K. Selvam vs State by Inspector of Police

M. Chockalingam, J.—Challenge is made to a judgment of the I Additional Sessions Judge, Madurai made in S.C. No. 184 of 2009 on 20.01.2010, whereby the sole accused/appellant stood charged and tried under Sections 302 IPC and 326 IPC and on trial found guilty u/s 302 IPC and awarded life imprisonment along with a fine of Rs. 10,000/- and default sentence.

The short facts that are necessary for the disposal of this appeal can be stated as follows:

(a) P.W.1-Alagammal is the wife of the deceased-Chinnaiah. P.W.8-Vellaichamy is the son of the deceased and P.W.1. They are the residents of Moovansevalpatti, within the jurisdiction of the respondent-Police and they have agricultural lands. The accused/appellant developed illicit intimacy with one Revathi, residing in the same place. On 25.11.2008 at about 16.00 hours, when both P.W.1 and the deceased were doing agricultural operations, the accused came there along with P.W.10-Boominathan in a motorbike marked as M.O.2. Then, he began to abuse the deceased with filthy language. When this was questioned by the deceased, immediately, the accused has snatched the stick from the hand of the deceased and hit him on his head. At that time, when P.W.1 intervened, she was also attacked by the accused. When she raised a distressing cry, all others gathered and thereafter, the accused along with his friend, fled away from the place of occurrence. P.W.8, who is the son of the deceased, after his return from the school, took the deceased to the Government Hospital, Singampunari, where he was given initial treatment by P.W.9-Doctor at about 4.55 p.m. P.W.1 was also treated by P.W.9-Doctor in the Government Hospital, Singampunari at 5.00 p.m. Ex.P9 and Ex.P8 are the Accident Register copies pertaining to the deceased and P.W.1 respectively. P.W.9 advised them that the deceased should be taken to the Government Rajaji Hospital, Madurai for further treatment, but due to paucity of funds, they could not do so. Therefore, P.W.1 took the deceased back to the house. On the next day, when the condition of the deceased worsened, he was taken to the Government Hospital, Melur, where he was declared dead.

(b) On receipt of an intimation from the Government Hospital, Melur, P.W.13-Sub-Inspector of Police, proceeded to the hospital and recorded the statement of P.W.1 which is marked as Ex.P1, on the strength of which a case came to be registered in Crime No. 280 of 2008 u/s 302 IPC.

Express FIR-Ex.P.10 was despatched to the Judicial Magistrate Court and the copies were also sent to the higher-ups.

(c) On receipt of copy of the FIR, P.W.14, the Inspector of Police, took up the investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex.P3-Observation Mahazar and Ex.P11-Rough Sketch. Then he came to the Government Hospital, Melur and conducted inquest over the dead body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P12- Inquest Report. Thereafter, the dead body was sent for the purpose of conducting autopsy.

(d) P.W.7, the Doctor attached to the Government Hospital, Melur conducted autopsy on the dead body of the deceased and he gave his opinion under Ex.P7-Post Mortem Certificate, that the deceased would appear to have died of shock and haemorrhage due to injury to the brain 6 to 8 hours prior to autopsy.

(e) Pending investigation, the investigator arrested the accused. The accused came forward to give a confessional statement, and the same was recorded in the presence of witnesses. Ex.P5 is the admissible portion of the confessional statement of the accused. On the basis of the confessional statement of the accused, M.O.1-Kavakambu and M.O.2-Motorbike bearing Registration No. TCW 1106, were recovered under a cover of Ex.P6-Seizure Mahazar. Thereafter the accused was sent for judicial remand.

(f) After completing the investigation, the Investigating Officer has filed the final report against the accused on 20.02.2009, under Sections 302 and

326 IPC before the concerned court, which in turn committed the case to the court of sessions and necessary charges were framed.

(g) In order to substantiate the charges, at the time of trial, the prosecution examined 14 witnesses and relied on 12 exhibits and 2 material objects.

On completion of the evidence on the side of the prosecution, the accused/appellant was questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. After hearing the arguments of the counsel and looking into the available materials, the Trial Court, took the view that the prosecution has proved the case beyond reasonable doubt insofar as Section 302 IPC is concerned and accordingly found the accused guilty u/s 302 IPC and awarded the punishment as referred to above. Under these circumstances, this criminal appeal has arisen at the instance of the accused/appellant.

Advancing arguments on behalf of the accused/appellant, the learned Counsel would submit that, in the instant case, the prosecution has miserably failed to prove the case. The counsel further added that according to the prosecution, the occurrence took place at 4.00 p.m. on 25.11.2008; P.W.1 would claim that she was also attacked and injured by the accused; according to P.W.1, her husband was taken to the Government Hospital, Singampunari where he was examined by P.W.9-Doctor at 4.55 p.m. and Ex.P9 has been marked as Accident Register copy and it would indicate that the deceased-Chellaiah was attacked by a known person and that when P.W.1 and the deceased were advised by the Doctor in the Government Hospital, Singampunari to go to the Government Rajaji Hospital, Madurai for further treatment, he was not taken, but on the contrary, he was taken back to his house and he was not given any treatment at all and on the next day, only when his condition became very serious, he was taken to the Government Hospital, Melur where he was declared dead. Therefore, according to the counsel for the accused /appellant, there was a huge delay in giving further treatment to the deceased which had resulted in his death. The counsel further added that even though the occurrence took place at 4.00 p.m. on 25.11.2008, the case was registered only on the next day at 11.30 hours and thus, there was a delay in the registration of the complaint.

