Madras High Court
M.Mariyappan vs The State Represented By on 8 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 Crl.A.(MD)NO. 482 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MS.JUSTICE R. POORNIMA
Crl.A.(MD)No.482 of 2024
and
Crl.M.P(MD)No.5533 of 2024
M.Mariyappan ... Appellant /
Sole Accused
Vs.
1.The State represented by
The Inspector of Police,
Kulithalai Police Station,
Karur District.
(Crime No.772 of 2020) ... Respondent /
Respondent
2.Thangarasu
(R.2 is impleaded vide order of
this Court dated 07.11.2024) ... Respondent
Prayer: Criminal Appeal filed under under Section 374(2) of Cr.P.C, to
call for the records and set aside the judgment dated 13.12.2022 made in
S.C.No.14 of 2021 in the Court of the learned Principal District and
Sessions Judge, Karur and allow this Criminal Appeal.
For Appellant : Mr.S.Ramsundarvijayraj
https://www.mhc.tn.gov.in/judis
1/18
2 Crl.A.(MD)NO. 482 of 2024
For Respondents : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by G.R.SWAMINATHAN, J.)
This Criminal Appeal is directed against the judgment dated
13.12.2022 made in S.C.No.14 of 2021 on the file of learned Principal
District and Sessions Judge, Karur. By the impugned judgment, the
appellant was convicted and sentenced as follows::
Convicted Sentenced Fine amount
U/S.
302 of IPC To undergo and to pay a fine of
3(2)(v) of SC/ST imprisonment of Rs.2,000/- in
Act life default to undergo
S.I. for 1 Year
2.The learned counsel appearing for the appellant / convict at
the very outset submitted that he is pleading only for modification of the
judgment finding him guilty for the offence under Section 302 of IPC
and reduction of sentence.
https://www.mhc.tn.gov.in/judis
3.Per contra, the learned Additional Public Prosecutor
representing the State submitted that the impugned judgment is well
reasoned and that it does not call for interference.
4.We carefully considered the rival contentions and went
through the evidence on record.
5.The case of the prosecution is as follows:
The appellant Mariyappan and Saravanan (deceased) were
friends. The appellant is a butcher by avocation and he is running a
mutton stall. On 05.10.2020 in the afternoon, Saravanan (the deceased)
approached the appellant and asked him to lend a sum of Rs.30,000/-.
He further told the appellant that since he is rearing goats, the appellant
can come to his house the following day and take goats corresponding to
the amount of Rs.30,000/- already paid by him. On 06.10.2020 at about
04.30 p.m, the appellant went to the house of the victim and requested
him to hand over a certain number of goats for the already paid
consideration. The victim is said to have resisted the demand. The
victim took the stand that what was received by him was towards hand
loan, and the said amount did not represent the sale consideration for
https://www.mhc.tn.gov.in/judis
goats maintained by the victim. The appellant thereafter pulled out his
butcher knife / cleaver (R+hp fj;jp MO1) and inflicted multiple stab
injuries on the person of the deceased. This was witnessed by as many as
7 persons (PW1 to Pw6 and PW8). PW8 rushed to the house of PW9
who is an auto driver. PW9 brought the auto to the place of occurrence
and Saravanan was taken in the said auto by PW1 to the Government
Hospital, Kulithalai at about 05.15 p.m. PW7 Dr.Bharathi Karthiga
administered first-aid to Saravanan and referred him to Mahatma Gandhi
Memorial Government Hospital, Trichy for intensive treatment.
Saravanan was admitted in the said hospital at about 07.05 p.m by PW11.
6.In the meanwhile, medico-legal intimation was given from
Government Hospital, Kulithalai to PW12, Sub Inspector of Police,
Kulithalai Police Station at about 05.45 p.m. PW12 rushed to the
Government Hospital, Kulithalai. By then, the victim was being
prepared to be taken to the Government Hospital, Trichy for intensive
treatment.
7.Since the victim was unconscious, the Sub-Inspector of
Police (PW12) obtained complaint from PW1. PW12 thereupon returned
https://www.mhc.tn.gov.in/judis
to the Police Station and based on PW1's complaint, Crime No.772 of
2020 was registered for the offence under Section 307 of IPC. PW17
the Inspector of Police, Kulithalai Police Station took up investigation.
He went to the occurrence spot at around 06.45 p.m and prepared
observation mahazar and rough sketch. He also examined the witnesses
and recorded their statements under Section 161 of Cr.P.C. The accused
was arrested at 09.30 p.m on the same day. His confession was taken in
the presence of PW8. Based on the disclosure statement, MO1 knife was
recovered from the person of the accused / appellant.
