Madras High Court
Muniyasamy vs The State Rep. By on 4 March, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.55 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 04.03.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.55 of 2021
Muniyasamy ... Appellant/Sole Accused
Vs.
The State rep. by
The Inspector of Police,
Surakudi Police Station,
Thoothukudi District.
(in Cr.No.142 of 2014) ...Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of the Criminal
Procedure Code to call for the entire records connected to the Judgment
in S.C.No.330 of 2016 on the file of the I Additional District and
Sessions Court, Thoothukudi, dated 24.11.2020 and set aside the
conviction and sentence imposed against the appellant.
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1/14
Crl.A(MD)No.55 of 2021
For Appellant : Mr.G.Karuppasamy Pandian
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
JUDGMENT
G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
This Criminal Appeal is filed against the conviction and
sentence passed against the appellant/sole accused in the judgment dated
24.11.2020 passed by the I Additional District and Sessions Court,
Thoothukudi, by convicting and sentencing the appellant for the offence
punishable under Section 302 IPC and sentenced to undergo
imprisonment for life and to pay a sum of Rs.2,000/- in default, to
undergo three months simple imprisonment.
2. The appellant herein is the sole accused in S.C.No.330 of
2016. Based on the complaint given by one Muthuraj, examined as P.W.
1, the respondent police registered FIR in Crime No.142 of 2014 on
09.09.2014 at about 20.00 hours and took up the investigation. The
complaint revealed that on 08.09.2014 at about 2.30 p.m, when the
informant along with his brother Marisamy and wife of the deceased and
few others were removing garbage in a tractor owned by Boopathy, the
accused came and picked up quarrel with his brother Marisamy for
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engaging Boopathy with whom he has enmity. In the force of the quarrel,
the accused took a wooden log from nearby and gave a single blow on
Marisamy on his head. Marisamy was taken to the Vilathikulam Hospital
and thereafter, Government Hospital at Thoothukudi. On 11.09.2014, at
about 11.00 a.m Marisamy died. On intimation from the Thoothukudi
Hospital, the police has come to know about the incident. However, only
on receipt of the written complaint from P.W.1, FIR was registered and
forwarded to the Judicial Magistrate and simultaneously, investigation
was taken up. On the death of Marisamy, the charge was altered from
Section 307 IPC to 302 IPC. Meanwhile, the accused surrendered before
the Judicial Magistrate on 12.09.2014 knowing about that the
Investigation Officer took the permission of the Court for police custody
and the accused was taken into custody by the Investigation Officer on
17.09.2014. Based on the confession given by the accused, a wooden log
and cloth were recovered under mahazar Ex.P.5 in the presence of Village
Administrative Officer. On completion of the investigation, a final report
was filed.
3. Based on the materials placed, the Sessions Court framed
charge under Section 302 IPC and tried the accused.
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4. To substantiate the charges, prosecution marshalled 17
witnesses, 21 exhibits and one material object. On the defence side, no
document or oral evidence was let in.
5. The Trial Court after appreciating the evidence found that
the occurrence was being witnessed by the brother of the deceased P.W.1
and wife of the deceased P.W.2. The wooden log used was recovered on
the confession statement given by the accused. The postmortem report
had disclosed that the deceased Marisamy has succumbed to death due to
the injury sustained on the head, which caused complication. The blood
sample collected from the wooden log -M.O.1 was sent to Laboratory
and found that it contains human blood. Therefore, on cumulative
assessment of these evidence, the accused was found guilty for the
offence under Section 302 IPC and sentenced to undergo life
imprisonment with fine of Rs.5,000/- in default three months simple
imprisonment. The said findings of the Court below have been
challenged in this appeal, on the ground that the trial Court has found
that P.W.2 is not an eyewitness to the occurrence. Having held so, the
evidence of P.W.1 who had deposed that he saw the occurrence along
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with P.W.2 also falls to the ground and ought to have been disbelieved.
