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MURUGAN versus STATE REP.BY THE

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Murugan v. State rep.by the - Criminal Appeal (MD) No.784 of 2001 [2007] RD-TN 2033 (21 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 21/06/2007

CORAM

THE HONOURABLE MR. JUSTICE P. MURGESEN

Criminal Appeal (MD) No.784 of 2001

1. Murugan

2. Chinna Mari

3. Vairavan .. Appellants Accused

Vs

State rep.by the

Inspector of Police,

Achanpudur Police Station,

Crime No.324 of 98) .. Respondent Complainant Appeal filed under section 374 of Cr.P.C., against the Judgment and conviction and sentence imposed by the learned II Additional Sessions Judge, Tirunelveli in S.C.No.127 of 2000 by order dated 25.06.2001.

For Appellant .. Mr.R. Karuppan For Respondents .. Mr.L. Murugan, GA (Crl.Side) :JUDGMENT



This appeal is directed against the judgment of the learned II Additional Sessions Judge, Tirunelveli in S.C.No.127 of 2000 by order dated 25.06.2001.

2.The short facts necessary for the disposal of this appeal can be stated thus:

(a)P.W.1-Thangapandi, is the resident of Kasidharmam Village. His Sister is Mallika. Mallika's husband is deceased Periya Mariappan. The accused are the brothers of the deceased. The deceased was having illegal contact with one Krishnammal. So, there was a panchayat in the Village by the two community people. P.W.5 Ramar and P.W.6 Veliah were in the panchayat. In that panchayat, the victim was directed to pay a fine of Rs.5,000/-. The victim paid a sum of Rs.500/- and admitted to pay the balance amount within a week. The said krishnammal was handed over to Kadayanallur nattanmai. (b) On 19.08.1998, evening at about 5'O clock, P.W.1 heard the noise that the victim attempted to commit suicide by consuming poison. When he went there, the accused gave soap and tamarind mixture to the victim to save him. At that time, Periya mariappan, the victim quarreled with accused that they should not save him because he was forced to pay a fine of Rs.5,000/-. So, he did not want to live and he bite the accused Murugan and Chinna Mariappan. So, the first accused Murugan attacked him with M.O.1, kz;btl;o fiz, second accused Chinna Mariappan attacked him with M.O.2, cUl;Lf;fk;g[ and third accused Vairavan attacked him with M.O.3, velikaruvai stick and the victim fell down and died on the spot. The accused ran away from the scene of occurrence. P.W.2, Perumal is the brother of father-in-law of the deceased. He knew the accused. P.W.3, Balasubramanian is the Village Administrate Officer. (c) On 19.08.1998 at about 22.30 hours, P.W.1 and his sister Mallika appeared before P.W.10, the Sub Inspector of Police and gave a complaint Ex.P.1. On receipt of the same, P.W.10, registered a case in Cr.No.324 of 1998 under Section 302 I.P.C and prepared Ex.P.10, printed First Information Report and despatched it to the Court and superior officials. (d) P.W.11, the Inspector of Police of Aykudi Circle, received the F.I.R., and took up the case for investigation. He proceeded to the scene of occurrence at about 23.30 hours on 19.08.1998 and prepared Ex.P.4-the Observation Mahazar and Ex.P.11-the rough sketch in the presence of P.W.4 Perumal and one Shanmugam. At about 12.30 P.M. he recovered M.Os.4 to 7 under Ex.P.5 Athatchi. He also conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P.12-the Inquest Report. Along with a requisition under Ex.P.7, the body was sent to the hospital to conduct the postmortem. P.W.7,Dr.Muthuraj, the doctor, conducted postmortem on the dead body of the deceased and found the following injuries:

1) The penetrating injury over the Right side of neck lacerated the right internal carotial (?) External carotial Arteris right jugular vain. Hamotoma of 300 ml in right cervical region.

2. Intera cerbral haemorrhage over occipital region of brain. 300 ml(?) of cloted blood.

3. Intra cerebral haemorrhage over right frontal parietal, temporal lobes of brain.

4. A linear fracture over right fronto parietal region of skull. Measuring 4 cm. Subdural Haemorrhage over right fronto pareital region 200 ml of clotted blood. The body of male moderately nourished lies on back. Rigor mortis present in all four limbs. Hands clenched empty symmentrical, eyes closed, mouth closed, tongue (torn) side the mouth. No discharge through ear or nose; or mouth. Hyoid bone intact Heart chambers empty Pale lungs right 320 gms left 300 gms pale Kidney each 120 gms pale liver 1500 gms pale spleen 120 gms pale small & large intestine Pale Stomach contains 150 ml of organo phospharus smelling grevious fluid. No food particles found.

OPINION:

Cause of death opinion pending chemical analysis of viscera. As per the Chemical Analysis of the Viscera, the poison was found only in Stomach and small intestines Not in liver and kidney. The deceased would have appeared to died of Haemorrhage shock and Head injury, due to the Grievous injury found on the body.

He gave Ex.P.8-the Postmortem Certificate and Ex.P.9 final report on the Post- mortem Certificate.

(e) Then, P.W.11 recorded the statements of witnesses. On 20.08.1998 at about 10'O clock, he arrested the accused in the presence of P.W.3 and Thirumalaichamy. The first accused gave a confession statement. The admissible portion of the confession statement is Ex.P.2. On the basis of confession statement, M.O.2, Velikaruvai kambu was recovered under Ex.P.3 in the presence of same witnesses. Then, the investigating officer sent Ex.P.13, the requisition to Judicial Magistrate to send the material objects to the Forensic Laboratory. As per Ex.P.14, the copy of the letter of Judicial Magistrate, the material objects were sent to Forensic Laboratory and the learned Judicial Magistrate received Ex.P.15 to 17, the reports from the Forensic Laboratory. After completion of the investigation he filed the charge sheet against the accused under Section 302 read with 34 I.P.C.

