Madras High Court
Raja vs The Assistant Commissioner on 20 April, 2023
CRL.A.(MD).No.176 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.04.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.A.(MD).No.176 of 2016
and
Crl.M.P(MD)No.4655 of 2021
Raja ... Appellant/Accused
Vs.
The Assistant Commissioner,
Tallakulam,
Crime No.196 of 2016,
Anna Nagar Police Station,
Madurai. ... Respondent/Complainant
PRAYER : Criminal Appeal filed under Section 374(2) of Cr.P.C to set
aside the conviction and sentence passed by the learned III
Additional Sessions Judge (PCR), Madurai, dated 29.02.2016 made
in S.C.No.40 of 2004 by allowing the present Criminal Appeal.
For Appellant : Mr.K.S.Durai Pandian
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
1/15
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CRL.A.(MD).No.176 of 2016
JUDGMENT
This appeal has been preferred as against the order of
conviction and sentence passed in S.C.No.40 of 2004, dated
29.02.2016 on the file of the learned III Additional Sessions Judge
(PCR), Madurai.
2.The case of the prosecution is that on 13.02.2001, at
about 05.00 a.m., the accused went to the Tea shop owned by the
victim, where the victim asked money for the Tea along with the
earlier balance money which was borrowed from his son, the
accused abused him with filthy language by mentioning his
community name and attacked him by his hands and legs. He
attacked his private part and also scrotal. Therefore, he sustained
injuries and immediately he was taken to the Hospital. Hence, the
complaint. On receipt of the complaint, the respondent registered
the F.I.R in Crime No.196 of 2001 for the offences under Sections
341 and 323 of I.P.C. After a period of six months, the victim died
on 14.07.2001. Therefore, P.W.1-the wife of the deceased victim
lodged another complaint. On receipt of the same, the respondent
altered the offence under Sections 341 and 323 of I.P.C into
Sections 341 and 302 of I.P.C and Section 3(2)(v) of SC/ST Act,
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CRL.A.(MD).No.176 of 2016
1989. After completion of the investigation, the respondent filed a
final report and the same has been taken cognizance in S.C.No.40
of 2004 on the file of the learned III Additional Sessions Judge
(PCR), Madurai.
3.On the side of the prosecution, they had examined
P.W.1 to P.W.19 and marked Exs.P.1 to P.18. The prosecution also
produced material object M.O.1 and on the side of the accused, no
one was examined and marked Ex.D.1.
4.On perusal of the oral and documentary evidence, the
trial Court found the accused guilty only for the offence punishable
under Section 307 of I.P.C and sentenced him to undergo 7 years
Rigorous Imprisonment and imposed a fine of Rs.3,000/-, in default
to undergo six months Simple Imprisonment and acquitted him for
the offence under Sections 3(2)(v) of SC/ST Act, 1989 and 3(1)(x)
of SC/ST Act. Aggrieved by the same, the present Appeal.
5.The learned counsel appearing for the appellant would
submit that on the date of the alleged occurrence, even according to
the victim, the appellant along with two others went to his shop and
when the victim demanded to pay the cost for a Tea and also the old
balance which was borrowed from his son, the appellant and two
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CRL.A.(MD).No.176 of 2016
others attacked him by their hands, legs and also stick. Therefore,
he sustained injuries. Immediately, he went to the Hospital and his
statement was recorded in the accident register, which was marked
as Ex.P.12. It revealed that the victim was attacked by three known
persons by hands, legs and stick at about 05.00 a.m on
13.02.2001. It was recorded at about 09.55 a.m on 13.02.2001.
Whereas the victim lodged the complaint before the respondent, in
which he categorically alleged that the appellant alone attacked him
with his hands and legs and on his private part and scrotal.
Immediately, he was treated and discharged from the hospital
within a period of three days. However, he sustained some infection
and again he was admitted in the hospital for hernia and he
performed surgery on the victim. Unfortunately, due to cardiac
arrest, he died. Once again P.W.1, namely his wife, lodged the
complaint by an improved version that the appellant attacked the
victim by hands and legs and also abused him mentioning his caste
name. On the said complaint, the respondent altered the offence
under Sections 341 and 323 of I.P.C into Sections 341 and 302 of
I.P.C and Section 3(2)(v) of SC/ST Act, 1989.
