IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.6.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMAN Crl.A.No. 675 of 2008 Marimuthu .. Appellant/Accused Vs. State Rep. by the Inspector of Police, Siva Kanchi Police Station Kanchipuram. .. Respondent/Complainant * * * Prayer : Appeal against the Judgment, dated 21.8.2008, passed in S.C.No. 330 of 2007 on the file of the Additional Sessions Judge, (Fast Track Court No.II) Kanchipuram. * * * For Appellant :: Mr. S.Swamidoss Manokaran For Respondent :: Mr. M. Babu Muthu Meeran Addl.P.P. J U D G M E N T (The Judgment of the Court was made by C. NAGAPPAN, J.) Appellant Marimuthu is the sole accused in Sessions Case No.330 of 2007 on the file of the Additional Sessions Judge, Kanchipuram, and he has preferred this appeal challenging the conviction and sentence imposed on him in the case. For the sake of convenience, in this Judgment, the appellant will be referred to as accused. 2. The learned Additional Sessions Judge found the accused guilty of the charges under Sections 302 and 324 IPC and convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo six months Rigorous Imprisonment for the offence under Section 302 IPC and to undergo https://hcservices.ecourts.gov.in/hcservices/ three years Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months Rigorous Imprisonment for the offence under Section 324 IPC. 3. To prove its case, the prosecution examined P.Ws.1 to 16 and marked Exs.P.1 to P.18 and M.Os.1. to 4. 4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows. Accused Marimuthu is the husband of deceased Malar. P.W.1 Saroja is the mother; P.W.9 Sabapathi is the brother; and P.W.8 Dhanalakshmi is the daughter of deceased Malar. The marriage between accused Marimuthu and Malar took place twenty years prior to the occurrence and they were living separately. The accused was a weaver by profession. P.W.8 Dhanalakshmi got married and was living with her husband at Bangalore. The only son of the accused died at the age of 14 and afterwards, the accused started consuming excess liquor, which led to frequent quarrels between the accused and his wife Malar. Malar was not keeping good health and P.W.1 Saroja went and stayed in the house of the accused. On 19.9.2006, at about 5.30 a.m. in the morning, accused Marimuthu started to leave the house and at that time, his wife Malar told him as to why he is roaming like a mental and the accused retorted by asking her as to why she called him mental and the accused took M.O.1 Wooden block from the ground and beat her with it on the head and right side of the neck and chin causing bleeding injuries. P.W.1 Saroja tried to prevent and the accused attacked her with the same wooden block on the right forehead and he threw the wooden block on the ground and left the place. Malar was lying unconscious with injuries and P.W.1 Saroja took her to Government Hospital, Kanchipuram. P.W.11 Dr. Senthilkumar examined Malar at 6.15 a.m. on 19.9.2006 at Government Hospital, Kanchipuram, and found the following - Injuries: 1. 1 x 2 x 5 cm found lacerated injury lateral to left eye. 2. 1 x 3 x 5 cm found lacerated injury left forehead. 3. 5 x 10 cm swelling left (n.c.). 4. 1 x 3 x 5 cm found lacerated injury upper lip. 5. Bleeding from nose. 6. 1 x 2 x 5 cm found lacerated injury right forehand. 7. 10 x 10 cm swelling left face. Ex.P6 is the Accident Register Extract issued by him. https://hcservices.ecourts.gov.in/hcservices/ P.W.11 Dr. Senthilkumar also examined P.W.1 Saroja at 7.15 a.m. on 19.9.2006 in the hospital and found the following - "Injury: 1 x 3 x 2 cm found lacerated injury right forehead." He treated her as out-patient and expressed opinion that the injury is simple in nature. Ex.P7 is the Accident Register Extract issued by him. Subsequently, he referred Malar to Government Hospital, Chennai. In the mean time, on receiving intimation from the Kancheepuram Government Hospital, P.W.16 Inspector Kanniappan, Sivakanchi Police Station, went to the hospital and found Malar unconscious and examined P.W.1 Saroja and recorded Ex.P11 statement given by her and returned to Station and registered a case in Crime No.681/2006 under Sections 324 and 307 IPC and prepared Ex.P12 F.I.R. and despatched the same. He went to the occurrence place at 10.00 a.m. and prepared Ex.P2 Observation mahazar and Ex.P13 Rough sketch in the presence of P.W.3 Venkatesan and another. He took M.O.4-series photos with negatives of the occurrence place and at 11.00 a.m. he seized M.O.1 Wooden block; M.O.2-Blood stained Cement Plaster; and M.O.3-Plain Cement Plaster from the occurrence place in the presence of the same witnesses under Ex.P3 seizure mahazar. He arrested the accused at 2.00 p.m. in Kancheepuram bus stop and subjected him to judicial remand on the same