Nallamuthu vs State by Inspector of Police, Elachipalayam Police Station, Crime No. 73/86

Janarthanam, J.—The Appellant was accused in S.C. No. 196 of 1986 on die file of Court of Sessions, Salem Division, Salem. He was found guilty of offences under Sections 302 and 323 I.P.C., convicted hereunder and sentenced to imprisonment for life for an offence u/s 302 I.P.C. and rigorous imprisonment for four weeks for an offence u/s 323 I.P.C, with a direction for the sentences to run concurrently. Aggrieved by the said conviction and sentence, the present action has been resorted to.

Brief facts are:

(a) The accused is a resident of Elachipalayam. His father is one Karuppan. His mother is P.W.4. The accused had a brother, by name Marimuthu. The said Marimuthu died some six years prior to the occurrence, which event happened on 17th May, 1986.

(b) One Kandasami (since deceased) is the brother of the father of the accused. The house of the deceased, as well as that of the accused, are situate adjacent to each other. P. W. 1 is none-else than the wife of the deceased, P.Ws. 2 and 3 are their neighbors.

(c) On the day of the occurrence, at about noon time, the deceased was stated to have returned to his house from the work spot for taking lunch. At that time, the accused, who was standing in front of his house posed as if he was in trance and possessed of such supernatural powers and by such powers, he would rather claim that the person responsible for the death of his brother Marimuthu was none- else than the deceased and so saying, he rushed towards the deceased and slapped him on his cheek. P. W.4, the mother of the accused, however pacified the accused and the deceased and averted and up towards incident happening then.

(d) At about 6 P.M, when the deceased was available in his house, after returning from his work, he was found in the threshold of his house, along with his wife. P. W. 1. At that time, the accused was also stated to be available in his house. The deceased appeared to have questioned the accused of his propriety in resorting to beat him at noon in a state of trance. The accused, in turn, took it as an affront and proclaimed mat the deceased, apart from being responsible for causing the death of his brother Marimuthu, had the audacity to question him so. So saying, he'' rushed towards the deceased slapped him on his cheek and as a consequence, the deceased was stated to have fallen on the ground. When he was trying to get up, the accused was stated to have hit him with MO. I stone and consequently, the victim-deceased was stated to have sustained a bleeding injury on his head. After receipt of the hit by meant of MO. 1. stone, he again fell down. Consequently, his wife, P.W. 1 went to the rescue of her husband the victim deceased. At that time, the accused again was stated to have hurled stones at P.W. 1. She also, in turn, by the hurling of such stones, sustained certain injuries on her person MO.2 series are the stones said to have been so hurled by the accused at P.W. 1 P.W. 1 bandaged the injuries on the hand of the victim-deceased with a piece of cloth (MO-3) torn from her saree. P. W.2 and 3, being neighbors, had the fortuitous opportunity of witnessing the said occurrence.

(e) The victim-deceased was however, unable to speak and he was in a semi-conscious state. P. W.5 was sent for to the scene by P.W. 1 On his arrival, it was decided that it would be better to have the matter amicably settled between the parties and the injured- victim-deceased could be treated in a private hospital and the expenses for such treatment would be meted out by the family members of the accused. Accordingly, the victim-deceased was taken for the purpose of treatment in a private nursing home at Tiruchengode.

(f) P.W. 7 was the then Civil Assistant Surgeon attached to the Government Hospital, Tiruchengode. He had also been treating patients in his private nursing home. At about 8 P.M., while he was in his private nursing home, the victim-deceased had been brought to his nursing home for purpose of treatment. At that time, P.W. 7 was informed that the victim-deceased sustained injuries on his head, as a consequence of his fall in a well. P.W. 7, in turn, was stated to have given him treatment. Though the victim-deceased was responding to treatment initially, yet after sometime, he became unconscious and a doubt or apprehension arose in the mind of P.W. 1 and others as to his survival. Therefore, P.W. 1 thought it fit to report the matter to the police.