Contrarily, the trial Court had solely relied upon the evidence of P.W.1 to
convict the accused without considering the improbability in the
evidence of P.W.1 and contradictions found in the other prosecution
witnesses.
6. The learned counsel would submit that though the case of
the prosecution on the charge is that the accused hit the deceased with a
wooden log repeatedly, the postmortem report indicates only one external
injury near the eye.
7. The earliest document is the Accident Register maintained
by the Vilathikulam Hospital. The said Accident Register marked as Ex.P.
6 shows that the injured Marisamy was taken to the hospital by his
brother Muthuraj and he has informed the Doctor that the injury was
sustained due to his self fall under the influence of alcohol. On medical
advice, the patient was shifted to Thoothukudi Government Hospital on
08.09.2014 at about 06.00 p.m., and even there, it was only recorded as
accidental fall. While so, the FIR which came to be registered on
09.09.2014 at 20.00 hours based on the statement of P.W.1 contains
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embellished fact implicating the accused with whom the said Boopathy
was not in good terms and complaint was fabricated at the instance of
Boopathy to fix the appellant. The learned counsel for the appellant
would further submit that the delay in registering the FIR and forwarding
it to the Judicial Magistrate would enhance the suspicion about the
veracity of the complaint and the false implication of the accused.
8. The learned counsel for the appellant submit that though
the patient was taken to the Government Hospital, Vilathikulam on
08.09.2014 and thereafter, shifted to Government Hospital, Thoothukudi
on the same day, at about 6.00 p.m., the inordinate delay in registering
the FIR was not properly explained by the prosecution.
9. He would further submit that the interpolation in athatchi-
Ex.P.5 regarding seizure of M.O.1 by inserting a word 'blood stain' in a
different hand writing would falsify the case of the prosecution regarding
use of M.O.1 to commit the crime. Even P.W.1 who claims to be an
eyewitness to the occurrence had not identified M.O.1 as the weapon
used by the accused to cause injury. P.W.1 in the cross examination was
not certain and categorically stated that it is impossible to break (stick)
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wooden log like M.O.1 and during the investigation, the Investigation
Officer showed him a different stick and not M.O.1.
10. The learned counsel heavily relied upon the medical
evidence and the ocular evidence which go contrarily regarding the
injuries. Even if the case of the prosecution is to be taken into account,
the occurrence has happened without any premeditation and out of
sudden provocation and in any event, the offence will not attract the
ingredients required to punish a person under Section 302 IPC.
11. The sum and substance of the submissions made by the
learned counsel for the appellant is that the probability of P.W.1 and P.W.
2 being present at the scene of occurrence is remote. The weapon used to
cause injury to the deceased was not identified by the witnesses. The
description of M.O.1 varies while the seizure mahazar says that it is 135
cm length; SFL report says, it is 136 cms, whereas the Village
Administrative Officer who witnessed the seizure had deposed that the
length of wooden log is 185 cm. Above all, P.W.1 has categorically stated
that M.O.1 is not the weapon shown by the Inspector at the time of
investigation.
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12. It is also the case of the appellant that the alleged
recovery after 10 days of the occurrence from the scene of crime, is also
highly doubtful. Pointing out the discrepancy among the witnesses
regarding the exact place of occurrence, it is emphatically argued that the
occurrence could not have been occurred in the manner in which the
prosecution has projected.
13. Per contra, the learned Additional Public Prosecutor
would submit that it is a clear case of murder witnessed by two persons,
one the brother of the deceased and another wife of the deceased. Though
the trial Court had its own reason to hold that P.W.2 the wife of the
deceased might have come to the spot subsequently, the evidence of P.W.
1 stands unimpeached and also natural. The occurrence has taken place
in the field of the deceased. The accused had come to the scene of
occurrence and picked up quarrel with the deceased for engaging
Boopathy to lift garbage from the field. It is an unprovoked aggression
on the part of the accused to go and picked quarrel with the deceased, the
alleged motive for falsely implicating the accused carries no merit, since
it is not substantiated by any material evidence.
