Madras High Court
Binojyakka vs State Rep. By on 3 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
Crl.A.No.1060 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.09.2024
PRONOUNCED ON : 03.10.2024
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.A.No.1060 of 2022
Binojyakka ... Petitioner
Vs.
State rep. By
The Inspector of Police,
Annur Police Station,
Coimbatore District.
Crime No.45 of 2019 ... Respondent
PRAYER: Criminal Revision is filed under Section 482 of the Code of
Criminal Procedure, to set aside the conviction and Sentence imposed in
S.C.132 of 2019 dated 12.03.2021 on the file of the I Additional District and
Sessions Judge, Coimbatore to secure the ends of Justice.
For Petitioner : Mr.R.Sankarasubbu
For Respondent : Mr.S.Raja Kumar
Page No.1/15
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Crl.A.No.1060 of 2022
Additional Public Prosecutor
ORDER
V.SIVAGNANAM
The appellant has filed this appeal against the judgment dated
12.03.2021 passed by the I Additional District and Sessions Judge Court,
Coimbatore in SC.No.132 of 2019.
2.The appellant/accused was charged and prosecuted under Section
302 IPC by the Inspector of Police, Annur Police Station in Crime No.45 of
2019.
3.To prove the prosecution case, prosecution has examined 13
witnesses, PW 1 to PW13, and marked 13 documents Ex.A.1 to Ex.A.13.
Besides, one material object MO.1 is marked. Incriminating prosecution
witnesses explained to the accused under Section 313 Cr.P.C. He denied
them as false. Further, the accused has not examined any witnesses nor
exhibited any documents.
4.After considering the evidence and documents, the Trial Court
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convicted and sentenced the appellant for the offences under Section 302 IPC
and was sentenced to undergo life imprisonment and to pay a fine of
Rs.1000/- in default to undergo simple imprisonment for 3 months.
5.The prosecution case is that the deceased Sivasamy was residing at
Senkattuthottam, Ganesapuram in Annur Police Station limits in Coimbatore
District. The accused Binojyakka, belonging to Kunthura Village in Koraput
District in Odisha State, had come to Coimbatore District with his friends and
was searching for employment. On 31.01.2019 the accused went to
Ganesapuram to seek employment and trespassed into the gardens of the said
Sivasamy.
6.On 31.01.2019 at about 6.00 A.M, Sivasamy (since deceased) with
witnesses PW1/Chelladurai, PW2/Shanmugasundaram and Karunakaran
completed walking and was consuming tea in front of his house at his garden.
On noticing the entry of the accused into the said garden, Sivasamy
questioned him who was he and why did he come there. The accused gave
some reply in Hindi. Sivasamy asked the accused to go out of the place. But
the accused did not move. Hence Sivasamy took him to Kovai to
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Sathiyamangalam Main Road, left him and was returning to his house on the
mud Road. At that time the accused, with the intention of committing the
murder of Sivasamy, picked up a coconut fiber (bjd;idkl;il) and hit
Sivasamy repeatedly with the said weapon on his head and back. Sivasamy
fell down unconsciously.
7.PW1/Chelladurai took Sivasamy in his Omni car to Kovai Medical
Centre Hospital, Kovilpalayam at 7.05 A.M, PW6/Dr.Vishnupriya examined
Sivasamy and declared that he was already dead. She issued Ex.P.6 Accident
Register copy and Ex.P.7 Death Intimation. Meanwhile while he was chased
from the scene of occurrence by witnesses, the accused fell down and
sustained injuries. He was admitted at Annur Government Hospital at 7.50
A.M by PW2 Shanmugasundaram and PW4 Moona @ Sithender Bagh.
PW8/Dr.Kannan examined the accused for the injuries and issued Ex.P.10
Accident Register copy.
8.PW1/Chelladurai appeared at Annur Police Station on the same day
at 8.30 A.M and gave Ex.P.1 written complaint. Sivasamy, Sub Inspector of
Police received it and registered Ex.P.11 FIR in Cr.No.45 of 2019 under
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Section 302 IPC against the accused Binojyakka. PW12/Venkatesan, the
Inspector of Police, Annur Police Station took up the investigation.
9.During investigation, PW12 visited the scene of occurrence on the
same day at 9.15 A.M in the presence of PW7/Muthusamy and Selvaraj and
prepared Ex.P.12 rough sketch and Ex.P.8 observation mahazar. He
examined witnesses. He seized MO.1 coconut fiber under Ex.P.9 recovery
mahazar at 10.15 A.M from the scene of occurrence. He held inquest over the
body of Sivasamy from 12.15 P.M to 2.00 P.M at KMCH Hospital and
prepared Ex.P.13 inquest report. He sent the dead body with Ex.P.2 request
letter for conducting postmortem examination to CMC Hospital through
PW11/Kanagarajan, Special Sub Inspector of Police.