day. He gave requisition to the Court for sending the properties to chemical examination. He examined P.Ws.2 to 7 on the same day and recorded their statements. P.W.14 Dr. Manivel examined Malar at 10.35 a.m. on 19.9.2006 in Government General Hospital, Chennai, and admitted her as in-patient. Ex.P9 is the Accident Register Extract issued by him. P.W.15 Dr. Lakshmipathi treated Malar and C.T. Scan of the head was taken which revealed fracture of the left frontal bone, resulting in haemorrhage and fracture of middle cranial fossa. Malar died on 20.9.2006 at 11.50 a.m. Ex.P10 is the Death Report sent to the police. On receipt of it, P.W.16 Inspector Kanniappan altered the case into one under Section 302 and 334 IPC and prepared Ex.P14 Alteration Report and despatched the same. He conducted inquest on the body of Malar and examined witnesses and Ex.P15 is the Inquest Report. He sent requisition to conduct post mortem through P.W.13 Head Constable Kesavan. https://hcservices.ecourts.gov.in/hcservices/ P.W.12 Dr. Vedanayagam conducted post-mortem on the body of Malar at 11.55 a.m. on 21.9.2006 and found the following: " Its condition then was Rigor Mortis present in all four limbs. Post-Mortem commenced at 11.55 a.m. on 21.9.2006. Appearances found at the post-mortem: A moderately built symmetrical female body. Old healed burnt scar seen all over the Anterior chest and Abdominal wall and both thighs. " Injuries, Sutured wounds seen on the 1. Right eyebrow with 1 suture and 2 cm in length. 2. Outer angle of the left eye with 2 sutured and 3 cm in length. 3. Above the left eye with 4 sutured and 5 cm in length. 4. Upper lip on its left side with 2 suture and 3 cm in length. Lacerated wound: 1. Seen over the mid frontal region of size 3 x 1 cm x 0.5 cm. 2. Seen below the left ear 3 x 2 x 1 cm. Contusion seen on its lower lip on size 4 x 1 cm. Multiple reddish brown abrasion of variable size seen over the occipital region. Swelling and deformity seen over the left angle and the mandible. O/D Head contusion over the left parietal temporal region of size 10 x 8 cm. A depressed communited fracture of left frontal bone involving left orbit root of size 8 x 5 cm. Extra-dural haemorrhage over the left frontal region 5 x 3 cm. Laceration over the left frontal lobe 4 x 3 x 0.5 cm. Sub-dural haemorrhage seen over the left cerebral hemisphere. Sub arachnoid haemorrhage seen all over the Brain surface. Communited fracture involving both anterior and middle cranial fossa is seen. https://hcservices.ecourts.gov.in/hcservices/ O/D Thorax. No rib fracture. Heart Normal in size. C/S All chambers empty. O/D Abdomen Stomach empty. 100 ml at Black coloured fluid thick of blood. Hyoid and spinal column intact." He expressed opinion that the deceased would appear to have died of effects of Head injuries sustained. Ex.P8 is the Post-mortem Certificate. P.W.16 Inspector Kanniappan examined P.W.14 Dr.Manivel and P.W.15 Dr. Lakshmipathi on 21.9.2006 itself and recorded their statements. He examined P.W.11 Dr. Senthilkumar on 22.9.2006 and 3.10.2006 and recorded his statement. He examined P.W.12 Dr.Vedanayagam on 30.10.2006 and recorded his statement. He examined some more witnesses on 6.12.2006 and 10.11.2006. Ex.P16 Chemical Examiner's Report and Ex.P17 Serology Report were received in the Court. He completed the investigation and filed the final report against the accused. 5. The accused was examined under Section 313 CrPC and he denied complicity. The accused besides examining himself as D.W.3, examined D.Ws.1 and 2 and marked Exs.D1 to D4 on his side. 6. The learned Additional Sessions Judge convicted the accused for the charges under Sections 302 and 324 IPC and imposed sentence as stated earlier and hence, the present appeal. 7. The prosecution case is that accused Marimuthu attacked his wife Malar on the head with wooden block resulting in her death and he also attacked P.W.1 Saroja with the same wooden block on her right forehead, resulting in injury. To prove the occurrence, the prosecution has examined P.W.1 Saroja and she has testified that her daughter Malar was unwell and hence she was staying in her house, and at 5.30 am, on the occurrence day, the accused started to leave the house and at that time, his wife Malar asked him as to why he is roaming like a mental and the accused retorted by asking her as to why she called him "mental" and took up M.O.1, wooden block from the ground and hit Malar with it on her head, right side of neck and chin, resulting in bleeding injuries and Malar fell unconscious and P.W.1 Saroja tried to prevent the attack and the accused attacked her with the same wooden block on the right side of the head resulting in injury and the accused left the place throwing the weapon on the ground and P.W.1 took her daughter Malar