Madras High Court
Rajendran vs State Through on 24 August, 2021
Crl.A.(MD) No.301 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.08.2021
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRL.A (MD)No.301 of 2018
Rajendran .. Appellant/Sole Accused
-vs-
State through
The Inspector of Police,
Thakkalai Police Station,
Nagercoil District.
(Crime No.488 of 2004). .. Respondent/Complainant
Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure against the judgment of the Fast Track Mahila Court,
Kanyakumari @ Nagercoil, in S.C.No.199 of 2004, dated 04.06.2015.
For Appellant :: Mr.R.Alagumani
For Respondent :: Mr.S.Ravi
Standing Counsel for State
1/18
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Crl.A.(MD) No.301 of 2018
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
The appellant is the sole accused in S.C.No.199 of 2004, on the
file of the Fast Track Mahila Court, Kanyakumari District at Nagercoil.
He stood charged and convicted for the offences under Sections 498-A
and 302 I.P.C. and sentenced to undergo three years Rigorous
Imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo six
months Rigorous Imprisonment for the offence under Section 498-A
I.P.C. and sentenced to undergo Life Imprisonment and to pay a fine of
Rs.15,000/-, in default, to undergo one year Rigorous Imprisonment for
the offence under Section 302 I.P.C. and the sentences were ordered to
run concurrently. Challenging the aforesaid conviction and sentence, the
appellant is before this Court with this Criminal Appeal.
2.The case of the prosecution in brief as follows:
The deceased Rani, is the wife of the appellant/accused. The
appellant is a driver. There were frequent quarrel between the deceased
and the appellant and the appellant harassed her. On 24.05.2004, at about
11.30 p.m., there was a quarrel between them. At that time, the accused
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Crl.A.(MD) No.301 of 2018
kicked her in the abdomen and also beaten her thoroughly and left the
house. On the next day i.e., on 25.05.2004, P.W.1, mother of the
deceased, took her to the respondent police station, where the deceased
gave a complaint (Ex.P.1).
3.Based on that complaint, an F.I.R.(Ex.P.11) has been registered
by P.W.13, Head Constable, in Crime No.488 of 2014, for the offences
under Sections 341 and 323 I.P.C. and sent the original F.I.R. to the
Judicial Magistrate, Padmanabapuram and copies to the higher officials
and one copy to P.W.14, Sub-Inspector of Police, for investigation. He
also sent the deceased to Government Hospital, Thuckalay, for treatment
along with memo (Ex.P.4).
4.P.W.3, Dr.Josephsen, working in the Government Hospital,
Thuckalay, admitted the deceased as inpatient on 25.05.2004 at 12.00
p.m. and has given treatment. The Accident Register copy issued by P.W.
3 is marked as Ex.P.3.
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Crl.A.(MD) No.301 of 2018
5.P.W.14, Sub-Inspector of Police, on receipt of the F.I.R.
commenced the investigation, visited scene of occurrence and prepared
Observation Mahazar (Ex.P.7) and Rough Sketch (Ex.P.12). Thereafter,
he went to Thuckalay Government Hospital and recorded the statement
of deceased Rani and other witnesses. Subsequently, at 7.15 p.m., the
deceased succumbed to the injuries and P.W.3 sent intimation (Ex.P.2) to
the police. After the death of Rani, he altered the offence to Section 302
I.P.C. and sent the alteration report (Ex.P.13) to the Judicial Magistrate
Court and copies to the Higher Officials and sent a copy to P.W.15,
Inspector of Police for investigation.
6.On receipt of the altered F.I.R., P.W.15, continued the
investigation, went to the scene of occurrence and recorded the
statements of witnesses. Then he proceeded to Thuckalay Government
Hospital, conducted inquest over the body of the deceased between 12.30
a.m. to 2.30 a.m. and prepared Inquest Report (Ex.P.14). He recovered
the dresses worn by the deceased and examined the witnesses and
recorded their statements. On 26.05.2004, he arrested the accused and
remanded him to judicial custody.
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Crl.A.(MD) No.301 of 2018
7.In the meantime, P.W.4, Doctor, working in the Government
Hospital, Padmanabapuram conducted postmortem autopsy on the dead
body on 26.05.2004 at 12.30 p.m. and given the postmortem report
(Ex.P.5), he was of the opinion that, the deceased would appear to have
died of shock and septicemia due to stomach and small intestine
(jejunum) rupture.
