Marimuthu v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 9.6.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANAND THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMANCrl.A.No. 675 of 2008 Marimuthu.. Appellant/Accused Vs.StateRep. by the Inspector of Police, Siva Kanchi Police StationKanchipuram... Respondent/Complainant* * *Prayer : Appeal against the Judgment, dated 21.8.2008, passed inS.C.No. 330 of 2007 on the file of the Additional Sessions Judge,(Fast Track Court No.II) Kanchipuram.* * *For Appellant:: Mr. S.Swamidoss ManokaranFor Respondent :: Mr. M. Babu Muthu MeeranAddl.P.P. J U D G M E N T(The Judgment of the Court was made by C. NAGAPPAN, J.)Appellant Marimuthu is the sole accused in Sessions CaseNo.330 of 2007 on the file of the Additional Sessions Judge, Kanchipuram, and he has preferred this appeal challenging theconviction and sentence imposed on him in the case. For the sakeof convenience, in this Judgment, the appellant will be referred toas accused.

The learned Additional Sessions Judge found theaccused guilty of the charges under Sections 302 and 324 IPC andconvicted and sentenced him to undergo Life Imprisonment and to paya fine of Rs.2,000/-, in default, to undergo six months RigorousImprisonment for the offence under Section 302 IPC and to undergo https://hcservices.ecourts.gov.in/hcservices/ three years Rigorous Imprisonment and to pay a fine of Rs.1,000/-,in default, to undergo three months Rigorous Imprisonment for theoffence under Section 324 IPC.

To prove its case, the prosecution examined P.Ws.1 to16 and marked Exs.P.1 to P.18 and M.Os.1. to 4.

The case of the prosecution, as could be discerned fromoral and documentary evidence, can be briefly summarised as follows. Accused Marimuthu is the husband of deceased Malar. P.W.1Saroja is the mother; P.W.9 Sabapathi is the brother; and P.W.8Dhanalakshmi is the daughter of deceased Malar. The marriagebetween accused Marimuthu and Malar took place twenty years priorto the occurrence and they were living separately. The accused wasa weaver by profession. P.W.8 Dhanalakshmi got married and wasliving with her husband at Bangalore. The only son of the accuseddied at the age of 14 and afterwards, the accused started consumingexcess liquor, which led to frequent quarrels between the accusedand his wife Malar. Malar was not keeping good health and P.W.1Saroja went and stayed in the house of the accused. On 19.9.2006,at about 5.30 a.m. in the morning, accused Marimuthu started toleave the house and at that time, his wife Malar told him as to whyhe is roaming like a mental and the accused retorted by asking heras to why she called him mental and the accused took M.O.1 Woodenblock from the ground and beat her with it on the head and rightside of the neck and chin causing bleeding injuries. P.W.1 Sarojatried to prevent and the accused attacked her with the same woodenblock on the right forehead and he threw the wooden block on theground and left the place. Malar was lying unconscious withinjuries and P.W.1 Saroja took her to Government Hospital, Kanchipuram. P.W.11 Dr. Senthilkumar examined Malar at 6.15a.m. on 19.9.2006 at Government Hospital, Kanchipuram, and found thefollowing - Injuries:1. 1 x 2 x 5 cm found lacerated injury lateral to lefteye.2. 1 x 3 x 5 cm found lacerated injury left forehead.3. 5 x 10 cm swelling left (n.c.).4. 1 x 3 x 5 cm found lacerated injury upper lip.

Bleeding from nose.6. 1 x 2 x 5 cm found lacerated injury right forehand.7. 10 x 10 cm swelling left face. Ex.P6 is the Accident Register Extract issued by him. https://hcservices.ecourts.gov.in/hcservices/ P.W.11 Dr. Senthilkumar also examined P.W.1 Saroja at 7.15a.m. on 19.9.2006 in the hospital and found the following -"Injury: 1 x 3 x 2 cm found lacerated injury right forehead. "He treated her as out-patient and expressed opinion that the injuryis simple in nature. Ex.P7 is the Accident Register Extract issuedby him. Subsequently, he referred Malar to Government Hospital, Chennai. In the mean time, on receiving intimation from the Kancheepuram Government Hospital, P.W.16 Inspector Kanniappan, Sivakanchi Police Station, went to the hospital and found Malarunconscious and examined P.W.1 Saroja and recorded Ex.P11 statementgiven by her and returned to Station and registered a case in CrimeNo.681/2006 under Sections 324 and 307 IPC and prepared Ex.P12F.I.R. and despatched the same.

The learned Additional Sessions Judge convicted theaccused for the charges under Sections 302 and 324 IPC and imposedsentence as stated earlier and hence, the present appeal.

