The present appeal has been preferred against the order dated 04.07.2013 passed by the learned District and Sessions Judge, Nagapattinam in S.C.No.228 of 2010.
2. It is the case of the prosecution that the deceased, Murugan was the maternal uncle of the accused/Vijayendran and both of them were sculptors by profession and in and around the time when the incident took place, both of them were working in Chennai in connection with a temple renovation work. They both hail from the same village and they were in fact neighbours. About 15 days prior to the incident, the deceased/Murugan came home, but, did not go back to Chennai for work. A week prior to the incident, the accused also returned home. It is alleged that on 15.08.2010 around 10.00 p.m., when Murugan was in his house, the accused came there and there was a wordy quarrel between them, which resulted in both of them grappling each other and fighting.
3. On seeing them fighting, Rasathi(P.W.1), wife of the deceased and Arumugam (P.W.2), the brother of the deceased and the maternal uncle of the accused, intervened and separated. It is alleged that the accused pushed the deceased on account of which, he fell down. After both of them were separated, the deceased went inside his house and was gasping for breath. Therefore, Rasathi (P.W.1) immediately took him in the auto of Mahalingam (P.W.4) to a nearby doctor, who checked the pulse of the deceased and advised that he should be immediately taken to the Government Hospital, Mayiladuthurai for further treatment. Therefore, Rasathi (P.W.1) and Mahalingam (P.W.4) proceeded towards the Government Hospital. En route, Rasathi (P.W.1) felt that her husband died and therefore, they brought back the body to their house. Rasathi (P.W.1) informed all her relatives and they all came for the funeral.
4. At that time, the relatives exhorted that a complaint should be given to the police and therefore, Rasathi (P.W.1) lodged a written complaint (Ex.P1) to the Police on 16.08.2010 at 02.00 p.m. based on which, Anbarasan (P.W.7), Sub Inspector of Police registered a case in Crime No.308 of 2010 on 16.08.2010 at 02.00 p.m. under
Section 302 IPC against the accused vide printed FIR, Ex.P6. Ex.P1, the original complaint and the printed FIR reached the jurisdictional Magistrate at 07.30p.m. on 16.08.2010 as could be seen from the endorsement thereon. Investigation of the case was taken over by Nagarajan (P.W.10), Inspector of Police, who went to the place of occurrence on 16.08.2010 and prepared a Rough Sketch, Ex.P7. He also prepared an Observation Mahazar (Ex.P2). He examined some witnesses and conducted inquest on the body of the deceased and the inquest report was marked as Ex.P8. The body was sent to the Government Hospital for post-mortem, where, Dr.Jayakumar (P.W.6) conducted autopsy. Dr.Jayakumar (P.W.6), in his evidence before the Court and in the Post mortem Certificate, Ex.P4 has stated that he did not find any external injuries on the body of the deceased and that there was no fracture in the skull. However, he has opined that Murugan would have died on account of haemorrhage suffered by him, when he fell on the ground. In the viscera Report (Ex.P.5), no alcohol or other poisonous substance was detected in the Visceral organs of the deceased.
5. After the post-mortem, the body was handed over to the family of the deceased by Sivanantham (P.W.9), Head Constable. The Police arrested the accused on 17.08.2010 at 05.30 p.m. and he was produced before the jurisdictional Magistrate for judicial custody. Nagarajan (P.W.10), the Inspector of Police examined a few other witnesses including the Doctor, who performed the autopsy and completed the investigation and filed a final report in P.R.C.No.39 of 2010, before the learned Judicial Magistrate No.II, Mayiladuthurai.
6. On the appearance of the accused, he was furnished with the copies of the relied upon documents under
Section 207 Cr.P.C and the case was committed to the Court of Sessions in S.C.No.228 of 2010 for trial.
7. The trial Court framed a charge under
Section 302 of IPC and when the accused was questioned, he pleaded not guilty. To prove the case, the prosecution examined ten witnesses and marked eight exhibits. When the accused was questioned about the incriminating circumstances appearing against him under
Section 313 Cr.P.C, he denied the same. No witness was examined on behalf of the accused nor any document was marked.
8. After considering the evidence on record and hearing either side, the trial Court, by Judgement dated 04.07.2013 in S.C.No.228 of 2010, convicted the accused under
Section 304(ii) IPC and sentenced to undergo 7 years Rigorous Imprisonment and pay a fine of Rs.500/-, in default to under 2 years Rigorous Imprisonment.
