1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.11.2011 CORAM: THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRIMINAL APPEAL (MD).No.38 of 2011 Maharajan : Appellant/Sole Accused Vs. The State, rep by The Inspector of Police, Koodal Pudhur Police Station, Madurai, Cr.No.303 of 2008. : Respondent/Complainant PRAYER: Appeal is filed under Section 374 of the Code of Criminal Procedure to set aside the conviction and sentence imposed on the appellant by the learned Additional District and Sessions Judge/Fast Track Court, No.III, Madurai, by Judgment dated 21.01.2011 made in S.C.No.50 of 2010 on his file. For Appellant : Mr.S.Palanivelayutham For Respondent : Mr.C.Ramesh Additional Public Prosecutor JUDGMENT ************* [Judgment of the Court was delivered by S.NAGAMUTHU, J] The appellant is the sole accused in S.C.No.50 of 2010, on the file of the learned Additional District and Sessions Judge/Fast Track Court, No.III, Madurai. By Judgment dated 21.01.2011, the learned Additional District and Sessions Judge has convicted the appellant under Sections 448 and 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for six months for the offence under Section 302 IPC and for the offence under Section 448 of the Indian Penal Code, no separate sentence was imposed on him. Out of the said fine amount of Rs.10,000/-, a sum of Rs.5,000/- was ordered to be paid to PW-1 as compensation. As against the said conviction and sentence, the appellant has come up with this Criminal Appeal. 2. The case of the prosecution, in brief, is as follows:- PW-1 is the son and PW-2 is the daughter of the deceased – Pidari. They were residing at Milagaranai Village. PW-3 is her neighbour. Between the accused and the deceased, there was a civil dispute pending in O.S.No.366 of 2008 in respect of a landed property. In connection with the said dispute, there was a complaint to the police preferred by the deceased and the same was pending enquiry in Petition No.187 of 2008. https://hcservices.ecourts.gov.in/hcservices/ 2 (ii). While so, on 27.09.2008, at about 10.00 AM, PW-1, PW-2 and the deceased were at their house. At that time, the accused came there in a jeep, parked the same in front of the house of the deceased and trespassed into the house of the deceased. He questioned as to why she did not allow the accused to sell the property under dispute. So saying, he declared that if only the deceased was killed, he could be peaceful. Uttering these words, the accused pulled the deceased outside the house by her tuft. Then, he fisted on the chest of the deceased with his right hand. PW-2 attempted to prevent. The accused pushed her aside. The deceased fell down. Then, he stamped on her chest. PW-1 raised alarm. PW- 3 and the other neighbours rushed towards the house of the deceased. On seeing them, the accused fled away from the scene of occurrence in the jeep. (iii). Thereafter, PW-4, who belongs to the same village, came to the place of occurrence and took the deceased to the Government Rajaji Hospital, Madurai, along with yet another person. At about 12.05 PM, the deceased was brought to the Government Rajaji Hospital, Madurai. PW-8, Doctor Vanitha, examined the deceased and found that she was dead. Thereafter, he forwarded the body to the mortuary. She made necessary entries in the Accident Register. Ex-P4 is the said Accident Register. Thereafter, PW-1 and the others proceeded to the Koodal Pudhur Police Station and preferred a complaint under Ex-P1 at about 02.00 PM. PW-12, who was the then Sub-Inspector of Police, attached to the said Police Station, registered a case in Crime No.303 of 2008. Then, he forwarded the First Information Report (Ex-P5) and the complaint to the jurisdictional Magistrate. He handed over the case diary to the Inspector of Police for investigation. PW-14, the then Inspector of Police took up the case for investigation and proceeded to the place of occurrence at 03.00 PM on 27.09.2008. He prepared an Observation Mahazar under Ex-P2 and a Rough Sketch under Ex-P9 in the presence of PW-5 and another witness. Then, at Rajaji Government Hospital, he conducted inquest on the body of the deceased. On 28.09.2008, at about 08.00 AM, he prepared Inquest Report under Ex-P10. Then, he forwarded the body for post-mortem. 