The prosecution case is that accused Marimuthuattacked his wife Malar on the head with wooden block resulting inher death and he also attacked P.W.1 Saroja with the same woodenblock on her right forehead, resulting in injury. To prove theoccurrence, the prosecution has examined P.W.1 Saroja and she hastestified that her daughter Malar was unwell and hence she wasstaying in her house, and at 5.30 am, on the occurrence day, theaccused started to leave the house and at that time, his wife Malarasked him as to why he is roaming like a mental and the accusedretorted by asking her as to why she called him "mental" and took upM.O.1, wooden block from the ground and hit Malar with it on herhead, right side of neck and chin, resulting in bleeding injuriesand Malar fell unconscious and P.W.1 Saroja tried to prevent theattack and the accused attacked her with the same wooden block onthe right side of the head resulting in injury and the accused leftthe place throwing the weapon on the ground and P.W.1 took herdaughter Malar initially to Kancheepuram Government Hospital andthereafter to the Madras General Hospital and the victim succumbedto the injuries and P.W.1 gave the complaint. https://hcservices.ecourts.gov.in/hcservices/

Learned counsel for the appellant pointed out thatP.W.1 Saroja was treated as hostile by the prosecution in the trialof the case. It is true that P.W.1 Saroja has been declaredhostile, but that did not, in any way, affect her testimony. P.W.1Saroja has testified the attack made by the accused at the time ofoccurrence on her daughter Malar as well as on herself, and inshort, the entire occurrence has been narrated by her in detail. Atthe end of her chief examination, she stated that she did notremember as to whether the police enquired her in KancheepuramGovernment Hospital, since one and half years had lapsed and sheonly identified her left thumb impression as Ex.P1 in the complaint- Ex.P11, and for that reason, the prosecution sought for permissionto treat her as hostile and that has been given and in no way, itaffects her testimony. She is an injured witness and her testimonyis clear, cogent and credible and nothing is elicited in the cross-examination to discredit her testimony.

Learned counsel for the appellant submits that accusedMarimuthu has to be exonerated from liability on the ground ofunsoundness of mind as contemplated under Section 84 I.P.C.

Per contra, Mr.M.Babu Muthu Meeran, learned AdditionalPublic Prosecutor, submitted that the accused is not a person ofunsound mind and he has no mental disorder or insanity and he wasonly a habitual drunkard and hence the provision under Section 84I.P.C. is not applicable to him.

D.W.1 to 3 were examined on the side of the defence.D.W.1 Dr.Rangarajan has stated that his examination of the accusedrevealed that he was suffering from delusional disorder andhallucination and in the cross-examination, he has stated that hispatient/accused answered correctly to all questions and he wasconscious on the external activities around him. He has furtherstated that his patient/accused was a known alcoholic addicted todrinks and the medicines given to him during counseling under Ex.S2were to reduce the effect of stopping the consumption of alcohol. The testimony of D.W.1 does not advance the case of the accused inany way. In this context, the decision of the Apex Court in thecase of Bapu Vs. State of Rajasthan reported in (2007) 3 SCC (Crl)509 is relevant, wherein, Their Lordships considered the scope of Section 84, I.P.C. for exonerating a person from liability and laiddown as follows: "

Mere abnormality of mind or partialdelusion, irresistible impulse or compulsivebehaviour of a psychopath affords no protectionunder Section 84 as the law contained in thatsection is still squarely based on the outdated https://hcservices.ecourts.gov.in/hcservices/ M'Naughton rules of 19th century England. Theprovisions of Section 84 are in substance thesame as those laid down in the answers of the Judges to the questions put to them by the House of Lords, in M'Naughton's case ((1843) 4St Tr NS 847 (HL)). Behaviour, antecedent, attendant and subsequent to the event, may berelevant in finding the mental condition of theaccused at the time of the event, but not thatremote in time. It is difficult to prove theprecise state of the offender's mind at thetime of the commission of the offence, but someindication thereof is often furnished by theconduct of the offender while committing it orimmediately after the commission of theoffence. A lucid interval of an insane personis not merely a cessation of the violentsymptoms of the disorder, but a restoration ofthe faculties of the mind sufficiently toenable the person soundly to judge the act; butthe expression does not necessarily meancomplete or perfect restoration of the mentalfaculties to their original condition. So, ifthere is such a restoration, the personconcerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptomsof the disorder is not sufficient.

