Madras High Court
Balamurugan vs State Through on 6 October, 2021
Crl.A.(MD).No.373 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :06.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Crl.A.(MD).No.373 of 2018
1.Balamurugan
2.Nagappan ... Appellants /Accused Nos.1 and 2
-vs-
State through
the Inspector of Police,
Nachiyarkovil Police Station,
Thanjavur District
in Crime No.157 of 2013. ... Respondent
PRAYER : Criminal Appeal is filed under Section 374 of Cr.P.C., against
the conviction and sentence dated 17.07.2018 in S.C.No.158 of 2014, by the
Additional District Sessions Court (Fast Track Court), Kumbakonam,
Thanjavur District.
For Appellants : Mr.N.Ananthapadmanaban
1/17
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Crl.A.(MD).No.373 of 2018
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
The appellants are the accused Nos.1 and 2 in S.C.No.158 of 2014, on
the file of the Additional District Sessions Court (Fast Track Court),
Kumbakonam, Thanjavur District and they stood charged and tried for the
offence under Section 302 of I.P.C.
2. The trial Court, vide impugned judgment dated 17.07.2018, has
convicted the appellants herein for the above said offence and imposed the
sentences, thus:
Accused Conviction Sentence
To undergo life imprisonment and to pay a fine
First U/s. 302 of
of Rs.5,000/-, in default to undergo six months
Accused I.P.C.
rigorous imprisonment.
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Crl.A.(MD).No.373 of 2018
To undergo life imprisonment and to pay a fine
Second U/s. 302 of
of Rs.5,000/-, in default to undergo six months
Accused I.P.C.
rigorous imprisonment.
3. The case of the prosecution in brief as follows:
The deceased one Pugalendhi is the son of P.Ws.1 and 2, A2 is the
brother of P.W.1 and A1 is the son of A2. There was a civil dispute between
them regarding a landed property. There were frequent quarrels between the
families. On 02.06.2013, at about 8.30 p.m., while the deceased and P.Ws.1
and 2 were in the house, both the accused quarrelled with P.W.1 and both A1
and A2 pushed down P.Ws.1 and 2. At that time, the deceased came out of
the house and questioned A1 and at that time, both the accused attacked the
deceased with a wooden log on his head, and the deceased fell down.
Immediately, P.Ws.7 and 11, took him in a motorcycle to the Government
Hospital, Kumbakonam, on the way to hospital, he succumbed to the
injuries. Hence, they returned back with the body of the deceased to his
house. On the next day, at about 5.00 a.m., P.Ws.1 and 2 went to the
respondent police station and filed a complaint (Ex.P1).
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Crl.A.(MD).No.373 of 2018
4. P.W.22, Inspector of Police, in the respondent police station, on
receipt of the complaint, registered a F.I.R. in Crime No.157 of 2013, for the
offence under Section 302 of I.P.C., and sent the F.I.R.(Ex.P10) to the
concerned Judicial Magistrate Court and copies to the higher officials.
Immediately, P.W.22 commenced the investigation and proceeded to the
scene of occurrence and prepared Observation Mahazar (Ex.P.11) and
Rough Sketch (Ex.P.12). At about 8.00 a.m., P.W.22, conducted inquest on
the dead body of the deceased in the Government Hospital, Kumbakonam,
in the presence of witnesses and prepared the Inquest Report/Ex.P13 and he
sent the body for postmortem autopsy through P.W.21. On 03.06.2013, at
about 1.00 p.m., he arrested both the accused. On such arrest, they
voluntarily come forward to give confession statements and based on the
admissible portion of the confessions, P.W.22 recovered two wooden logs,
M.Os.1 and 2, then he sent the accused remanding to judicial custody.
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Crl.A.(MD).No.373 of 2018
5. In the mean time, P.W.14, Doctor, working in the Government
Hospital, Kumbakonam, conducted postmortem autopsy on the dead body
of the deceased and given a Postmortem Certificate – Ex.P4, and found the
following injuries:
“Body of a male lying on its back. Rigor mortis all four
limbs. Eye closed. Tongue inside mouth.
External Injuries: Abrasion ® foot 4 x 4 cms. Neck –
hyoid bone – intact. Ribs – Intect. Lungs - ® 450 gms. (L) 450
gms cut Section congested. Heart – wt 250 gms. Stomach 200
ML & Food particles present. Intestine – Empty. Liver – Wt
1500 gms C/s. Congested. Spleen – Wt 100 gms C/w.
Congested. Kidney – Wt 100 gms Each C/s Congested. Scalp,
Skull, membranes – Intact. Brain Wt 1500 gms. C/S/
congested. PM conluded on 03.06.2013 at 1.45 p.m. Death
would appear to have occurred 14-18 hrs. prior to P.M.”
