Bail Slip The Appellant/Accused viz., Panchatcharam was directed to be released on bail in and by order of this Court dt. 3.2.2007 made in Crl.M.P.No.1/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.6.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1099 of 2006 Panchatcharam .. Appellant/Accused Vs. State rep. by Inspector of Police Arni Taluk Police Station Arni, Tiruvannamalai District .. Respondent/Complainant ----- Appeal against the judgment dated 30.11.2006 made in S.C.No.51 of 2005 on the file of learned District and Sessions Judge, Thiruvannamalai. ----- For Appellant : Mr.K.S.Rajagopalan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- J U D G M E N T (Delivered by P.D.DINAKARAN,J.) Challenging the conviction and sentence dated 30.11.2006 imposed https://hcservices.ecourts.gov.in/hcservices/ on the appellant/accused in S.C.No.51 of 2005 on the file of learned District and Sessions Judge, Thiruvannamalai, convicting him for the offence under Sections 449 IPC and sentencing to undergo three years rigorous imprisonment with fine of Rs.3000/=, in default, to undergo one year rigorous imprisonment, and for the offence under Section 302 IPC to undergo life imprisonment with fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for One year, the accused has come forward with the present appeal. 2. The allegations in the two charges framed against the accused Panchatcharam are that (i) due to previous enmity with the deceased Govindan with respect to a chit money transaction, on 28.12.2004 at 9.00 p.m., the accused trespassed into house of the deceased, thereby committed the offence punishable under Section 449 IPC, and (ii) with the intention to commit the murder of the deceased, fisted on his chest with hands and kicked on his stomach with his leg, which caused the instantaneous death of the deceased and thereby committed the offence punishable under Section 302, IPC. 3. The prosecution case, which rests upon the evidence of eye witnesses, is as under: (a) P.W.1 is the son of the deceased. He is an eye witnesses to the occurrence. He had deposed that one Ravikumar was conducting Chit Transaction in which P.W.3, Ezhumalai, who is the brother's son of the deceased, the accused and others were subscribers. The said Ezhumalai did not remit the subscription of Rs.10,000/= in respect of 5 accounts. Since his deceased father was the erstwhile Panchayat President, the said Ravikumar came and requested his father to help him in collecting the defaulted amount from Ezhumalai which amount has to be paid to the accused. Thereafter a Panchayat was held in which the deceased instructed Elumazhai to subscribe the amount. Despite that, he did not pay the amount. Hence, the accused after taking drinks, very often used to come to the residence of the deceased and make ugly scenes. On 28.12.2004 at 9.00 p.m., also when P.W.1, and his family members were about to sleep, the accused entered into the house by breaking open the closed door and asked the deceased to come out. Then the deceased asked his family members to keep quiet, and was stepping towards the Veranda to see the accused. But, by that time, the accused entered inside the house and beat the deceased on his chest with his hands, due to which, the deceased fell down, and even before P.W.1 came to the rescue, again the accused with his legs kicked the deceased on the abdomen, and ran away. When P.W.1 lifted his father, he found his father breathed his last. Apprehending postmortem of the body, he did not opt to give any complaint to the police. Thereafter, only at the instance of his uncle one Mani, who was working in a Co-operative Bank, who came in the morning and advised him to give a police complaint, since it is a murder case, P.W.1 gave the complaint Ex.P.1 on the next day at https://hcservices.ecourts.gov.in/hcservices/ 1.00 p.m. (b) P.W.2 is the daughter of the deceased. Since her husband died, she was residing with her parents. On the date of occurrence at 9.00 p.m., she also witnessed the occurrence. She corroborates the version of P.W.1. (c) P.W.3, Ezhumalai is the brother's son of the deceased. He deposed about the chit transaction and the non payment of the chit amount of Rs.10,000/= by him and the intervention by the deceased who directed him to pay the amount directly to the accused. But, he has not paid the money to the accused even after a year. On 28.12.2004, at 9.00 p.m., he came to know about the death of the deceased and when enquired with P.W.1, he told that because of the quarrel due to the non payment of the chit amount, the accused killed his father. (d) P.W.4, Mani is the Village Administrative Officer. On the date of occurrence, when he was in his Office at 9.00 a.m., the Village Assistant