3. PW-13, doctor, G.Natarajan, who was the Professor of Forensic Medicine, conducted autopsy on the body of the deceased at 11.15 AM on 28.09.2008. He found no external injuries on the body of the deceased and on opening the scalp, skull and dura, he found a contusion in the scalp measuring 3 X 2 cms on mid occipital region. He also noticed diffused Subdural hemorrhage and subarachnoid hemorrhage over both cerebral hemishpheres. On opening the thorax, he found the following:- "Surface of the heart is covered with heavy fatty deposition; atherosclerotic and atherromatous changes noted in the greater vessels and coronary vessels of the heart; coronary ostia is narrowed; occlusion of let coronary artery by an atheromatous plaque for a distance of 1 cm, 1.5 cm away from its origin." 4. From the above findings, PW-13 opined as follows:- "the deceased would appear to have of occlusion of feeding vessel of left side of heart [left coronary artery] associated with head injury, 20-24 hours prior to autopsy". https://hcservices.ecourts.gov.in/hcservices/ 3 5. Continuing the investigation, PW-14 arrested the accused at 04.00 PM on the same day. On such arrest, he gave a voluntary confession statement, in which he disclosed that he had hidden the jeep near Sikkanthar Chavadi Bus Stop. In pursuance of the same, he took the police and the witnesses to the said place and produced the vehicle, which was recovered under Ex-P3, Mahazar. Thereafter, PW-14 recovered the clothe from the body of the deceased, which was produced by a constable, who took the body for post-mortem. Then, he forwarded the clothe for Chemical Analysis Report. Ex-P13 is the Chemical Analysis Report. On completing the investigation, he laid the charge sheet against the accused. 6. Based on the above materials, the Trial Court framed appropriate charges under Sections 448 and 302 of the Indian Penal Code. In order to prove the charges, the prosecution examined as many as 14 witnesses and exhibited 14 documents, besides MO-1 to MO-4. Out of the said witnesses, PW-1 to PW-3 are the eye-witnesses to the occurrence. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. On his side, he examined one Adaikkan as DW-1. He has also spoken to about the land dispute between the parties. Having considered all the above materials, the Trial Court convicted the appellant under Sections 448 and 302 of the Indian Penal Code and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal. 7. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor and also perused the records carefully. 8. The prosecution mainly relies on the evidences of PW-1 to PW-3, who are the eye – witnesses to the occurrence. PW-3 is a neighbour, who rushed to the house of the deceased on hearing the alarm raised by PW-1. He has also seen the occurrence. Though these witnesses have been subjected to lengthy cross-examination, nothing could be brought out on record so as to disbelieve their version. The learned counsel for the appellant is not in a position to point out any infirmity in their evidences so as to discard them. A cursory look into the evidence of these witnesses would go to show that they have narrated the entire occurrence in a vivid situation. Thus, we do not find any reason to reject any evidence of PW-1 to PW-3. From these evidences, the prosecution has clearly established that at the time of occurrence, the accused attacked the deceased with hands and legs. 9. Now, coming to the medical evidence, PW-13 has categorically stated that there was no external injury found on the body of the deceased. There was a very small contusion found on the scalp, besides a small amount of Subdural hemorrhage and subarachnoid. The doctor has further stated that the deceased had acute heart disease. The doctor has further stated that the death was due to the heart disease associated with the head injury. Looking into the nature of the injuries found on the head, we are of the considered view that the said injuries could not have been contributed to the death of the deceased at all. Looking into the condition of the heart, age of the deceased etc., we are of the considered view that the death would have been caused only due to the heart disease and that is what the doctor has also opined to some extent. Thus, though the doctor has opined that the death was due to the heart https://hcservices.ecourts.gov.in/hcservices/ 4 disease, associated with head injuries, in the absence of any specific finding that the death was exclusively due to the head injury, it will be too difficult to hold the accused responsible for the death of the deceased. 