10.PW5/Dr.Peranantham conducted postmortem over the dead body of
Sivasamy and noted an antemortem injury, reddish contusions 4 x 3 x 0.5 cm
noted over outer aspect of right elbow and 10 x 4 x 0.5 cm noted over right
scapular region and on dissection of scalp, scull and dura, diffuse sub
arachnoid hemorrhage seen over both cerebral hemisphere. Doctor issued
Ex.P.3 postmortem certificate. The said Doctor preserved viscera and sent
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them for chemical analysis. In the chemical analysis no poison was detected.
Hence Doctor issued Ex.P.4 final opinion stating that, the deceased would
appear to have died of shock and hemorrhage due to the head injury.
11.PW12 arrested the accused on the same day i.e., on 31.01.2019 at
4.00 P.M at Annur Government Hospital and recorded his confession
statement with the help of PW4. He sent the accused to the court for judicial
custody.
12.As PW12 was transferred, PW13/Shanmugam joined as the
Inspector of Police, Annur Police Station and continued his investigation.
After completing the investigation, he filed chargesheet against the accused
on 09.05.2019 under Section 302 IPC in the Court of the learned Judicial
Magistrate, Mettupalayam.
13.The learned Judicial Magistrate, Mettupalayam took the
chargesheet on file as PRC No.5 of 2019 and committed the case to the
Sessions for trial on 13.11.2019. The learned I Additional District and
Sessions Judge, Coimbatore took the case on file in S.C.No.132 of 2020 and
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tried the case.
14.The learned counsel for the appellant contention is that the
judgment is against the evidence on records and contrary to law. He further
contented the alleged eye witnesses PW1/Chelladurai,
PW2/Sanmugasundaram and PW3/Lakshmi are not reliable. According to
the prosecution, the occurrence took place at 06.30 a.m., and it may not be
possible for anyone to witness the said occurrence. The complaint was filed
after two hours of the alleged occurrence. The injuries of the accused is not
explained properly by the prosecution. It tears the genuineness of the
prosecution case. The prosecution failed to conduct identification parade,
since the accused is the native of Orissa. The alleged weapon stated here is
coconut fiber (bjd;idkl;il), which could never be considered as a
dangerous weapon. The condition for offence under Section 302 is not made
out. Medical evidence shows that there is only one injury on the head and the
other injury on the back side is a simple one. Weapons used also is not a
deadly one. Further, there is no intention for the accused to cause death to the
deceased. The incident took place on a spur of moment. Therefore, the
absence of pre-meditation or any design on the part of the accused person to
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commit the murder of the deceased namely Sivasamy and no materials to
show as the accused in furtherance of the common intention to kill the
deceased Sivasamy. Therefore, the conviction of the accused under Section
302 IPC is not proper and it may be altered to one under Section 304(2) IPC.
He is in custody for more than 5 ½ years and pleaded to reduce the sentence
and to set off the accused for a period undergone in the prison and he may be
released with lesser punishment. Thus, pleaded to modify the appeal.
15.The learned Additional Public Prosecutor appearing for the State
supported the conviction and sentence of the Trial Court and further pleaded
that the evidence of PW1/Chelladurai, PW2/Sanmugasundaram and
PW3/Lakshmi are reliable one. These evidences are corroborated by the
medical evidence of PW8/Doctor Kannan and post-mortem certificate Ex.P.3.
The Trial Court rightly found the accused guilty and convicted and sentenced
him. There is no ground for interference and pleaded to dismiss the appeal as
it has no merits.
16.We have considered the matter in the light of the submissions made
by the learned counsel for the parties and perused the records.
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17.On perusal of records, evidence and documents, it is seen that the
PW 1 Chelladurai is the eye witness to the occurrence as well as the defacto
complainant in this case. He deposed that, on 30.01.2019, at about 05.30
a.m., he along with his friend PW2 Shanmugasundaram and his friends while
they were on walking went to deceased Sivasamy's house and PW3 Lakshmi/
deceased wife offered tea and at that time, the accused came to Sivasamy's
house. Sivasamy took the accused and left him at 50 feet away from the
house and while he was returning, the accused assaulted Sivasamy with
coconut fibre (bjd;idkl;il) on his neck and back. Thus, he deposed that he
witnessed the occurrence in which the Sivasamy was repeatedly hit with a
coconut fiber. PW2/Shanmugasundaram and PW3/Lakshmi also deposed
that they witnessed the occurrence. PW3/Lakshmi identified the MO.1
coconut fibre (bjd;idkl;il). PW4/Muna @ Jijendarpak translated the
confession statement of the accused to the Police. PW5/Doctor Peranandham
conduct post-mortem upon the body of the deceased. He stated that he found
ante mortem injuries seen all over the body. The relevant portion of the post
mortem certificate is extracted as follows,
“Reddish contusion 4x3x0.5cm noted over
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outer aspect of right elbow and 10x4x0.5cm noted
over right scapular region.
