Madras High Court
Alagarsamy vs The State on 2 January, 2023
2023/MHC/97
Crl.A(MD)No.604 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.01.2023
CORAM
THE HON'BLE DR JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR JUSTICE SUNDER MOHAN
Crl.A(MD)No.604 of 2019
Alagarsamy .. Appellant/Sole Accused
Vs.
1.The State, rep by
The Sub-Inspector of Police,
Keelavalavu Police Station,
Melur,
Madurai District
(in Crime No.98 of 2012) .. Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure, calling for the records pertaining to the conviction and sentence
passed in S.C.No.306 of 2016, dated 3.1.2018, on the file of the Ist
Additional Sessions and District Judge, Madurai.
For Appellant :Mr.J.Gunaseelan Muthiah
For Respondent :Mr.A.Thiruvadikumar
Additional Public Prosecutor
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Crl.A(MD)No.604 of 2019
JUDGMENT
DR G.JAYACHANDRAN,J.
and
SUNDER MOHAN,J.
This Criminal Appeal is filed by the life convict, who was found
guilty and charged under Section 302 IPC by the trial Court.
2.According to the prosecution, the deceased and the accused are
neighbours. They have the persistent dispute regarding pathway. On the
day of the event, after attending a funeral, both were returning home and
due to previous enmity, quarrel erupted in between them on the way to
home and ended in accused murdering the deceased by hitting the
deceased with a grinding stone on the fore-head.
3.The Criminal Law was set in motion by the deceased, who was at
the relevant point of time inside the house and came out of the house on
hearing the alarming noise, she saw the accused sitting on her husband and
causing injury with stone on the head. Two other witnesses who were
neighbours also came out hearing the noise. Seeing them, the accused has
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Crl.A(MD)No.604 of 2019
flew away from the scene of occurrence. Hoping that the injured husband is
alive, P.W.1 has arranged for ambulance, but the ambulance people on
examining the deceased, informed her that he is dead. Narrating the same
complaint – Ex.P1 was lodged by P.W.1 and the same was taken up for
investigation. On completion of investigation, the accused was found
committed for the offence under Section 302 IPC, charges framed by the
trial Court and accordingly, the accused was tried.
4.To prove the charges, prosecution has examined 16 witnesses,
marked 17 exhibits and 7 material objects through them. On behalf of the
defense, neither witnesses were examined nor documents were marked.
5.The trial Court, considering the cumulative evidence of P.W.1, P.W.
2 and PW.3, who are the witnesses to the occurrence, who came to the scene
of occurrence on hearing the alarming noise of the deceased saw the
accused sitting upon the deceased and hitting him with the grinding stone,
which is marked as MO.1. P.W.4, witness who has attested the complaint
Ex.P1 held that offence of culpable homicide committed by the accused is
proved through the eye-witnesses.
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Crl.A(MD)No.604 of 2019
6.The Post-mortem Certificate is marked as Ex.P2, which discloses
the nature of injuries sustained by the deceased, which was fatal. The
Doctor who has conducted the autopsy has opined that those injuries might
have been caused by using MO1 Grinding Stone. At the time of arrest,
blood-stained clothe of the accused were collected and the same was sent
to Serology Test. The blood-stain found in the grinding stone, lungi and
shirt of the accused confirmed to be human blood. However, the group of
the blood was not conclusive as per Ex.P11.
7.The Trial Court, after considering the evidence at length, has
imposed life sentence with fine of Rs.5000/-, in default, to undergo one year
rigorous imprisonment for the proved offence under Section 302 IPC.
8.Aggrieved by the conviction and sentence imposed by the trial
Court, the present Criminal Appeal is filed on the ground that there is
considerable delay in registering the FIR and forwarding the same to the
Judicial Magistrate Court concerned. While the occurrence took place on
14.6.2012 at about 9.15 p.m., the complaint was lodged with a delay of 2
hours and 15 minutes and the FIR was forwarded to the Judicial Magistrate
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Crl.A(MD)No.604 of 2019
only on the next day. The delay was not properly explained by the
prosecution.
9.The learned counsel for the appellant submit that the prosecution
has failed to prove the motive regarding pathway not proved. The previous
enmity between the deceased and the accused. The evidence of P.W.1, P.W.2
and P.W.3 are unnatural and even according to them, they did not see the
deceased being attacked by the accused directly. They came out from the
house only on hearing the noise and saw the accused sitting on the
deceased. The learned counsel would submit that the scene of occurrence
has not been properly identified and there is discrepancy in evidence of the
witnesses regarding the exact place of occurrence. The learned counsel
further submits that the evidence let in by the prosecution also give room
to infer that there was sudden quarrel between the accused and the deceased
which has lead to the occurrence and who had provoked for the alleged
quarrel has not been established by the prosecution. Hence the benefit must
be extended to the accused.
10.The learned Additional Public Prosecutor appearing for the
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Crl.A(MD)No.604 of 2019
respondent/State would submit that it is a clear case of eyewitness where
the accused was found in company with the deceased at the time of
occurrence and the witnesses have consistently spoken that the accused
was sitting upon the deceased and hitting him with grinding stone MO1.
Blood stain on the cloth of the deceased, fracture on the rib of the deceased,
the injuries on the right and left eye-brow and the injury in the nose all
indicates and corresponds to the stone used as weapon, as a cause for the
injury. The accused has not explained how his wearing apparel stained with
human blood. Since he has failed to explain the presence of the blood in
his cloth and the unimpeachable evidence of P.W.1, P.W.2 and P.W.3
corresponding to the injuries found in the post-mortem report Ex.P2 would
clearly show that the deceased was brutally attacked by the accused
without any provocation or due to previous enmity regarding pathway.
