Bail Slip That the Petitioner/Accused namely M.Babu was directed to be released on bail made in Crl.M.P.No.496/2004 dated 05.02.2004 in Crl.Appeal No.81/2004 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.2.2011 CORAM THE HON'BLE MR. JUSTICE A.ARUMUGHASWAMY CRIMINAL APPEAL NO.81 OF 2004 M.Babu ... Appellant Vs. The State rep. by Inspector of Police K.V.Kuppam Police Station Vellore District ... Respondent Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional District and Sessions Judge, (Fast Track Court ), Vellore in S.C.No.80 of 2001 dated 7.1.2004. For Appellant :-Mr.A.S.Balaji, For Respondent:-Mr.N.Kumanan, Govt.Advocate (Crl. Side) JUDGMENT The appellant/accused stands convicted for the offence under Section 304 Part II and sentenced to undergo rigorous imprisonment for eight years by the judgment of the learned Additional District and Sessions Judge, Vellore in S.C.No.80 of 2001 dated 7.1.2004. Challenging the said conviction and sentence, the appellant has come forward with the present appeal. 2. The brief facts necessary for disposal of this appeal are as follows :- The deceased Munusamy and P.W.2 Venkatesan are brothers. P.W.1 is the son of P.W.2. On 12.4.1995, the deceased Munusamy visited the house of P.Ws.1 and 2 at Alangeneri Kollakottai and he remained in the house till 9.30 p.m. Thereafter, the deceased left the house of P.W.1 informing P.Ws.1 and 2 that he was going to his residence at K.V.Kuppam. After five minutes, P.Ws 1 and 2 heard noise of the deceased. When they went outside the house, they saw one Babu who was beating the deceased on his face by a wooden log, as a result of which the deceased fell down on the ground. Immediately, https://hcservices.ecourts.gov.in/hcservices/ the accused stamped the penis with his leg and squeezed the testicles of the deceased by using his hand and the deceased screamed out in pain. On seeing P.Ws1 and 2, and one Manjula, the sister of P.W.1, the accused fled away from the place of occurrence. Then, they took the deceased to their house and gave water and also fomentation by hot water to the deceased. P.W.2 has also witnessed the said incident. P.W.1 got the cycle from P.W.4 and proceeded to K.V.Kuppam to inform the incident to P.W.3, the wife of the deceased. P.W.5 is the son of the deceased. On receiving the information, P.Ws.3 and 5, came to the residence of P.W.1. Then, they placed the deceased on the coir cot and gave him fomentation. Even thereafter, as the deceased complained of pain, the deceased was taken to the hospital. Since the Doctor was not available, the deceased was again brought to his house. The next day morning P.W.3, the wife of the deceased noticed that the deceased was dead. Immediately, P.W.1 went to K.V.Kuppam Police station and gave complaint at about 7.30 a.m. to P.W.13, the Sub Inspector of Police. A case was registered in Crime No. 148/95 against the accused for the offence under Section 302 IPC. The express First Information Report Ex.P14 was sent to the court and the higher officials. On receipt of the copy of the FIR, P.W.14 the Inspector of Police, took up investigation, proceeded to the scene of occurrence and prepared an observation mahazar Ex.P15 and a rough sketch Ex.P16. Then, P.W.14 went to the place where the body was kept and prepared observation mahazar Ex.P17 and a rough sketch Ex.P18 in the presence of P.W.6 the Village Administrative Officer and P.W.7 one Balu. P.W.14 further conducted inquest on the dead body of Munusamy in the presence of the witnesses and prepared Ex.P19 the inquest report. Then, the Investigating Officer gave a requisition to the hospital authorities for conduct of autopsy. 3. P.W.9 is the Doctor who conducted the autopsy on the dead body of Musnusamy. Ex.P7 is the post mortem certificate. He forwarded the viscera for chemical examination. Ex.P10 is the chemical analyst's report. Exs.P11 and 12 are serologist's report. P.W.9 Doctor in his final opinion has stated that the exact cause of death could not be detected as the injuries found on the body were not grievous. P.W.14 arrested the accused on 15.4.1995 in the presence of the P.W.8 and one Rajendran. On the basis of the confession statement of the accused, the admissible portion of which is marked as Ex.P22, the accused produced the wooden log from a bush and P.W.14 seized the same under Ex.23 mahazaar in the presence of P.W.8 and one Rajendran. After completing investigation P.W.14 the Inspector of Police laid charge sheet against the accused for the offence under Section 302 IPC. 4. Before the trial court on the side of the prosecution P.Ws.1 to 15 were examined, Exs.P1 to P25 were filed and M.Os. 1 to 9 were marked. https://hcservices.ecourts.gov.in/hcservices/ 5. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied his complicity. The trial court on consideration of the oral and documentary evidence placed before it found the accused guilty, convicted and sentenced him as stated above. Hence the present appeal. 6. Heard Mr.A.S.Balaji, learned counsel appearing for the appellant and Mr.N.Kumanan, Government Advocate (Criminal Side) appearing for the State. 7. The contention of the learned counsel appearing for the appellant is that the medical evidence does not support the case of the prosecution in the sense that the cause of death has not been mentioned in the post mortem report and consequently, no charge has been proved against the accused. Considering this aspect, the accused is entitled for acquittal. 