Marimuthu vs State

C. Nagappan, J.—Appellant Marimuthu is the sole accused in Sessions Case No. 330 of 2007 on the file of the Additional Sessions Judge,

Kanchipuram, and he has preferred this appeal challenging the conviction and sentence imposed on him in the case. For the sake of convenience,

in this Judgment, the appellant will be referred to as accused.

The learned Additional Sessions Judge found the accused guilty of the charges under Sections 302 and 324 IPC and convicted and sentenced

him to undergo Life Imprisonment and to pay a fine of Rs. 2,000/-, in default, to undergo six months Rigorous Imprisonment for the offence u/s

302 IPC and to undergo three years Rigorous Imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo three months Rigorous

Imprisonment for the offence u/s 324 IPC.

To prove its case, the prosecution examined P.Ws.1 to 16 and marked Exs.P.1 to P.18 and M.Os.1. to 4.

The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows.

Accused Marimuthu is the husband of deceased Malar. P.W.1 Saroja is the mother; P.W.9 Sabapathi is the brother; and P.W.8 Dhanalakshmi is

the daughter of deceased Malar. The marriage between accused Marimuthu and Malar took place twenty years prior to the occurrence and they

were living separately. The accused was a weaver by profession. P.W.8 Dhanalakshmi got married and was living with her husband at Bangalore.

The only son of the accused died at the age of 14 and afterwards, the accused started consuming excess liquor, which led to frequent quarrels

between the accused and his wife Malar. Malar was not keeping good health and P.W.1 Saroja went and stayed in the house of the accused. On

19.9.2006, at about 5.30 a.m. in the morning, accused Marimuthu started to leave the house and at that time, his wife Malar told him as to why he

is roaming like a mental and the accused retorted by asking her as to why she called him mental and the accused took M.O.1 Wooden block from

the ground and beat her with it on the head and right side of the neck and chin causing bleeding injuries. P.W.1 Saroja tried to prevent and the

accused attacked her with the same wooden block on the right forehead and he threw the wooden block on the ground and left the place. Malar

was lying unconscious with injuries and P.W.1 Saroja took her to Government Hospital, Kanchipuram. P.W.11 Dr. Senthilkumar examined Malar

at 6.15 a.m. on 19.9.2006 at Government Hospital, Kanchipuram, and found the following-

Injuries:

1 x 2 x 5 cm found lacerated injury lateral to left eye.

1 x 3 x 5 cm found lacerated injury left forehead.

5 x 10 cm swelling left (n.c.).

1 x 3 x 5 cm found lacerated injury upper lip.

Bleeding from nose.

1 x 2 x 5 cm found lacerated injury right forehand.

10 x 10 cm swelling left face.

Ex.P6 is the Accident Register Extract issued by him.

P.W.11 Dr. Senthilkumar also examined P.W.1 Saroja at 7.15 a.m. on 19.9.2006 in the hospital and found the following-

Injury:

1 x 3 x 2 cm found lacerated injury right forehead.

He treated her as out-patient and expressed opinion that the injury is simple in nature. Ex.P7 is the Accident Register Extract issued by him.

Subsequently, he referred Malar to Government Hospital, Chennai.

In the mean time, on receiving intimation from the Kancheepuram Government Hospital, P.W.16 Inspector Kanniappan, Sivakanchi Police Station,

went to the hospital and found Malar unconscious and examined P.W.1 Saroja and recorded Ex.P11 statement given by her and returned to

Station and registered a case in Crime No. 681/2006 under Sections 324 and 307 IPC and prepared Ex.P12 F.I.R. and despatched the same. He

went to the occurrence place at 10.00 a.m. and prepared Ex.P2 Observation mahazar and Ex.P13 Rough sketch in the presence of P.W.3

Venkatesan and another. He took M.O.4-series photos with negatives of the occurrence place and at 11.00 a.m. he seized M.O.1 Wooden

block; M.O.2-Blood stained Cement Plaster; and M.O.3-Plain Cement Plaster from the occurrence place in the presence of the same witnesses

under Ex.P3 seizure mahazar. He arrested the accused at 2.00 p.m. in Kancheepuram bus stop and subjected him to judicial remand on the same

day. He gave requisition to the Court for sending the properties to chemical examination. He examined P.Ws.2 to 7 on the same day and recorded

their statements.

