha admitted her as in-patient in the hospital and gave treatment. She died on 23.10.2001 at

04.30 p.m.

P.W.14 -Sub Inspector of Police, Taluk Police Station, Paramakudi, on receipt of the death intimation from the hospital under Ex.P.6, went to

the Government Hospital, Ramanathapuram. As the relatives of the deceased were not available in the hospital, P.W.14 went to Voorakudi village

on 24.10.2001 at about 00.30 hrs and enquired P.W.1. He obtained Ex.P.1 -Complaint from him. He returned to the police station and on the

basis of the complaint registered a case in Crime No. 179 of 2001 for an offence u/s 302 I.P.C. Ex.P.7 is the printed F.I.R. He forwarded the

same to the Court and higher officials.

P.W.15 -Inspector of police on receipt of the copy of the F.I.R, went to the hospital on 24.10.2001 at 07.00 a.m. He held Inquest on the body of

the deceased at 08.00 a.m. in the presence of panchayatdars. Ex.P.8 is the Inquest Report. He examined the witnesses and recorded their

statements. P.W.15 sent the body of the deceased through a Head Constable for conducting autopsy along with a requisition Ex.P.4. P.W.8 -Dr.

Gopi on receipt of the requisition, conducted autopsy on the body of the deceased on 24.10.2001 at 12.15 p.m. He noticed that there was no

external injuries. On internal examination he found the following injury:

Abdomen: Opened and was found to be fully smeared with fancies over the momentum and the whole of the abdomen. All the bowel loops were

distended. There was perforation over sigmoid colon of about 2 cm and fancies coming through it.

Opining that the deceased would appear to have died of facial peritoneal, the Doctor issued Post Mortem Certificate -Ex.P.5.

In continuation of his Investigation, P.W.15 went to the scene of occurrence and prepared Observation Mahazar -Ex.P.9 and Rough Sketch -

Ex.P.10. He examined the witnesses and recorded their statements. After completion of the autopsy, P.W.15 recovered the clothes worn by the

deceased M. Os.1 to 3 and forwarded the same to the Court. He examined the Doctor -P.W.7 and recorded his statement. The accused had

surrendered before the Judicial Magistrate, Paramakudi. P.W.15 gave a requisition before the Court for taking custody of the accused and after

bringing the accused to the Police Station, he enquired him. On completion of the enquiry, the accused was produced before the Court. As

P.W.15 retired from service, P.W.16 -Inspector of Police took up further investigation. On completion of the Investigation, P.W.16 filed the final

report against the accused u/s 302 I.P.C.

The case was committed to the Court of Session and a charge u/s 302 I.P.C was framed against the accused. In order to establish its case,

during the course of trial, the prosecution examined P. Ws.1 to 16, exhibited Exs.P.1 to P.10 and marked M. Os.1 and 4. On completion of

evidence on the side of the prosecution, when the accused was questioned u/s 313 of the Code of Criminal Procedure as to the incriminating

circumstances found in the evidence of the witnesses, he flatly denied his complicity. The accused neither examined any witness nor marked any

document.

Having analysed the materials available on record both oral and documentary, the learned Principal Sessions Judge, Ramanathapuram found that

the prosecution has proved its case beyond all reasonable doubt, convicted and sentenced the Appellant / accused as referred to above. Hence,

the present Criminal Appeal.

We have heard the submissions of the learned Counsel appearing for the Appellant and the learned Additional Public Prosecutor appearing for

the Respondent.

Learned Counsel appearing for the Appellant submitted that though the occurrence was said to have been taken place on 20.10.2001 at about

10.00 a.m. the complaint was made only on 24.10.2001 at 01.00 p.m., and therefore there was enormous delay in lodging the complaint. The

learned Counsel further submitted that though P.W.1 had stated that he took the deceased to the hospital, in the cross-examination, he had stated

that did not go along with his daughter to the hospital. In the Accident Register -Ex.P.3 also the name of one Kannan -relative is mentioned as the

person who brought the deceased to the hospital. The learned Counsel further submitted that as per the Post Mortem Certificate and the evidence

of the Doctor, the deceased had died only due to facial peritoneal and as such, the accused is not responsible for the death of the deceased. The

learned Counsel also submitted that the Appellant / accused would not be liable to be punished u/s 302 I.P.C.