8.On 08.10.2020, after receiving death intimation of Saravanan
at 08.00 a.m from the Government Hospital, Trichy PW17 prepared
alteration report (Ex.P15) and altered the offence from Section 307 to
that of Section 302 IPC. Thereafter, postmortem was conducted by
Dr.Priya (PW15). After ascertaining that the deceased belonged to a
Scheduled Caste community, he altered Sections 302 to that of Section
302 read with Section 3(2)(v) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 vide alteration report
(Ex.P17).
https://www.mhc.tn.gov.in/judis
9.Investigation was thereafter transferred to CBCID Metro
Wing, Chennai and PW18 took up investigation. PW18 also examined
the witnesses and recorded their statements under Section 161 of Cr.P.C.
He filed final report against the appellant herein before the learned
Principal Sessions Juge, Karur. Cognizance was taken in S.C.No.14 of
2021. Summon was issued to the appellant. Copies were served on him.
Charges were framed under Section 302 of IPC read with Section 3(2)(v)
of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The accused pleaded not guilty and claimed to be
tried.
10.PW1 to PW18 were examined and Ex.P1 to Ex.P21 were
marked. MO1 butcher knife was also marked. Incriminating
circumstances were put to the accused during examination under Section
313 of Cr.P.C. The accused characterised them as false. No evidence
was adduced on the side of the accused. The trial Court by the impugned
judgment dated 13.12.2022 found the appellant guilty of the offences
under Section 302 of IPC read with Section 3(2)(v) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
sentenced him in the manner set out above.
https://www.mhc.tn.gov.in/judis
11.The question that calls for consideration is whether the
impugned judgment passed by the Special Court deserves to be modified.
Before addressing this question, we entertained a doubt. Since this is a
case involving Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989, under Section 15(A) notice has to be served to
the defacto complainant. The question is if even at the stage of appeal,
the defacto complainant has to be heard. Section 15(A)(3) of the said
Act is as follows:
“15A. Rights of victims and witnesses
...
(3) A victim or his dependent shall have the right to
reasonable, accurate, and timely notice of any Court
proceeding including any bail proceeding and the Special
Public Prosecutor or the State Government shall inform
the victim about any proceedings under this Act.”
The Hon'ble Supreme Court in the decision reported in 2021 SCC
OnLine SC 1010 (Hariram Bhambhi Vs Satyanarayan) has held that
the requirement of issuing notice of a court proceeding to a victim or a
dependent under Section 15A(3), in order to provide them an opportunity
of being heard, is mandatory.
https://www.mhc.tn.gov.in/judis
12.In any event, since the statute contemplates hearing the
defacto complainant at all stages of the proceedings and an appeal is a
continuation of the original proceedings, we are clearly of the view that
the defacto complainant ought to be heard before the appeal filed by the
convict is disposed of.
13.In this case, the defacto complainant was served and his
name is also printed in the cause list. But he has not chosen to enter
appearance in support of the impugned judgment. The Hon'ble Division
Bench of Calcutta High Court in the decision reported in 2023 SCC
OnLine Cal 3780 (Sudip Mondal Vs State of West Bengal) held that
though notice under Section 15A(3) of the Act is mandatory, the
presence of the victim or dependent in the course of the proceeding is not
mandatory. We are satisfied that the statutory mandate has been met in
this case. The appellate Court is not obliged to go in search of the
defacto complainant who has chosen not to enter appearance after receipt
of notice.
14.As already noted, the occurrence took place in the presence
of eyewitnesses. As many as 7 persons are projected as eye-witnesses. It
https://www.mhc.tn.gov.in/judis
is not in dispute that the occurrence had taken place in the vicinity of the
residence of the victim. Therefore, only persons immediately related to
the victim will be present in the spot and they alone can be expected to
depose as witnesses in support of the prosecution. Their testimony
cannot be rejected as untrustworthy and unreliable merely because they
are related witnesses. The Hon'ble Supreme Court in the decision
reported in (1981) 3 SCC 675 (Hari Obula Reddy Vs State of Punjab)
had held as follows:
“13. ...it is well settled that interested evidence
is not necessarily unreliable evidence. Even partisanship
by itself is not a valid ground for discrediting or rejecting
sworn testimony. Nor can it be laid down as an invariable
rule that interested evidence can never form the basis of
conviction unless corroborated to a material extent in
material particulars by independent evidence. All that is
necessary is that the evidence of interested witnesses
should be subjected to careful scrutiny and accepted with
caution. If on such scrutiny, the interested testimony is
found to be intrinsically reliable or inherently probable, it
may, by itself, be sufficient, in the circumstances of the
particular case, to base a conviction thereon.”
