Nagarajan v. State

BAIL SLIPThe Appellant / Accused was directed to be released on bail as perthe order of this Court dt.29.8.06 in Crl.M.P.4150 of 2006 inC.A.134/06.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.4.2008CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE R.REGUPATHICriminal Appeal No.134 of 2006Nagarajan.. Appellant (Accused) Vs.State by Inspector of PoliceVellagoundenpattiNallur Police StationCrime No.62 of 2004Namakkal District. .. Respondent/Complainant-----Appeal against the judgment dated 30.12.2005 made in SessionsCase No.165 of 2005 on the file of Principal District and SessionsJudge, Namakkal.-----For Appellant: Mr.N.ManokaranFor Respondent :Mr.N.R.ElangoAddl. Public Prosecutor-----J U D G M E N T(Delivered by R.REGUPATHI,J.)The appeal is directed against the judgment dated 30.12.2005made in Sessions Case No.165 of 2005 on the file of the learnedPrincipal District and Sessions Judge, Namakkal, whereunder theappellant was convicted for the offence punishable under Section 302I.P.C. and sentenced him to undergo imprisonment for life and to paya fine of Rs.1,000/- in default to undergo rigorous imprisonment for https://hcservices.ecourts.gov.in/hcservices/ two months. Aggrieved against the conviction and sentence, thepresent appeal has been preferred before this Hon'ble Court.2. As per the charge, the appellant on 17.3.2004 at 8.15 a.m. infront of the Mariamman Temple, Perungurichi village, questioning thedeceased Marappan along with others about the panchayat disqualifyinghim from performing pooja, indulged in quarrel, kicked him on hisprivate part, in which the deceased sustained injury in his testicleand died thereafter and thereby committed an offence punishable underSection 302 I.P.C. 3. When the appellant was initially questioned, he denied thecomplicity of committing such offence and therefore, trial of thecase was taken up.4. The prosecution has examined P.Ws.1 to 14 and marked Exs.P1to 19 to prove its case.5.1. The case of the prosecution is that the appellant alongwith other persons were performing pooja in turn for every week.About one year prior to the date of occurrence, during the turn ofthe appellant, while performing pooja, he was under intoxication andthe deceased and others found the conduct of the appellant asderogatory and injuncted the appellant from performing pooja any morefor the temple. Under such circumstances, P.W.3 Arunachala Pandaramwas informing the panchayatdars on 17.3.2004 at 8.00 a.m. in front ofthe temple that the appellant was threatening him by saying that hebecame unemployed on account of the decision made by thepanchayatdars. At that time, the deceased and the appellant camethere and indulged in quarrel. The appellant during the quarrel madean attempt to assault P.W.3, which was questioned by the deceased.At that time, the appellant is alleged to have kicked on the privatepart of the deceased in which he fell down and subsequently succumbedto death. 5.2. The prosecution has examined P.Ws.1 to 4 as eye witnessesto substantiate its case. It is the evidence of P.W.1 Paramasivamthat there were two temples in the village and five poojaries wereperforming poojas on regular basis for every week in the alternativearrangement. One year prior to the date of occurrence, a festivalwas conducted at Mariamman Temple in which it was the turn of theappellant. The appellant after consuming alcohol performed pooja andthe same was objected to by the villagers and panchayatdars. Theappellant was prohibited from performing pooja any more. Under suchcircumstances, on 17.3.2004 at 8.00 a.m. P.Ws.1, 2 and 4 were talkingin front of the temple. P.W.3 came there and was informing them thatthe appellant was quarrelling with him by saying that he becameunemployed on account of the decision of the panchayat. At thattime, the appellant also came there. The appellant startedquestioning about the decision of the panchayat to P.W.3 and made an https://hcservices.ecourts.gov.in/hcservices/ attempt to assault him. At that time, the deceased came there andquestioned the conduct of the appellant, for which the appellantreplied that it was only on account of the deceased and others, helost his job and he must be killed. The