(g) On the next day morning, that is to say, on 18.4.1986 at about 8:30 A.M. P.W. 1 along with the victim-deceased appeared before Elachipalayam Police Station, of which P.W. 10 was then in charge. P.W. 1 lodged Exhibit P. 1 information and on the strength of Exhibit P. 1 P.W. 10, in rum, registered a case in Crime No. 73/1986 for alleged offences under Sections 323 and 325 I.P.C. Exhibit P-13 is the printed FIR. P.W. 10 sent the victim-deceased as well as P.W. 1, who was also injured, to the Government Hospital, Tiruchengode for the purpose of treatment.

(h) He took up further investigation of the case, since, the then Sub-Inspector of Police, was away in connection with the investigation of another case. He rushed and reached the scene of occurrence at 10-45 A.M After inspecting the same, he prepared Exhibit P-2 observation mahazar. He also drew a rough sketch of the scene, Exhibit P. 14. He examined P. Ws.2, 3, 5 and others. At 2:15 P.M., he seized from the scene stone (MO-1); stones (MO-2 Series) and a piece of cloth (MO-3) as produced by the son of the deceased, which was stated to have been utilized for bandaging the injury caused on the head of the victim-deceased by his wife P.W. 1 under Exhibit P-3 mahazar. Exhibits P.2 and P.3 were attested by P.W.6. He examined P.W. 6. He then rushed and reached the Government Hospital, Tiruchengode. The victim-deceased was then in an unconscious state. There, he examined P. Ws. 1 and 4.

(j) In the meantime, the victim-deceased, referred to the Government Hospital, Tiruchengode, was examined by doctor was informed that the victim deceased sustained the injury on his head, as a consequence of his being hit by means of a stone by a known person. Exhibit P-4 is the is the copy of the accident register. At 11 -40 AM, he also examined and treated P.W. 1 for her injuries. Exhibit P-8 is the copy of the accident register.

(k) P.W. 10 again went to Government Hospital, Tiruchengode on 19.5.1986. On that day also, the victim-deceased was found in an unconscious state. Therefore, he could not record any statement from him. while returning from the hospital, he found the accused near the bus stand at Elachipalayam at 9 P.M. He arrested him and took him to the police station. On the next day, that is to say, on 20.5.1986, he sent the accused to Court for the purpose of remand.

(l) On 22.5.1986, the victim-deceased died at 10:15 P.M. at the Government Hospital, Tiruchengode, Exhibit P.5 is the death intimation.

(m) P.W. 11, the then Sub-Inspector of Police, Elachipalayam Police Station, on receipt of Exhibit P.5 death intimation at 8:15 A.M. on 23.5.1986, altered the case into one u/s 302 IPC. He prepared express FIR and sent the same to the concerned officials. Exhibit P. 15 is the express copy of the F.I.R.

(n) P.W. 12 was the then Inspector of Police. On receipt of the express copy of the FIR at 10 AM, he took up further investigation of the case. He rushed and reached the Government Hospital, Tiruchengode. Between 10:30 A.M. and 12:30 P.M., he held inquest over the body of the deceased. Exhibit P-16 is the inquest report. During inquest, he examined P. Ws. 1 to 3. After the inquest was over, he handed over the body of the deceased to the Constable, P. W.8, along with Exhibit P-6 requisition for the purpose of autopsy.

(o) The doctor, P.W. 7, in receipt of Exhibit P.6 requisition, held inquest over the body of the deceased at 1:00 P.M. Exhibit P-7 is the post-mortem certificate he issued. He would opine that the deceased would appear to have died about 14 to 16 hours prior to autopsy. He would further opine that the internal injury corresponding to external injury found on the head of the deceased is necessarily fatal.

(p) After the autopsy was over, the Constable P.W.8 seized from the body lungi (MO-4) and waist-cord (MO-S) and handed them over the Police Station, which'' appeared to have been seized under Form No. 95.

(q) P.W. 12, on the same day, that is to say, on 23.5.1986 examined P. Ws.4 to 8 and others. On 24.5.1986, he examined certain other witnesses. On 6.6.1986, he sent Exhibit P-9 requisition to the Judicial Second Class Magistrate, Tiruchengode for sending the incriminating material objects to the Chemical Examiner for the purpose of examination.