8. Mr.N.Kumanan, the learned Government Advocate (Criminal Side) contended that the accused squeezed the penis as well as the testicles of the deceased due to which he suffered severe pain and succumbed to death and such act of the accused is supported by post mortem certificate. Hence, the judgment of the trial court has to be confirmed. 9. P.Ws.1 to 3 who are blood relatives of the deceased have testified that the accused gave blow on the deceased with wooden log and squeezed the scrotum. This evidence of P.Ws 1 to 3 are cogent. They came to the place of occurrence on hearing the alarm raised by the deceased. Even though they are related to the deceased, their presence cannot be doubtful. Therefore, their evidence could very well be accepted. Relying on their evidence, I am of the view that the prosecution has proved its case that the accused had given a blow with wooden log and squeezed the scrotum of the deceased. 10. As stated already, P.Ws. 1 to 3 are the wintesses to the occurrence. Before the occurrence, the deceased was remaining in the house of P.W.1 till 9.30 p.m. P.W.1 got the bicycle from P.W.4 and went to K.V.Kuppam and informed the incident to P.W.3 the wife of the deceased. P.W.5 is the son of the deceased who gave fomentation by hot water. P.W.6 and P.W.7 are the observation mahazar witnesses, who tuned hostile. P.W.9 is the Duty Doctor attached to Government Hospital Gudiyatham, who examined the deceased and conducted autoposy. P.W.9 in his evidence would state that on 13.4.1995 at about 4.30 p.m. the body of the deceased was brought to the hospital for post mortem and during post mortem he noticed the external injuries. He would further state that on examination the https://hcservices.ecourts.gov.in/hcservices/ left testicle of the deceased was found to be swollen and 100 ml water in brown colour was deposited in the testicles. He has further deposed as follows:- gpnuj gupnrhjizapy; bjd;gl;l btspg;g[w fha';fs; Fwpg;gpl;l jpU/Kdprhkp vd;gtUf;F kuzj;ij Vw;gLj;jf;Toa fha';fshd ,y;yhj fhuz';fspdhy; gpnuj gupnrhjizapd; K:yk; rupahd ,we;j fhuzj;ij mwpa ,aytpy;iy vd;W vd;Dila fUj;Jiuia mspf;fpnwd;/ tpiu tPf;fk; rhjuzkhf vy;nyhUf;Fk; ,Uf;ftpy;iy nkYk; , jpypUe;j gGg;g[ epw tpiuthj ePUk; ,Uf;fhJ/ , Ug;gJk; ,y;iy/ tpiufs; eRf;fg;gl;lhy; jpObud;W kuzk; Vw;gl tha;g;g[ ,Uf;fpd;wJ/ Mdhy; tpiuthjk; Vw;gl tha;g;gpy;iy/ tpiutPf;fk; vd;gJ xU egUf;F FWfpa fhy tpist[ my;y/ 11. As seen from the above testimony of P.W.9 Doctor, it is clear that though P.W.9 has deposed that there may be possibility of causing death if testicles are squeezed, yet he would state that no external injuries were found on the body of the deceased to conclude that those injuries may likely to cause death. But in this case, the Doctor who conducted the post mortem opined that he could not detect the exact cause of death through the post mortem. He was able to see 100 ml fluids in the scrotum and no other injuries also seen by him. Further, even though as per the evidence of P.Ws.1 to 3 the prosecution has established that the accused attacked the deceased with wooden log and squeezed the scrotum, in view of the categorical evidence of P.W.9 that the cause of death was not known, I am of the considered opinion that the offence committed by the accused will not attract Section 304 Part II IPC. Instead the accused could be found guilty under section 324 I.P.C. Hence, the conviction made by the trial court has to be modified accordingly. 12. The learned counsel appearing for the appellant relied on the decision of the Apex Court in STATE OF KARNATAKA VS. SHIVLINGAIAH ( AIR 1988 SC 115), wherein the accused squeezed the testicles of a victim resulting in his death almost instantaneously and the incident took place all of a sudden and on the spur of the moment. In that case the death was as a result of cardiac arrest resulting from shock due to injuries to the testis. In such circumstances, the Apex Court modified the conviction of the accused from under S.323 to one under S.325. But in the case on hand, after stamping of the testicles, the deceased survived for more than 10 hours and thereafter he died. The Doctor has also opined that the reason https://hcservices.ecourts.gov.in/hcservices/ could not be detected. Under such circumstances, I am of the view that in the present case, the offence will not fall under Section 325 IPC but it will fall under Section 324 IPC. 13. In the result, the appellant stands convicted for the offence under Section 324 IPC instead of 304 Part II IPC. As regards the sentence of imprisonment is concerned, I am of the view that period already undergone by the accused would be sufficient and accordingly the sentence is reduced to the period of imprisonment already undergone by the accused. The bail bonds shall stand cancelled. However, the appellant is directed to pay a fine of Rs.20,000/- within two months from today and out of said fine amount a sum of Rs. 15,000/- shall be paid to the victim as compensation under Section 357 Cr.P.C. In default of the fine amount, the accused shall undergo rigorous imprisonment for a period of two months. 14. With the above modification of conviction and sentence, the appeal is partly allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Krr/ To 1. The Additional District and Sessions Judge, (Fast Track Court ), Vellore 2.The Public Prosecutor, High Court, Madras. 3. The Inspector of Police, K.V.Kuppam Police Station, Vellore District. 4. The Judicial Magistrate, Gudiyatham. 5. The Chief Judicial Magistrate, Vellore. https://hcservices.ecourts.gov.in/hcservices/ 6. The Superintendent, Central Prison, Vellore. 7. The Principal Sessions Judge, Vellore. 1 cc To Mr.A.S.Baalaji, Advocate, SR.13586. Crl.A.No. 81 of 2004 TRM(CO) RVL 30.03.2011 https://hcservices.ecourts.gov.in/hcservices/