appellant kicked thedeceased on his private part and he fell down. The deceased becameunconscious and after seeing the deceased, the appellant ran out tothe fencing poles and inflicted injuries on him by saying that hewill also die. When P.Ws.1 to 4 made an attempt to get hold of him,the appellant ran away from the scene of occurrence. It wasintimated to the son of the deceased P.W.8 and on his arrival, thedeceased was taken to the Government Hospital, Tiruchengode at 9.00a.m.5.3. P.W.5, Medical Officer attached to Government Hospital,Tiruchengode, after seeing the deceased declared him dead. He sentEx.P9 intimation to the police and issued Ex.P3 accident register. 5.4. Thereafter, P.W.1 went to the police station and gave acomplaint Ex.P1. Ex.P2 is the signature of P.W.1 in Ex.P1. P.Ws.2to 4 are eye witnesses to the occurrence and they have corroboratedthe testimony of P.W.1. P.W.9, who is also a villager speaks aboutthe motive part of the case of the prosecution. 5.5. P.W.11 is the Head Constable, who on 17.3.2004 at 10.30a.m. received Ex.P1 complaint and registered a case in Crime No.62 of2004 for an offence punishable under Section 302 I.P.C. and preparedEx.P16 printed FIR and despatched the same to the learned JudicialMagistrate as well as to the superior officials through P.W.12,Police Constable. 5.6. P.W.13, Inspector of Police, on receipt of copy of the FIR,reached the scene of occurrence at 4.00 p.m. on the same day,prepared Ex.P14 observation mahazar and Ex.P17 rough sketch andexamined the witnesses present in the scene of occurrence.Thereafter, he proceeded to the Government Hospital, Tiruchengode,conducted inquest over the body of the deceased and prepared Ex.P18inquest report and despatched the dead body for conducting postmortemwith Ex.P4 requisition through P.W.12.5.7. P.W.5, Dr.Nallaiyan, Medical Officer attached to GovernmentHospital, Tiruchengode, on receipt of Ex.P4 requisition from P.W.13,conducted post-mortem on the body of the deceased on 17.3.2004 andnoticed the following injuries:"External injury:1cm x 1cm margin ill-deformed red contusion in thelower left side scrotum. On dissection tissue infiltratedwith blood and red clot seen. Ante-mortem injury. https://hcservices.ecourts.gov.in/hcservices/ Internal injury:Corresponding to external injury 2cm x 1cm contusionin the lower part of left testis red colour. On dissectiontissue infiltrated with blood and clotted blood found.Ante-mortem injury." He has issued Ex.P6 post-mortem certificate and Ex.P7 final opinionof post-mortem report. He has opined that the deceased would appearto have died of shock due to injury to left testis 6 to 12 hoursprior to post-mortem examination.5.8. During the course of the investigation, P.W.13 arrested theappellant on 17.3.2004 at 5.00 p.m. and recorded his voluntarystatement in the presence of P.W.10. Ex.P15 is the signature ofP.W.10 in the voluntary statement made by the appellant and Ex.P19 isthe arrest report. Since the appellant was found with injuries, whenquestioned, he has stated that he sustained injuries by selfinfliction. The appellant was sent to hospital for treatment.5.9. P.W.6, Dr.Kalavalli attached to Government Hospital, Velur,Namakkal, examined the appellant and found the following injuries:"1. 1cm x 2.5cm x 0.5cm cut injury over the thenareminence of the right hand palm.2. Multiple abrasion about 6 in number over righthand forearm each measuring 1cm x 0.5cm.3. 2 abrasions over left hand forearm eachmeasuring 1cm x 0.5cm.4. Pain and tenderness over right upper arm." Exs.P10 and P11 are the accident register and wound certificaterespectively issued by her.5.10. P.W.7 is the Magisterial Clerk, who speaks about thereceipt of requisition Ex.P12 from P.W.13, forwarding the viscera ofthe deceased to the laboratory under Ex.P14 Court's letter andreceipt of Ex.P8 Chemical Examiner's Report. 5.11. P.W.14, Inspector of Police, took over the investigationof the case on 29.3.2004 and examined the Doctor, recorded hisstatement and received his opinion. After collecting all the othermaterials, he filed the final report on 22.4.2004 against theappellant for the offence punishable under Section 302 I.P.C.6.1. When the appellant was questioned under Section 313 Cr.P.C.as to the incriminating circumstances found against him in theevidence of prosecution witnesses, he denied the same. One Natesanwas examined as D.W.1 on the side of the defence and no documentaryevidence was marked. https://hcservices.ecourts.gov.in/hcservices/