came and intimated about the death of the deceased Govindan. At 2.00 pm., the police came and prepared an Observation Mahazar (Ex.P.2), which was attested by him along with the Village Assistant. Thereafter at 8.00 pm., when he was present in the office along with the Village Assistant Munusamy and one Kothandam, the accused came and intimated them that he had done away with the deceased Govindan and sought protection. Thereafter the accused gave a confession statement and along with the endorsement made thereunder with attestation by the Village Assistant Munisamy and one Kothandam, along with a separate report prepared by him, the VAO produced the accused before the Police. The police also enquired the accused and obtained statement in which the VAO and Village Assistant have signed as witnesses. (e) P.W.6 is one Mani, and the deceased Govindan is his uncle. He resides in another village. On 29.12.2004 at 8.00 am., he heard the death news of his uncle and he along with other relatives went to the scene of occurrence and enquired with P.W.1 as to the cause of death, for which P.W.1 replied that it is the accused who had killed his father by attacking him with his hands and legs. Then P.W.6 told that it is a police case and advised him to give a police complaint and thereafter he left the place. (f) P.W.7 is the Sub Inspector of Police at the relevant period in the Arni Taluk Police Station and according to him, on 29.12.2004 at 1.00 pm., P.W.1 came to the Station and lodged Ex.P.1 complaint, which was registered by him as Crime No: 1006 of 2004 under Section 449 and 302 IPC and sent the FIR to the Court and copy of the FIR to the Inspector of Police. (g) P.W.8 is the Inspector of Police. On receipt of the FIR, he https://hcservices.ecourts.gov.in/hcservices/ reached the scene of occurrence at 2.15 p.m., and prepared Observation Mahazar, Ex.P.2. He drew the Rough Sketch, Ex.P9. He conducted inquest over the body of the deceased. Ex.P.10 is the inquest report. He sent the body of the deceased for conducting autopsy, with requisition. On the same day at 9.30 pm., the VAO produced the accused with his voluntary confession statement, along with his report. The Inspector of Police recorded the voluntary confession given by the accused in the presence of the VAO and Village Assistant and thereafter sent the accused to judicial custody. (h) P.W.5, Doctor, who conducted the postmortem found the body bloated with blisters over the face, upper limbs, chest and abdomen, particularly dried blood clot was seen in the tip of urethra and penis and scrotum were swollen. On dissection of the penis, the Doctor found clotted blood in the congested urethra. Finally, the Doctor gave his opinion that with the blood clot in the urethra, and no other fatal injury, and with history of sudden blow to receptor area like penis and lower abdomen and sudden instantaneous death, the deceased would appear to have died of primary or neurogenic shock. (i) In continuation of his investigation, the Inspector of Police again went to the Mattadari Village and recorded the statements from the witnesses. The bloodstained Dhoti (M.O.1) and red colour towel (M.O.2) were recovered from the dead body after postmortem and sent for chemical analysis through Court. The Inspector of Police also recorded the statement of the Medical Officer, VAO and Village Assistant. Completed his investigation and filed the final report on 27.1.2005 against the accused for the offences punishable under Sections 449 and 302, IPC. 4. Thereafter the case was committed to the Court of Sessions and charge was framed and since the accused denied his complicity in the offence, the case was taken up for trial. In order to substantiate the charges levelled against the accused, the prosecution examined P.Ws.1 to 8, filed exhibits P.1 to P.11 and marked material objects M.Os.1 and 2. 5. After completion of the evidence of the prosecution witnesses, when the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances that appeared against him, the accused denied them as false and pleaded not guilty. However, neither any witness was examined, nor any documentary evidence was produced by the accused in support of his version. 