Madras High Court
Rajesh vs State Through on 5 October, 2021
Crl.A.(MD) No.329 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:05.10.2021
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
CRL.A (MD)No.329 of 2021
and
Crl.MP(MD)No.5407 of 2021
Rajesh ... Appellant/Sole Accused
-vs-
State Through,
The Inspector of Police,
Vadasery Police Station,
Kanniyakumari District.
Crime No.566/2010 ... Respondent/Respondent
Criminal Appeal filed under Section 374(2) of the Code of Criminal
Procedure against the judgment dated 17.07.2012 passed in S.C.No.35 of 2011
on the file of the Court of Sessions, Kanyakumari Division at Nagercoil and set
aside the same and allow the appeal.
For Appellant ::Mr.K.Samidurai
For Respondent :: Mr.A.Thiruvadikumar,
Additional Public Prosecutor
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Crl.A.(MD) No.329 of 2021
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
The appellant is the sole accused in S.C.No.35 of 2011, on the file of the
Court of Sessions, Kanyakumari Division at Nagercoil. He stood charged for
the offence under Section 302 I.P.C. The trial Court convicted him and
sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/-, in
default, to undergo four years Rigorous Imprisonment and challenging the
above conviction and sentence, the appellant is before this Court with this
Criminal Appeal.
2.The case of the prosecution in brief is as follows:
The deceased by name Mary Lilly, is the mother of the appellant.
The appellant used to quarrel with his mother demanding money.
On 03.06.2010, at about 9.00 p.m., the accused quarrelled with the deceased
demanding money and intimidated her. Fearing that the accused might
attacked the deceased, both P.W.1 brother of the deceased and his wife(P.W.2),
went to the house of the deceased and stayed. On the next day, early morning at
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Crl.A.(MD) No.329 of 2021
about 5.00 a.m., there was a quarrel between the deceased and the accused, in
which, the accused threw a grinding stone on the head of the deceased and
caused her death. On hearing the noise, both P.Ws.1 and 2, woke up and saw
that the deceased found dead. Immediately, P.W.1 went to the police station and
lodged the complaint(Ex.P1).
3. P.W.6, the Sub-Inspector of Police working in the respondent police on
receipt of the complaint, registered the F.I.R in Crime No.566 of 2010 for the
offence under Section 302 I.P.C and sent the F.I.R to the Judicial Magistrate
Court, also sent the copy of the F.I.R to the Investigating Officer and other
higher officials for investigation.
4. P.W.7, the Inspector of Police working in the respondent police station,
on receipt of the F.I.R., rushed to the scene of occurrence where he prepared the
observation mahazar(Ex.P2) and Rough Sketch(Ex.P8) and collected blood
stained cement tiles(M.O.4), ordinary cement tiles(M.O.5). At about
10.30 a.m., conducted inquest on the dead body in the presence of panchayatars
and other witnesses and prepared the inquest report(Ex.P9) and sent the dead
body for postmortem autopsy to the Government Medical College Hospital,
Kanniyakumari.
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Crl.A.(MD) No.329 of 2021
5. P.W.5, an Assistant Professor working in the Government Medical
College Hospital, Kanniyakumari, has conducted postmortem autopsy and
given a postmortem report (Ex.P5) and found the following injuries:
“The following ante – mortem injuries noted :
1. 6 x 4cm x bone deep lacerated injury seen over the left
temporal region.
O/D Scalp, Skull and dura:
Sub Scalpal bruising seen over the entire scalp.
Communited fracture of left temporal and parietal bone noted.
Fissure fracture of right temporal and parietal bone noted.
Diffused Sub Dural and Sub Arachnoid Haemorrhage seen over
the both cerebral hemispheres. Laceration of brain noted over
the left temporal and left parietal lobes. Fracture of all the
cranial fossae of base of skull noted.
Other findings noted:
Heart : Normal, Coronaries patent.
Lungs: Normal, C/S pale.
Hyoid: Intact.
Stomach: About 200gms of identifiable partly digested
cooked rice
Liver, Spleen & Kidneys: Normal, C/S pale.
Small intestine: About 20ml of chyme like fluid with
pungent odour, Mucosa pale.
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Crl.A.(MD) No.329 of 2021
Bladder: Empty
Uterus: Normal, C/S Empty.
Brain: Injuries described.
He was of the opinion that the deceased would appear to have died of shock
and hemorrhage due to head injury.
6. P.W.7, arrested the accused, on such arrest, he voluntarily came
forward to give confession admitting his guilt, thereafter, sent the accused for
judicial custody. Since he was transferred, he handed over the investigation to
P.W.8, he continued the investigation and recorded the statement of witnesses
and on completion of investigation, he filed the final report.
7. Considering the above materials, the trial Court framed charge as
mentioned above and the accused denied the same as false. In order to prove
its case, the prosecution examined as many as 8 witnesses, marked
12 documents and also produced 5 material objects.
8. Out of the witnesses examined, P.W.1 is the brother of the deceased.
According to him, he spoke about the frequent quarrel between the deceased
and the accused and on the date of occurrence, he and his wife stayed in the
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Crl.A.(MD) No.329 of 2021
house of the deceased and on the next day, early morning at about 5.00 a.m., on
hearing the noise, he woke up and saw that the accused throwing a grinding
stone on the head of the deceased, caused her death, immediately, he filed the
complaint.
