Pattu @ Govindan v. State rep byInspector of PoliceKrishnagiri Town Police Station.(Crime NO.1102/1997 )

BAIL SLIPThe Accused / Appellant was directed to be released on bail by theorder of this Court dated 4.12.2000 and made in Crl.MP.No.8916/00 inCA.No.1127/2000.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:09-07-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No. 1127 of 2000Pattu @ Govindan ..Appellant-vs-State rep byInspector of PoliceKrishnagiri Town Police Station.(Crime NO.1102/1997 ).. RespondentThis appeal is filed under Section 374 Cr.P.C.,against theJudgment passed in S.C.No.168/1999 dated 30.10.2000 on the file of thePrincipal Sessions Judge, Dharmapurai at Krishnagiri.For appellant : : Mr. V.Raja MohanFor respondent : : Mr.V.R.Balasubramaniam Additional Public ProsecutorJUDGMENTThis appeal has been preferred against the Judgment in S.C.168 of1999 on the file of Principal Session Judge, Dharmapuri at Krishnagiri.2. The brief facts of the case relevant for deciding this appeal arethat on 5.8.1997 at about 6.30p.m., the accused with an intention tocause murder of the victim Ganesan had assaulted him with hands on thenap, stomach and chest repeatedly which resulted in the death of thevictim on the next day ie., on 6.8.1997 at 6.00p.m., 2. The learned Judicial Magistrate , on appearance of the accused onsummons had furnished copies under Section 207 of Cr.P.C. and since theoffence is triable by the Court of Sessions had committed the case tothe Principal Sessions Judge under Section 209 of Cr.P.C. The learned https://hcservices.ecourts.gov.in/hcservices/ Sessions Judge on appearance of the accused had framed charges underSection 302 of Cr.P.C. and when questioned, the accused pleaded notguilty.3. Before the trial Court, P.Ws 1 to 9 were examined . Exs P1 to P10 were exhibited and , M.Os 1 to 4 were marked.4. P.W.1 is the wife of the deceased Ganesan. According to her, herhusband Ganesan was working under one Perumal as a watch man in his Mangogarden for a salary of Rs.1500/- per annum and subsequently, in the placeof her husband, the accused was employed by Perumal and that some arrearsin the pay was due to her husband. The accused had promised her husband toget the arrears from Perumal but he has not stick to his promise whichresulted in a grudge between her husband and the accused and on the dateof occurrence, the accused took her husband victim Ganesan under thepretext of getting the arrears of salary took along with him and thatshe ,P.W.2 and P.W.3 along with one Venkataraman followed them at adistance of 10 feet. While going, the accused abused her husband andsuddenly they picked up quarrel inspite of she , Venkataraman,andMuniratnam intervened, the accused had assaulted her husband on the naprepeatedly with his hands and also kicked her husband on the chest and atthat time, when she(P.W.1) intervened she was also assaulted by theaccused on the head and she and her daughter raised hue and cry whichattracted a few public. On seeing the public approaching, the accused ranaway from the place of occurrence and that she gave some water to herhusband to drink,but he could not. Immediately, she brought her husbandto the house in a cycle with the help of Venkataraman and Muniratinam(P.W.3) and that since she has no sufficient money to take her husband tothe hospital, immediately on the following day, her son Moni went to hisgrand mother's house(P.w.1's mother) and brought some amount with the helpof that she hired an auto-rickshaw in order to take her husband to theGovernment Hospital, Krishnagiri but on the way her husband breathed hislast. Immediately she rushed to the Village Administrative Officer,Krishnagiri preferred Ex P1 complaint. She has identified M.O.1 to M.O.3are the wearing apparels of her husband. M.O.4 is the waist rope of herhusband.4a. P.W.2 is the daughter of P.W.1 who has also corroborated theevidence of P.W.1 to the effect that on the fateful day at about 6.00p.m.,accused took her father in order to get his arrears of salary and that shealong with her mother and P.W.3 followed them and when they were nearingmango garden of Perumal, the accused abused her father in filthy languageand caught hold of his nap gave two or three blows and also the accusedkicked her father on the chest. P.W.3 and Venkataraman also intervened but they were also pushed bythe accused on the side. When passers by like Kaliyappan, Jaya and Murugancame to the rescue of her father, the accused ranaway from the scene ofoccurrence and that her father became unconscious and he was brought to https://hcservices.ecourts.gov.in/hcservices/ the house in a cycle with the help of P.W.3 and Venkataraman and since hermother was not having sufficient money to take her father immediately tothe hospital on the next day, her