6.The learned counsel appearing for the appellant would
further submit that the Doctor who treated the victim categorically
deposed that he recorded the accident register in which the victim
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CRL.A.(MD).No.176 of 2016
stated that he was attacked by three known persons. The victim
suffered with hernia and as such, he had undergone hernia
operation after discharge from the hospital. Again he had a hole in
his small intestine and as such, he had undergone another
operation. He certified that the injuries sustained by the victim are
grievous. There was absolutely no intention for the appellant to do
away with the life of the deceased. Therefore, the offence under
Section 307 of I.P.C would not be attracted. Even then, without
considering the same, the trial Court convicted the appellant for the
offence punishable under Section 307 of I.P.C.
7.Per contra, the learned Additional Public Prosecutor
appearing for the respondent would submit that the victim was
sustained grievous injuries on a private part and scrotal and as
such, admitted in the hospital and he has undergone surgery and
even then it was not cured, therefore, again he had undergone
another surgery. Unfortunately, after six months, he died. Though
the respondent altered the offence under Sections 341 and 323 of
I.P.C into Sections 341 and 302 of I.P.C and Section 3(2)(v) of
SC/ST Act, 1989, after completion of the investigation, the
respondent filed a final report only for the offence under Section
307 of I.P.C and Section 3(2)(v) of SC/ST Act, 1989. The victim's
wife was examined as P.W.1. She categorically deposed that only
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CRL.A.(MD).No.176 of 2016
the appellant had attacked the victim on his vital part and due to
which he sustained injuries. In fact, that leads to his death. It is also
duly corroborated by the evidence of the Doctor, who was examined
as P.W.15. Therefore, the trial Court rightly convicted the appellant
and the same does not warrant any interference by this Court.
8.Heard the learned counsel appearing on either side
and perused the materials available on record.
9.The victim was running a Tea shop. The appellant was
also the owner of neighbour's shop. The appellant borrowed money
from the victim's son. While being so, on 13.02.2001 at about 05.00
a.m when the appellant visited the shop of the victim to drink tea,
after having tea when the victim asked about the money and also
for the earlier due which was borrowed from his son, the appellant
attacked him by hands and legs on private part. Therefore, he
sustained grievous injuries. Immediately, after the occurrence, the
victim went to the respondent Police Station and lodged the
complaint. It was marked as Ex.D.1. On perusal of the said
complaint revealed as follows:-
“,d;W mjpfhiy 5 kzp mstpy; ehd; vdJ O
filapy; mLg;ig gw;witj;J bfhz;L ,Ue;njd. mg;nghJ
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CRL.A.(MD).No.176 of 2016
new;W vdJ ngudplk; flDf;F ruf;F thq;fpa uh$h vd;gth;
vdJ fil mUnf te;jhh;. Mthplk; fld;fhir nfl;ljw;F>
vd;id mrpq;fkhf jpl;otpl;L fPnH js;sptpl;L vdJ caph;
jsj;jpy; kpjpj;J> mjdhy; vdJ tpiu tapw;W gFjpf;F Vwp
%r;R jpzWfpwJ. vdnt mjpfhhpfs; ,ij tprhhpj;J vdf;F
ePjp tHq;FkhW jhH;ika[ld; nfl;Lf;bfhs;fpnwd;.”
10.Accordingly, he was attacked only by the appellant.
Whereas, he was referred to the Government Rajaji Hospital along
with a memo from the Sub Inspector of Police reference
No.11/MC/KIPS2001, dated 13.02.2001. Where the Assistant
Surgeon recorded the accident register as follows:-
“Alleged to have been sustained
injury due to assaulted by three known
persons with fk;g[> iffshy;> fhyhy; kpjpj;J at
about 5 a.m., on 13.02.2001 at ,e;jpuh efh;.”
As per the accident register, the victim was attacked by three known
persons, that too by stick, hands and legs.
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CRL.A.(MD).No.176 of 2016
11.Normally, the injured person would visit the hospital,
where the accident register was recorded on the other hand by
recording the statement of the victim. In the case on hand, the
victim went to the Police Station and thereafter, on the memo from
the respondent Police Station the victim went to the hospital.
Therefore, the said contradiction need not be considered for any
purpose.
12.After a period of six months, the victim died.
