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PERUMAL versus STATE REP. BY

High Court of Madras

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Perumal v. State rep. by - Criminal Appeal No.604 of 1995 [2002] RD-TN 560 (6 August 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 06/08/2002

CORAM

THE HONOURABLE MR.JUSTICE A.K.RAJAN

Criminal Appeal No.604 of 1995

Perumal .. Appellant -Vs-

State rep. by

Inspector of Police

Somarasampettai Police Station .. Respondent Criminal Appeal against the conviction and sentence dated 29.11.94 made in S.C.No.95 of 1994 on the file of the learned District Sessions Judge, Tiruchirappalli.

For Appellant :: Mr.C.R.Malarannan for Mr.Mohideen Basha For Respondent :: Mr.O.Srinath, APP :JUDGMENT



The appellant is the sole accused in S.C.No.95 of 1994 on the file of the learned Principal Sessions Judge, Tiruchirappalli, who has been convicted for the offence under Section 304 (Part-I) IPC and sentenced to undergo rigorous imprisonment years.

2. The case of the prosecution is as follows:- The deceased Subban is the brother of P.W.1 Chinnathambi. The deceased Subban was owning agricultural lands at Ammapettai. The deceased also took another land on lease abutting P.W.1's land from one Poongudian. The deceased, P.W.1 and the a common well with borewell. The deceased also had a well with borewell separately in his lease land. With regard to taking of water from the common well, there were frequent quarrels between the deceased Subban and the accused, and P.W.1 and the pa nchayatdars used to intervene and pacify the parties. Two days prior to the occurrence, the accused came to P.W.1 and asked him to settle the dispute between himself and the deceased Subban. On 20.9.93, at about 6.00 a.m., the deceased Subban along w ith his pannayal Gopal went to irrigate his land. P.W.1 also went to his land. At that time, he saw the deceased Subban also proceeding towards the common well for irrigating his land. The accused was also standing nearby the common well. When the de ceased was nearing the well, the accused asked him as to how he would operate the borewell when the coil of the motor was burnt. Thereafter, the deceased went to the well situate in his lease land. The accused also followed the deceased questioning him that after spoiling the motor of the borewell in the common well he was going to the other well and asked as to how he would bring water from that well. By that time, a scuffle arose between them and the accused threw the deceased into the well. Ther eafter, the accused also threw two stones viz., M.Os.1 and 2 on the deceased who was inside the well. On seeing this, P.W.1 ran to the accused shouting "vd;dlh fy;iyg; nghLfpwha;?" but the accused escaped. When P.W.1 peeped into the well, he saw his br other Subban lying with head injuries and bleeding. The said incident was also noticed by P.W.3 Gopal and P.W.4 Ganapathi. Thereafter, P.W.1 went into the well and found his brother dead.

3. Thereafter, P.W.1 went to the Village Administrative Officer, P.W.6 and gave a complaint Ex.P-1. P.W.6 forwarded the said complaint to P.W.10, Sub Inspector of Police, Inamkulathur Out-post police station. P.W.10 registered the same as C of Somarasampettai Police Station under Section 302 IPC. Then he prepared the printed F.I.R., Ex.P-11 and sent Exs.P-1 and P-11 through P.W.8, Grade-I Constable to the Court and also forwarded the copies to higher officials.

4. P.W.11, Inspector of Police, who was at that time in additional charge of Jeevapuram Circle, took up the investigation after receiving the telephonic information at 1.00 p.m. from Somarasampettai Police Station. Immediately, he proceeded ce of occurrence and reached Poongudian well at 1.45 p.m. Thereafter, at 2.00 p.m., he prepared the observation mahazar, Ex.P-5 and rough sketch, Ex.P-12 in the presence of P.W.6 and one Perumal and photographs were caused to be taken. Then he conduct ed inquest over the dead body of the deceased Subban from 2.30 p.m. to 4.00 p.m. and prepared Ex.P-13 inquest report. During the inquest, he examined P.Ws.1, 3 and 4. After the inquest, he sent the body of the deceased for autopsy along with a requisit ion, Ex.P-14 to the Government Headquarters Hospital, Tiruchirappalli. He also seized M.Os.1 and 2, stones, M.O.3, lungi, M.O.4, banian, M.O.5, towel, M.O.6, blood-stained earth, and M.O.7, sample earth under mahazar Ex.P-4 in the presence of P.W.6 an d one Perumal. On 21.9.93 at 6.00 a.m. in Tiruchy-Manapparai highways road near Vannankoil bus stop, he arrested the accused and got his confession statement. At about 10.00 a.m., he brought the accused to Inamkulathur Out-post police station and then sent him to the Judicial Magistrate No.6, Tiruchirappalli for remand and also sent the material objects recovered under form 95 to the Judicial Magistrate.

5. On receipt of the requisition Ex.P-14, P.W.2, Dr.Mahendravarman, Civil Assistant Surgeon, Government Headquarters Hospital, Tiruchirappalli conducted autopsy on the body of the deceased Subban and found the following injuries:-

"External:

1) A linear fracture over right temporal area through lacerated injury scalp right temporal area 15x10 cm. exposing brain tissues. 2) Lacerated injury on top of the skull 10x10 cm. Fracture on top of skull bone exposing brain tissues.

Internal:

Heart chamber empty; Lungs-right 100 gm. Left 110 gms. Pale; Liver-1400 gms. Pale; Kidney-right 80 gms. Left 60 gms. Pale; Bladder empty, hyoid bone intact."

The doctor has opined that the deceased would appear to have died of shock and haemorrhage due to injuries to vital organ-brain and the said injuries could have been caused 24 hours prior to autopsy. He has also opined that the said injuries could have been caused while throwing the stones like M.Os.1 and 2 from 20 feet above if there is sand in the well. He also opined that if the surface was rough, there is likelihood of more grievous injuries than the one seen on the body and the injuries sustained by the deceased were necessarily fatal.

