BAIL SLIP The Appellant / Accused was directed to be released on bail as per the order of this Court dt.29.8.06 in Crl.M.P.4150 of 2006 in C.A.134/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.4.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.134 of 2006 Nagarajan .. Appellant (Accused) Vs. State by Inspector of Police Vellagoundenpatti Nallur Police Station Crime No.62 of 2004 Namakkal District. .. Respondent/Complainant ----- Appeal against the judgment dated 30.12.2005 made in Sessions Case No.165 of 2005 on the file of Principal District and Sessions Judge, Namakkal. ----- For Appellant : Mr.N.Manokaran For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- J U D G M E N T (Delivered by R.REGUPATHI,J.) The appeal is directed against the judgment dated 30.12.2005 made in Sessions Case No.165 of 2005 on the file of the learned Principal District and Sessions Judge, Namakkal, whereunder the appellant was convicted for the offence punishable under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for https://hcservices.ecourts.gov.in/hcservices/ two months. Aggrieved against the conviction and sentence, the present appeal has been preferred before this Hon'ble Court. 2. As per the charge, the appellant on 17.3.2004 at 8.15 a.m. in front of the Mariamman Temple, Perungurichi village, questioning the deceased Marappan along with others about the panchayat disqualifying him from performing pooja, indulged in quarrel, kicked him on his private part, in which the deceased sustained injury in his testicle and died thereafter and thereby committed an offence punishable under Section 302 I.P.C. 3. When the appellant was initially questioned, he denied the complicity of committing such offence and therefore, trial of the case was taken up. 4. The prosecution has examined P.Ws.1 to 14 and marked Exs.P1 to 19 to prove its case. 5.1. The case of the prosecution is that the appellant along with other persons were performing pooja in turn for every week. About one year prior to the date of occurrence, during the turn of the appellant, while performing pooja, he was under intoxication and the deceased and others found the conduct of the appellant as derogatory and injuncted the appellant from performing pooja any more for the temple. Under such circumstances, P.W.3 Arunachala Pandaram was informing the panchayatdars on 17.3.2004 at 8.00 a.m. in front of the temple that the appellant was threatening him by saying that he became unemployed on account of the decision made by the panchayatdars. At that time, the deceased and the appellant came there and indulged in quarrel. The appellant during the quarrel made an attempt to assault P.W.3, which was questioned by the deceased. At that time, the appellant is alleged to have kicked on the private part of the deceased in which he fell down and subsequently succumbed to death. 5.2. The prosecution has examined P.Ws.1 to 4 as eye witnesses to substantiate its case. It is the evidence of P.W.1 Paramasivam that there were two temples in the village and five poojaries were performing poojas on regular basis for every week in the alternative arrangement. One year prior to the date of occurrence, a festival was conducted at Mariamman Temple in which it was the turn of the appellant. The appellant after consuming alcohol performed pooja and the same was objected to by the villagers and panchayatdars. The appellant was prohibited from performing pooja any more. Under such circumstances, on 17.3.2004 at 8.00 a.m. P.Ws.1, 2 and 4 were talking in front of the temple. P.W.3 came there and was informing them that the appellant was quarrelling with him by saying that he became unemployed on account of the decision of the panchayat. At that time, the appellant also came there. The appellant started questioning about the decision of the panchayat to P.W.3 and made an https://hcservices.ecourts.gov.in/hcservices/ attempt to assault him. At that time, the deceased came there and questioned the conduct of the appellant, for which the appellant replied that it was only on account of the deceased and others, he lost his job and he must be killed. The appellant kicked the deceased on his private part and he fell down. The deceased became unconscious and after seeing the deceased, the appellant ran out to the fencing poles and inflicted injuries on him by saying that he will also die. When P.Ws.1 to 4 made an attempt to get hold of him, the appellant ran away from the scene of occurrence. It was intimated to the son of the deceased P.W.8 and on his arrival, the deceased was taken to the Government Hospital, Tiruchengode at 9.00 a.m. 5.3. P.W.5, Medical Officer attached to Government Hospital, Tiruchengode, after seeing the deceased declared him dead. He sent Ex.P9 intimation to the police and issued Ex.P3 accident register. 5.4. Thereafter, P.W.1 went to the police station and gave a complaint Ex.P1. Ex.P2 is the signature of P.W.1 in Ex.P1. P.Ws.2 to 4 are eye witnesses to the occurrence and they have corroborated the testimony of P.W.1. P.W.9, who is also a villager speaks about the motive part of the case of the prosecution. 5.5. P.W.11 is the Head Constable, who on 17.3.2004 at 10.30 a.m. received Ex.P1 complaint and registered a case in Crime No.62 of 2004 for an offence punishable under Section 302 I.P.C. and prepared Ex.P16 printed FIR and despatched the same to the learned Judicial Magistrate as well as to the superior officials through P.W.12, Police Constable. 