6.2. The appellant filed a written statement wherein it is statedthat on 17.3.2004 at 8.00 a.m. when he was in his house, P.Ws.1 to 4and others came there and questioned him as to whether he has givenany written complaint against them alleging that they misused theamount collected in the hundi, for which the appellant replied thathe did not give any complaint. Immediately, the deceased assaultedthe appellant with a knife on his right hand and P.Ws.1 to 4 andothers assaulted him with sticks on both the hands. Again, when thedeceased attempted to cut the appellant, he lost his balance, felldown and sustained injuries. He has not kicked the deceased on hisprivate part and is in no way responsible for the death of thedeceased. P.Ws.1 to 4 and others handed over the appellant to thepolice station at 9.30 a.m. and at 9.00 p.m. police took theappellant to the hospital and threatened him to state before theMedical Officer that the injuries sustained by him were inflicted byhimself and otherwise, they will foist a murder case and out of fear,he informed to the Medical Officer as stated by the police. Theappellant has stated that a false case has been foisted on him.6.3. On the side of the defence, one Natesan was examined asD.W.1. D.W.1 is the brother-in-law of the deceased. He has statedthat one and half years prior to the occurrence at 8.00 a.m. while hewas going to milk farm, he heard sound in the appellant's house. Hewent there and saw P.Ws.1 to 4 and others beat the appellant askinghim whether he lodged any complaint against them formisappropriation of the hundial amount and the deceased attempted tocut the deceased and while doing so, he lost his balance, fell downand sustained injuries. P.Ws.1 to 4 took the appellant to the policestation.7. The learned Principal District and Sessions Judge, Namakkal,on perusal of the materials, oral and documentary produced before theCourt and after hearing the arguments advanced by both the sides,convicted and sentenced the appellant as aforesaid. Aggrieved by thesame, the appellant has filed the present appeal. 8.1. The learned counsel for the appellant submits that themotive part of the prosecution is flimsy. Even as per theprosecution version, such panchayat barring the appellant fromperforming pooja took place one year prior to the occurrence. Undersuch circumstances, there is no immediate motive for questioning thepanchayatdars' decision inasmuch as the defence put forth to the eyewitnesses by way of suggestion that the appellant was prohibited bythe panchayatdars including the deceased and after assaulting theappellant on his hand for sending a petition against thepanchayatdars by him and in that process, the deceased fell down andsustained injury on his private part. Thereafter, since the deceaseddied, the appellant was produced before the police, thereby falsely acase has been foisted on him. https://hcservices.ecourts.gov.in/hcservices/

8.2. The evidence of P.Ws.1 to 4, 8 and 9 are interestedwitnesses and their testimony cannot be accepted. Even if the caseput forth by the prosecution is accepted as true, the offence underSection 302 I.P.C. is not made out.9. Per contra, the learned Additional Public Prosecutor submitsthat it is the appellant who was debarred from performing poojas inthe village temple, for which the appellant was developing a strongenmity against the panchayatdars including the deceased, P.W.3 andothers. P.W.3 was initially questioned by the appellant and in frontof the temple, it was the appellant, who questioned and made anattempt to assault P.W.3. Only at that time, the deceased intervenedand leaving P.W.3, the appellant kicked the deceased and in theresult, the deceased sustained injury on his private part. Themotive part of the case of the prosecution has been substantiatedthrough the evidence of P.Ws.1 to 4, 8 and 9. The death of thedeceased has been opined that it was due to homicidal violence, whichwas