9. Challenging the conviction and sentence, the accused is before this Court.
10. Heard Mr.Thamaraiselvan, learned counsel for the accused and Mr.Madhan, Government Advocate (Crl.Side) for the respondent.
11. At the outset, it may be necessary to appreciate the evidence of Rasathi (P.W.1), Arumugam (P.W.2) and Ramadoss (P.W.3), who are the eye witnesses in this case. The relationship between the accused and the deceased is not in dispute. Even according to the prosecution, there was no previous enmity or motive or ill will between the accused and the deceased. The accused and the deceased were working for a temple in Chennai and both of them had returned to the village a few days prior to the incident.
12. Coming to the kernel of the case, Rasathi (P.W.1) has stated that on 15.08.2010, at 10.00 p.m., when her husband and she were in the house, the accused came there and he started abusing her husband. The subject of the quarrel was wages. Rasathi (P.W.1) stated that her husband did not return to work, because, he was not satisfied with the wages that was being paid. This was the bone of contention between the uncle and the nephew. It may be necessary to extract P.W.1's evidence verbatim:
ntiyf;F nghd ,lj;jpy; vd; fztUf;F Typ nghjtpy;iy vd;W mth; te;jjhy; Typ rk;ge;jkhf mg;g vjphpf;Fk; vd; fztUf;Fk; mg;nghJ rz;il ele;jJ/ mg;go mth;fs; ,UtUk; xUtiu xUth; iffyg;g[ rz;il nghl;Lf;bfhz;L tpl;L thrYf;F brd;Wtpl;lhh;fs;/ ,Utiua[k; ehd; tpyf;fpa[k; tpyf;f Koatpy;iy/ vjphp vd; fztiu gpoj;J nuhl;oy; js;sptpl;lhh;/
13. Thus, it is clear that both of them were grappling each other and were fighting. No weapon was used. Rasathi (P.W.1) and Arumugam (P.W.2) intervened and separated them, in which, it is alleged that the accused pushed the deceased, on account of which, the deceased fell down. The evidence of Arumugam (P.W.2) and Ramadoss (P.W.3) are also to the same effect. The trial Court which had the occasion to see the face of witnesses, has given the following findings.
These show that though the accused first plunged into quarrel with the victim Murugan, the accused and the said Murugan, making consequential scuffle between themselves, fell down at the scene of crime and in such situation, the said Murugan sustain blood-bleeding injury inside his head. From these, it can be inferred that in the quarrel aforesaid, the accused did not intentionally pushed down the said Murugan for causing injury to him. From the abvoe, it cannot be said that the accused, plunging into quarrel with the said Murugan, had intention to cause death to him. Further, the above said act of the accused in pushing down the said Murugan as aforesaid, cannot be said as an intentional act of causing injury to him, which would result in death of the said Murugan.
Section 299 of IPC reads as follows.
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide"
14. This Court is not able to fit the act of the accused, pushing the deceased in a scuffle, into any of the three categories mentioned in
Section 299 IPC. It may be relevant to bear in mind that there was no external injury on the body of the deceased. Haemorrhage could have happened even on account of raise of blood pressure due to the scuffle. The accused would not have anticipated the said serious consequences, when he pushed the deceased at the time when they both were being separated by Arumugam (P.W.2).
15. To say that the accused would have had the knowledge that by pushing the deceased, it is likely to result in his death, appears very preposterous. At the most, the accused would have had the knowledge that by engaging in a scuffle with the deceased and pushing him, it may cause hurt to the deceased. In such view of the matter, the conviction of the accused for the offence under
Section 304(ii) IPC is not sustainable and the accused can, at the most, be convicted under
Section 323 IPC.
16. In the result, this appeal is partly allowed. The conviction and sentence of the accused under
Section 304(ii) of IPC are set aside and the accused is convicted for the offence under
Section 323 of IPC.
17. Learned Government Advocate(Crl. Side) would submit that the accused had already undergone some period (ten months and 6 days) and he may be entitled to set off the said period under
Section 428 Cr.P.C.
18. The accused is convicted under
Section 323 IPC and is sentenced to undergo ten months Rigorous Imprisonment with fine of Rs.500/-, in default to undergo a further period of one month. The period already undergone by the accused may be set off.
19. With the above modification, this Criminal Appeal is partly allowed.
17.11.2017 smi/rna P.N.PRAKASH, J.
rna To
1.The District and Sessions Judge, Nagapattinam.
2.The Inspector of Police, Poraiyur Police Station, Nagapattinam District.
3.The Additional Public Prosecutor, High Court, Madras.
CRL.A.No.540 of 2013 17.11.2017