5.6. P.W.13, Inspector of Police, on receipt of copy of the FIR, reached the scene of occurrence at 4.00 p.m. on the same day, prepared Ex.P14 observation mahazar and Ex.P17 rough sketch and examined the witnesses present in the scene of occurrence. Thereafter, he proceeded to the Government Hospital, Tiruchengode, conducted inquest over the body of the deceased and prepared Ex.P18 inquest report and despatched the dead body for conducting postmortem with Ex.P4 requisition through P.W.12. 5.7. P.W.5, Dr.Nallaiyan, Medical Officer attached to Government Hospital, Tiruchengode, on receipt of Ex.P4 requisition from P.W.13, conducted post-mortem on the body of the deceased on 17.3.2004 and noticed the following injuries: "External injury: 1cm x 1cm margin ill-deformed red contusion in the lower left side scrotum. On dissection tissue infiltrated with blood and red clot seen. Ante-mortem injury. https://hcservices.ecourts.gov.in/hcservices/ Internal injury: Corresponding to external injury 2cm x 1cm contusion in the lower part of left testis red colour. On dissection tissue infiltrated with blood and clotted blood found. Ante-mortem injury." He has issued Ex.P6 post-mortem certificate and Ex.P7 final opinion of post-mortem report. He has opined that the deceased would appear to have died of shock due to injury to left testis 6 to 12 hours prior to post-mortem examination. 5.8. During the course of the investigation, P.W.13 arrested the appellant on 17.3.2004 at 5.00 p.m. and recorded his voluntary statement in the presence of P.W.10. Ex.P15 is the signature of P.W.10 in the voluntary statement made by the appellant and Ex.P19 is the arrest report. Since the appellant was found with injuries, when questioned, he has stated that he sustained injuries by self infliction. The appellant was sent to hospital for treatment. 5.9. P.W.6, Dr.Kalavalli attached to Government Hospital, Velur, Namakkal, examined the appellant and found the following injuries: "1. 1cm x 2.5cm x 0.5cm cut injury over the thenar eminence of the right hand palm. 2. Multiple abrasion about 6 in number over right hand forearm each measuring 1cm x 0.5cm. 3. 2 abrasions over left hand forearm each measuring 1cm x 0.5cm. 4. Pain and tenderness over right upper arm." Exs.P10 and P11 are the accident register and wound certificate respectively issued by her. 5.10. P.W.7 is the Magisterial Clerk, who speaks about the receipt of requisition Ex.P12 from P.W.13, forwarding the viscera of the deceased to the laboratory under Ex.P14 Court's letter and receipt of Ex.P8 Chemical Examiner's Report. 5.11. P.W.14, Inspector of Police, took over the investigation of the case on 29.3.2004 and examined the Doctor, recorded his statement and received his opinion. After collecting all the other materials, he filed the final report on 22.4.2004 against the appellant for the offence punishable under Section 302 I.P.C. 6.1. When the appellant was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, he denied the same. One Natesan was examined as D.W.1 on the side of the defence and no documentary evidence was marked. https://hcservices.ecourts.gov.in/hcservices/ 6.2. The appellant filed a written statement wherein it is stated that on 17.3.2004 at 8.00 a.m. when he was in his house, P.Ws.1 to 4 and others came there and questioned him as to whether he has given any written complaint against them alleging that they misused the amount collected in the hundi, for which the appellant replied that he did not give any complaint. Immediately, the deceased assaulted the appellant with a knife on his right hand and P.Ws.1 to 4 and others assaulted him with sticks on both the hands. Again, when the deceased attempted to cut the appellant, he lost his balance, fell down and sustained injuries. He has not kicked the deceased on his private part and is in no way responsible for the death of the deceased. P.Ws.1 to 4 and others handed over the appellant to the police station at 9.30 a.m. and at 9.00 p.m. police took the appellant to the hospital and threatened him to state before the Medical Officer that the injuries sustained by him were inflicted by himself and otherwise, they will foist a murder case and out of fear, he informed to the Medical Officer as stated by the police. The appellant has stated that a false case has been foisted on him. 6.3. On the side of the defence, one Natesan was examined as D.W.1. D.W.1 is the brother-in-law of the deceased. He has stated that one and half years prior to the occurrence at 8.00 a.m. while he was going to milk farm, he heard sound in the appellant's house. He went there and saw P.Ws.1 to 4 and others beat the appellant asking him whether he lodged any complaint against them for misappropriation of the hundial amount and the deceased attempted to cut the deceased and while doing so, he lost his balance, fell down and sustained injuries. P.Ws.1 to 4 took the appellant to the police station. 7. The learned Principal District and Sessions Judge, Namakkal, on perusal of the materials, oral and documentary produced before the Court and after hearing the arguments advanced by both the sides, convicted and sentenced the appellant as aforesaid. Aggrieved by the same, the appellant has filed the present appeal. 