caused by the appellant. The appellant also sustained injury inthe manner put forth by the prosecution soon after the occurrence.The defence put forth by the appellant is not substantiated. Undersuch circumstances, submitted that it is a case where the appellant,who was found fault by the panchayatdars, has taken law into his ownhands and assaulted the panchayatdars and in the result, the deceasedsustained injury and died and the offence under Section 302 I.P.C. issubstantiated and prayed for dismissal of the appeal.10. We have perused the materials available on record and theoral submissions made by both sides.11.1. The occurrence took place during day time in front of thetemple. The appellant along with four others was performing pooja byturn. It is the consistent evidence of the prosecution witnessesthat the appellant was found under intoxication while performingpooja. At the festival time, the villagers and the panchayatdarsobjected to the same and the appellant was injuncted from continuingpooja because of his bad conduct. It is further case of theprosecution that the appellant became jobless and was developinganimosity against the panchayatdars including P.W.3 and the deceased.The appellant questioned and quarrelled with P.W.3 for such decision.It was under discussion at the time of occurrence in the presence ofP.Ws.1 to 4 and the deceased. At that time, the appellant came tothat place and made an attempt to assault P.W.3. This conduct of theappellant was questioned by the deceased, for which the appellantkicked on the private part of the deceased and caused injury. 11.2. On a careful scrutiny of the materials produced by theprosecution, we find that the appellant came to the scene ofoccurrence without any pre-meditation and he was not armed with anydeadly weapon. The appellant was jobless and therefore, he was underdepression and under such circumstances, questioned the https://hcservices.ecourts.gov.in/hcservices/ panchayatdars. When the deceased intervened, in a spur of moment theappellant kicked the deceased and unfortunately the deceasedsustained injury in his private part. The appellant, after coming toknow about the condition of the deceased, rushed to the fence andself inflicted injuries on his hand for having kicked the deceased.It appears that the appellant never expected that a single kick wouldcause the death of the deceased. We could not infer intention onthe part of the appellant to kill him. He has caused the injury in afit of anger upon a sudden quarrel. Such act was done withoutpremeditation that it may cause the death of the deceased.Therefore, we are of the considered opinion that the act committed bythe accused will not be an offence under Section 302 I.P.C., however,it will fall within the four corners of Exception 4 to Section 300I.P.C. 11.3. For all the reasons stated above, the conviction of theappellant under Section 302 I.P.C. cannot be legally sustained.Accordingly, while modifying, we hold him guilty under Section 304Part II I.P.C. for which he would stand sentenced to undergo rigorousimprisonment for five years. Fine amount imposed on him issustained for his conviction under Section 304 Part II I.P.C.Accordingly, the appeal is partly allowed. The appellant is on bail. The bail bonds executed by him shallstand cancelled forthwith and the learned Sessions Judge is directedto take steps to secure the presence of the appellant and commit himto jail to undergo the remaining period of sentence. The period ofsentence already undergone by him shall be given set off.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATRTo1. The Principal District and Sessions Judge Namakkal.2. The District Munsif cum Judicial Magistrate, Paramathi.3. -Do-Thro The Chief Judicial Magistrate, Namakkal4. The Chief Judicial Magistrate, Krishnagiri https://hcservices.ecourts.gov.in/hcservices/

5. The Inspector of Police Vellagoundenpatti Nallur Police Station Crime No.62 of 2004 Namakkal District.6. The District Collector, Namakal7. The Director General of Police, Chennai.8. The Superintendent Central Prison, Coimbatore.9. The Public Prosecutor High Court Madras.+ 1 CC To Mr.N.Manoharan, Advocate SR NO.20847Crl.A.No.134 of 2006KLT(CO)SRA(28/05/2008)