R.Durai vs State By The Inspector Of Police
2023 Latest Caselaw 3546 Mad

                                                                                      Crl.A.No.192 of 2016


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 31.03.2023

                                                         CORAM

                         THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

                                                    Crl.A.No.192 of 2016

               R.Durai                                                                   ... Appellant

                                                            vs.

               State by The Inspector of Police
               B1, Central Town Police Station,
               Uthagamandalam, The Nilgris.
               (Crime No.313 of 2013)                                       ... Respondent
               Prayer : Criminal Revision filed under Sections 397 r/w 401 of the Code of
               Criminal Procedure praying against the judgment of the learned Sessions Judge,
               Magalir Neethimandram (Fast Track Court), Uthagamandalam, The Nilgris made
               in S.C.No.26 of 2015 by 29.02.2016, convicting the appellant herein for the
               offence under Section 304(II) IPC instead of offence under Section 302 IPC and
               sentencing him to undergo 3 years R.I. and to pay fine of Rs.5000/- in default to
               undergo six months S.I. And the period already undergone by him for the period
               from 28.09.2013 to 20.11.2013 shall be deducted from the period of sentence
               under Section 428 IPC and finding him not guilty of the offence under Section
               498(A) IPC and acquitting him under Section 235(1) Cr.P.C.
                                   For Appellant                  : Mr.T.Shanmugam

                                   For Respondent                 : Mr.L.Baskaran
                                                                    Government Advocate (Crl. Side)



https://www.mhc.tn.gov.in/judis
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                                                                                    Crl.A.No.192 of 2016




                                                      ORDER

This Criminal Appeal has been filed against the judgment and order passed

by the learned Sessions Judge, Mahila (FTC) Court, Uthagamandalam, The

Nilgris in S.C.No.26 of 2015, dated 29.02.2016, convicting the petitioner under

Section 304 (ii) of IPC and sentencing him to undergo three years rigorous

imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo six

months simple imprisonment.

2.The case of the prosecution is that the appellant and deceased Devi loved

each other and ultimately, got married. Through the wedlock, twins (one male

and one female) and yet another male child were born to them. The further case

of the prosecution is that there were frequent quarrels between the deceased and

the appellant. On 27.09.2013, the deceased Devi is said to have insisted that the

appellant should stay at home and this led to a quarrel and appellant is said to

have punched the deceased on her chest and as a result, the deceased fell down

and her head dashed on a bureau resulting in head injuries. The deceased was

rushed to Vijayaraj Hospital by her mother (PW1) and she was declared brought

dead. Hence, the deceased was taken to the Government Hospital, Ootacamund.

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Crl.A.No.192 of 2016

3.PW1, who is the mother of the deceased gave a complaint (EX.P1) on

27.09.2013 at about 20:30 hours. On receipt of the complaint before the B1,

Central Town Police Station, Nilgris, PW15 registered an FIR (Ex.P4) in Crime

No.313 of 2013 under Section 174(3) of Cr.P.C. Since the demise had taken

place within six years after marriage, PW15 referred the matter to the Revenue

Divisional Officer (PW11). The Revenue Divisional Officer went to the

Government Hospital, Ootacamund and conducted the inquest over the dead

body of the deceased in the presence of the panchayathars and Inquest Report

was marked as Ex.P5. He also recorded the statement of all the parties concerned

and the residents living adjacent to the place of occurrence. After the completion

of the inquiry, he came to a conclusion that demand for dowry was not the reason

for the demise of Devi and serious injuries have been sustained by the deceased

which requires to be investigated by the police. The report of the Revenue

Divisional Officer was marked as Ex.P7.

4.The investigation was taken over by PW16. He went to the scene of

crime and prepared the Observation Mahazer marked as Ex.P2 and the Rough

Sketch marked as Ex.P13. He thereafter went to the Government Hospital and

recorded the statement of PW1. He also recorded the statements of the other

witnesses and came to a conclusion that the death had taken place only due to the https://www.mhc.tn.gov.in/judis

Crl.A.No.192 of 2016

attack made by the appellant and accordingly, he prepared the Alteration Report

which was marked as Ex.P14 and the offence was altered to Section 302 of IPC.

5.The investigation was thereafter taken over by PW17. He continued with

the investigation by recording the statements of the witnesses under Section 161

(3) of Cr.P.C. The appellant was arrested and was produced before the concerned

Court and he was remanded to judicial custody.

6.In the meantime, the post-mortem was conducted by PW13 and the Post-

mortem Certificate was marked as Ex.P10. The injuries that were found in the

body of the deceased were recorded in the Post-mortem Certificate and they are

as under:

Nil external injuries noted on the body

- Laceration 2 x 1 cm x scalp deep noted over right occipital region.