6. The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the appellant as aforementioned. Hence, the present appeal. https://hcservices.ecourts.gov.in/hcservices/ 7. According to the learned counsel appearing for the appellant there are several infirmities in the prosecution case, namely (i) delay in filing the complaint, (ii)medical evidence does not support the prosecution version and (iii) inconsistency between the evidence of P.Ws 1 and 2. However, the learned counsel for the appellant/accused without prejudice to such contentions submitted that even accepting the prosecution case, the offence under Section 302 IPC is not made out and at the worst, the prosecution case would come only under Section 323 IPC. 8. It is submitted by the learned counsel for the appellant that the accused was admittedly unarmed when he came to the house of the deceased and he is said to have only fisted with his hands on the chest and kicked with his legs on the stomach of the deceased. It is also pointed out by the learned counsel for the appellant that absolutely there is no external or internal injury. The learned counsel further submitted that even the medical evidence does not disclose to the effect that the injury sustained by the deceased is sufficient in the ordinary course of nature to cause death as the Doctor had not found any external or internal injuries, more particularly, either on the chest or on the stomach. Therefore, it is contended that the appellant could not have been attributed with the intention of causing the death of the deceased. According to the learned counsel, as already contended, the evidence of P.Ws 1 and 2 coupled with the medical evidence clearly shows that the deceased died not due to any injury but due to primary or neurogenic shock, as the appellant/accused had fisted with his hands on the chest and kicked with his legs on the stomach of the deceased. 9. The learned Additional Public Prosecutor also fairly conceded to the contention put forth by the learned counsel for the appellant in bringing down the offence from Section 302 IPC to the offence punishable under Section 323 IPC. 10. As far as the motive is concerned, the prosecution projected money dispute as the motive for the occurrence. As per the complaint Ex.P.1, given by P.W.1, son of the deceased, and the evidence of P.Ws 1 to 3, it is seen that one Ravikumar had been conducting Chit transaction and P.W.3, Elumalai, who is the brother's son of the deceased, had defaulted a sum of Rs.10,000/= and at the instance of Ravikumar, the deceased, since he was the erstwhile Panchayat President, conducted a Panchayat and directed P.W.3 to directly pay the said amount to the accused. However, the said amount had not been paid by P.W.3 for nearly a year after the said Panchayat and therefore, the accused thought that the deceased was the cause for such delay and therefore very often used to come and shout against the accused. This aspect of motive is corroborated by P.Ws.1 to 3 in their evidence. This would amply prove the motive on the part of the accused in committing the crime. https://hcservices.ecourts.gov.in/hcservices/ 11. As far as the manner of occurrence is concerned, the occurrence took place on 28.12.2004 at about 9.00 p.m., in the night. When P.W.1, and his family members were about to sleep, the accused in an inebriated condition by breaking open the closed door, trespassed into the house and asked the deceased to come out. Then the deceased asked his family members to keep quiet, and was stepping towards the Veranda to see the accused. By that time, the accused entered into the house and beat the deceased on his chest with his hands, due to which, the deceased fell down, and even before P.W.1 came to the rescue of the deceased, the accused again with his legs kicked the deceased on the abdomen, and ran away. When P.W.1 lifted his father, he found his father breathed his last. The above overt acts attributed to the accused is fortified by the evidence of the eye witnesses P.Ws 1 and 2. 12. The accused has given extra judicial confession to P.W.4, Mani, Village Administrative Officer. According to him, on the date of occurrence at 8.00 p.m., when he was present in the office along with the Village Assistant Munusamy and one Kothandam, the accused came, intimated them that he had done away with the deceased Govindan and sought protection. Thereafter, the accused voluntarily gave the extra judicial confession Ex.P.3, and along with the endorsement made thereunder, with attestation by the Village Assistant Munisamy and one Kothandam, with a separate report prepared by him, the VAO produced the accused before the Police. The police also enquired the accused and obtained a statement in which the VAO and Village Assistant have signed as witnesses. The VAO, Village Assistant and one Kothandam support the prosecution case regarding the voluntary Extra Judicial Confession made by the accused. Being independent witnesses, their testimony cannot be doubted as they have no motive to implicate the accused falsely. 