THE HONOURABLE MR v. State byThe Inspector of Police,Bommidi Police Station,Dharmapuri District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 10.08.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.1047 of 2001Suresh Kumar .. AppellantVs.State byThe Inspector of Police,Bommidi Police Station,Dharmapuri District .. RespondentPrayer:- This appeal has been preferred against the judgment dated9.10.2001 made in S.C.No.191 of 2000 on the file of the I Additionalsessions Judge, Dharmapuri at Krishnagiri.For Appellant :Mr.A.K.Kumaraswamy For Respondent :Mr.V.R.BalasubramanianAdditional Public ProsecutorJUDGMENTThis appeal has been preferred against the judgment in S.C.No.191 of2000 on the file of I Additional Sessions Judge, Dhamapuri at Krishnagiri.The accused, who is the brother's son of one Lakshmi, permanently keptmistress of the deceased, who had faced a charge of murder under Section302 IPC, but was convicted under Section 304(ii) IPC and sentenced toundergo 7 years RI by the learned Sessions Judge, is the appellant herein.2.The committal magistrate, Judicial Magistrate No.II, Dhamapuri,after taking the charge sheet on file as PRC.No.92 of 1999, had issuedsummons to the accused and on his appearance furnished copies to theaccused under section 207 of Cr.P.C., and since the case is exclusivelytriable by the Court of Sessions, the learned Judicial MagistrateCommitted the case to the Court of Sessions under Section 209 of Cr.P.C. 3.The learned I Additional Sessions Judge, Dhamapuri at Krishnagiri,had framed charges under Section 302 IPC against the accused on hisappearance and explained and when questioned the accused pleaded notguilty. Before the trial Court P.W.1 to P.W.10 were examined, Ex.P.1 toEx.P.16 were exhibited and M.O.1 to M.O.2 were marked.4.P.W.1 is the ocular witness to the occurrence, who is having anelectrical shop at Bommidi and he is related to the deceased. He wouldadmit that the deceased Abdul Rahim was having illicit intimacy with https://hcservices.ecourts.gov.in/hcservices/ P.W.2-Lakshmi and both were residing in his garden house at Kottavur andon 14.2.1999 at about 4.45 pm he went to the garden house of the deceasedat his request to prepare an estimate for providing electricity connectionin the said garden house of the deceased and while he was talking toP.W.2-Lakshmi in the house, he saw the accused, who was present justbefore his arrival to the said house, and on seeing him left towards thewell and the deceased Abdul Rahim also left the house by saying that hewill come back after washing his face and that when he entered into thehouse to prepare the estimate regarding the electricity accessoriesrequired for making electrical work in the house, he heard a distress callfrom Abdul Rahim, to respond he immediately rushed to the place ofoccurrence ie., near the well followed by Lakshmi, who was at that timepreparing tea in the kitchen. He would depose that the accused by sayingthat only if Abdul Rahim dies, he will get the properties, pushed AbdulRahim into the well followed by dropping two big granite stones into thewell. When he made an attempt to apprehend the accused, he criminallyintimidated by saying that he (P.W.1) will also met with the same fate andran away from the place of occurrence. Thereafter with the help ofNoorbasha and others, he extricated the body from the well in a cot andpreferred Ex.P.1-complaint at about 7.00 pm on the same night with BommidiPolice, who came in the morning to the place of occurrence and enquiredhim. He has identified M.O.1 & M.O.2 are the granite stones dropped bythe accused in to the well at the time of occurrence after pushing downAbdul Rahim into the well.5.P.W.2-Lakshmi would depose that the accused is her brother's sonand that she was given in marriage some 28 years prior to the date ofoccurrence to one Palaniswamy as a third wife, while the second wifePavayee was alive and after the death of Palaniswamy his 5 acres of landwas divided between her and Pavayee in equal moities and enjoyed the sameafter the death of her husband Palaniswamy, her brother Periyasamy, thefather of the accused, came to Kottavur with his family. According toher, Abdul Rahim was taking care on her and he used to visit her house andwith the joint venture of Abdul Rahim, she had purchased the land atKottavur and constructed the house there and began to live with AbdulRahim in the said house and that her brother Periyasamy was residing in 2½ acres of land, which he got under partition with Pavayee after the deathof Palaniswamy Gounder. She would further depose that the garden atKottavur and the house were purchased only in the name of the deceasedAbdul Rahim, who had no issues. According to her, on the fateful day, theaccused came to her house and was talking to her sitting on the varandaand at that time the deceased Abdul Rahim and P.W.1 also came to the housein order to prepare the estimate for providing electricity supply to thehouse. When Abdul Rahim left the house in order to wash his face, sheheard a distress call from Abdul Rahim and immediately she along withP.W.1 came out of the house and saw the accused pushing down Abdul Rahiminto the well and that when P.W.1 went near the well in order to rescueAbdul Rahim, the accused criminally intimidated him by saying that if hecomes nearer he will also met with the same fate and with the help ofApsalkhan, Noor sahib, P.W.1 retrieved the body from a help of a cot from https://hcservices.ecourts.gov.in/hcservices/ the well and that P.W.1 went to the police station and preferred Ex.P.1-complaint with the police. She has identified M.O.3 as the dothi, M.O.4shirt worn by the deceased at the time of occurrence. According to her,eight days prior to the occurrence, the accused enquired in whose name theproperties stand and after knowing that the properties are in the name ofAbdul Rahim, she could notice changes in his facial expression.6.P.W.10 is the then Inspector of Police, Bommidi Police Station.According to him on 14.2.1999 at about 7.00 pm P.W.1 appeared in thepolice station and preferred Ex.P.1 