6. P.W.12, who assumed charge as Inspector of Police, Somarasampettai Police Station on 22.9.93 took up further investigation and received the reports of the Chemical Examiner and Serologist under Exs.P-9 and P-10. On 25.9.93 he examined th Poongudian @ Subramani, P.W.5, Chinnaiyan, Ponnar @ Ponnusami and recorded their statements. On 26.9.93, he examined P.Ws.7 and 8 and recorded their statements. On 31.5.94 he completed his investigation and filed a charge sheet against the accused und er Section 302 IPC.

7. When the accused was questioned under Section 313 Cr.P.C. as to the incriminating documents, the accused denied the charges and pleaded innocence.

8. The learned Sessions Judge, Tiruchirappalli after careful consideration of the evidence available on record held that the incident took place due to sudden quarrel between the accused and the deceased and therefore, the accused was not gu charge under 302 IPC but found the accused guilty under Section 304 (Part-I) IPC and imposed a sentence to undergo R.I. for seven years. It is against the said conviction and sentence, the present appeal has been filed.

9. Learned counsel for the appellant submitted that there is discrepancy as to at what time the F.I.R. has come into existence. According to P.W.10, who was the Sub Inspector of Police and who registered the case, has stated that he receiv laint Ex.P-1 from P.W.1 at 7.00 a.m. in the police station which was endorsed by P.W.6. At 7.00 a.m. he also got the signature of P.W.1 in Ex.P-11. Therefore, the printed F.I.R. was received at 7.00 a.m. itself and that F.I.R. had been concealed by the prosecution. Therefore, the genesis of the case itself is doubtful as to whether it has occurred in the manner spoken to by the prosecution. Therefore, on the basis of this discrepancy, the appellant is entitled to be acquitted.

10. It is true that P.W.10 has stated in his chief examination that on 20.9.93 that while he was working as Sub Inspector of Police, Somarasampettai Police Station, at 7.00 a.m., P.W.1 came to the police station and gave a complaint Ex.P-1. so endorsed by P.W.6 V.A.O., Ammapettai. He registered it as Cr.No.571/93 under Section 302 IPC. The printed F.I.R. is Ex.P-11 and he sent Ex.P-11 through P.W.11 to the Court. In the cross examination, he has stated that he received the signature of P .W.1 in Ex.P-11 at 7.00 a.m. which is Ex.P-2. Thereafter, he proceeded with the Inspector of Police to the scene of occurrence and reached the scene of occurrence at 1.00 p.m. Further, he has also stated that at 7.00 a.m. in the morning after receivi ng the signature in Ex.P-1, he prepared Ex.P-11 printed F.I.R. and forwarded the same to the Court. He has also reiterated that it was not correct to say that he did not receive any complaint at 7.00 a.m. in the morning.

11. On the perusal of Exs.P-1 and P-11, it is seen that in Ex.P-1 there is an endorsement that the complaint was received at 12.00 noon which was signed by P.W.10. Ex.P-11 printed F.I.R. has been prepared by P.W.10. In that, under Sl.No. ers to the date and time of registration of complaint, it is written as 20.9.93 at 12.00 noon. When that be the case, the evidence of P.W.10 before the Court that he registered the complaint at 7.00 a.m. and he got the signature of P.W.1 in Ex.P-11 at 7.00 a.m. is patently false. It is surprising as to how this witness was not treated as hostile by the prosecution. From the records, it is seen that P.W.10 was aged about 56 years when he gave the evidence. Now he should have retired. Therefore, the re is no possibility of taking any departmental action against P.W.10. Hence, no action is recommended/can be recommended against P.W.10. But the learned Sessions Judge should be watchful in such matters and should not allow any of these persons escap e without any consequences for giving such deliberate false evidence.

12. Regarding the sentence, the learned counsel for the appellant submitted that the appellant is 62 years of age and therefore, the sentence may be reduced.

13. I have considered the above submission of the learned counsel. The trial Court also disbelieved that part of the evidence spoken to by the prosecution that the appellant threw stones on the deceased who fell into the well. In the abse evidence, it cannot be contended that the deceased sustained these injuries only due to the throwing of the stones by the appellant from the top of the well. Further, P.W.2, the Doctor who conducted autopsy has stated that the deceased would have sustai ned these injuries by falling into the well even without throwing of stones from the top of the well. Therefore, these injuries could have been caused while falling into the well during the scuffle between the accused and the deceased. Therefore, the Sessions Judge cannot be said to be wrong in giving the finding that the offence will not fall under Section 302 IPC and that the accused is punishable only under Section 304(Part-I) IPC. Considering the totality of the evidence, the conviction under Se ction 304(Part-I) IPC imposed by the learned Sessions Judge is confirmed and the sentence of imprisonment of seven years imposed on the appellant by the learned Sessions Judge, is now reduced to five years.

14. With the above modification in the sentence, this appeal is dismissed. It is reported that the appellant/accused is on bail. Hence, the learned Sessions Judge, Tiruchirappalli shall take steps to commit him to jail to undergo the remai of sentence.

Index: Yes 06.08.2002 Internet: Yes

ss

A.K.RAJAN, J.

To

1. The Principal Sessions Judge, Tiruchirappalli 2. The Judicial Magistrate No.VI, Tiruchirappalli thru' the Chief Judicial Magistrate, Tiruchirappalli 3. The Superintendent, Central Prison, Tiruchirappalli 4. The Public Prosecutor, High Court, Madras

5. The District Collector, Tiruchirappalli

6. The Director General of Police, Tiruchirappalli C.A.No.604 of 1995




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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