Moorthy vs The Inspector of Police

A. Arumughaswamy, J.—The Appellant is the accused in S.C. No. 248/2002 on the file of the Principal Sessions Judge, Nagapattinam. By judgment dated 12.12.2002, the learned Judge convicted the Appellant u/s 304 (i) of IPC and sentenced him to undergo 10 years rigourous imprisonment and to pay a fine of Rs. 3,000/-in default, to undergo one year rigourous imprisonment. Challenging the same, the Appellant/accused is before this Court with this appeal.

The brief facts of the prosecution are as follows:

On 29.7.2001 at about 10.00 a.m. at Pothakudi Village, Jalak Street, in front of one Narayanasamy''s house when the deceased Packirisamy was putting Shamiyana with coconut leaves, at that time, the accused came there and tendered a cup of water to drink. Thereafter, he requested a bicycle from the deceased on rental basis to go to nearby place. At that time, the deceased abused the accused by using his caste name. He also further added that whether he is asking the bicycle for going to do a barber work. Immediately on provocation, the accused taken an Aruval which was found nearby and cut him on the back side of his neck. Immediately, thereafter, P.W.1 along with one Ramesh and P.W.2 taken the injured to the hospital. On examination, P.W.7 Doctor has declared that he was brought dead. Thereafter, P.W.1 went to the police station and gave a complaint Ex.P.1. On receipt of the complaint, P.W.9 the then Sub-Inspector of Police registered a case u/s 302 of IPC against the accused and prepared the First Information Report (Ex.P.15). P.W.10 Head Constable handed over the First Information Report to the Judicial Magistrate and the higher officials concerned. P.W.11 Head Constable handed over the dead body of the deceased to the Government Hospital for post mortem and after post mortem, recovered Dhoti (M.O.2), Belt (M.O.3), Banian (M.O.4) and Underwear (M.O.5) under Special Report (Ex.P.16) and handed over the same along with the dead body to P.W.12 Inspector of Police. Thereafter, P.W.12 examined P.W.6 Doctor, P.W.10 Head Constable and P.W.11 and recorded their statements. After that P.W.13, Inspector of Police, who has taken up the further investigation laid charge sheet after completing the investigation against the accused u/s 302 of IPC.

On the side of the prosecution, as many as, 14 witnesses were examined and 18 documents were exhibited and 8 Material Objects were marked. The accused denied the allegations. No witness was examined on the side of the accused.

The vehement contention of the learned Counsel for the Appellant is that though P.W.1 and P.W.2 claim to be the eye-witnesses would not have seen the occurrence, the accused alone has taken the injured to the hospital. Even the trial court has concluded that the deceased only invited the quarrel and on sudden provocation, the accused attacked the deceased with Aruval and caused his death as per the evidence of P.W.1 and P.W.2. The non-examination of the eye-witness Ramesh is fatal for the prosecution case. Therefore, the learned Counsel for the Appellant contended that the sentence can be reduced and he prayed that the appeal may be allowed.

The learned Government Advocate (Criminal Side) contended that the presence of P.W.1 and P.W.2 cannot be disbelieved and the accused himself has not taken the injured deceased to the hospital. Hence, the judgment of the trial court has to be confirmed.

I have heard the submissions made on either side and also perused the records.

From the evidence of P.W.1, it is seen that he was doing Centring work and on 29.7.2001 at about 10.00 a.m., when he along with P.W.2 went to see his uncle Packirisamy, at that time, the accused came there and after drinking a cup of water, requested a bicycle from the deceased to go to Kuthanallur for which the deceased replied it in negative after uttering some filthy language and also scolded him that whether he is going to do barber work there. Infuriated over the same, the accused has taken the Aruval which was placed nearby and attacked the deceased on the backside of his neck. Thereafter, P.W.1 along with two others taken the injured to the hospital where he was informed as dead.

From this, it is crystal clear that the deceased alone had invited a quarrel with the accused and not only he has uttered the name of the community, but also degraded him and compared him with a thief and irritated over the same, the accused attacked him with Aruval which was placed there and further he gave only one cut injury which was a fatal one. Immediately after that occurrence, he took the injured to the hospital for treatment.

P.W.1 to P.W.3 are the eye-witnesses. P.W.4 is the Mahazar Witness under Which Blood Stained Earth M.O.7 and Sample Earth M.O.8 were recovered. P.W.5 is the Mahazar (Ex.P.5) witness under which Full Hand White Colour Shirt (M.O.6) was recovered as per the confession statement of the accused. P.W.6 is the Doctor who conducted post mortem on the dead body of the deceased. In his evidence P.W.6 has stated that there was only one stab injury on the left hand side of his ear which caused the death of the said Packirisamy. The trial court convicted the accused only u/s 304(i) of IPC. and imposed a punishment of ten years rigourous imprisonment which is on higher side.

Under Ex.P.9, it is seen that the deceased was brought to the hospital by the accused and one Ramesh. The said Ramesh has not been examined on the side of the prosecution.

The learned Government Advocate would oppose the said argument.

From the evidence of P.W.1 to P.W.3, I am of the view that the deceased alone has invited the trouble with the accused and the accused caused only one injury to the deceased with Aruval on the neck of the deceased and immediately taken him to the hospital along with one Ramesh. The prosecution has not examined the said Ramesh who accompanied the injured person. After examination, P.W.7 Doctor declared the said Packrisamy as dead. If Ramesh has been examined on the side of the prosecution, the real fact will come to light. The non-examination of the said Ramesh is very fatal to the case of the prosecution. But on this ground alone, the accused cannot be acquitted. Hence, considering the facts and circumstances of the case, the conviction imposed by the trial court u/s 304(i) of IPC is confirmed. But the imprisonment of 10 years of rigourous imprisonment imposed by the trial court is reduced to 4 1/2 years of rigourous imprisonment and the fine imposed by the trial court has been confirmed.

With the above modification, the Criminal Appeal stands allowed.