The standard to be applied is whetheraccording to the ordinary standard, adopted byreasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd, irascible and his brain is not quite allright, or that the physical and mental ailmentsfrom which he suffered had rendered hisintellect weak and had affected his emotionsand will, or that he had committed certainunusual acts in the past, or that he was liableto recurring fits of insanity at shortintervals, or that he was subject to gettingepileptic fits but there was nothing abnormalin his behaviour, or that his behaviour wasqueer, cannot be sufficient to attract theapplication of this section. " https://hcservices.ecourts.gov.in/hcservices/

12. In the present case, it is relevant to note that theaccused had been examined by D.W.1 only on 8.2.2007, i.e., nearlyfive months after the occurrence. D.W.2 Venkatesan is the brotherin law of the accused and he has stated that after the death of hisson, there was a change in the conduct and attitude of the accusedand he used to stare on the windows and used to complain of headache and hearing abnormal sounds and once he attempted to commitsuicide by stabbing himself in the stomach. In this context, thetestimony of the daughter of the accused, namely, P.W.8,Dhanalakshmi is relevant and she has testified that her fatherstabbed himself in his stomach and went for treatment and he was nothaving any disease and he used to drink liquor even prior to thedeath of his son. P.W.9 Sabapathi is another brother in law of theaccused and he has stated that the accused and his wife Malar werequarrelling frequently and he used to pacify them. D.W.2Venkatesan was living 50 Kms. away from the residence of the accusedand his testimony does not help the accused in any way. 13. The accused examined himself as D.W.3 and hastestified that he used to hear as if somebody is talking to him inhis ears. As per the law laid down by the Supreme Court, mereabnormality of mind or partial delusion affords no protection under Section 84 I.P.C. Moreover, the accused, as D.W.3, in the cross-examination, has answered the questions put to him in clear terms, as observed by the trial Court in the judgment. There is nomaterial adduced by the accused to invoke the protection under Section 84 I.P.C., as rightly held by the trial Court.

It is to be seen as to whether Malar died of injuriessustained during the occurrence. Immediately after the occurrence,P.W.11 Dr.Senthil Kumar examined Malar at 6.15 a.m. on 19.9.2006 at Kancheepuram Government Hospital and found seven injuries, asdetailed in Ex.P6 – accident register extract issued by him. He hasreferred Malar to the Government General Hospital, Chennai andP.W.14 Dr.Manivel admitted Malar as in-patient in the GovernmentGeneral Hospital, Chennai at 10.35 a.m. on 19.9.2006. P.W.15Dr.Lakshmipathi, treated Malar and he has testified that CT scan ofthe head was taken, which revealed frontal brain contusion apartfrom fracture of the bone on the same side and brain cem contusionand a part of the bone had protruded into the brain and in spite oftreatment given to her, she died at 11.50 am on 20.9.2006. P.W.12Dr.Vedanayagam conducted autopsy on the body of Malar and he hasstated that during internal examination of the head, a depressedcommunited fracture of the left frontal bone, sub dural haemorrhageover the left cerebral hemisphere and communited fracture involvingboth anterior and middle cranial fossa were seen. He has expressedopinion stating that the deceased would appear to have died of https://hcservices.ecourts.gov.in/hcservices/ effects of head injuries sustained. Ex.P8 is the post mortemcertificate issued by him. P.W.15 Dr.Lakshmipathi and P.W.12Dr.Vedanayagam have stated that the injuries found on the head aresufficient to cause the death and they could have been caused byattack with a weapon like M.O.1. Accepting the testimony, it can beconcluded that Malar died of the injuries sustained during theoccurrence.

Learned counsel for the appellant contends that theact of the accused Marimuthu would not amount to murder and he hadacted in a grave and sudden provocation and it would fall under Exception 1 to Section 300, I.P.C. only. Accused Marimuthu is aweaver by profession and there is evidence to show that he hadsufficient earnings to build a house and provide amenities to thefamily and he had also given his daughter in marriage. His only sondied at the age of 14, which led to his excess drinking. Theaccused tried to withdraw from drinking, which resulted in head-acheand other symptoms. Once he self-inflicted injuries on his stomachwith knife and recovered thereafter. On the occurrence day at 5.30a.m., he was about to leave the house and at that time, his wifeMalar asked him as to why he was roaming like a mental and theaccused retorted by saying why she is calling him "mental", andlosing the power of self-control, by grave and sudden provocation, he picked up the wooden block which was lying on the ground andattacked Malar with it on her head, resulting in bleeding injuries. There was no intention for the accused to commit the murder of hiswife Malar. In view of the above materials available on record, thecontention of the learned counsel for the appellant that the accusedlost the power of self-control by grave and sudden provocation andacted on the spur of moment, can be accepted. If it is so, Exception 1 to Section 300 I.P.C. is applicable to the facts of thecase and the offence would fall under Section 304 Part I IPC and theaccused is liable to be convicted for the same.

During the occurrence, the accused had also attackedP.W.1 Saroja with wooden block on her head, resulting in simpleinjury and the conviction and sentence imposed on him by the trialCourt for the offence under Section 324 I.P.C. are correct andproper.