Nandu @ Dowlath vs State
2021 Latest Caselaw 9221 Mad

                                                                  Crl.A.No.255 of 2019

               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                               DATED : 08.04.2021

                                      CORAM

                THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                              Crl.A.No.255 of 2019 &
                             Crl.M.P.No.6409 of 2019


Nandu @ Dowlath                         ...    Appellant

                                       Vs.

State, rep. by the
Inspector of Police,
Papparapatti Police Station,
Dharmapuri District.                    ...    Respondent
  (Crime No.251 of 216)


PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside
the conviction and sentence made in S.C.No.45 of 2017, dated 29.01.2019, on
the file of the Additional District Sessions Judge, Dharmapuri.



             For Appellant        :     Mr.V.Sakkarapani

             For Respondent       :     Mrs.T.P.Savitha
                                        Government Advocate (Criminal Side)




1/10
                                                                    Crl.A.No.255 of 2019

                                JUDGMENT

This Criminal Appeal has been filed against the Judgment of Conviction

and Sentence, dated 29.01.2019 made in S.C.No.45 of 2017, on the file of the

learned Additional District Sessions Judge, Dharmapuri.

2. The respondent-Police registred the case against the appellant in

Crime No. 251 of 2016 for the offene under Section 302 of IPC. After

investigation, laid a charge sheet before the learned Magistrate. The learned

Magistrate taken the charge sheet on file in PRC No.1 of 2017 and committed

the case to the Principal District and Sessons Judge, since the offence alleged is

exclusively triable by the Court of Session. The learned Principal Sesssions

Judge, taken the case on file in S.C.No.45 of 2017 and made over the case to

Additional Sessions Judge for disposal. After completing the formalities, the

learned Additional Sessions Judge, framed charges against the accused for the

offence punishable under Section 302 of IPC and conducted the trial.

3. During trial, in order to prove the case of the prosecution, 18

witnesses were examined as P.W.1 to P.W.18 and 11 documents were marked

as Exs.P1 to P11, besides 3 Material Objects were exhibited as Exs.M.O.1 to

M.O.3. After completion of the examination of the prosecution witnesses, the

incriminating circumstances culled out from the evidence of the prosecution

Crl.A.No.255 of 2019

witnesses were put before the appellant, the same was denied as false and on

the side of the defence, no oral and documentary evidence was produced.

After considering the evidence on record and hearing on either side, the

learned Additional Sessions Judge, Dharmapuri, by Judgment dated 29.01.2019,

not found the appellant guilty for the offence under Section 302 of IPC,

however, foud guilty for the offence under Section 304 (ii) of IPC and convicted

and sentenced him to undergo 3 years Rigorous Imprisonment and to pay a fine

of Rs.1,000/-, in default, to undergo three months simple imprisonment.

4. Challenging the said Judgment of conviction and sentence, the

accused /appellant has preferred the present Appeal.

5. The learned counsel for the appellant would submit that there is no

eyewitness in this case and there is a delay in filing Ex.P1-complaint and

according to the prosecution witnesses, the Police came to the spot even

before giving the complaint. Except P.W.1, all other witnesses have turned

hostile and there is no independent witness in this case to support the case of

the prosecution. P.W.10 is the relative of the deceased and therefore, his

evidence is not trustworthy and there are material discrepancies and

contradictions. Even the place of occurence and time of occurrence also in

dispute and the occurrence alleged to have taken place on 07.10.2016 at about

Crl.A.No.255 of 2019

09.30 a.m., whereas the case was registered on 08.10.2016 at 1.00 pm and

even the Police Station is very near to the place of occurrence, the case was

given only after discussion and deliberation and the proseuction has not

established its case beyond reasonable doubt. Though the learned Sessions

Judge rightly comes to the conclusion that the appellant has not committed the

offene punishable under Section 302 of IPC, however, wrongly convicted the

appellant for the offence punishable under Section 304 (ii) of IPC, which

warrants interference.

6. The learned Government Advocate (Criminal Side) would submit that

P.W.1 is the complainant, and he has clearly stated that there was a wordy

quarrel between the appellant and the deceased and when he tried to approach

them and before that, the appellant pushed the deceased into the canal and

due to which, the deceased sustianed injury and died. It is further submitted by

the learned Government Advocate that since no motive was established by the

prosecution, the learned Judge, held that the criminal act committed by the

accused is not a murder and it is a culpable homicide not amounting to murder

and it falls under explanation 1 to Section 300 of IPC and punishable under

Section 304(ii) of IPC and held that even though charge was framed for the

offence punishable under Section 302 of IPC, but available evidence in the trial

are not having the ingredients of Section 300 of IPC. The evidence of P.W.1 was

Crl.A.No.255 of 2019

also corrborated by the medical evidence. Though the other witnesses have

turned hostile, the evidence of P.W.1, P.W.8 and P.W.15, clearly show that the

appellant has committed the offence. Even though no motive has been

established, due to wrody quarrel, the appellant pushed the deceased into the

canal and due to that, he sustained injury and died. Therefore, the learned

Judge not convicted the appellant for the offence punishable under Section 302

of IPC, however, rightly convicted the appellant for the offence punishable

under Section 304 (II) of IPC. It is further submitted that the trial Court itself

had shown leniency by imposing a sentence of rigorous imprisonment for three

years as against the maximum sentence of 10 years impriosnment prescribed for

such an offence. Hence, there is no merit in the Appeal and prays for dismissal

of the Appeal.