P.W.14 was of the opinion that the deceased appears to have died of
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Crl.A.(MD).No.373 of 2018
neurogenic shock.
6. P.W.22, Inspector of Police in the respondent police station,
continued the investigation and recorded the statements of other witnesses
and on completion of investigation, he has filed a final report.
7. Based on the above materials, the trial Court framed the charges
against the accused as mentioned above. However, the appellants/accused
have denied the same. The prosecution, in order to sustain their case,
examined 22 witnesses, marked 16 documents and also produced 2 material
objects.
8. Out of the witnesses examined, P.W.1, is the father of the deceased
and he is an eyewitness to the occurrence. According to him, on the date of
occurrence ie., on 02.06.2013, at about 8.30 p.m., both the accused
quarrelled with them and the same was questioned by the deceased and they
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Crl.A.(MD).No.373 of 2018
have attacked him with wooden logs. P.W.2 is the mother of the deceased
and she is also an eyewitness to the occurrence.
9. P.W.3 is the sister of the deceased and she is also an eyewitness to
the occurrence. According to her, both the accused Nos.1 and 2 attacked the
deceased with the wooden logs on the head. P.Ws.4 to 18, except P.W.14,
are the neighbours and related to the deceased, turned hostile.
10. P.W.14 is the Doctor, who conducted postmortem autopsy on the
dead body of the deceased, and he was opined that the deceased died of
neurogenic shock and he also stated that there is no external injury, except a
small abrasion in the right foot of the deceased. The visceral report also
shows that the deceased is a drunkard and a habitual alcoholic and huge
amount of alcohol found in the visceral part of the deceased.
11. P.W.19 is the Special Sub Inspector of police, who handed over
the F.I.R., to the Judicial Magistrate Court. P.W.20 is the Scientific Officer
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Crl.A.(MD).No.373 of 2018
working in the forensic lab. He examined visceral part of the deceased and
given a Viscera Report - Ex.P.9.
12. P.W.21 is the Head Constable, who identified the body for
postmortem. P.W.22 is the Inspector of Police, who conducted investigation,
arrested the accused, recorded the statement of the witnesses and filed the
final report.
13. When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., both the accused denied the same as false and
they have not examined any witnesses and not marked any documents.
14. Considering all those materials, the trial Court convicted all the
accused and sentenced them as stated Supra. Now, challenging the
conviction and sentence, both the accused are before this Court with this
criminal appeal.
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Crl.A.(MD).No.373 of 2018
15. Mr.N.Ananthapadmanaban, learned counsel appearing for the
appellants submitted that, both the accused and the deceased are closely
related and admittedly, there is a civil dispute pending between them. On the
date of occurrence, there was a quarrel between the parties. As per the
evidence of P.W.1, A1 and A2 pushed down both the P.Ws.1 and 2 and
attacked the deceased with wooden logs in the head and caused his death.
But the medical evidence is not corroborating the evidence of P.Ws.1 to 3.
P.W.14, the Doctor found no external injury on the deceased, except a small
abrasion on the right foot. He was of the opinion that the deceased would
appear to have died of neurogenic shock and nothing to do with the alleged
injury sustained by the accused. That apart, Ex.P9 - Forensic Report,
regarding the visceral part of the deceased states that huge amount of
alcohol is found in the stomach, intestine, liver and kidney, and the deceased
is a drunkard and the evidence of other hostile witnesses shows that during
the quarrel, he fell down. From that medical evidence, it is clear that the
occurrence is not taken place as stated by the eyewitnesses.
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Crl.A.(MD).No.373 of 2018
16. The learned counsel for the appellants would further submit that,
even assuming that the accused have pushed down the deceased, without
any intension to cause the death of the deceased, it will only attract lesser
offence and it is not a case of 302 of I.P.C. He further submitted that all the
three witnesses are the father, mother and sister of the deceased, they are all
interested witnesses and they have not came up with the truth. Hence, their
evidence is not reliable and untrustworthy and it cannot be considered for
convicting the accused.
17. Mr.S.Ravi, learned Additional Public Prosecutor appearing for the
State submitted that, there are three eyewitnesses to the occurrence. Since
the occurrence took place in the house of the deceased, the presence of the
eyewitnesses is natural and it cannot be doubted. It is the consistent
evidence of all the eyewitnesses that after pushing down P.Ws.1 and 2, both
the accused attacked the deceased with wooden logs on his head with the
intension to cause his death. Even though the medical evidence shows no
external injury, from the postmortem report, it could be seen that brain was
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Crl.A.(MD).No.373 of 2018
congested and there was a injury in the brain. That apart, according to P.W.