brother brought some amount from hergrand mother with the help of that , they removed the victim in anautorickshaw to the Government Hospital Krishnagiri and that her motherhas preferred a complaint.4b. P.W.3 has also corroborated the evidence of P.W.1 and P.W.2. Healso speaks about the attack made by the accused on the victim on his napand also on his chest with the hands and legs. He would admit that afterthe occurrence,he and Venkataraman took the victim Ganesan in a cyclebelonged to one Chenrayan and that he heard on the next day that thevictim is no more.4c. P.W.4 is Chenrayan who had helped the victim to remove in hiscycle from the place of occurrence to the victim's house.4d.P.W.9 is the Investigating Officer who had took up investigationin this case which was registered under Krishnagiri Police Station CrimeNo.1102 of 1997 under Section 302 of IPC. Ex P7 is the first informationreport. On 7.8.1997 at about 6.00p.m., he had prepared observation mahazarEx P2 in the presence of P.W.5 and another witness Perumal. Ex P8 is therough sketch drawn by him. Thereafter he came to the place where thecorpse of the deceased was kept and prepared another mahazar and also haddrawn another rough sketch ExP9 in the presence of the same witnesses. Hehad conducted inquest under Ex P10 in the presence of panchayatars. Thecorpse was sent for autopsy through P.W.8 head constable who hadidentified the corpse to the Doctor P.W.6 who had conducted post mortem onthe corpse of the victim. P.W.6 conducted the postmortem on 7.8.1997 atabout 2.00p.m., on the basis of the requisition made by the investigatingofficer under Ex P4. The internal examination , he could see blood clotnear C4 and C6 bone in the vertebral column. H had seen twisting (torison)to C4 and C6 bone in the vertebral column of the deceased. The doctor hasopined that the injury found on the back bone(vertebral coulmn) of thevictim is sufficient in the ordinary course of nature to cause death ofthe deceased. Ex P5 is the post mortem certificate. Ex P6 is the SpecialReport given by P.W.7,the Village Administrative Officer to P.W.9. P.W.9has examined the witnesses and recorded their statements. He had arrestedthe accused on 8.8.1997 and produced before the Judicial Magistrate forremand. He had seized M.O.s 1 to 4 under Form 95 from P.W.8.Aftercompleting the formalities,P.W.9 has filed the charge sheet against theaccused.5. When incriminating circumstances were put to the accused underSection 313 Cr.P.C., he has denied his complicity with the crime. Aftergoing through the evidence both oral and documentary let in before thelearned trial Judge, the learned trial Judge has held that the offenceunder Section 304(ii) of IPC has been made out against the accused and https://hcservices.ecourts.gov.in/hcservices/ accordingly convicted and sentenced the accused to undergo two yearsrigorous imprisonment which necessitated the accused to prefer thisappeal.6. The point for determination in this appeal is whether theconviction and sentence by the trial Court under Section 304(ii) of IPCis sustainable for the reasons stated in the memorandum of the appeal?.7. I heard Mr. V.Raja Mohan, learned Counsel appearing for theappellant and Mr.V.R.Balasubramanian, learned Government Advocateappearing for the respondent and carefully considered their rivalsubmissions.8. The Point:P.W.1,P.W.2 and P.W.3 are the eye witnesses to the occurrence. Theoccurrence had occurred on 5.8.1997 at about 6.30p.m., The victim died on6.8.1997 at 6.00p.m.,Ex P1 is the complaint preferred on 6.8.1997 at23.45 hours. The reason for delay, according to P.W.1 wife of the victimis that since she had no sufficient money to take her husband to theGovernment Hospital at Krishnagiri which is situate 7 k.m away from theplace of occurrence, after securing money on the following day, she tookher husband in an autorickshaw on 6.8.1997 at 6.00p.m., but her husbandbreathed his last on the way and immediately she had contacted the VillageAdministrative Officer ) along with him went to the Krishnagiri policeStation and preferred Ex P1 complaint.P.W.7 also corroborates the evidenceof P.W.1 to the effect that on 6.8.1997 at about 10.00p.m., P.W.1 met himand he took her to the police station and the complaint was preferred byher and that Ex P6 is the special report. So the delay has been properlyexplained in this case by the prosecution through P.W1. the complainant.9.The learned counsel appearing for the appellant relying on adecision reported in Dnyaneshwar Dagdoba Hivrekar-vs- The State ofMahaarashtra(1982 Crl.L.J.1870) would contend that there is no intentionfor the accused to commit murder of the victim and further no weapon wasused by the accused therefore an offence under Section 304(ii) of IPC willnot be attracted and only an