11.Heard the learned counsel for the appellant and the learned
Additional Public Prosecutor appearing for the respondent/State.
12.The occurrence, according to the prosecution, happened on
14.6.2012 at about 9.15 p.m.. Ex.P1 is the complaint given by the wife of
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Crl.A(MD)No.604 of 2019
the deceased. The said complaint was received by the respondent Police at
23.30 hours and forwarded to the learned Judicial Magistrate on the next
day ie., on 15.6.2012 at 6.10. a.m. The First Information Report was sent
through the Constable Karthikeyan who was examined as P.W.10. The
records and the evidence indicates that as soon as the receipt of the
complaint, the First Information Report has been registered and forwarded
to the Judicial Magistrate concerned within a reasonable time and few
hours taken to forward the FIR to the Magistrate Court does not indicate any
scope of manipulation. Therefore, the ground raised by the appellant
regarding the delay in registering the complaint and forwarding the FIR is
unsustainable.
13.As far as the scene of occurrence is concerned, it has occurred in
between the house of the accused and the deceased. The occurrence took
place in the night hours and few feet difference, as spoken by the rustic
witness does not make any significant difference to suspect the evidence
regarding the scene of occurrence. As far as the reason for the attack, there
is some point for consideration in this appeal, since the prosecution was not
able to establish that the accused attacked the deceased with an intention to
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Crl.A(MD)No.604 of 2019
cause death or the injuries sufficient and cause death or it was a pre-
meditative evidence. As per the prosecution, there was previous enmity
between the accused and the deceased regarding the pathway. But on the
date of occurrence, they both have attended a funeral in the village and
were returning back to home. As per P.W.2, Muthu Kannan, at about 9.15
p.m., they both were seriously engaged in verbal fight. For sometime, he
was able to hear the voice of the accused alone and therefore, he came out
and saw the deceased lying on his back and the accused sitting on the
deceased and hitting with grinding stone. This part of evidence
substantially had been corroborated by P.W.1 and P.W.3. In the cross
examination, the defense is able to elicit from P.W.3 that P.W.1 suffers
hearing impairment and she who informed by P.W.1 about the incident.
Thereafter, she came out from the house. This evidence is contrary to P.W.1
version, who is the first informant and had stated in Ex.P1-Complaint that
she had on her own come out from the house hearing noise and saw the
incident.
14.Be that as it may, the prosecution has proved through witnesses
that the accused had caused the injury found on the deceased and the
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Crl.A(MD)No.604 of 2019
weapon used is MO1 Grinding Stone. Whether it has occurred based on any
provocation or occurred in heat of passion during sudden quarrel is to be
considered for determining whether it is culpable homicide amounting to
murder or not amounting to murder.
15.This Court from the evidence finds that this has happened while
both the deceased and the accused returning home after attending the
funeral. They both were not carrying any weapon or had any intention to
fight. Suddenly quarrel had erupted in between them. There is no evidence
to know the immediate cause for the quarrel. The deceased was aged 50
years, attacked by the accused, who was 30 years old. Naturally, being
young, had the power to overcome the deceased and had attacked him with
the available stone found near the scene of occurrence in the heat of passion
upon a sudden quarrel and without taking undue advantage or acted in a
cruel or unusual manner.
16.P.W.1-Wife of the deceased, in the cross-examination admits that
her husband was not well and used to take medicine for his illness. This has
been her response when she was posed with the question in the cross
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Crl.A(MD)No.604 of 2019
examination that whether her husband had drunk at the time of occurrence.
Also, she admits that her husband and the accused attended the funeral and
were returning back to home. She has denied the knowledge whether there
was any quarrel between them in the grave-yard. On cumulative
assessment of all these facts indicates that the said occurrence has probably
occurred without any premeditation in a sudden fight in the heat of passion
on the quarrel in which the accused has not taken any undue advantage
except the age difference.
17.Taking note of all these things, this Court holds that the act of the
accused falls within the exemption(IV) under section 300 IPC being
culpable homicide not amounting to murder and hence the punishment
under Section 302 is not sustainable. The accused liable to be punished only
for offence under Section 304(1) of IPC.
18.Regarding the question of sentence, the accused who is the
appellant herein, at the time of occurrence was about 30 years and has
committed the above said offence in the heat of passion and therefore, it is
appropriate to modify the sentence and accordingly, the sentence is
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Crl.A(MD)No.604 of 2019
modified to the effect that the appellant/accused is directed to undergo five
years rigorous imprisonment and to pay a fine of Rs.5000/-, in default,
further to undergo rigorous imprisonment for one year.
19.With these modifications, the Criminal Appeal is allowed. The
respondent Police is directed to secure the appellant/accused and confine
him to prison to undergo the remaining period of sentence. The suspension
of sentence already granted by this Court on 27.09.2021 is hereby cancelled
and the bail bond, if any, already executed stands cancelled.
(G.J.,J.) (S.M.,J.)
02.01.2023
Index:Yes/No
Internet:Yes/No
NCC : Yes/No
vsn
To
1.The I Addl. Sessions and District Judge,
Madurai.
2.The Sub-Inspector of Police,
Keelavalavu,
Melur,
Madurai District.
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Crl.A(MD)No.604 of 2019
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to:
The Superintendent,
Central Prison,
Madurai.
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Crl.A(MD)No.604 of 2019
DR G.JAYACHANDRAN,J.
and
SUNDER MOHAN,J.
vsn
JUDGMENT MADE IN
Crl.A(MD)No.604 of 2019
02.01.2023
https://www.mhc.tn.gov.in/judis