14, the Doctor, who conducted postmortem autopsy on the dead body of the
deceased, neurogenic shock will occur due to some spinal cord injury and
while the deceased was pushed down by the accused, he said to have
sustained injury in the spinal cord, it may also a cause to the death of the
deceased. According to the learned Additional Public Prosecutor, all the
eyewitnesses consistently stated that only these accused have attacked the
deceased with wooden logs and caused his death. The trial Court also
considering those evidence in proper perspective, convicted the accused for
the offence under Section 302 of I.P.C. and there is no reason to interfere
with the same.
18. We have considered the rival submissions and perused the
materials available on record.
19. P.Ws.1 to 3 are the eyewitnesses to the occurrence and they are
the father, mother and sister of the deceased. It is the consistent evidence of
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Crl.A.(MD).No.373 of 2018
all the three eyewitnesses that both the accused attacked the deceased with
wooden logs on the head, with the intension to cause his death. But the
medical evidence is not corroborating the evidence of eyewitnesses. From
the perusal of the Postmortem Report – Ex.P4, it could be seen that there is
only a minor abrasion in the right foot, apart from that, there is no external
injuries found especially in the head.
20. As rightly contended by the learned counsel appearing for the
appellants, Ex.P9, Viscera Report find the following features;
“1.Stomach
Detected 748 (Seven hundred and forty eight)
milligrams of ethyl alcohol but not other poison.
2.Intestine
Detected 690 (Six hundred and ninety) milligrams of
ethyl alcohol but not other poison.
3.Liver
Detected 863 (Eight hundred and sixty three)
milligrams of ethyl alcohol but not other poison.
4.Kidney
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Detected 805 (Eight hundred and five) milligrams of
ethyl alcohol but not other poison.
5.Preservative
Did not detect ethyl alcohol or other poison”.
21. From that, it could be seen that the deceased is a habitual
alcoholic and at the time of occurrence, he was fully drunk and in a
intoxicated mood. Apart from that, P.W.14, Doctor, has opined that the cause
of death is a neurogenic shock. From the Medical Jurisprudence, the
neurogenic shock is normally occurs due to some spinal cord injury, but
there is no evidence to show that, the accused attacked the deceased from
his back. From those medical evidence, it could be seen that the deceased
not died of any head injury as alleged by the prosecution. P.W.4, who is
related to the deceased, in her evidence, she has clearly stated that while
coming out of the house, the accused fell down, though she was treated as
hostile, to that extent we can consider her testimony. While the accused
questioned under Section 313 of Cr.P.C., both of them have stated that while
they were coming out of the house, the deceased was in a drunken mood and
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Crl.A.(MD).No.373 of 2018
fell down and died.
22. Considering all these cumulative circumstances, it could be seen
that, in a wordy quarrel, both the accused said to have pushed down both the
P.Ws.1 and 2 and the deceased, while falling down, the deceased might have
sustained some injuries in the spinal cord, which leads to the Neurogenic
shock, ultimately killed the deceased. Hence, the act of the accused will not
fall either under Section 299 of I.P.C., or under Section 300 of I.P.C., but
they are punishable only under Section 323 of I.P.C. In such circumstances,
we are of the considered view that the appellants are liable to be punished
for the offence under Section 323 of I.P.C.
23. In the result, the Criminal Appeal is partly allowed and the
conviction and sentence imposed on the appellants / accused Nos.1 and 2,
by the Additional District and Sessions Judge (Fast Track Court),
Kumbakonam, Thanjavur District in S.C.No.No.158 of 2014, dated
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Crl.A.(MD).No.373 of 2018
17.07.2018, under Section 302 of I.P.C., is set aside, instead the
appellants/Accused Nos.1 and 2 are convicted under Section 323 of I.P.C.,
So far as the sentence is concerned, it is stated that both the accused were in
jail for more than one year, the accused are sentenced for the period of
imprisonment already undergone by them. The fine amount, if any, paid by
the appellants/accused Nos.1 and 2 shall be refunded to them.
[V.B.D.,J.] [J.N.B.,J.]
06.10.2021
Index : Yes / No
Internet : Yes / No
akv
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 Additional District Sessions Court (Fast Track Court),
Kumbakonam,
Thanjavur District.
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).No.373 of 2018
2. The Inspector of Police,
Nachiyarkovil Police Station,
Thanjavur District
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Crl.A.(MD).No.373 of 2018
V.BHARATHIDASAN,J.
and
J.NISHA BANU,J.
akv
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.
JUDGMENT MADE IN
Crl.A.(MD).No.373 of 2018
06.10.2021
https://www.mhc.tn.gov.in/judis