3. Before, the Trial Court, P.Ws.1 to 11 were examined and Exs.P.1 to 17 and M.Os.1 to 11 were marked. On completion of the examination of the witnesses on the side of the prosecution, the accused were questioned under section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. No defence witness was examined.

4. On consideration of evidence on record, the learned Trial Judge, found that accused were guilty under Section 304(2) and sentenced each of the accused to undergo three years rigorous imprisonment and directed to pay a compensation of Rs.10,000/- each (Total Rs.30,000/-) in default to undergo two years rigorous imprisonment.

5. Challenging the judgment of conviction and sentence, the appellants/accused have preferred this appeal.

6. Point for Determination:

Whether the accused have committed the offence under Section 304(ii) of IPC?

POINT:

P.W.1 Thangapandi is the resident of Kasidharmam Village. His sister is Mallika and she is no more. Mallika's husband deceased Periyamariappan had illicit intimacy with one Krishnammal. So, a panchayat was conducted by the two community people. P.Ws.5 and 6 were present in the panchayat. This was spoken by other witnesses also. In that panchayat, Periyamariappan was directed to pay a fine of Rs.5,000/-. He paid only Rs.500/- and requested time for paying the balance amount in next week. Then, Krishnammal was handed over to Kadayanallur Nattanmai.

(ii) On 19.08.1998, evening at about 5'0 Clock, Periyamariappan consumed poison and attempted to commit suicide. P.W.1 heard the noise and went there. The accused were giving soap and tamarind mixture to the Periyamariappan to save him. All the accused are brothers of the victim Periyamariappan. The victim stated that he was imposed to pay a fine of Rs.5,000/- and so he did not want to live. When the accused attempted to save him, the victim had bite the first accused and also the second accused. So, all the accused attacked him with M.Os.1 to 3 respectively and the victim fell down and died on the spot. Then, P.W.1 gave the complaint and a case was registered. (iii)Further, P.W.11, the Inspector of Police took up the case of investigation and sent the body for Post Mortem. The dead body was subjected to postmortem by P.W.7, the doctor, who gave Ex.P.8-the Postmortem Certificate, and Ex.P.9, the final report, wherein he has opined that the deceased would appear to have died of Haemorrhage shock and head injury, due to the Grievous injury found on the body.

(iv)The learned counsel for the appellant submitted that the accused had no enmity towards the victim and actually they are brothers. The accused attempted to commit suicide by way of consuming poison because, he was imposed to pay a fine of Rs.5,000/- before the panchayat. This was confirmed by P.W.7, doctor and Exs.P.8 and 9, the Post-mortem Certificate and final report respectively. The chemical Report also would show that the poison was found in the stomach of the victim. But, the death was not due to the poison. The doctor has opined that the deceased would appear to have died of Haemorrhage shock and Head injury, due to the Grievous injury found on the body. (v) On a perusal of Post-mortem Certificate, it is seen that the deceased sustained stab injury in the neck. The Investigation Officer admitted that he hid not enquire about knife. He has not taken interest to verify about the knife. No doubt that the death was due to injury over the body of the victim. The evidence of P.Ws.1,2 and 6 would show that the victim sustained injuries. The doctor found the following injuries over the body of the victim.

1. A penetrating Injury over the right posterior triangle of neck (cervical region) measuring 2.5cm x 1 cm x 7.5 cm (2) contusion over occipital region of sculp (3) contution over Right supra scapular region. (4) contusion over left fronto patrcal(?) region of scalp 10 cm x 8 cms. (vi) It is an admitted fact that the accused tried to save their brother. At that time, they were assaulted by the victim. So, it is clear that the accused were attacked by the victim. But the death was due to stab injury which was not explained by the prosecution. The accused have no intention to murder their brother. But they attempted to save him. Naturally, when a person is in trouble, some force is to be used by the neighbours. The doctor's evidence would show that though there is after consumption of poison, the deceased died out of shock and haemorrhage of head injury.

(vii) It is the duty of the Court to remove the grains from chaff. The findings of the trial court is clear that the deceased tried to create a scene and attacked the accused. So the accused used the force. (viii) No doubt, the accused also sustained injury and that was not explained by the prosecution. So, on careful consideration, it is clear that the accused had no intention to murder him. But they knew the consequences of their attack. All the accused attacked him on the head. Though there is no intention to murder him, their act resulted in the death of the victim.

7. Hence, the offence committed by the accused under Section 304(II)I.P.C and the trial Court has come to a correct conclusion and there is no reason to interfere the findings of the trial Court.

8. So far as the sentence is concerned, the accused attempted to save their brother. In such circumstances, the accused attacked the victim, which caused to death. The accused are also repenting for the offence committed by them. Considering the nature of the offence and the conduct of the accused, I think it is just and proper to modify the sentence awarded by the learned II Additional Sessions Judge, Tirunelveli, to two years rigorous imprisonment. Accordingly, the accused is directed to undergo two years rigorous imprisonment. The sentence already undergone by the appellant/accused shall be given set off. As regards to the fine amount, the trial Court judgment is confirmed.

9. With the above modification in sentence, the criminal appeal is disposed of. So far as the compensation is concerned, the judgment of the trial Court is confirmed.

To

1.The II Additional Sessions Judge, Tirunelveli. 2.The Inspector of Police,

Achanpudur Police Station.

3.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.




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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