initially to Kancheepuram Government Hospital and thereafter to the Madras General Hospital and the victim succumbed to the injuries and P.W.1 gave the complaint. https://hcservices.ecourts.gov.in/hcservices/ 8. Learned counsel for the appellant pointed out that P.W.1 Saroja was treated as hostile by the prosecution in the trial of the case. It is true that P.W.1 Saroja has been declared hostile, but that did not, in any way, affect her testimony. P.W.1 Saroja has testified the attack made by the accused at the time of occurrence on her daughter Malar as well as on herself, and in short, the entire occurrence has been narrated by her in detail. At the end of her chief examination, she stated that she did not remember as to whether the police enquired her in Kancheepuram Government Hospital, since one and half years had lapsed and she only identified her left thumb impression as Ex.P1 in the complaint - Ex.P11, and for that reason, the prosecution sought for permission to treat her as hostile and that has been given and in no way, it affects her testimony. She is an injured witness and her testimony is clear, cogent and credible and nothing is elicited in the cross- examination to discredit her testimony. 9. Learned counsel for the appellant submits that accused Marimuthu has to be exonerated from liability on the ground of unsoundness of mind as contemplated under Section 84 I.P.C. 10. Per contra, Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, submitted that the accused is not a person of unsound mind and he has no mental disorder or insanity and he was only a habitual drunkard and hence the provision under Section 84 I.P.C. is not applicable to him. 11. D.W.1 to 3 were examined on the side of the defence. D.W.1 Dr.Rangarajan has stated that his examination of the accused revealed that he was suffering from delusional disorder and hallucination and in the cross-examination, he has stated that his patient/accused answered correctly to all questions and he was conscious on the external activities around him. He has further stated that his patient/accused was a known alcoholic addicted to drinks and the medicines given to him during counseling under Ex.S2 were to reduce the effect of stopping the consumption of alcohol. The testimony of D.W.1 does not advance the case of the accused in any way. In this context, the decision of the Apex Court in the case of Bapu Vs. State of Rajasthan reported in (2007) 3 SCC (Crl) 509 is relevant, wherein, Their Lordships considered the scope of Section 84, I.P.C. for exonerating a person from liability and laid down as follows: "12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated https://hcservices.ecourts.gov.in/hcservices/ M'Naughton rules of 19th century England. The provisions of Section 84 are in substance the same as those laid down in the answers of the Judges to the questions put to them by the House of Lords, in M'Naughton's case ((1843) 4 St Tr NS 847 (HL)). Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or perfect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient. 13. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section." https://hcservices.ecourts.gov.in/hcservices/ 12. In the present case, it is relevant to note that the accused had been examined by D.W.1 only on 8.2.2007, i.e., nearly five months after the occurrence. D.W.2 Venkatesan is the brother in law of the accused and he has stated that after the death of his son, there was a change in the conduct and attitude of the accused and he used to stare on the windows and used to complain of head ache and hearing abnormal sounds and once he attempted to commit suicide by stabbing himself in the stomach. In this context, the testimony of the daughter of the accused, namely, P.W.8, Dhanalakshmi is relevant and she has testified that her father stabbed himself in his stomach and went for treatment and he was not having any disease and he used to drink liquor even prior to the death of his son. P.W.9 Sabapathi is another brother in law of the accused and he has stated that the accused and his wife Malar were quarrelling frequently and he used to pacify them. D.W.2 Venkatesan was living 50 Kms. away from the residence of the accused and his testimony does not help the accused in any way. 13. The accused examined himself as D.W.3 and has testified that he used to hear as if somebody is talking to him in his ears. As per the law laid down by the Supreme Court, mere abnormality of mind or partial delusion affords no protection under Section 84 I.P.C. Moreover, the accused, as D.W.3, in the cross- examination, has answered the questions put to him in clear terms, as observed by the trial Court in the judgment. There is no material adduced by the accused to invoke the protection under Section 84 I.P.C., as rightly held by the trial Court. 