Further the Hon'ble Supreme Court in the decision reported in (1981) 2
SCC 752 (State of Rajasthan Vs Kalki) held as follows: ;
https://www.mhc.tn.gov.in/judis
“7. ... 'Related' is not equivalent to 'interested'.
A witness may be called 'interested' only when he or she
derives some benefit from the result of a litigation; in the
decree in a civil case, or in seeing an accused person
punished. A witness who is a natural one and is the only
possible eye witness in the circumstances of a case cannot
be said to be 'interested'. ...”
15.PW1 is the father of the victim. PW2 is the sister-in-law of
the victim. PW3 is the sister of the victim. PW4 is the neighbour and he
is admittedly an independent witness. PW5 is also an independent
witness. He is a milk vendor who happened to be present in the spot
when he came to supply milk. His presence cannot be characterized as
artificial. He is a chance witness. PW6 and PW8 are also neighbours.
All these eyewitnesses have convincingly deposed against the appellant.
They clearly stated that it was the appellant who inflicted the stab
injuries on the victim. The Court below has observed their demeanour
and come to the conclusion that the act of stabbing for which the
appellant was charged had been proved beyond reasonable doubt. It is
seen from Ex.P16 (post-mortem report) that as many as 5 injuries were
inflicted on the victim. PW7 Dr.Bharathi Karthiga and PW11
Dr.Mahalakshmi have deposed that the injuries found on the body of the
deceased could have been caused by MO1. PW15 Dr.Priya had
https://www.mhc.tn.gov.in/judis
performed the post-mortem. Ex.P12 contains the final opinion of the
forensic expert. It states that on perusal of the case history of the
deceased, hospital records, post-mortem findings and RFSL findings, the
deceased would appear to have died due to complications of abdominal
injury sustained. The Court below was satisfied that the medical evidence
corroborated the occular evidence.
16.It is not disputed that the deceased belonged to Scheduled
Caste community as is evident from Ex.P19. Section 8 of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is
as follows:
“8.Presumption as to offences.—In a
prosecution for an offence under this Chapter, if it is
proved that—
...
(b) ...
(c) the accused was having personal knowledge
of the victim or his family, the Court shall presume that the
accused was aware of the caste or tribal identity of the
victim, unless the contrary is proved. ”
In this case, the foundational facts had been established by the
prosecution by examining the aforesaid 7 eyewitnesses. The appellant
https://www.mhc.tn.gov.in/judis
could not rebut the same. The sequence of events has also been
convincingly shown. There was a transaction between the appellant and
the victim. According to the appellant, the victim had agreed to sell
certain number of goats in lieu of Rs.30,000/- that he had taken from the
appellant. Since the victim did not honour his commitment, the appellant
is said to have drawn his butcher knife and inflicted stab injuries on the
victim. We are therefore satisfied that both acteus reus and mens rea
have been proved by the prosecution.
17.The next question that calls for consideration is whether the
act attributed to the appellant would constitute the offence of murder or
would amount to culpable homicide not amounting to murder. Section
300 of IPC reads as follows:
“300.Murder. - Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of
causing death, or
2ndly.—If it is done with the intention of
causing such bodily injury as the offender knows to be
likely to cause the death of the person to whom the harm
is caused, or
3rdly.—If it is done with the intention of
causing bodily injury to any person and the bodily injury
https://www.mhc.tn.gov.in/judis
intended to be inflicted is sufficient in the ordinary course
of nature to cause death, or
4thly.—If the person committing the act knows
that it is so imminently dangerous that it must, in all
probability, cause death, or such bodily injury as is likely
to cause death, and commits such act without any excuse
for incurring the risk of causing death or such injury as
aforesaid.
Exception 1.—When culpable homicide is not
murder.—Culpable homicide is not murder if the
offender, whilst deprived of the power of self-control by
grave and sudden provocation, causes the death of the
person who gave the provocation or causes the death of
any other person by mistake or accident.
The above exception is subject to the following provisos:
—
First.—That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.”
18.The Hon'ble Supreme Court in the decision reported in
(2009) 17 SCC 433 (Muthu Vs State represented by Inspector of
Police) observed as follows:
''10. ... there is a clear distinction between a case
of pre-meditated attack with intention to cause death and a
https://www.mhc.tn.gov.in/judis
case where there was no such pre- meditated intention and
death was caused in the heat of the moment or fit of anger
during an altercation or quarrel.