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14. As far as the entry in the Accident Register maintained at
Vilathikulam Hospital and Thoothukudi Government Hospital, the
learned Additional Public Prosecutor would submit that the entries in
Accident Register regarding the reason for injury cannot be given undue
weightage, since such information is provided to the Doctor not by the
person who sustains injury, but the person who accompanies him in most
of the cases, who may not be the witness to the occurrence. Even in this
case, the entry indicates that the patient was unconscious and brought by
his brother. What information given to the Doctor regarding the cause for
injury will not carry merit.
15. The injury caused to the victim had fracture on
dissection of scalp, skull and dura, diffuse subarachnoid hemorrhage note
over both cerebrum and cerebellum. A curvilinear fracture of length 4
cms seen in the left frontal bone with surrounding contusion. This injury
correlates with the material object, viz., wooden log. Though the Doctors
have opined that this could have been caused by sudden fall, the
probability of such fall ruled out by the ocular evidence of P.W.1.
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16. The learned Additional Public Prosecutor would submit
that the evidence of P.W.1 is wholly reliable and there is no reason to
suspect the credibility of the witness and the defence put forth by the
appellant that the incident occurred due to sudden provocation is not
sustainable, in view of the fact that on the date of occurrence, there is no
provocation on the part of the deceased.
17. Heard the learned counsel on either side and perused the
materials available on record.
18. It is a case of a single blow with a wooden log near the
eye of the deceased which has caused internal hemorrhage and fracture.
The victim of the crime succumbed to the injury after 4 days. He was
under treatment as inpatient, but could not recover. The evidence of P.W.
1 as well as P.W.2 proves beyond doubt that the incident has occurred
suddenly when the deceased had justified engaging Boopathy for
removing the garbage, despite the fact that the accused and Boopathy
were not in good terms. The accused has not gone to the spot with any
intention of causing harm, but due to fit of anger had taken a wooden log
found nearby and given a single blow to the deceased and ran away. The
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blow has caused the death and sufficient to cause death. However,
whether the accused had the knowledge to cause the said death or
intention to cause death, is the question for consideration.
19. In the considered view of this Court, the accused had
neither intention nor knowledge that the blow he caused to Marisamy
will cause his death. Therefore, we find that the ingredient enumerated
under Section 300 IPC does not attract in this case and it falls only under
Section 326 IPC, since the injury is likely to cause death, but not caused
with an intention or knowledge. Accordingly, while upholding the
finding of the trial Court that the injury caused by the accused has led to
the death of Marisamy, however, it does not fall under Section 302 IPC,
but only under Section 326 IPC.
20. Accordingly, the sentence imposed by the trial Court
stands modified from life imprisonment to rigourous imprisonment for a
period of two years with fine of Rs.2,000/- in default, three months
simple imprisonment.
21. In the result,
(i) This Criminal Appeal is partly allowed;
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(ii) The conviction under Section 302 IPC passed by the
learned I Additional District and Sessions Judge, Thoothukudi, dated
24.11.2020, in S.C.No.330 of 2016 is set aside and the conviction is
modified to Section 326 IPC;
(iv) Accordingly, the sentence of Life Imprisonment passed
by the Court below is set aside and the appellant is sentenced to undergo
Rigorous Imprisonment for two (2) years and to pay a fine of Rs.2,000/-
(Rupees Two Thousand only) and in default to pay the fine amount, to
undergo Simple Imprisonment for three months;
(v) The period of sentence already undergone by the
accused/appellant shall be set off under Section 428 Cr.P.C., as against
the substantive sentence; and
(vi) The trial Court is directed to secure the
appellant/accused and commit him to the prison to undergo the remaining
period of sentence.
(G.J., J.) & (R.P., J.)
04.03.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
To
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1.The I Additional District and Sessions Judge,
Thoothukudi,
2.The Inspector of Police,
Surakudi Police Station,
Thoothukudi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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G.JAYACHANDRAN J.
AND
R.POORNIMA, J.
RM
Judgment in
04.03.2025
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