On dissection of Scalp, Skull and Dura:-
Diffuse Sub arachnoid hemorrhage seen over the
both cerebral hemisphere.”
18.PW6/Dr.Vishnupriya, deposed that, on 31.01.2019 at 07.00 a.m.,
while she was on duty at the Emergency Ward at KMCH Kovilpalayam
Hospital, Sivasamy was brought into the emergency ward in unconscious
state. She examined him and found him already dead and issued Accident
Registrar Ex.P.6 and also sent intimation to Annur Police Station, Ex.P.7.
PW7/Muthusamy, was the witness to the observation magazer Ex.P.8 and
recovery magazer Ex.P.9 for recovering MO.1 from the scene of occurrence
by the Inspector of Police. PW8/Dr.Kannan, Medical officer Government
Hospital, Annur gave treatment to the accused and issued accident registrar
copy Ex.P.10. PW9/Sivasamy, Sub Inspector of Police, Annur Police Station
received a complaint, Ex.P1 from PW1 and registered the FIR in Crime
No.45 of 2019 under Section 302 IPC (printed FIR, Ex.P.11).
PW10/Shanmugavel, Head Constable, Annur Police Station handed over the
express FIR to the learned Judicial Magistrate, Mettupalayam.
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PW11/Kanagaraj, Sub Inspector of Police brought the body of the deceased
Sivasamy to KMCH Kovilpalayam Hospital for conducting post-mortem.
PW12/Venkatesan, Inspector of Police, Annur Police Station investigated the
case. PW13/Shanmugam, Inspector of Police, Annur Police Sation filed final
report against the accused for the offence under Section 302 IPC.
19.Based upon the evidence of prosecution witnesses, supported by the
Medical version and prosecution exhibits, the Trial Court found guilty and
convicted the accused for the offence under Section 302 IPC.
20.The prosecution proved by witnesses that the accused by his act has
caused the death of Sivasamy.
21.Now, it should be determined, whether the facts proved by the
prosecution bringing the case within the ambit of any of the four clauses of
the definition of “Murder” contained in Section 300 IPC.
22.Having regard to the injury, as proved by the evidence of PW5 and
Ex.P3, there can be no doubt that the injury was sufficient in the ordinary
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course of nature to cause death.
23.However, from the evidence on record, we found that the
prosecution has not been able to establish any motive on the part of the
accused person for committing the offence of murder of the deceased.
Admittedly, there was no enmity between the accused person and the
deceased and there was no pre-meditation or any design on the part of the
accused person to commit the murder of Sivasamy. No material is
forthcoming to show that the accused in furtherance of common intention to
kill the deceased had assaulted him. As regards the accused in the absence of
any pre-meditation or prior design or any intention to kill the deceased and
the entire incident having taken place on a spur of the moment and the
assault being with coconut fiber on the backside of the head of the deceased
and the weapon used is not a deadly weapon, it is reasonable to hold that the
appellant/accused had only knowledge that the injuries inflicted by them
were likely to cause death of the deceased. There is no intention to cause
death.
24.In these view of the matter, the conviction of the accused by the
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Trial Court is liable to be modified into Section 304(II) IPC from 302 IPC.
Hence, we alter the conviction from 302 IPC to one punishable under Section
304(II) IPC and reduce the sentence from life imprisonment to 5 ½ years,
confirming the fine imposed by the Trial Court.
25.In the result, this Appeal is modified and conviction of the accused
is altered from Section 302 IPC to one punishable under Section 304(2) IPC
and we reduce the sentence of life imprisonment to 5 ½ years of rigorous
imprisonment and confirming the fine amount imposed by the Trial Court.
Set off already granted by the Trial Court is also confirmed. The order passed
by the I Additional District and Sessions Judge, Coimbatore made in S.C.132
of 2019 dated 12.03.2021 is set aside. With these modifications, this
Criminal Appeal is partly allowed.
(S.M.S.J.,)
(V.S.G.J.,)
03.10.2024
Index : Yes/No
Internet: Yes/No
Speaking order/Non-Speaking order
Neutral Citation : Yes/No
gd
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https://www.mhc.tn.gov.in/judis
S.M.SUBRAMANIAM, J.
and
V.SIVAGNANAM, J.
gd
To
1.The I Additional District and Sessions Judge, Coimbatore
2.The Inspector of Police,
Annur Police Station,
Coimbatore District.
3.The Superintendent of Prison,
Central Prison, Coimbatore.
4.The Superintendent of Prison,
Johat Central Prison,
State of Assam.
Pre-Delivery Order in
03.10.2024
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