11. No doubt, even in the heat of the moment or
fit of anger one should not attack somebody since human
beings are different from animals inasmuch as they have
the power of self-control. Nevertheless, the fact remains
that in the heat of the moment and in a fit of anger people
some times do acts which may not have been done after
premeditation. Hence the law provides that while those
who commit acts in the heat of the moment or fit of anger
should also be punished, their punishment should be lesser
than that of premeditated offences. It is for this reason that
Exceptions I and 4 have been inserted in Section 300
IPC.''
Further in the decision reported in (2023) 12 SCC 541 (Dauvaram
Nirmalkar Vs State of Chhattisgarh), it was held as follows:
“10. Interpreting Exception 1 to the Section 300
in K.M. Nanavati v. State of Maharashtra (1962 Supp (1)
SCR 567) this Court has held that the conditions which
have to be satisfied for the exception to be invoked are
(a) the deceased must have given provocation to
the accused;
(b) the provocation must be grave;
(c) the provocation must be sudden;
https://www.mhc.tn.gov.in/judis
(d) the offender, by the reason of the said
provocation, should have been deprived of his power of
self-control;
(e) the offender should have killed the deceased
during the continuance of the deprivation of power of self-
control; and
(f) the offender must have caused the death of
the person who gave the provocation or the death of any
other person by mistake or accident.
11.For determining whether or not the
provocation had temporarily deprived the offender from
the power of self-control, the test to be applied is that of a
reasonable man and not that of an unusually excitable and
pugnacious individual. Further, it must be considered
whether there was sufficient interval and time to allow the
passion to cool.
...
14.The question of loss of self-control by grave
and sudden provocation is a question of fact. Act of
provocation and loss of self-control, must be actual and
reasonable. The law attaches great importance to two
things when defence of provocation is taken under
Exception 1 to Section 300 of the IPC. First, whether there
was an intervening period for the passion to cool and for
the accused to regain dominance and control over his
mind. Secondly, the mode of resentment should bear some
relationship to the sort of provocation that has been given.
https://www.mhc.tn.gov.in/judis
The retaliation should be proportionate to the
provocation. ”
19.It is not as if the appellant had any ill-will to kill the victim.
The victim had asked the appellant to lend him a sum of Rs.30,000/- the
previous day i.e., on 05.10.2020. He went to the house of the victim the
next day for taking away the goats in exchange of the money he had
already lent. The victim had second thoughts in the meanwhile as to
whether he wanted to part with his goats. The victim took the stand that
he had taken the money from the appellant only by way of hand-loan and
that amount did not represent the price for the goats. Rs.30,000/- is not a
small amount for some one who is a butcher by avocation. It is pertinent
to note that all the eye-witnesses have uniformly deposed about the
verbal altercation between the accused and deceased. The appellant
probably felt cheated and enraged when the victim refused to give the
promised goats. Therefore, the appellant came under grave and sudden
provocation and experienced lost of self-control. There is nothing
strange about the appellant carrying a butcher knife (cleaver / R+hp fj;jp)
with him. Since he got uncontrollably angry, he had taken out the knife
and inflicted stab injuries on the victim. Interestingly, MO1 knife was
recovered from the person of the appellant. We are more than satisfied
https://www.mhc.tn.gov.in/judis
that the occurrence had taken place at the spur of the moment and the
fatal blow can be clearly traced to the influence of passion arising from
the provocation that was caused on account of the victim's refusal to part
with the goats as promised. There is no evidence to show that there was
any premeditation or calculation on the part of the appellant.
20.We are satisfied that the case of the appellant would fall
under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. We therefore find the appellant
guilty of the offence under Section 304(ii) of IPC r/w Section 3(2)(v) of
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989. In the interest of justice, the sentence imposed on the
appellant is modified to 7 seven years rigorous imprisonment. The
impugned judgment of the court below is accordingly modified. The
period of incarceration already undergone by the appellant shall be set
off under Section 428 of Cr.PC. This Criminal Appeal is partly allowed.
No costs. Consequently, connected miscellaneous petition is closed.
[G.R.S., J.] [R.P., J.]
08.01.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
MGA
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
AND
R.POORNIMA, J.
MGA
To:
1.Principal District and Sessions Judge,
Karur.
2.The Inspector of Police,
Kulithalai Police Station,
Karur District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
08.01.2025
https://www.mhc.tn.gov.in/judis