Immediately, the wife of the victim, namely P.W.1, lodged the
complaint on 13.07.2001, which was marked as Ex.P.1. On perusal
of Ex.P.1 reveals as follows:-
“ fle;j 13.02.2001k; Njjp fhiy Rkhh; 5
kzpf;F vdJ fzth; Rg;igah Bf;filapypUe;jNghJ
vq;fs; filf;F mUfpy; Bf;fil elj;jptUk; uhNre;jpud;
Nrh;it kfd; ,uh[h vd;gthplk; vq;fs; filapy;
fldhf thq;fpa U.30/-I Nfl;ljw;F Vd;lh guj;
jhNahop> cdf;F vd;d jpkph; ,Ue;jhy; vd;idg; ghh;j;J
fhiyapy; fld; Nfl;gha; vd;W $wp vdJ fztiu
ifahy; Xq;fp mbj;Jk; fhyhy; vdJ fzthpd;
caph;jsj;jpy; Xq;fp vj;jptp;l;lhh;. vd; fzthpd; tpiuapy;
vj;jpajhy; mth; kaq;fptpl;lh;. ,J rk;ge;jkhf mz;zh
efh; fhty; epiyaj;jpy; ehq;f md;iwf;F Gfhh;
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CRL.A.(MD).No.176 of 2016
nfhLf;f mz;zh efh; NghyP]; ]Nlrdpy; tof;F
Nghl;L tprhuiz nra;jhh;fs;. vd; fzth; Rkhh; 2 khj
fhykhf kJiu nghpah];gj;jphpapy; cs;
Nehahspahf ,Ue;jhh;. ntspNa te;j gpd;Dk;> mtUf;F
mbf;fb VjhtJ njhe;juT nra;J te;jjhy; ehq;f
mtUf;F mt;tg;NghJ jdpahh; kUj;Jtkid nrd;W
rpfpr;ir nra;J te;Njhk;. mg;gbapUf;f> vd; fzth;
Rg;igah 13.07.2001k; Njjp (nts;spf;fpoik) ,uT 10
kzpf;F vd; tPl;by; (gLj;j
gLf;ifahf ,Ue;jth;) ,we;Jtpl;lhh;. vd; fzth;>
Nkw;gb ,uh[h mbj;J fhyhy; kpjpj;jjhy; jhd; ,we;jh;.
eltbf;if vLf;f Nfl;Lf;nfhs;fpNwd;. ,J rk;ge;jkhf
vd; kfs; Kj;Jkhhp kw;Wk; vd; nfhSe;jd;
S.Ch;fhyDld; jq;fsplk; te;J Gfhh; nfhLj;Njd;.”
13.It is a completely improved version as pointed out by
the learned counsel appearing for the appellant and after receipt of
the same, the respondent altered the offence under Sections 341
and 323 of I.P.C into Sections 341 and 302 of I.P.C and Section 3(2)
(v) of SC/ST Act, 1989. During the investigation, after perusal of the
postmortem report and also opinion with regard to the death of the
victim, they filed a final report for the offence under Section 307 of
I.P.C read with Section 3(2)(v) of SC/ST Act, 1989. On perusal of
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CRL.A.(MD).No.176 of 2016
the opinion revealed that after sustained injury during the
occurrence on 13.02.2001, the deceased victim was treated at
Government Rajaji Hospital, Madurai and he had also undergone
surgery and thereafter, he was discharged from the hospital on
25.03.2001, after full recovery from his illness. He died on
13.07.2001 from occlusion of left coronary artery of the heart. So
his death was not related to the previous injuries sustained by him,
as he recovered from his illness.
14.The Doctor, who treated the victim after the
occurrence, was examined as P.W.15. He deposed as follows:-
“ehd; jw;Nghj muR uh[h[p
kUj;Jtkidapy; mWit rpfpr;irj; Jiw Nguhhrphpauhf
gzpGhpe;J tUfpNwd;. 13.2.2001k; Njjp fhiy 10.20
kzpf;F ehd; cjtp kUj;Jtuhf gzpapypUe;jNghJ>
jd;id milahsk; njhpe;j xU egh; fhiy itj;J
kpjpj;jjhff; $wp kUj;Jtkidf;F Rg;igah vd;gth;
te;jpUe;jhh;. mtiu ghpNrhjid nra;j NghJ 6 X 6
nr.kP mstpy; ,lJ Gwk; rpuha;Tg; gFjpapy; ,Ue;jJ.