P.W.14 Dr. Manivel examined Malar at 10.35 a.m. on 19.9.2006 in Government General Hospital, Chennai, and admitted her as in-patient.

Ex.P9 is the Accident Register Extract issued by him. P.W.15 Dr. Lakshmipathi treated Malar and C.T. Scan of the head was taken which

revealed fracture of the left frontal bone, resulting in haemorrhage and fracture of middle cranial fossa. Malar died on 20.9.2006 at 11.50 a.m.

Ex.P10 is the Death Report sent to the police. On receipt of it, P.W.16 Inspector Kanniappan altered the case into one u/s 302 and 334 IPC and

prepared Ex.P14 Alteration Report and despatched the same. He conducted inquest on the body of Malar and examined witnesses and Ex.P15 is

the Inquest Report. He sent requisition to conduct post mortem through P.W.13 Head Constable Kesavan.

P.W.12 Dr. Vedanayagam conducted post-mortem on the body of Malar at 11.55 a.m. on 21.9.2006 and found the following:

Its condition then was Rigor Mortis present in all four limbs. Post-Mortem commenced at 11.55 a.m. on 21.9.2006. Appearances found at the

post-mortem: A moderately built symmetrical female body.

Old healed burnt scar seen all over the Anterior chest and Abdominal wall and both thighs.

Injuries, Sutured wounds seen on the

Right eyebrow with 1 suture and 2 cm in length.

Outer angle of the left eye with 2 sutured and 3 cm in length.

Above the left eye with 4 sutured and 5 cm in length.

Upper lip on its left side with 2 suture and 3 cm in length.

Lacerated wound:

Seen over the mid frontal region of size 3 x 1 cm x 0.5 cm.

Seen below the left ear 3 x 2 x 1 cm.

Contusion seen on its lower lip on size 4 x 1 cm.

Multiple reddish brown abrasion of variable size seen over the occipital region.

Swelling and deformity seen over the left angle and the mandible.

O/D Head contusion over the left parietal temporal region of size 10 x 8 cm.

A depressed communited fracture of left frontal bone involving left orbit root of size 8 x 5 cm.

Extra-dural haemorrhage over the left frontal region 5 x 3 cm.

Laceration over the left frontal lobe 4 x 3 x 0.5 cm.

Sub-dural haemorrhage seen over the left cerebral hemisphere.

Sub arachnoid haemorrhage seen all over the Brain surface.

Communited fracture involving both anterior and middle cranial fossa is seen.

O/D Thorax. No rib fracture. Heart Normal in size.

C/S All chambers empty.

O/D Abdomen Stomach empty. 100 ml at Black coloured fluid thick of blood.

Hyoid and spinal column intact.

He expressed opinion that the deceased would appear to have died of effects of Head injuries sustained. Ex.P8 is the Post-mortem Certificate.

P.W.16 Inspector Kanniappan examined P.W.14 Dr. Manivel and P.W.15 Dr. Lakshmipathi on 21.9.2006 itself and recorded their statements.

He examined P.W.11 Dr. Senthilkumar on 22.9.2006 and 3.10.2006 and recorded his statement. He examined P.W.12 Dr. Vedanayagam on

30.10.2006 and recorded his statement. He examined some more witnesses on 6.12.2006 and 10.11.2006. Ex.P16 Chemical Examiner''s Report

and Ex.P17 Serology Report were received in the Court. He completed the investigation and filed the final report against the accused.

The accused was examined u/s 313 CrPC and he denied complicity. The accused besides examining himself as D.W.3, examined D.Ws.1 and

2 and marked Exs.D1 to D4 on his side.

The learned Additional Sessions Judge convicted the accused for the charges under Sections 302 and 324 IPC and imposed sentence as stated

earlier and hence, the present appeal.

