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.
1/17
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Crl.A.(MD).No.373 of 2018
For Appellants : Mr.N.Ananthapadmanaban
For Respondent : Mr.S.Ravi
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:
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Crl.A.(MD).No.373 of 2018
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.
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 and A2 is the
brother of P.W.1 and A1 is the son of A2 and there is a civil dispute between
them regarding the landed property and there was a frequent quarrel
between the family. On 02.06.2013, at about 8.30 p.m., while the deceased
and P.Ws.1 and 2 in the house, both the accused quarrelled with P.W.1.
While P.Ws.1 and 2 questioning the same, the accused Nos.1 and 2 pushed
down both the P.Ws.1 and 2. At that time, the deceased came out of the
house and also questioned the accused Nos.1 and 2, A2 attacked the
deceased with wooden log on his head and A1 also attacked him with
another wooden log in his head and the deceased fell down. Immediately,
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Crl.A.(MD).No.373 of 2018
P.Ws.7 and 11 took him in the motorcycle to the Government Hospital,
Kumbakonam. However, on the way he succumbed to injuries. Hence, they
returned back the body to the 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.
4. P.W.22, the Inspector of Police in the respondent police station, on
receipt of the complaint, registered an 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 and copies to the higher officials.
Immediately, P.W.22 has commenced the investigation and proceeded to the
scene of occurrence and prepared Observation Mahazar/Ex.P11 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 to the 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
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Crl.A.(MD).No.373 of 2018
voluntarily come forward to give a confession statement and based on the
admissible portion of the confession, P.W.22 recovered two wooden logs,
M.Os.1 and 2, then he remanded the accused to judicial custody.
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.”
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and he was of the opinion that the deceased appears to have died of
neurogenic shock.
6. P.W.22, Inspector of Police in the respondent police station,
continued the investigation and recorded the statement of other witnesses
and on completion of investigation, he 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 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, who 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 shown that there is no external injury, except
a small abrasion in the right foot of the deceased. The viscera report also
shows that the deceased is the 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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working in the forensic lab. He examined visceral part of the deceased and
given a Viscera Report - Ex.P9.
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 caused 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 show 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. The learned counsel for the
appellants even assuming that the accused have pushed down the deceased,
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Crl.A.(MD).No.373 of 2018
without any intension to cause the death of the deceased and it will only
attract the 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 and they are all interested witnesses and they are not came up
with the truth. Hence, their evidence is not reliable and untrustworthy and it
cannot be considered for convicting the accused .
16. 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 in his head with the
intension to cause his death. Even though the medical evidence shows that
no external injury, from the postmortem report, it could be seen that brain
was congested and there was some injury in the brain. That apart, according
to P.W.14, the Doctor, who conducted postmortem autopsy on the dead body
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Crl.A.(MD).No.373 of 2018
of the deceased, neurogenic shock will occur only due to some spinal cord
injury and the deceased might have been pushed down by the accused,
thereby he 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 and convicted
the accused for the offence under Section 302 of I.P.C. and there is no
reason to interfere with the same.
17. We have considered the rival submissions and perused the
materials available on record.
18. 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
all the three eyewitnesses that it is only both the accused attacked the
deceased with wooden logs in the head, with the intension to cause his
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Crl.A.(MD).No.373 of 2018
death. But the medical evidence is not corroborating the evidence of
eyewitness. 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 the
minor abrasion in the right foot of the deceased, there is no external injuries
found.
19. As rightly contended by the learned counsel appearing for the
appellants that unless any external injuries and corresponding internal
haemorrhage found, it cannot be said that the deceased died of injuries said
to have sustained by the wooden log. That apart, Ex.P9, Viscera Report also
find the following injuries:
“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)
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milligrams of ethyl alcohol but not other poison.
4.Kidney
Detected 805 (Eight hundred and five) milligrams of
ethyl alcohol but not other poison.
5.Preservative
Did not detect ethyl alcohol or other poison”.
20. From that, it could be seen that the deceased is a habitual
alcoholic and at the time of occurrence, he only drunk and intoxicated
mood. Apart from that, according to P.W.14, the Doctor opined that the
cause of death is neurogenic shock. From the Medical Jurisprudence and
Toxicology, the neurogenic shock is normally occurs due to some spinal
cord injury.
21. From those medical evidence, it could be seen that the deceased
not died of any head injury sustained by him, but only due to some injury in
the spinal cord. P.W.4 is related to the deceased and in her evidence, she has
stated that the deceased fell down, while coming out of the house. But,
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Crl.A.(MD).No.373 of 2018
however, she was treated as hostile. While the accused are questioning
under Section 313 of Cr.P.C., both of them have stated that while coming
out of the house, the deceased was in a drunken mood and fell down and
died. But however, considering the humiliated 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
may have sustained some injuries in the spinal cord, which leads to the
Neurogenic shock, which ultimately kill 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 punished only under Section 323 of I.P.C. In such
circumstances, the appellants are only liable to be punished for the offence
under Section 323 of I.P.C.
22. 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 are in
jail for more than one year. Hence, the period of imprisonment already
undergone by the appellants shall be set off of 428 of Cr.P.C. 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.
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Crl.A.(MD).No.373 of 2018
To
1. The Additional District Sessions Court (Fast Track Court),
Kumbakonam,
Thanjavur District.
2. The Inspector of Police,
Nachiyarkovil Police Station,
Thanjavur 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.373 of 2018
V.BHARATHIDASAN,J.
and
J.NISHA BANU,J.
akv
JUDGMENT MADE IN
Crl.A.(MD).No.373 of 2018
06.10.2021
https://www.mhc.tn.gov.in/judis