(r) P.W. 9 was the then Head clerk attached to the Judicial Second Class Magistrate''s Court Tiruchengode, On receipt of Exhibit P.9 requisition, as per the instructions of learned Magistrate, he packed the incriminating material objects separately and sent the same to the Chemical Examiner for the purpose of examination under the Original of Exhibit P-10, office copy of the letter. Exhibits P-11 and P-12 are respectively the reports of the Chemical Examiner and the Serologic.

(s) On 16.6.1986, P.W. 12 sent a requisition to the Judicial second Class Magistrate, Sankagiri for the purpose of recording statements of witnesses u/s 164 Code of Criminal Procedure After completing the formalities of the investigation, he laid a final report u/s 173(2) Code of Criminal Procedure against the accused for an offence under Sections 302 and 323 I.P.C. before the Judicial Second Class Magistrate, Tiruchengode on 18.8.1986.

On committal, learned Sessions Judge, Salem Division, Salem, framed a charge against the accused for alleged offences under Sections 302 and 323 I.P.C.

The accused, when questioned as respects the charges so framed, denied the same and claimed to be tried.

The prosecution, in proof of the same examined P.Ws.1 to 12, filed Exhibits P-1 to P-16, and marked M Os. 1 to 6.

The accused, when questioned u/s 313 Code of Criminal Procedure denied his complicity in the crime. He, however, did not choose to examine any witness on his behalf.

Learned Sessions Judge, on taking into consideration the materials placed and after hearing learned Counsel for the defense as well as learned Public Prosecutor, rendered the verdict, as stated above.

Mr. K.S. Ramachandran, learned Counsel appearing for the Appellant- accused would, with all vehemence and force, submit that the entirety of the materials available on record, in the shape of evidence-oral and documentary, if carefully scrutinized, would point out that the act of the accused in causing the injuries on the person of the victim-deceased, by means of a stone, can, by no stretch of imagination, be stated to be one with the intention of causing his death, thereby making his act to fall under anyone of the clauses of Section 300, punishable u/s 302 I.P.C. and if at all his act would attract the four corners of Section 325 I.P.C. and in this view of the matter, the conviction and sentence, as had been imposed upon the Appellant-accused for his overt act, as relatable to the victim-deceased for an offence u/s 302 I.P.C. deserve to be set aside and instead, if at all, he would be liable to be found guilty for an offence u/s 325 I.P.C. As relatable to the overt act of the accused, in the causation of injuries to P.W. 1, the said learned Counsel is not finding fault with the Court below as respect the conviction and sentence of the Appellant-accused for an offence u/s 323 I.P.C.

Mr. R. Raghupathi, learned Additional Public Prosecutor representing the Respondent would with all fairness, state that the argument of learned Counsel appearing for the Appellant-accused, as respects the overt act of the accused, in relation to the causation of the injuries on the person of the victim-deceased cannot at all be stated to be not sustainable, on the facts and in the circumstances of the case.

In the light of the submissions emerging from either Counsel, the only point that arises for consideration is as to what is the offence that had been committed by the accused, on the facts and in the circumstances of the case.

There is no denial of the fact that there was no want of cordial atmosphere between the families of the accused and the deceased till upto the point of the occurrence. Yet another fact, about which there is no dispute, is that both the family members are closely related to each other. The fact that Marimuthu, brother of the deceased died some sixty years prior to the occurrence is also not in dispute. There was no inkling at any point of time prior to the time of occurrence that the person responsible for the death of Marimuthu was none-else man the deceased. Such a factor also got revealed only on the afternoon of the day of the occurrence, when the accused was stated to be in a trance and only when he was in such a trance, he was stated to have slapped the deceased. That act of the accused was the Causa Causan for the occurrence, which happened at 6 P.M. on the same day.