Learned Counsel for the accused/appellant would further add that according to the prosecution, P.W.1 and P.W.8 were the eye-witnesses to the occurrence and insofar as P.W.8 is concerned, he reported to the place of occurrence from the school only after the occurrence was over and hence he could not have seen the occurrence at all, and in respect of P.W.1, though she claimed that she was injured, no charges were framed against the accused /appellant, by the Trial Court in respect of the same, and even as per Ex.P8-Accident Register copy of P.W.1, no injuries were found on her and hence, she could not have seen the occurrence at all.

Learned Counsel for the accused/appellant would further add that the alleged recovery of M.Os.1 and 2-Stick and motorbike, were only the documents prepared in order to suit the prosecution case.

Added further the learned Counsel for the accused/appellant that, in the instant case, a reading of Ex.P1-Complaint, would clearly reveal that there could not have been any motive for the accused to act so and therefore, the prosecution has failed to prove the occurrence and also other evidence and thus, the prosecution has not proved the case beyond reasonable doubt.

Added further the learned Counsel for the accused/appellant that, even if the Court comes to the conclusion that the accused has attacked the deceased with a stick and caused injuries, it would only be due to some provocation. Further, the huge delay in taking the deceased to the Government Rajaji Hospital, Madurai, when P.W.9, the Doctor, had categorically deposed that he had to be given necessary treatment immediately, makes it clear that had he been given immediate treatment, he would not have died. Apart from that, the accused did not come to the spot armed with any weapon and he had no intention to commit the crime, and only when he was questioned by the deceased about the filthy language which he used, he snatched the stick from the hands of the deceased and attacked him. Thus, according to the counsel, all this would go to show that the act of the accused was neither intentional nor premeditated, and the same has to be considered by this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.

It is not in controversy that the deceased-Chellaiah, the husband of P.W.1, following an incident that has taken place on 25.11.2008, was taken to the Government Hospital, Singampunari where he was examined by P.W.9-Doctor, and thereafter, he was taken to the house, and on the next day, he was taken to the Government Hospital, Melur where he was declared dead and following the inquest made by P.W.14-Inspector of Police, the dead body of the deceased was subjected to autopsy by P.W.7-Doctor, who has given a categorical opinion in Ex.P7 that the deceased would appear to have died of shock and haemorrhage due to injury in brain 6 to 8 hours prior to autopsy. The cause of death as put forth by the Doctor remained unquestioned and it is not disputed. In such circumstance, the Trial Court had no impediment in recording that the death of the deceased was due to homicidal violence.

In order to substantiate that it was the accused who hit the deceased on his head with a stick at the time of occurrence, the prosecution relied upon two witnesses, viz. P.Ws.1 and 8. It is true that P.W.8 came to the place of occurrence only after the occurrence was over and thus the prosecution had only the evidence of P.W.1 to prove the offence. The Court had looked into the available materials and found that the evidence of P.W.1, the wife of the deceased, inspires the confidence of the Court. She deposed that, at the time when she was actually standing with her husband and doing agricultural operations, the accused/appellant with his friend P.W.10 came in a motorbike and that the accused uttered filthy words pointing her husband, and thereafter the accused snatched the stick which her husband was keeping, and attacked him on his head, and that when she intervened, she was also attacked, and thereafter, the deceased was taken to the Government Hospital, Singampunari and he was brought back to the house, and on the next day, when he was taken to the Government Hospital, Melur, he was declared dead. On a perusal of the evidence of P.W.1, this Court is of the considered opinion that it has got to be believed. True it is that she was advised by P.W.9-Doctor to take her husband to Government Rajaji Hospital, Madurai, but she has categorically deposed that due to paucity of funds, she could not take her husband to Madurai and on the next day morning when the condition of her husband became worsened, they took him to the Government Hospital, Melur where he was declared dead. It may be also due to the reason that earlier it would have been passing in the mind of P.W.1 that the health condition of her husband would be restored.

It is true that the occurrence took place at 4.00 p.m. on 25.11.2008, but the case has been registered only on the next day at 11.30 a.m. and thus there was a delay. It is pertinent to note that only on receipt of intimation from the Government Hospital, Melur on the next day, i.e. 26.11.2008, P.W.13 Sub-Inspector of Police, went to the hospital and registered the complaint at 11.30 hours. This delay, in the considered opinion of this Court, will not in any way affect the truth of the prosecution case, since, in the instant case, P.W.1 had no occasion to embellish the factual position earlier.

Further, it is clear from the available materials that the accused/appellant had illicit intimacy with one Revathi and when the deceased asked the accused as to why he was coming to that place, aggrieved over the same, on the date of occurrence, the accused uttered filthy language and further there were exchange of words between them, which led to the attack of the deceased by the accused. The accused/appellant had no intention to cause the death of the deceased. At the time when the accused came there, he did not possess any weapon, but only when there were exchange of words, he actually snatched the stick from the hands of the deceased and attacked him. All would go to show that the act of the accused was not intentional. The incident would indicate that the act of the accused cannot be termed as murder, but it is a culpable homicide not amounting to murder, and it comes u/s 304 (Part II) of the Code.

Accordingly, the conviction and the sentence of life imprisonment imposed by the Trial Court on the accused/appellant u/s 302 IPC are set aside and instead, he is convicted u/s 304 (Part II) IPC and he is directed to suffer five years Rigorous Imprisonment. The imprisonment already undergone by the accused/appellant shall be given set off. The fine amount imposed by the Trial Court will hold good.

This Criminal Appeal is, accordingly, disposed of.