10. In this regard, we may usefully refer to a Judgment of the Hon'ble Supreme Court in Jani Gulab Shaikh v. State of Maharashtra reported in 1970 SCC (Cr) 532, wherein in Paragraph Nos.6 and 9, the Hon'ble Supreme Court has held as follows:- "6....... We are unable to agree with the High Court that the accused must be posted with the knowledge that death was likely to result in circumstances the injuries were caused by him to the deceased. It is very rarely that if a man is pushed and he falls on the road the occipital bone gets fractured. Here, it is perhaps due to the drunken condition of the deceased that while falling, he could not avoid his skull falling on the road. At any rate, in our opinion, it is difficult to impute knowledge to the accused that death was likely to result by the push he is alleged to have given. 9. In our view, the accused is guilty under Section 323, I.P.C. In the result, the appeal is partly allowed, the conviction entered and sentence given by the High Court altered and the accused convicted under Section 323. IPC instead of Section 304 Part II. We understand that he has already undergone imprisonment for about 4½ months. We do not think it is necessary that he should be sent back to jail. Accordingly, we award him sentence already undergone. The bail bond executed by him shall stand cancelled." 11. In the case on hand also, it is not as though the accused had knowledge that the deceased was suffering from heart disease. The doctor has not stated that the heart disease, which was a cause for the death of the deceased, was activated by the act of the accused. Thus, the act of the accused will not fall under any of the limbs of either Section 299 or Section 300 of the Indian Penal Code. As has been held by the Hon'ble Supreme Court in the Judgment, cited supra, the act of the accused would only amount to an offence under Section 323 of the Indian Penal Code, for which he is liable to be punished. 12. Now, coming to the quantum of punishment, we are informed that the appellant has been in prison from the date of conviction, i.e., for a period of more than ten months. He has also paid the fine amount, as directed by the Lower Court. Going by the nature of the offence, gravity, family circumstances and all other attending circumstances, we are of the considered view that it would be suffice, if the sentence imposed on the appellant is modified to the period of sentence already undergone by him, besides imposing a fine of Rs.1,000/- for offence under Section 323 of the Indian Penal Code in default to undergo rigorous imprisonment for 15 days. 13. In such view of the matter, we are inclined to set aside the conviction and sentence imposed on the appellant under Section 302 of the Indian Penal Code and instead, he is liable to be convicted only under Section 323 of the Indian Penal Code. Insofar as the offence under Section 448 of the Indian Penal Code is concerned, PW-1 to PW-3 have https://hcservices.ecourts.gov.in/hcservices/ 5 clearly stated that the accused had trespassed into the house of the deceased. There is no reason to reject the said evidence. Thus, the conviction of the appellant under Section 448 of the Indian Penal Code deserves to be confirmed. Since the Lower Court has not imposed any separate sentence for the offence under Section 448 of the Indian Penal Code, we cannot impose any separate sentence in this Criminal Appeal. 14. In the result, the Criminal Appeal is partly allowed, the conviction and sentence imposed on the appellant under Section 302 of the Indian Penal Code is set aside and instead, he is convicted under Section 323 of the Indian Penal Code and the period of sentence shall be the period which the appellant has already undergone and to pay a fine of Rs.1,000/- [Rupees One Thousand], in default to undergo rigorous imprisonment for a period of 15 days. For offence under Section 448 of the Indian Penal Code, the conviction is confirmed, however, no separate sentence is imposed. He has already paid Rs.10,000/- as fine. Out of the said amount, Rs.1,000/- shall be adjusted towards the fine as imposed in this judgment and the balance fine amount shall be refunded to the appellant. As the appellant has paid the fine amount, he is directed to be released forthwith, unless his presence is required in connection with any other case. sd/- Assistant Registrar (Crl. Side) /True Copy/ Sub Assistant Registrar To 1.The Inspector of Police, Koodal Pudhur Police Station, Madurai. 2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 3.The Additional District and Sessions Judge /Fast Track Court, No.III, Madurai. + 1 cc to Mr.Palanivelayutham, Advocate, SR No.42237 JUDGMENT MADE IN CRIMINAL APPEAL (MD).No.38 of 2011 29.11.2011 NB RJ/19.12.11 5p/5c https://hcservices.ecourts.gov.in/hcservices/