13. As regards the contention of the learned counsel for the appellant/accused that the offence, at the most, will fall only under Section 323 I.P.C., from the evidence available on record, it is clear that there was prior enmity and quarrels between the accused and the deceased, since the accused was under the impression that it is only at the intervention by the deceased, as the erstwhile Panchayat President, P.W.3, Elumalai, his relative, was delaying the payment of the defaulted chit money to him and therefore, he used to very often come and shout against the deceased. P.Ws 1 and 2 are eye witnesses to the occurrence. As per the evidence of P.W.1, the accused is said to have fisted the deceased on his chest with the hands, due to which the deceased fell down and again the accused kicked the deceased on his abdomen. The fact remains that the accused has not attempted to attack the deceased further and immediately ran away from the scene. Further, even as per the admitted case of the prosecution, the accused was not armed with any weapon while going to https://hcservices.ecourts.gov.in/hcservices/ the house of the deceased. P.W.1 also categorically admitted in his cross examination that the occurrence took place for about 10 minutes which clearly shows that the accused has not attacked the deceased immediately and a wordy quarrel preceded the occurrence. 14. The categorical statement of P.W.2, daughter of the deceased, another eye witness is to the effect that the occurrence took place outside the house. According to her, soon after the deceased came out of the house, the accused is said to have beat the deceased on his chest with his hands and kicked on his stomach. On the other hand, even according to P.W.8, the Investigation Officer, P.Ws.1 and 2 have not stated to the Police during investigation that the accused wanted to beat and kill the deceased. 15. It is also relevant to note that though the appellant/accused is alleged to have fisted on the chest and kicked on the lower abdomen of the deceased, as seen from the post-mortem certificate, there is no external injury or corresponding internal injury found by the Doctor, namely fracture of ribs or rupture of abdominal vital parts, except blood clot in the congested urethra and bloated scrotum. It is opined by the Doctor that in the absence of any fatal injury, due to the blood clot in the urethra, which was due to the sudden blow to receptor area like penis and lower abdomen, the deceased appeared to have died of primary or neurogenic shock. It is pertinent to note that the Doctor has not stated that such internal injury sustained by the deceased is sufficient to cause death in the ordinary course of nature. Therefore, it is very clear from the medical evidence that the death of the deceased is not due to the direct result of any injury. Therefore, the evidence of the eye witnesses coupled with the medical evidence makes it crystal clear that the accused cannot be imputed with having any intention of causing the death of the deceased. 16. In an identical case, the Apex Court in Pirthi v. State of Haryana, 1994 Supp (1) SCC 498, held that as per the medical opinion, admittedly, the injury to the testicles was not the direct cause of death and as such the conviction is modified to one under Section 323 IPC. The accused in this case is said to have kicked the deceased on his stomach. Even assuming that the accused has kicked on the testicles, P.W.5, the Doctor has admittedly not found any external or internal injury. It is also to be pointed out that there is no external injury either on the chest or on the stomach and the Doctor has not stated that the deceased died due to the direct cause of any particular injury said to have been caused by the accused. At the risk of repetition, we are constrained to reiterate that the Doctor has not stated in his opinion that the injury sustained by the deceased is sufficient in the ordinary course of nature to cause the death, as there is no external or internal injury of fatal nature. Therefore, on the basis of the medical evidence, the fact remains https://hcservices.ecourts.gov.in/hcservices/ that the deceased did not die due to any particular injury. 17. That apart, even according to the evidence of the eye witnesses, the second overt act of kicking of the deceased by the accused with his leg is only on the stomach or abdomen and not on the testicles. Therefore, it is clear that at the moment of commission of the crime, the accused could not have had any intention to kill the deceased or had the knowledge that his act of kicking in the lower abdomen may accidentally fall on the private parts, and in consequence of that, even accepting the medical opinion, the deceased, who was aged 65 years, would die due to neurogenic shock. 