7. Heard the learned counsel on either side and perused the materials

available on record.

8. The case of the prosecution is that on 07.10.2019, at about 09.30

p.m., at Muslim Street, Papparapatti, the accused pickked up a quarrel with

the deceased and caught hold the neck of the deceased and pushed him down

in the canal, and due to which, the deceased sustained severe head injury and

died due to effects of head injury. Thereafter, P.W.1, who is the relative of the

Crl.A.No.255 of 2019

deceased, filed Ex.P1 complaint before the respondent. Based on which, the

respondent-Police registered a case against the appellant and laid a charge

sheet before the learned Judicial Magistrate. The learned Magistrate taken the

charge sheet on file in PRC No.1 of 2017 and committed the case to the learned

Principal Sessions Judge, which was taken on file in S.C.No.45 of 2017 and made

over the same to the learned Additional Sessons Judge for disposal. The learned

Additional Sessions Judge, after the trial, convicted the appellant as above.

Aggrieved against the same, the present appeal has been filed.

9. Since this Court is an Appeate Court and also final Court of fact

finding, has to reappreiciate the entire evidence and come to the independent

conclusion.

10. The charge was framed against the appellant for the offence

punishable under Section 302 of IPC. In order to prove the charge, on the side

of the prosecution, totally, 18 witnesses were examined and 11 documents

were marked. P.W.1 is the complainant and also an eyewitness in this case.

P.W.1 has clearly stated that while going to his grandma's house, he saw the

appellant and the deceased were quarelling and at that time, the appellant

pushed the deceased into the canal and due to which, he fell down and before

Crl.A.No.255 of 2019

taking to the Hospital, he died. Thereafter, P.W.1 filed Ex.P1 complaint.

Though the other witnesses P.W.2, P.W.3, P.W.4, P.W.5, P.W.8 and P.W.9 have

not deposed anyting relating to the roll of the accused in the crime or seen of

occurence, but they have deposed the fact relating to the injury sustained by

the deceased and rescue them from the canal and providing water, etc., and

further corroborated the evidence of P.W.1 with regard to the place and time

of occurence. P.W.8 also stated that at the time of occurrence, the appellant

was also present and persons who were nearby, assembled there and

questioned the appellant regarding the act of the appellant in pushing the

deceased into the canal. P.W.15 doctor, who conducted autopsy has given

opinion that the deceased would have died due to the head injuries and filed

Ex.P6-postmortem certificate.

11. Therefore, from the evience of P.W.1, P.W.8 and P.W.15 and Ex.P6,

the postmortem certificate, the deceased died due to the act of the appellant,

who pushed the deceased into the canal and in the course of said act, the

deeased sustained head injury and died. Though the prosecution has not proved

that there was a motive and previous enimity, as per the evidence of P.W.1,

there was wordy quarrel between the appellant and the deceased and due to

the wordy quarrel, the appellant pushed the deceased, and due to which, he

sustained head injury and died. Since there is an eye witness, no motive is

Crl.A.No.255 of 2019

necessarily to be established. Therefore, the learned Judge found that the

appellant has not committed the offence punishable under Section 302 of IPC,

as the available evidence though not having the ingredients of Section 300 of

IPC, but ingredients of explanation to Section 300 of IPC applicable to the case

as per the prosecution and held that the criminal act committed by the accused

is not a murder and it is a culpable homicide not amounting to murder

punishable under Section 304 (ii) of IPC. As the offence committed by the

appellant is punishable under Section 304 (II) of IPC, the trial Court shown

leniency and sentenced the appellant to undergo three years Rigorous

Impriosnment and hence, there is no reason to interfere with the judgment of

the trial Court as the trial Court has already shown leniency and sentenced him

to undergo only 3 years Rigorous Imprisonment.

12. In the result, there is no merit in the Appeal and the Appeal is liable

to be dismissed, accordingly, it is dismissed. The trial Court is directed to

secure the appellant / accused and commit him to prison to undergo the

remaining sentence. The bail bonds executed by the appellant, if any, shall

stand cancelled. Consequently, connected miscellaneous petition is closed.

                                                                       08.04.2021
Speaking Order / Non-speaking order

Index     : Yes / No.

                  Crl.A.No.255 of 2019

Internet : Yes.

rns





                                                                   Crl.A.No.255 of 2019

                                                             P.VELMURUGAN, J.

                                                                               rns
To

1.The Additional District Sessions Judge, Dharmapuri.

2. The Inspector of Police, Papparapatti Police Station, Dharmapuri District.

3.The Public Prosecutor, High Court of Madras, Chennai.

Crl.A.No.255 of 2019 & Crl.M.P.No.6409 of 2019

08.04.2021