mtiu ghpNrhjid nra;jjpy; ,lJGw Fly; ,wf;fk;
milg;gl;L ,Ue;jJ. mtUf;F mWit rpfpr;ir
nra;ag;gl;L> rpfpr;ir mspf;fg;gl;lJ. kPz;Lk; 6 ehl;fs;
fopj;J mtuJ rpWFlypy; Xl;il tpOe;jpUe;jjhy;
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CRL.A.(MD).No.176 of 2016
kPz;Lk; xU mWit rpfpr;irr; nra;ag;gl;L 25.3.2001k;
Njjp mth; tpLtpf;fg;gl;lhh;. mtUf;F Vw;gl;l fhaq;fs;
nfhLq;fhak; vd;W fUj;Jiu toq;fp rhd;wpjo;
toq;fpAs;Nsd;.”
15.Accordingly, the injuries sustained by the victim were
declared as grievous injury. Though the victim sustained a grievous
injury in order to attract the offence under Section 307 of I.P.C.,
there was no ingredients placed by the prosecution. As per the
deposition of P.W.1 and the complaint lodged by the deceased victim
revealed that he sustained only grievous hurt by the appellant. That
apart, the prosecution also failed to prove that the victim was
attacked with stick by the appellant. He attacked the deceased only
with his legs and hands. He hit the victim's private part and also
scrotal, due to which, he sustained injury. It was declared as a
grievous one. Further, he had no intention to do away with the life
of the victim. In this regard, it is relevant to extract the provision
under Section 307 of I.P.C which reads as follows:-
“307. Attempt to murder.—Whoever does any
act with such intention or knowledge, and under
such circumstances that, if he by that act caused
death, he would be guilty of murder, shall be
punished with imprisonment of either description for
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CRL.A.(MD).No.176 of 2016
a term which may extend to ten years, and shall
also be liable to fine; and if hurt is caused to any
person by such act, the offender shall be liable
either to 1[imprisonment for life], or to such
punishment as is hereinbefore mentioned.”
16.In order to justify the conviction under Section 307
of I.P.C, it is not essential that bodily injury capable of causing death
should have been inflicted. An attempt in order to be criminal need
not be the penultimate act foreboding death. It is sufficient in law if
there is present an intent coupled with some overt act in execution
thereof, such act being proximate to the crime and if the attempt
has gone so far that it would have been complete but for the
extraneous intervention which frustrated its consummation. There
are different stages in a crime. First, the intention to commit it,
second, the preparation to commit it; third, an attempt to commit it.
17.In the case on hand, the appellant had no intention
to murder the deceased. In fact, he went to the shop of the victim
and he had tea from his shop. When the victim asked money for the
tea and also the earlier balance, he attacked with his hands and
legs. Unfortunately, hit his private parts and scrotal and he
sustained grievous injuries. Therefore, no offence is made out under
Section 307 of I.P.C. However, the victim sustained injuries hurt.
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CRL.A.(MD).No.176 of 2016
Therefore, it would attract the offence punishable under Section 323
of I.P.C.
18.In view of the above, the conviction under Section
307 of I.P.C cannot be sustained as against the appellant. But he is
liable to be convicted for the offence under Section 323 of I.P.C and
the Judgment passed in S.C.No.40 of 2004, dated 29.02.2016 on
the file of the learned III Additional Sessions Judge (PCR), Madurai,
thereby convicting the appellant for the offence under Section 307
of I.P.C is hereby set aside, however, this Court found the accused
guilty for the offence under Section 323 of I.P.C. In so far as the
sentence is concerned, he had already undergo more than five
months imprisonment. Therefore, the appellant is sentenced to
undergo for the period which was already undergone by him.
19.Accordingly, this Criminal Appeal is partly allowed.
Consequently, the connected Miscellaneous Petition is closed.
20.04.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
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CRL.A.(MD).No.176 of 2016
ps
To
1.The III Additional Sessions Judge (PCR),
Madurai.
2.The Assistant Commissioner,
Tallakulam,
Anna Nagar Police Station,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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CRL.A.(MD).No.176 of 2016
G.K.ILANTHIRAIYAN, J.
ps
CRL.A.(MD).No.176 of 2016
20.04.2023
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