8.1. The learned counsel for the appellant submits that the motive part of the prosecution is flimsy. Even as per the prosecution version, such panchayat barring the appellant from performing pooja took place one year prior to the occurrence. Under such circumstances, there is no immediate motive for questioning the panchayatdars' decision inasmuch as the defence put forth to the eye witnesses by way of suggestion that the appellant was prohibited by the panchayatdars including the deceased and after assaulting the appellant on his hand for sending a petition against the panchayatdars by him and in that process, the deceased fell down and sustained injury on his private part. Thereafter, since the deceased died, the appellant was produced before the police, thereby falsely a case has been foisted on him. https://hcservices.ecourts.gov.in/hcservices/ 8.2. The evidence of P.Ws.1 to 4, 8 and 9 are interested witnesses and their testimony cannot be accepted. Even if the case put forth by the prosecution is accepted as true, the offence under Section 302 I.P.C. is not made out. 9. Per contra, the learned Additional Public Prosecutor submits that it is the appellant who was debarred from performing poojas in the village temple, for which the appellant was developing a strong enmity against the panchayatdars including the deceased, P.W.3 and others. P.W.3 was initially questioned by the appellant and in front of the temple, it was the appellant, who questioned and made an attempt to assault P.W.3. Only at that time, the deceased intervened and leaving P.W.3, the appellant kicked the deceased and in the result, the deceased sustained injury on his private part. The motive part of the case of the prosecution has been substantiated through the evidence of P.Ws.1 to 4, 8 and 9. The death of the deceased has been opined that it was due to homicidal violence, which was caused by the appellant. The appellant also sustained injury in the manner put forth by the prosecution soon after the occurrence. The defence put forth by the appellant is not substantiated. Under such circumstances, submitted that it is a case where the appellant, who was found fault by the panchayatdars, has taken law into his own hands and assaulted the panchayatdars and in the result, the deceased sustained injury and died and the offence under Section 302 I.P.C. is substantiated and prayed for dismissal of the appeal. 10. We have perused the materials available on record and the oral submissions made by both sides. 11.1. The occurrence took place during day time in front of the temple. The appellant along with four others was performing pooja by turn. It is the consistent evidence of the prosecution witnesses that the appellant was found under intoxication while performing pooja. At the festival time, the villagers and the panchayatdars objected to the same and the appellant was injuncted from continuing pooja because of his bad conduct. It is further case of the prosecution that the appellant became jobless and was developing animosity against the panchayatdars including P.W.3 and the deceased. The appellant questioned and quarrelled with P.W.3 for such decision. It was under discussion at the time of occurrence in the presence of P.Ws.1 to 4 and the deceased. At that time, the appellant came to that place and made an attempt to assault P.W.3. This conduct of the appellant was questioned by the deceased, for which the appellant kicked on the private part of the deceased and caused injury. 11.2. On a careful scrutiny of the materials produced by the prosecution, we find that the appellant came to the scene of occurrence without any pre-meditation and he was not armed with any deadly weapon. The appellant was jobless and therefore, he was under depression and under such circumstances, questioned the https://hcservices.ecourts.gov.in/hcservices/ panchayatdars. When the deceased intervened, in a spur of moment the appellant kicked the deceased and unfortunately the deceased sustained injury in his private part. The appellant, after coming to know about the condition of the deceased, rushed to the fence and self inflicted injuries on his hand for having kicked the deceased. It appears that the appellant never expected that a single kick would cause the death of the deceased. We could not infer intention on the part of the appellant to kill him. He has caused the injury in a fit of anger upon a sudden quarrel. Such act was done without premeditation that it may cause the death of the deceased. Therefore, we are of the considered opinion that the act committed by the accused will not be an offence under Section 302 I.P.C., however, it will fall within the four corners of Exception 4 to Section 300 I.P.C. 11.3. For all the reasons stated above, the conviction of the appellant under Section 302 I.P.C. cannot be legally sustained. Accordingly, while modifying, we hold him guilty under Section 304 Part II I.P.C. for which he would stand sentenced to undergo rigorous imprisonment for five years. Fine amount imposed on him is sustained for his conviction under Section 304 Part II I.P.C. Accordingly, the appeal is partly allowed. The appellant is on bail. The bail bonds executed by him shall stand cancelled forthwith and the learned Sessions Judge is directed to take steps to secure the presence of the appellant and commit him to jail to undergo the remaining period of sentence. The period of sentence already undergone by him shall be given set off. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ATR To 1. The Principal District and Sessions Judge Namakkal. 2. The District Munsif cum Judicial Magistrate, Paramathi. 3. -Do-Thro The Chief Judicial Magistrate, Namakkal 4. The Chief Judicial Magistrate, Krishnagiri https://hcservices.ecourts.gov.in/hcservices/ 5. The Inspector of Police Vellagoundenpatti Nallur Police Station Crime No.62 of 2004 Namakkal District. 6. The District Collector, Namakal 7. The Director General of Police, Chennai. 8. The Superintendent Central Prison, Coimbatore. 9. The Public Prosecutor High Court Madras. + 1 CC To Mr.N.Manoharan, Advocate SR NO.20847 Crl.A.No.134 of 2006 KLT(CO) SRA(28/05/2008) https://hcservices.ecourts.gov.in/hcservices/