8.P.W.15 examined the doctors and recorded their statements and
after completing the investigation, filed the final report on 14.06.2004 for
the offences under Sections 498-A and 302 I.P.C.
9.Considering the above materials, the trial Court framed charges
as stated above and the accused denied the same as false. In order to
prove its case, the prosecution examined as many as 15 witnesses,
marked 14 documents and also submitted 3 material objects.
10.Out of the witnesses examined, P.W.1, is the mother of the
deceased. She has spoken about the occurrence, which took place on
24.05.2004. On 25.05.2004, she took the deceased to the police station,
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Crl.A.(MD) No.301 of 2018
where they have given a complaint, thereafter, admitted her in the
hospital. P.W.2 is the son of the accused and the deceased. He is an eye-
witness to occurrence. According to him, on 24.05.2004, the accused in
an inebriated mood attacked the deceased, kicked her in abdomen and the
deceased fell down. On the next day, the deceased informed the
occurrence to P.W.1, who took her to the hospital.
11.P.W.3, Doctor, admitted the deceased in the Government
Hospital Thuckalay and issued Accident Register (Ex.P.3), wherein, she
stated that on 24.05.2004, at about 11.30 p.m., she was assaulted by one
known person at her residence.
12.P.W.4, Doctor, who conducted autopsy and issued postmortem
certificate (Ex.P.5) , which reads as follows:
“The body was first seen by the undersigned at
12.30 P.M. on 26.05.2014. Its condition then was cold.
Rigor Mortis present in all 4 limbs. Post mortem
commenced at 12.30 P.M. on 26.05.2004.
Appearances found at the post-mortem:
Lies on back, symmetrical moderately nourished,
Pale, Jaws clenched, Tongue inside, Eyes closed forthy
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Crl.A.(MD) No.301 of 2018
blood stained discharge present from Nostrils and
mouth. Hands free No external injuries: On opening the
Abdomen 1 litre of serosanginus fluid present in the
peritoreal cavity. Stomach empty. Rupture of stomach
in the posterior wall present. (5 cms vertical) Rupture
of Antimesentric border of jejunam present + (1Cm)
Liver 1400 gms C/S/ congested. Spleen 120 gms. C/S.
Congested Kidneys 120 gms. each. C/S. Congested. On
opening the thorax Heart wt250 gms. Lungs weight450
gms. Left 400 gms C/S/ congested. No fracture ribs No
fracture Pelvis V Bladder empty. Uterus empty. On
opening the Skull No fracture Brain wt.1200 gms. C/S.
Pale. No fracture spine. P.M. concluded at 2.00 P.M.
The deceased would appear to have died of shock and
septicemia to stomach and small intestine (Jejunam)
rupture 18-20 hrs. prior to P.M.
He was of the opinion that the deceased died of shock and septicemia to
stomach and small intestine (Jejunum) rupture.
13.P.W.5 is an witness to the Observation Mahazar (Ex.P.7) and
Rough Sketch (Ex.P.12). P.W.6 is a witness to confession statement
(Ex.P.8) of accused. P.Ws.7 to 10 are the neighbors of the deceased, who
turned hostile. P.W.11 is the Head-Constable, who handed over the
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Crl.A.(MD) No.301 of 2018
Express F.I.R. to Judicial Magistrate Court. P.W.12 is the Head-
Constable, who identified the dead body for postmortem. P.W.13 is the
Head-Constable, who registered the F.I.R. for the offences under Sections
341 and 323 I.P.C. P.W.14 is the Sub-Inspector of Police, who conducted
the initial investigation and recorded the statement of the deceased and
after the death of the deceased, he altered F.I.R. for the offence under 302
I.P.C. P.W.15 is the investigation officer. He examined the witnesses and
recorded their statements and filed the final report on 14.06.2004 for the
offences under Sections 498-A and 302 I.P.C.
14.The above incriminating materials were put to the accused
under Section 313 Cr.P.C.. The accused denied the same as false and he
has not examined any witness or marked any document.
15.Having considered the above materials, the trial Court
convicted the appellant/accused and sentenced him as state above.
Challenging the aforesaid conviction and sentence, the appellant is
before this Court with this Criminal Appeal.