9. P.W.2, is the wife of P.W.1, she is also an eyewitness to the occurrence.
P.W.3 is the son of P.Ws.1 and 2. He is only a hearsay witness. P.W.4 is the
witness to the observation mahazar and rough sketch. P.W.5 is an Assistant
Professor working in the Government Medical College Hospital,
Kanniyakumari, he conducted postmortem autopsy on the dead body and given
postmortem report(Ex.P5), and he was of the opinion that the deceased would
appear to have died of shock and hemorrhage due to head injury.
P.W.6, the Sub-Inspector of Police working in the respondent police, on receipt
of the complaint, registered the F.I.R. P.W.7, the Inspector of Police working
in the respondent police station, conducted the initial investigation. Since,
P.W.7 was transferred, he handed over the investigation to P.W.8,
P.W.8, completed the investigation and filed the final report.
10. The above incriminating materials were put to the accused under
Section 313 Cr.P.C. The accused denied the same as false. On his side, he has
not examined any witnesses and marked any documents.
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Crl.A.(MD) No.329 of 2021
11. Having considered the above materials, the trial Court convicted the
appellant/accused and sentenced him as stated above. Challenging the
aforesaid conviction and sentence, the appellant is before this Court with this
Criminal Appeal.
12. We have heard the learned counsel appearing for the appellant, the
learned Additional Public Prosecutor appearing for the State and also perused
the records carefully.
13. The deceased is the mother of the accused. From the evidence of
P.Ws.1 & 2, who are the brother and sister-in-law of the deceased, it could be
seen that the deceased used to quarrel with the deceased frequently.
On 03.06.2010, at about 9.00 p.m., the deceased quarrelled with the deceased
and unable to bear that, the deceased called P.Ws.1 and 2 to stay with her.
On the next day, early morning at about 5.00 a.m., both P.Ws.1 and 2, heard the
loud noise of the deceased and immediately, they woke up and found that the
accused throwing a grinding stone on the head of the deceased,
P.W.1, rushed to the police station and filed a complaint at about 8.15 a.m.
There is no delay in filing the F.I.R and the F.I.R was also reached the
jurisdictional Court on the very same day at about 10.00 a.m. The medical
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Crl.A.(MD) No.329 of 2021
evidence is also corroborating the evidence of P.Ws.1 and 2. From the perusal
of postmortem report(Ex.P5), it could be seen that the deceased suffered a
fracture in the left temporal and parietal bone and the deceased died due to the
shock and hemorrhage to the head injury. The evidence of P.Ws.1 & 2 is
consistent and their presence in the scene of occurrence is natural, medical
evidence also corroborates their evidence. Their testimony is truthful and
trustworthy, and we find no reason to disbelieve their evidence. Considering all
those materials, we are of the opinion that the prosecution has clearly proved
that it is only the accused has put a grinding stone on the head of the deceased
and caused her death.
14. The next question arises for consideration is, what was the offence
that was committed by the accused. Whether the act of the accused amounts to
murder or culpable homicide not amounting to murder.
15. From the evidence of P.Ws.1 and 2, it could be seen that prior to the
occurrence, there was a quarrel between the accused and the deceased and on
the next day, early morning, again there was a quarrel, in the heat of passion,
the accused said to have thrown a grinding stone, which was available in the
scene of occurrence, on the head of the deceased. From that, we could see that
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Crl.A.(MD) No.329 of 2021
the accused has no intention to cause death of the deceased. However, he has an
intention of causing bodily injury, which is likely to cause the death of the
deceased. The act of the accused will fall under the the third limb of 300 I.P.C.
The accused without any premeditation, attacked the deceased, in a sudden
fight, out of heat of passion, he has thrown the grinding stone available in the
scene of occurrence, on the head of the deceased. In the said circumstances, the
act of the deceased will fall under the fourth exception to Section 300 IPC.
Hence, the appellant is liable to be punished under Section 304(i) IPC not under
Section 302 IPC.
16.So far as the quantum of sentence is concerned, the accused is an
young man at the time of occurrence, he has a chance to reform himself, the
occurrence has taken place in the heat of passion on a sudden quarrel between
the accused and the deceased and the accused has attacked the deceased with a
grinding stone available in the scene of occurrence, and there is no serious
motive attributed against him. Considering the aggravating and mitigating
circumstances, we are of the considered view that sentencing the appellant to
undergo 9 years of rigorous imprisonment will meet the ends of justice.
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Crl.A.(MD) No.329 of 2021
17. In the result, this Criminal Appeal is partly allowed and the
conviction imposed on the appellant/sole accused by the Sessions Judge,
Kanyakumari at Nagercoil in S.C.No.35 of 2011, dated 17.07.2012, under
Section 302 IPC, is set aside, instead the appellant/accused is convicted for the
offence under Section 304 (i) IPC and sentenced to undergo nine years
Rigorous Imprisonment. The period of imprisonment already undergone by the
appellant-accused shall be given set-off under Section 428 Cr.P.C. The fine
amount, if any paid by the appellant/accused, shall be refunded to him. It is
stated by the learned counsel for the appellant that the appellant is in jail for
more than 9 years and 3 months. In view of the same, the appellant, is directed
to be released forthwith, unless his custody is required in any other case.
Consequently, connected Miscellaneous Petition is closed.
(V.B.D.J.,) (R.P.A.J.,)
22.09.2021
Internet: yes/no
Index : yes/no
pm
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Crl.A.(MD) No.329 of 2021
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,
Kanyakumari Division at Nagercoil.
2.The Inspector of Police,
Vadasery Police Station,
Kanniyakumari District.
3. 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.329 of 2021
V.BHARATHIDASAN, J.
and
R.PONGIAPPAN, J.
pm
Judgment in
Criminal Appeal No.(MD) No.329 of 2021
05.10.2021
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