At or about the time of the occurrence the victim-deceased appeared to have questioned the accused, whether it was proper for him to have slapped him at about noon time under the influence of trance. The accused was stated to have taken it as an affront and proclaimed that apart from the victim-deceased being responsible for causing the death of his brother Marimuthu, he had the boldness and courage to question him for his action in having slapped him in the afternoon of the day of the occurrence. So saying the accused was stated to have slapped on his cheek. On receipt of such a slap, the victim-deceased was stated to have felled on the ground. Thereafter, the accused was stated to have hurled MO-1 stone, which landed on the head of the deceased, causing him injuries. Initially, nobody thought that the injury he had caused on the victim-deceased on his head was to prove fatal subsequently. Therefore, both the family members of the accused and the deceased thought it fit to compound the matter between them and agreed to have the matter amicably settled, by giving the victim-deceased treatment in a private clinic stating as if the injuries sustained by the deceased was as a consequence of his fall in a well. Lately, P.W. 1 realized the folly of such a compromise, when her beloved husband, the victim-deceased was likely to croak, in the sense of succumbing to the injuries sustained at the hands of die accused. Subsequently, the matter was referred to the Police and investigation had started resulting in the filing of a final report u/s 173(2) Code of Criminal Procedure against the Appellant-accused.

With regard to the overt act of the accused, as relatable to the victim-deceased as well as P.W.1, there is the clinching testimony of P. Ws. 2 and 3, neighbours, apart from the testimony of P.W. 1 and the deceased. All of them were natural witnesses. There is nothing to disbelieve their version. This apart, the evidence of P.W.1 is that the matter had been initially compounded and that perhaps was the reason for her to have reported to the doctor, P.W.7 initially that the injury sustained by the victim-deceased was as a consequence of his fall in the well. The explanation so given, on the facts and in the circumstances of the case, cannot at all be brushed aside and there is a ring of truth in that explanation. In such circumstances, we are firmly of the view that the hand that was responsible for causing injuries on the person of the victim-deceased as well as his wife, P.W. 1 was none other than that of the accused, leave alone the concession made by learned Counsel for the Appellant-accused stating he is not disputing the overt acts of the accused, as rentable to the victim-deceased as well as P.W. 1.

From the sequence of events that had happened at or about the time of the occurrence, it is rather crystal clear that the accused acted rather in a fit of rage and emotion in hurling a stone (MO-1) on the victim-deceased, which unfortunately landed on his head. The stone (MO-1), as found described in the seizure mahazar, Exhibit P-3, is small stone, which can be kept within the folds of a hand. That apart, apart from hurling once a stone, aiming at the victim-deceased, the accused did not at all attempt to cause injury by further hurling of stones on the deceased. In such circumstances, we can safely take it for granted that the accused voluntarily caused hurt on the person of the victim-deceased and in the process of causing such hurt on the person of the deceased, by hurling a stone, the accused ought to have known that his act was likely to cause grievous hurt. However, the grievous hurt so caused proved fatal, as disclosed by the medical evidence, available on record. In such circumstances, it cannot at all be stated that the overt act of the accused in hurling a stone (MO-1) on the person of the deceased was done with the manse a prescribed under anyone of the clauses of Section 300, punishable u/s 302 IPC and if at all, his act would squarely fall within the four corners of Section 322, punishable u/s 325 IPC.

In that view of the matter, the conviction and sentence, as had been imposed upon the Appellant-accused by the Court below for an offence u/s 302 IPC, deserve to be set aside, and instead he is found guilty u/s 325 I.P.C. As respects the sentence to-be awarded hereunder, the ends of justice would be squarely met with, if he is sentenced to rigorous imprisonment for three years.

The sentence of imprisonment for the offence u/s 323 IPC, as relatable to the causation of injury on the person of P.W. 1 for four week''s rigorous imprisonment only cannot at all be stated to be either harsh or severe, calling for interference.

In fine, the appeal is allowed in part. The conviction and sentence, as had been imposed upon the Appellant-accused by the Court below, for an offence u/s 302 I.P.C. are set aside and he is acquitted thereof and instead, he is found guilty u/s 325, IPC, convicted hereunder and sentenced to rigorous imprisonment for three years. The conviction and sentence for an offence u/s 323 I.P.C, as had been imposed upon him by the Court below are confirmed. The sentences, as imposed above, are ordered to run concurrently. The appeal is dismissed in other respects.