18. In view of the above facts and circumstances of the case, by no stretch of imagination, the accused could be imputed with intention or knowledge of causing the death of the deceased and at the worst, his act would fall only under Section 323 IPC. Therefore, we are left with the inevitable conclusion that the act of the accused would clearly fall under Section 323 IPC for the offence of voluntarily causing hurt. Accordingly, the conviction of the appellant/accused for the offence punishable under Section 302 IPC is modified to that of the offence punishable under Section 323 IPC and the appellant/accused is sentenced to undergo rigorous imprisonment for One Year. Further, we are of the considered view that the the accused/appellant shall pay compensation to the family members of the deceased. 19. However, the conviction under Section 449 IPC for house trespass is confirmed. Since the conviction under Section 302 IPC is modified to that of Section 323 IPC, and the accused is sentenced to undergo One year rigorous imprisonment, it will be appropriate if the sentence of rigorous imprisonment for Three years, imposed by the Trial Court, for the offence under Section 449 IPC is reduced to one year. 20. Accordingly, the accused/appellant is convicted under Sections 449 and 323 IPC and sentenced to undergo one year rigorous imprisonment for the offences, which sentences shall run concurrently. 21. As regards compensation, the sentence of fine imposed by the trial court for the two offences punishable under Sections 449 and 302 IPC is confirmed and the total fine amount of Rs.8,000/= paid by the accused is to be treated as compensation and directed to be paid to P.Ws 1 and 2 respectively in equal proportion under Section 357 (1) Cr.P.C. In addition to the above, under Section 357(4) Cr.P.C., the accused/appellant is directed to pay a compensation of Rs.10,000/= each to the Son (P.W.1) and Daughter (P.W.2) of the deceased, which shall be payable directly to the parties in the form of Demand Drafts. https://hcservices.ecourts.gov.in/hcservices/ 22. In the result, this Criminal Appeal is allowed in part modifying the conviction and sentence to the extent indicated as above. The Bail Bonds executed by the accused shall stand cancelled, and the learned Sessions Judge shall take necessary steps to secure the presence of the accused to commit him to prison, to undergo the remaining period of sentence. This Appeal having been posted on this day (8.7.2008) for reporting compliance of payment of compensation of P.Ws. 1 & 2 in the presence of the aforesaid Advocate, the Court made the following Order:- The above Criminal Appeal was already allowed in part by our judgement dated 30.6.2008, whereunder the conviction and sentence dated 30.11.2006 imposed on the appellant/accused in S.C.No.51 of 2005 by the learned District and Sessions Judge, Thiruvannamalai, convicting him for the offence under Sections 449 IPC and sentencing to undergo three years rigorous imprisonment with fine of Rs.3000/=, in default, to undergo one year rigorous imprisonment, and for the offence under Section 302 IPC to undergo life imprisonment with fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for One year, was modified by this court as hereunder:- "18. In view of the above facts and circumstances of the case, by no stretch of imagination, the accused could be imputed with intention or knowledge of causing the death of the deceased and at the worst, his act would fall only under Section 323 IPC. Therefore, we are left with the inevitable conclusion that the act of the accused would clearly fall under Section 323 IPC for the offence of voluntarily causing hurt. Accordingly, the conviction of the appellant/accused for the offence punishable under Section 302 IPC is modified to that of the offence punishable under Section 323 IPC and the appellant/accused is sentenced to undergo rigorous imprisonment for One Year. Further, we are of the considered view that the the accused/appellant shall pay compensation to the family members of the deceased. 19. However, the conviction under Section 449 IPC for house trespass is confirmed. Since the conviction under Section 302 IPC is modified to that of Section 323 IPC, and the accused is sentenced to undergo One year rigorous imprisonment, it will be appropriate if the sentence of rigorous imprisonment for Three years, imposed by the Trial Court, for the offence under Section 449 IPC is reduced to one year. https://hcservices.ecourts.gov.in/hcservices/ 20. Accordingly, the accused/appellant is convicted under Sections 449 and 323 IPC and sentenced to undergo one year rigorous imprisonment for the offences, which sentences shall run concurrently. 21. As regards compensation, the sentence of fine imposed by the trial court for the two offences punishable under Sections 449 and 302 IPC is confirmed and the total fine amount of Rs.8,000/= paid by the accused is