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Crl.A.(MD) No.301 of 2018
16.Mr.R.Alagumani, learned counsel appearing for the appellant
would submit that the occurrence has taken place on 24.05.2004 and it is
only a wordy quarrel between the husband and wife. Even as per the
evidence of P.W.2, he has only beaten her on the cheek with hands and
kicked her in the abdomen and he has not cause any injury, he has no
intention of causing the death of his wife. However, on the next day, she
died out of shock and septicemia due to the injury sustained in her
stomach and small intestine, according to her, there is no possibility of
developing septicemia within 24 hours of the occurrence, septicemia may
be developed due to some other injury sustained by her earlier.
17.The learned counsel would further submit that, even assuming
that the evidence of P.W.2 is true, he can only be punished under Section
323 I.P.C. and he is not liable to be convicted under Section 302 I.P.C.
The medical evidence is not supporting the prosecution case and P.W.4,
doctor, has clearly stated that even in a case of ulcer, the deceased might
have developed septicemia, according to him, septicemia would develop
only 3 to 6 days after the injury.
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Crl.A.(MD) No.301 of 2018
18.The learned counsel further submitted that while the deceased
was admitted in the Government Hospital, Thuckalay, P.W.3, the doctor,
working at Government Hospital, Thuckalay, referred her to Medical
College Hospital, Asaripallam, Nagercoil, but she refused to go there,
had she gone there, she would have been given better treatment, there is a
chance of her survival. The trial Court without considering the above
circumstances, convicted the accused. Hence, he prayed for acquittal of
the appellant/accused.
19.Opposing the same, Mr.S.Ravi learned Standing Counsel for
State would submit that, P.W.2 is none other than the son of the deceased
and the accused and he was present at the time of occurrence. He has
clearly deposed that the accused forcibly kicked the deceased in the
abdomen, thereby, caused severe injury, which has resulted in the death
of the deceased. There is no reason to disbelieve the evidence of P.W.2.
The learned Standing Counsel further submitted that the ocular evidence
of P.W.2 is sufficient to convict the accused.
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Crl.A.(MD) No.301 of 2018
20.The learned Standing Counsel for the State further submitted
that the medical evidence corroborated the evidence of P.W.2. The
evidence of P.W.2 proves the overtact of the accused and that the
deceased died due to the injuries sustained. There is sufficient evidence
available on record to show that the accused harassed the deceased
frequently and in fact, indiscriminately attacked her on several occasions.
Hence, the trial Court has rightly convicted the appellant under Section
498-A and 302 I.P.C. and the same requires no interference by this Court.
21.We have considered the rival submissions and also perused the
records carefully.
22.The deceased is the wife of the accused. From the evidence of
P.Ws.1 and 2, mother and son of the deceased, it could be seen that there
were frequent quarrel between the husband and wife. The accused is a
drunkard and used to beat the deceased frequently. There was a quarrel
between the accused and deceased on 24.05.2004, at about 11.30 p.m.,
and P.W.2, was also present in the house and he is the eyewitness to the
occurrence. According to him, the accused attacked the deceased and
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Crl.A.(MD) No.301 of 2018
kicked her in the abdomen and has also beaten her in the cheek,
subsequently, deceased developed pain, and on the next day, both P.Ws.1
and 2 took her to the hospital. P.W.1, mother of the deceased,
corroborates P.W.2, regarding the harassment caused by the accused on
the deceased. We have no reason to disbelieve their evidence.
23.On the next day, the deceased along with P.W.1 went to the
police station and lodged the complaint (Ex.P.1), wherein the deceased
has clearly stated that the accused in a inebriated mood quarreled with
the deceased, when she resisted it, he attacked him in the cheek and
kicked her in the abdomen. When she raised alarm, he left the house.
This is the first dying declaration given by the deceased, wherein she has
clearly stated that it is only the appellant, attacked her and kicked her in
the abdomen. Thereafter, she was admitted in the Government Hospital,
Thuckalay. P.W.3, the doctor, admitted the deceased in the Government
Hospital, Thuckalay, and issued Accident Register copy (Ex.P.3), wherein
also she has clearly stated that a known person attacked her and kicked
her, that is her second dying declaration, which is consistent with the
earlier one.