Per contra, the learned Additional Public Prosecutor submitted that the delay in preferring the complaint would not affect the prosecution case.

After the occurrence, the deceased was taken to the hospital where the deceased herself had informed the Doctor -P.w.6 that she was assaulted

with leg by known person. He has further submitted that P.W.8 -the Doctor, who had conducted autopsy on the body of the deceased also

opined that the deceased would appear to have died of facial peritoneal.

We have considered the rival submissions made on either side and perused the records carefully.

As per the evidence available on record, the deceased and the accused were living happily as husband and wife. Subsequently, the accused

left the deceased at Madurai and went to his home village. The deceased wanted to join her husband. While the deceased compelled her husband

to come and join with her, a quarrel arose, out of which the accused had kicked on her stomach. After the incident, the deceased had severe pain.

According to the prosecution, the occurrence was witnessed by P.W.1 and others. But, except P.W.1, who is the father of the deceased, other

witnesses have not supported the case of the prosecution. Though the other witnesses have not supported the case of the prosecution, while the

deceased was taken to the hospital on 20.10.2001 at 05.30 p.m., she informed the Doctor -P.W.6 that she was assaulted with leg by known

person. The statement of the deceased to the Doctor -P.W.6, which amounts to dying declaration indicates that the suffering was only due to

violent attack on her. The occurrence was also witnessed by P.W.1 and therefore, it is clear that it was only the accused, who had kicked the

deceased on her stomach. Of course, P.W.1 had not gone immediately to the police and lodged the complaint. Probably, at that time he did not

take it serious as the same was a dispute between the husband and wife. Further, there was no external injury to the deceased. So, P.W.1 would

not have known about the seriousness. The complaint -Ex.P.1 is given only after the death of the deceased, but the deceased had already informed

the Doctor about the assault, which is noted in Ex.P.3 -Accident Register. The delay in preferring the complaint would not affect the case of the

prosecution in view of the fact above said reasons.

Though it is established by the Prosecution that the accused had attacked the deceased on her stomach by kicking her, it appears from the

Post Mortem Certificate that there was perforation over sigmoid colon of about 2 cm and fancies coming through it. The Doctor also opined that

the death was only due to facial peritoneal. The death was not due to the direct result of the attack by the accused on the deceased. The Appellant

/ accused would not have anticipated that his attack would cause perforation over sigmoid colon. It was during quarrel among the husband and

wife, the accused had kicked his wife. Though the deceased died due to perforation over sigmoid colon, the post mortem doctor had not opined

that the injury was sufficient to cause death or likely to cause death. It is not possible to hold that the accused had intentionally caused an injury on

the body of the deceased knowing that it was likely to cause death.

For the above said reasons, we are of the view that the offence would not fall u/s 302 I.P.C., however, the same would fall u/s 325 I.P.C.

Therefore, the conviction and sentence imposed on the Appellant / accused u/s 302 I.P.C are liable to be set aside, instead he is liable to be

convicted u/s 325 I.P.C and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 10,000/-, in default to pay the fine

amount, shall under three months further rigorous imprisonment.

Accordingly, this Criminal Appeal is partly allowed and the judgment dated 28.07.2003 of the learned Principal Sessions Judge,

Ramanathapuram in S.C. No. 61 of 2002 convicting the Appellant / accused for an offence u/s 302 I.P.C and sentencing him to undergo

imprisonment for life is set aside, instead the Appellant / accused is convicted u/s 325 I.P.C and he is sentenced to undergo one year rigorous

imprisonment and to pay a fine of Rs. 10,000/-, in default to pay the fine amount, shall undergo three months further rigorous imprisonment. If the

Appellant / accused had already paid the fine amount, the same shall be adjusted towards the fine amount now imposed. The bail bonds executed

by the Appellant / accused shall stand cancelled. It is reported by the learned Counsel appearing for the Appellant / accused that the Appellant /

accused had already been in jail for one year. It is for the Trial Court to verify as to whether the Appellant / accused had already been in jail for

one year and if not, the learned Principal Sessions Judge, Ramanathapuram must take steps to apprehend him and send him to judicial custody to

serve the remaining period of sentence.