The prosecution case is that accused Marimuthu attacked his wife Malar on the head with wooden block resulting in her death and he also

attacked P.W.1 Saroja with the same wooden block on her right forehead, resulting in injury. To prove the occurrence, the prosecution has

examined P.W.1 Saroja and she has testified that her daughter Malar was unwell and hence she was staying in her house, and at 5.30 am, on the

occurrence day, the accused started to leave the house and at that time, his wife Malar asked him as to why he is roaming like a mental and the

accused retorted by asking her as to why she called him ""mental"" and took up M.O.1, wooden block from the ground and hit Malar with it on her

head, right side of neck and chin, resulting in bleeding injuries and Malar fell unconscious and P.W.1 Saroja tried to prevent the attack and the

accused attacked her with the same wooden block on the right side of the head resulting in injury and the accused left the place throwing the

weapon on the ground and P.W.1 took her daughter Malar initially to Kancheepuram Government Hospital and thereafter to the Madras General

Hospital and the victim succumbed to the injuries and P.W.1 gave the complaint.

Learned Counsel for the appellant pointed out that P.W.1 Saroja was treated as hostile by the prosecution in the trial of the case. It is true that

P.W.1 Saroja has been declared hostile, but that did not, in any way, affect her testimony. P.W.1 Saroja has testified the attack made by the

accused at the time of occurrence on her daughter Malar as well as on herself, and in short, the entire occurrence has been narrated by her in

detail. At the end of her chief examination, she stated that she did not remember as to whether the police enquired her in Kancheepuram

Government Hospital, since one and half years had lapsed and she only identified her left thumb impression as Ex.P1 in the complaint - Ex.P11,

and for that reason, the prosecution sought for permission to treat her as hostile and that has been given and in no way, it affects her testimony. She

is an injured witness and her testimony is clear, cogent and credible and nothing is elicited in the cross-examination to discredit her testimony.

Learned Counsel for the appellant submits that accused Marimuthu has to be exonerated from liability on the ground of unsoundness of mind as

contemplated u/s 84 I.P.C.

Per contra, Mr. M.Babu Muthu Meeran, learned Additional Public Prosecutor, submitted that the accused is not a person of unsound mind

and he has no mental disorder or insanity and he was only a habitual drunkard and hence the provision u/s 84 I.P.C. is not applicable to him.

D.W.1 to 3 were examined on the side of the defence. D.W.1 Dr. Rangarajan has stated that his examination of the accused revealed that he

was suffering from delusional disorder and hallucination and in the cross-examination, he has stated that his patient/accused answered correctly to

all questions and he was conscious on the external activities around him. He has further stated that his patient/accused was a known alcoholic

addicted to drinks and the medicines given to him during counseling under Ex.S2 were to reduce the effect of stopping the consumption of alcohol.

The testimony of D.W.1 does not advance the case of the accused in any way. In this context, the decision of the Apex Court in the case of Bapu

v. State of Rajasthan reported in (2007) 3 SCC (Crl) 509 is relevant, wherein, Their Lordships considered the scope of Section 84, I.P.C. for

exonerating a person from liability and laid down as follows:

Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection u/s 84 as the

law contained in that Section is still squarely based on the outdated M''Naughton Rules of 19th century England. The provisions of Section 84 are

in substance the same as those laid down in the answers of the Judges to the questions put to them by the House of Lords, in M. Naughton''s case

(1843) 4 St Tr NS 847 (HL). Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the

accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender''s mind at the time of the

commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the

commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration

of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or

perfect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such

reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.

The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere

fact that an accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered

had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts in the past, or that he was

liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or

that his behaviour was queer, cannot be sufficient to attract the application of this section.

In the present case, it is relevant to note that the accused had been examined by D.W.1 only on 8.2.2007, i.e., nearly five months after the

occurrence. D.W.2 Venkatesan is the brother in law of the accused and he has stated that after the death of his son, there was a change in the

conduct and attitude of the accused and he used to stare on the windows and used to complain of head ache and hearing abnormal sounds and

once he attempted to commit suicide by stabbing himself in the stomach. In this context, the testimony of the daughter of the accused, namely,

P.W.8, Dhanalakshmi is relevant and she has testified that her father stabbed himself in his stomach and went for treatment and he was not having

any disease and he used to drink liquor even prior to the death of his son. P.W.9 Sabapathi is another brother in law of the accused and he has

stated that the accused and his wife Malar were quarrelling frequently and he used to pacify them. D.W.2 Venkatesan was living 50 Kms. away

from the residence of the accused and his testimony does not help the accused in any way.