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Crl.A.(MD) No.301 of 2018
24.It is the contention of the learned counsel appearing for the
appellant that in the postmortem report, it is seen that the deceased died
of shock and septicemia. As the deceased died within 24 hours, there is
no chance for developing septicemia. A careful perusal of the
postmortem report along with the evidence of P.W.4, the postmortem
doctor, it is seen that the deceased had died due to the injuries sustained
in the abdomen and rupture in the small intestine. It is not the case of the
appellant that the deceased sustained some other injury prior to the
occurrence and due to that injury septicemia has developed. Hence, the
said contention of the learned counsel for the appellant cannot be
countenanced. From the above materials, it is clear that it is only the
appellant, who has attacked the deceased and caused her death.
25.The next question arises for consideration is what is the
offence, which was committed by the deceased by his act. From the
evidence of P.W.2, the statement of the deceased, it could be seen that at
the time of occurrence, there was a wordy quarrel between the appellant
and the accused and in the sudden fight, the accused attacked her with
hands and kicked her in the abdomen and admittedly there is no external
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Crl.A.(MD) No.301 of 2018
injury on the body of the deceased. Therefore, it could be seen that the
accused had no intention to cause the death of the deceased, and he has
no intention of causing bodily injury, which likely to cause the death of
the deceased. However, the accused has the knowledge that his act is
immensely dangerous, in all probability his act is likely to cause bodily
injury as is likely to cause her death. Hence, the act of the accused will
fall under the fourth limb of Section 300 I.P.C. However, the
appellant/accused attacked the deceased without any premeditation in a
sudden fight, in a heat of passion, in a quarrel, he attacked the deceased
with the hands and kicked her in the abdomen, which ultimately caused
some internal injuries, which caused the death of the deceased. Hence,
the act of the accused falls under the fourth exception Section 300 I.P.C.
and he is liable to be convicted under Section 304(ii) I.P.C.
26.So far as the conviction under Section 498-A I.P.C. is
concerned, the evidence of P.Ws.1 and 2 clearly shows that the appellant
harassed the deceased frequently and considering those circumstances,
the trial Court rightly convicted the accused under Section 498-A I.P.C.
and we find no wrong in it.
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27.As far as the sentences are concerned, the occurrence has taken
place in a wordy quarrel, and the accused attacked the deceased with
hands and kicked her on her abdomen and has no intention to cause the
death of the accused. That apart, the accused has no bad antecedents and
he has chance to reform. Considering the above circumstances, we are of
the view that imposing a sentence of two years Rigorous Imprisonment
with a fine of Rs.5,000/-, in default, to undergo six months Rigorous
Imprisonment for the offence under Section 498-A I.P.C. and imposing a
sentence of Seven Years Rigorous Imprisonment with a fine of Rs.
15,000/-, in default, to undergo one year Rigorous Imprisonment for the
offence under Section 304(ii) I.P.C. would meet the ends of justice.
28.In the result, the Criminal Appeal is partly allowed and the
conviction imposed on the appellant/accused, by the Fast Track Mahila
Court, Kanyakumari @ Nagercoil, in S.C.No.199 of 2004, by the
judgment dated 04.06.2015, under Sections 498-A is confirmed, however
the sentence imposed is modified to two years Rigorous Imprisonment
with a fine of Rs.5,000/-, in default, to undergo six months Rigorous
Imprisonment and the conviction and sentence imposed under Section
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Crl.A.(MD) No.301 of 2018
302 I.P.C. are hereby set aside, instead the appellant/accused is convicted
under Section 304(ii) I.P.C. and sentenced to undergo seven years
Rigorous Imprisonment and to pay a fine of Rs.15,000/-, in default, to
undergo Rigorous Imprisonment for one year. The sentences imposed
shall run concurrently and the sentences already undergone shall be
given set off under Section 428 Cr.P.C. After the period of Appeal, M.Os.
1 to 3 shall be destroyed. The respondent is directed to take steps to
procure the accused for undergoing the remaining period of sentence.
(V.B.D.J.,) (J.N.B.,J)
24.08.2021
Internet: yes/no
Index : yes/no
sj
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
To
1. The Sessions Judge,
Fast Track Mahila Court,
Kanyakumari District
@ Nagercoil.
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Crl.A.(MD) No.301 of 2018
2.The Judicial Magistrate,
Padmanabapuram,
Kanyakumari District.
3.The Inspector of Police,
Thakkalai Police Station,
Nagercoil District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to
The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD) No.301 of 2018
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
sj
Criminal Appeal No.(MD) No.301 of 2018
24.08.2021
https://www.mhc.tn.gov.in/judis/