offence under Section 323 of IPC will beattracted since admittedly the accused had assaulted the victim only withhis hands. The facts of the above said dictum is that both the deceased aswell as the accused were of the same age group of 23 years and while theyproceeded together as usual to the gymnasium for their regular exercise onthe fateful day, there arose a quarrel between them and immediately theaccused had took out a stick and beat the victim on his head which causedinternal injuries. The victim was brought to the house of his sister andafter some time, the victim was removed to the hospital and inspite oftreatment given at the nursing home without responding to the same, hedied on the next day morning. The Sessions Court convicted the accused foran offence under Section 304(ii) of IPC and sentenced to under go threeyears rigorous imprisonment which was challenged before the High Court ofBombay. Taking into consideration, the nature of the injury which was https://hcservices.ecourts.gov.in/hcservices/ caused by a stick by the accused in that case and also according to themedical evidence, the injury sustained by the deceased at the hands of theaccused was only simple in nature, the learned Judge of the High Court hasconverted conviction and sentence to that of one under Section 323 of IPCand sentenced to suffer rigorous imprisonment for a period of 53 days ie.,the period already undergone by him. But the said facts of the case willnot be applicable to the present facts of the case because even though theaccused has assaulted the victim with the hands, according to the Doctor,P.W.6 who conducted the post mortem on the corpse of the deceased, theinjury on the vertebral column sustained by the victim is sufficient inthe ordinary course to cause the death of the victim which will squarelycome within the definition of "grievous hurt" under 8 of Section 320 ofIPC which runs as follows: The following kinds of hurt only aredesignated as "grievous"" firstly. . . . . . Secondly. . . . . thirdly. . . . fourthly. . . . fifthly. . . . sixthly. . . .seventhly. . .. Eightly: Any hurt which endangers life or which causesthe sufferer to be during the space of twenty days insevere bodily pain, or unable to follow his ordinarypursuits". 10. According to P.W.6, the doctor who had conducted post mortem onthe corpse of the deceased had issued Ex P5 post mortem certificate forthe injury sustained by the victim on the vertebral column is sufficientto cause death of the victim ie., hurt on the victim is sufficient tocause the death . Under such circumstances, the accused is liable to beconvicted only under Section 325 of IPC and not under Section 304 (ii) ofIPC. The motive attributed against the accused in this case , accordingto P.W.1 is that with a promise to get his arrears of the salary from onePerumal, the employer , the accused had taken the deceased along with himon the fateful day. Admittedly, Ganesan, the deceased was previouslyemployed as a watchman for his mango garden and was given yearly salary ofRs.1500/- but subsequently, the victim was replaced by the accused byPerumal and that the victim had requested the accused to use his goodoffices to get his arrears from Perumal and on the date of occurrencealso, the victim has accompanied the accused with a fond hope that he willget his arrears of salary from Perumal and while they were proceeding nearthe mango garden of Perumal , there arose a quarrel between the accusedand the victim and the accused had abused the victim who began to assaulthim with hands and legs. The blows received by the victim at the hands ofthe accused on the nap, resulted fatal which had taken away the life ofthe victim. Under such circumstances, an offence under Section 325 ofIPC alone is attracted against the accused and not an offence under https://hcservices.ecourts.gov.in/hcservices/ Section 304(ii) of IPC. The point is answered accordingly.11. In fine, the appeal is dismissed but the conviction and sentencedby the learned Sessions Judge in S.C.No.168 of 1999 on the file of thePrincipal Sessions Judge, at Dharmapurai is modified to one under Section325 of IPC instead of Section 304(ii) of IPC and sentenced to undergo oneyear rigorous imprisonment. Set off is ordered under Section 428 of IPC.The trial Court is directed to secure the accused by issuing N.B.W andafter securing the accused , he shall be sent to prison to spend theunexpended portion of the sentence.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo1. The Principal Sessions Judge, Krishnagiri.2. The Judicial Magistrate, Krishnagiri3.-do- through the Chief Judicial Magistrate, Krishnagiri4. The Public Prosecutor, High Court, Madras5. The Inspector of Police,Krishnagiri Town Police Station, Krishnagiri.Crl.A.No. 1127/2000rc[co]gp/31.7.