14. It is to be seen as to whether Malar died of injuries sustained during the occurrence. Immediately after the occurrence, P.W.11 Dr.Senthil Kumar examined Malar at 6.15 a.m. on 19.9.2006 at Kancheepuram Government Hospital and found seven injuries, as detailed in Ex.P6 – accident register extract issued by him. He has referred Malar to the Government General Hospital, Chennai and P.W.14 Dr.Manivel admitted Malar as in-patient in the Government General Hospital, Chennai at 10.35 a.m. on 19.9.2006. P.W.15 Dr.Lakshmipathi, treated Malar and he has testified that CT scan of the head was taken, which revealed frontal brain contusion apart from fracture of the bone on the same side and brain cem contusion and a part of the bone had protruded into the brain and in spite of treatment given to her, she died at 11.50 am on 20.9.2006. P.W.12 Dr.Vedanayagam conducted autopsy on the body of Malar and he has stated that during internal examination of the head, a depressed communited fracture of the left frontal bone, sub dural haemorrhage over the left cerebral hemisphere and communited fracture involving both anterior and middle cranial fossa were seen. He has expressed opinion stating that the deceased would appear to have died of https://hcservices.ecourts.gov.in/hcservices/ effects of head injuries sustained. Ex.P8 is the post mortem certificate issued by him. P.W.15 Dr.Lakshmipathi and P.W.12 Dr.Vedanayagam have stated that the injuries found on the head are sufficient to cause the death and they could have been caused by attack with a weapon like M.O.1. Accepting the testimony, it can be concluded that Malar died of the injuries sustained during the occurrence. 15. Learned counsel for the appellant contends that the act of the accused Marimuthu would not amount to murder and he had acted in a grave and sudden provocation and it would fall under Exception 1 to Section 300, I.P.C. only. Accused Marimuthu is a weaver by profession and there is evidence to show that he had sufficient earnings to build a house and provide amenities to the family and he had also given his daughter in marriage. His only son died at the age of 14, which led to his excess drinking. The accused tried to withdraw from drinking, which resulted in head-ache and other symptoms. Once he self-inflicted injuries on his stomach with knife and recovered thereafter. On the occurrence day at 5.30 a.m., he was about to leave the house and at that time, his wife Malar asked him as to why he was roaming like a mental and the accused retorted by saying why she is calling him "mental", and losing the power of self-control, by grave and sudden provocation, he picked up the wooden block which was lying on the ground and attacked Malar with it on her head, resulting in bleeding injuries. There was no intention for the accused to commit the murder of his wife Malar. In view of the above materials available on record, the contention of the learned counsel for the appellant that the accused lost the power of self-control by grave and sudden provocation and acted on the spur of moment, can be accepted. If it is so, Exception 1 to Section 300 I.P.C. is applicable to the facts of the case and the offence would fall under Section 304 Part I IPC and the accused is liable to be convicted for the same. 16. During the occurrence, the accused had also attacked P.W.1 Saroja with wooden block on her head, resulting in simple injury and the conviction and sentence imposed on him by the trial Court for the offence under Section 324 I.P.C. are correct and proper. 17. In the result, the conviction and sentence imposed on accused Marimuthu under Section 302 I.P.C. are set aside and he is convicted for the offence under Section 304 Part I, I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for three months and the conviction and sentence https://hcservices.ecourts.gov.in/hcservices/ imposed on accused Marimuthu for the offence under Section 324 I.P.C. are confirmed and the appeal is allowed to the extent indicated above. pb/ksv Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Additional Sessions Judge Fast Track Court-II Kancheepuram. 2. The Additional Sessions Judge Fast Track Court-II Kancheepuram, through the Principal Sessions Judge Kancheepuram District. 3. The Inspector of Police Siva Kanchi Police Station Kancheepuram District. 4. The Superintendent of Prisons Central Prison Puzhal Chennai-600 066. 5. The District Collector, Kancheepuram. 6. The Director General of Police, Chennai. 7. The Public Prosecutor High Court, Madras-104. 8. The Section Officer Criminal Section High Court, Madras-104. + 1 cc to MR. S. Swamidoss Manokaran, Advocate SR No.21506 SSR(CO) SR/19.6.2009 Criminal Appeal No.675 of 2008 https://hcservices.ecourts.gov.in/hcservices/