On dissection of thorax and abdomen: - Reddish contusion 4x3 cm noted on inner aspect of lower past of sternum. Pericardial cavity contained about 200 grams of blood clots. Laceration 2x0.5 cm x cavity deep noted on the lateral wall of right ventricles.

On dissection of Scalp, skull and Dura: Sub scalp contusion 3x2 cm noted over right occipital region

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Crl.A.No.192 of 2016

7.PW13 gave a final opinion to the effect that the deceased would appear

to have died of Traumatic Rupture of the heart.

8.The Investigation Officer on completion of recording the statements of

the witnesses and after collecting all the relevant reports, laid the final report on

11.11.2013 before the learned Judicial Magistrate, Ootacamund, which was taken

on file in PRC. No.33 of 2014. The learned Judicial Magistrate served the copies

to the appellant under Section 207 of Cr.P.C. The case was committed under

Section 209 of Cr.P.C., and was made over to the Court below.

9.The Court below framed charges against the appellant for offences under

Sections 498 (a) and 302 of IPC. When the appellant was questioned on the

charges, he denied the same.

10.The prosecution examined PW1 to PW17 and marked Ex.P1 to P14.

The incriminating evidence that was collected during the course of trial was put

to the appellant when he was questioned under Section 313 (1)(b) of Cr.P.C., and

he denied the same as false.

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Crl.A.No.192 of 2016

11.The Court below on considering the facts and circumstances of the case

and on appreciation of oral and documentary evidence, came to a conclusion that

the appellant has committed the offence of culpable homicide not amounting to

murder and accordingly, sentenced him in the manner stated supra. Aggrieved by

the same, the present Criminal Appeal has been filed before this Court.

12.Heard Mr.T.Shanmugam, learned counsel appearing on behalf of the

petitioner and Mr.L.Baskaran, learned Government Advocate (Criminal Side)

appearing on behalf of the respondent.

13.This Court has carefully considered the submissions made on either

side and also the materials available on record.

14.PW1 is the mother of the deceased. She was residing along with

deceased. On 27.09.2013, when the incident took place, she was very much

present in the house and she was taking care of the child. She heard the wordy

quarrel between the appellant and the deceased. After the deceased was punched

on her chest, she fell down and sustained head injuries. PW1 immediately rushed

and found that her daughter had sustained head injuries and blood was oozing

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Crl.A.No.192 of 2016

out. It was PW1, who had taken the deceased to the Doctor and it is clear from

the evidence of PW12 that the deceased was brought by PW1 on 27.09.2013 at

about 7.15 p.m. and Devi was brought dead. Immediately, the Accident Register

was prepared by PW12 and the same was marked as Ex.P8. It is seen that the

father and mother of the deceased had brought the deceased to the Government

Hospital, Ootacamund and it has been noted as 'Brought Dead” and the body was

kept in the mortuary. This Accident Register was prepared at 7.15 p.m. The

incident is said to have taken place at about 18:45 hours on 27.09.2013. Hence,

the body was brought to the hospital at the earliest point of time by PW1 and by

her husband. Hence, the presence of PW1 in the scene of occurrence has been

proved beyond reasonable doubt.

15.PW2, who is the sister of the deceased and she speaks about the regular

quarrels that used to take place between the appellant and the deceased and also

of the fact that the appellant was a drunkard and was committing cruelty on the

deceased on a regular basis.

16.PW3 is yet another sister, who also has deposed in line with the

evidence of PW2. PW4 to PW7 are the neighbours, who speak about the regular

quarrels between the deceased and the appellant. They also speak about PW1

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Crl.A.No.192 of 2016

coming out of the house crying after the incident took place and the dead body of

the deceased being taken to the hospital.

17.The evidence of PW9 and PW10 is also in the same lines and they are

also the neighbours of the deceased. A cumulative reading of the evidence of all

these witnesses shows that the relationship between the appellant and the

deceased was not smooth and there were regular quarrels and it ultimately

resulted in the deceased being attacked by the appellant on 27.09.2013, wherein,

the deceased had sustained head injuries. The nature of injuries sustained by the

deceased has also been spoken by the post-mortem Doctor through whom, the

Post-mortem Certificate was marked as Ex.P10. The post-mortem Doctor in his

evidence has categorically stated that the deceased died due to Traumatic

Rupture of the heart. Even though an attempt has been made on the side of the

appellant to project as if the deceased fell down after the rupture of the heart, the

same is unsustainable in view of the clear evidence deposed by PW1.