The accused examined himself as D.W.3 and has testified that he used to hear as if somebody is talking to him in his ears. As per the law laid

down by the Supreme Court, mere abnormality of mind or partial delusion affords no protection u/s 84 I.P.C. Moreover, the accused, as D.W.3,

in the cross-examination, has answered the questions put to him in clear terms, as observed by the trial Court in the judgment. There is no material

adduced by the accused to invoke the protection u/s 84 I.P.C., as rightly held by the trial Court.

It is to be seen as to whether Malar died of injuries sustained during the occurrence. Immediately after the occurrence, P.W.11 Dr. Senthil

Kumar examined Malar at 6.15 a.m. on 19.9.2006 at Kancheepuram Government Hospital and found seven injuries, as detailed in Ex.P6 �

accident register extract issued by him. He has referred Malar to the Government General Hospital, Chennai and P.W.14 Dr. Manivel admitted

Malar as in-patient in the Government General Hospital, Chennai at 10.35 a.m. on 19.9.2006. P.W.15 Dr. Lakshmipathi, treated Malar and he

has testified that CT scan of the head was taken, which revealed frontal brain contusion apart from fracture of the bone on the same side and brain

cem contusion and a part of the bone had protruded into the brain and in spite of treatment given to her, she died at 11.50 am on 20.9.2006.

P.W.12 Dr. Vedanayagam conducted autopsy on the body of Malar and he has stated that during internal examination of the head, a depressed

communited fracture of the left frontal bone, sub dural haemorrhage over the left cerebral hemisphere and communited fracture involving both

anterior and middle cranial fossa were seen. He has expressed opinion stating that the deceased would appear to have died of effects of head

injuries sustained. Ex.P8 is the post mortem certificate issued by him. P.W.15 Dr. Lakshmipathi and P.W.12 Dr. Vedanayagam have stated that

the injuries found on the head are sufficient to cause the death and they could have been caused by attack with a weapon like M.O.1. Accepting

the testimony, it can be concluded that Malar died of the injuries sustained during the occurrence.

Learned Counsel for the appellant contends that the act of the accused Marimuthu would not amount to murder and he had acted in a grave

and sudden provocation and it would fall under Exception 1 to Section 300, I.P.C. only. Accused Marimuthu is a weaver by profession and there

is evidence to show that he had sufficient earnings to build a house and provide amenities to the family and he had also given his daughter in

marriage. His only son died at the age of 14, which led to his excess drinking. The accused tried to withdraw from drinking, which resulted in

head-ache and other symptoms. Once he self-inflicted injuries on his stomach with knife and recovered thereafter. On the occurrence day at 5.30

a.m., he was about to leave the house and at that time, his wife Malar asked him as to why he was roaming like a mental and the accused retorted

by saying why she is calling him ""mental"", and losing the power of self-control, by grave and sudden provocation, he picked up the wooden block

which was lying on the ground and attacked Malar with it on her head, resulting in bleeding injuries. There was no intention for the accused to

commit the murder of his wife Malar. In view of the above materials available on record, the contention of the learned Counsel for the appellant

that the accused lost the power of self-control by grave and sudden provocation and acted on the spur of moment, can be accepted. If it is so,

Exception 1 to Section 300 I.P.C. is applicable to the facts of the case and the offence would fall u/s 304 Part I IPC and the accused is liable to

be convicted for the same.

During the occurrence, the accused had also attacked P.W.1 Saroja with wooden block on her head, resulting in simple injury and the

conviction and sentence imposed on him by the trial Court for the offence u/s 324 I.P.C. are correct and proper.

In the result, the conviction and sentence imposed on accused Marimuthu u/s 302 I.P.C. are set aside and he is convicted for the offence u/s

304 Part I, I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/-, in default, to undergo rigorous

imprisonment for three months and the conviction and sentence imposed on accused Marimuthu for the offence u/s 324 I.P.C. are confirmed and

the appeal is allowed to the extent indicated above.