18.It is beyond doubt that the appellant was very much available in the

scene of occurrence and it is evident from the deposition of PW1. The appellant

has kept silent when the incriminating evidence was put to him when questioned

under Section 313 of Cr.P.C. If the appellant does not explain as to how the https://www.mhc.tn.gov.in/judis

Crl.A.No.192 of 2016

incident had taken place, Section 106 of the Indian Evidence Act will come in to

play, since the appellant is duty bound to explain the facts which are within his

knowledge. If the appellant fails to explain those facts, an adverse inference can

be drawn against him. Useful reference can be made to the judgment of the Apex

Court in Tomaso Bruno and another vs. State of Uttarpradesh reported in 2015

7 SCC 178. In the absence of any explanation from the appellant, this Court has

to necessarily act upon the strong evidence of PW1, who has spoken about the

incident and her evidence has not been discredited in the cross-examination.

19.The next issue to be gone into is as to whether the appellant must be

convicted and sentenced under Section 304 (ii) of IPC. The Court below has

come to a conclusion that the act of the appellant will constitute culpable

homicide not amounting to murder. For coming to such a conclusion, the act of

the appellant must fall within one of the three limbs under Section 299 of IPC.

The appellant is said to have punched the deceased in her chest and she fell down

and hit the bureau resulting in head injuries. This act of the appellant is not as a

result of an intention to cause death or with an intention or knowledge to cause

such bodily injury as is likely to cause death. Unfortunately, the deceased fell on

a bureau after she was punched by the appellant and sustained head injuries. The

special mens rea that is necessary for the offence under Section 299 of IPC is https://www.mhc.tn.gov.in/judis

Crl.A.No.192 of 2016

absent in this case.

20.In view of the above, the facts of the present case can be brought within

eighthly under Section 320 of IPC, since the act of the appellant has endangered

the life of the deceased. Accordingly, the appellant can be punished under

Section 325 of IPC. The conviction is therefore modified from Section 304 (ii)

IPC to Section 325 of IPC.

21.Insofar as the sentence is concerned, this Court enquired the learned

Government Advocate as to the present status of the appellant and the three

children. The Inspector of Police of B1, Central Town Police Station,

Ootacamund has given a report to the effect that the children are taken care by

the appellant and his parents. The appellant has not married any one and he is

doing coolie work and he is also taking up mason work. The twins are now aged

about 14 years and the son who was born thereafter is now 12 years.

22.Taking into consideration the facts and circumstances of the case and in

order to impose an appropriate sentence, the appellant is sentenced to

imprisonment for the period already undergone by him. The fine amount imposed

by the Court below is sustained and it has also been paid which is evident from

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Crl.A.No.192 of 2016

the order passed by this Court in Crl.M.P.No.2638 of 2016, dated 04.04.2016.

The appellant is further directed to pay a total compensation of Rs.2,75,000/-

(Rupees Two Lakhs and Seventy Five Thousand only). Out of this amount, fixed

deposit shall be taken in the name of the daughter Anbarasi for a sum of

Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand only) and the same shall

be renewed from time to time till the marriage of the said Anbarasi. Similarly,

separate fixed deposits shall be taken in the name of the sons Anbarasu and

Anbuselvan for Rs.75,000/- (Rupees Seventy Five Thousand only) each. The

fixed deposit shall be renewed from time to time till they reach majority. In

default in payment of the compensation amount fixed by this Court, the appellant

shall undergo one year rigorous imprisonment. The compensation amount shall

be deposited on or before 02.06.2023.

23.In the result, the judgment and order passed by the learned Sessions

Judge, Mahila (FTC) Court, Uthagamandalam, The Nilgris, dated 29.02.2016 in

S.C.No.26 of 2015 is modified to the extent indicated herein above and this

Criminal Appeal is partly allowed.

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Crl.A.No.192 of 2016

N. ANAND VENKATESH, J.

ssr

24.Post this case under the caption 'For Reporting Compliance' on

05.06.2023.

                                                                                    31.03.2023
               Index        : Yes/No
               Internet     : Yes/No
               Speaking Order/Non-Speaking Order
               Neutral Citation Case : Yes/No
               ssr


               To

               1.The Sessions Judge,
                 Magalir Neethimandram (Fast Track Court),
                 Uthagamandalam, The Nilgris

               2.The Inspector of Police
                 B1, Central Town Police Station,
                 Uthagamandalam, The Nilgris.




                                                                         Crl.A.No.192 of 2016


https://www.mhc.tn.gov.in/judis