complaint, which was registered underBommidi Police Station Cr.No.92 of 1999 under Section 302 IPC. Ex.P.11 isthe copy of the FIR. He has dispatched the express FIR to the concernedofficial including the Judicial Magistrate. Thereafter, he had proceededto the place of occurrence at 8.15 pm and stayed there itself and on thenext morning ie., on 15.2.1999 at about 6.30 am, he had prepared theobservation mahazar Ex.P.2 in the presence of P.W.3 and another witness.He had drawn Ex.P.12-rough sketch in the presence of the same witnesses.He had conducted inquest on the corpse of the deceased in the presence ofpanchayatdars between 8.30 am and 10.00 am. Ex.P.13 is the inquestreport. He has examined the witnesses and recorded their statements. Hehad sent the corpse for autopsy through P.W.9, who had handed over thecorpse to the doctor P.W.6, who had conducted autopsy and issued Ex.P.7-postmortem certificate. The doctor has opined that due to asphyxia due todrowning the deceased would have died 18 to 20 hours prior to autopsy.Ex.P.9 is his final report.7.P.W.7 is the doctor, who had examined the accused on 16.2.1999 atahout 11.20 pm in the government hospital Dharmapuri and issued Ex.P.10copy of the accident register. Thereafter, the doctor has noticed threesimple injuries on his right forearm measuring 3 x 2 x ½ cm and on theleft hand measuring 2 x 2 x ½ cm and on the fore head 2 x 2 x ½ cm. Afterthe autopsy P.W.9 had recovered the wearing apparels of the deceased andhanded over the same to the Investigating Officer.8.P.W.4 is the VAO of Bommidi village, in whose presence P.W.10,after arresting the accused on 15.2.1999 at about 12.00 noon, recorded thevoluntary confession statement of the accused. The admissible porition ofthe confession statement is Ex.P.14, on the basis of which, M.O.1 & M.O.2granite stones used by the accused at the time of the occurrence wererecovered from the well under Ex.P.3-mahazar in the presence of P.W.4.P.W.5 is the photographer, who took Ex.P.4 photoes of the corpse andEx.P.5 are the negatives. P.W.8 is the FIR constable, who had deliveredthe express FIR to the Court at 10.00 am on 15.2.1999, after staying inthe Judicial Magistrate court on the prevision night.9.P.W.10 had sent the material objects connected with this case forchemical examination through the Judicial Magistrate. Ex.P.15 is theletter of requisition. After following the formalities P.W.10 had filedthe charge sheet against the accused on 6.6.1999 under Section 302 IPC. https://hcservices.ecourts.gov.in/hcservices/

10.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., he denied his complicity with the crime. Noevidence was let in on the side of the accused by way of defence. Aftergoing through the evidence both oral and documentary, the learned trialJudge has convicted the accused under Section 304(ii) IPC and sentenced toundergo 7 years RI, which necessitated the accused to prefer this appeal.11.Now the point for determination in this appeal is whether theconviction and sentence by the learned trial judge in S.C.No.191 of 2000under Section 304(ii) IPC, is sustainable for the reasons stated in thememorandum of appeal.12.The Point:- Heard the learned counsel appearing for the appellantMr.A.K.Kumaraswamy and the learned Additional Public ProsecutorMr.V.R.Balasubramanian and considered their respective submissions. 12(a)Both the ocular witnesses P.W.1 & P.W.2 would cojentlydeposed before the trial Court that they saw when the accused pushing downthe deceased Abdul Rahim into the well at the time of occurrence. Themotive suggested by P.W.2, who is none other than the aunt of the accused,is that to grab at the property of 2 ½ acres of land which was allotted ina partition to P.W.2 after the death of her husband Palaniswamy Gounderbetween her and the second wife of Palanysamy Gounder and also to grab atthe house and the land at Kottavur village, where the occurrence had takenplace, the accused had murdered Abdul Rahim, with whom P.W.2 was havingillicit intimacy. But both P.W.1 and P.W.2 would depose that immediatelybefore the place of occurrence they heard the distress call from AbdulRahim due to the assault made by the accused near the well. So it isclear from the evidence of P.W.1 & P.W.2 that immediately before theoccurrence ie., pushing Abdul Rahim into the well by the accused, therewas some quarrel between Abdul Rahim and the accused, which resulted inthe accused pushing down Abdul Rahim into the well. The evidence of thedoctor P.W.6, who had conducted postmortem on the corpse of the deceased,would go to show that the deceased would have died due to asphyxia due tothe drowning. Ex.P.9 is his final report. Ex.P.7 is the postmortemreport. Only under such circumstances, the learned trial judge has cometo the correct conclusion that the accused is liable to be convicted onlyunder Section 304(ii) IPC and accordingly convicted and sentenced theaccused under Section 304(ii) IPC.12(c) At this juncture, the learned counsel for the appellantMr.A.K.Kumaraswamy would represent that the age of the victim was 73 atthe time of the occurrence and the accused is aged 23 years and that theaccused is now studying in the first year in D-Pharmacy course atCoimbatore College of Pharmacy Erode in the academic year 2006-2007. Hehas also produced the collage fees certificate relating to the accused.The learned counsel would submit that taking into consideration the factsand circumstances that the accused is now a student of D-Pharmacy and alsothe fact that even after the occurrence the accused cannot get theproperty neither of the deceased Abdul Rahim nor from P.W.2 as a legalheir, some leniency may be shown on the sentence. The learned counsel https://hcservices.ecourts.gov.in/hcservices/ would further submit that the accused was in prison for nearly threemonths and the remaining sentence may be converted into a fine so that theaccused can pursue his studies. Heard the views of the learned AdditionalPublic Prosecutor also on this point, who has no serious objection formodifying the sentence in the above lines. Point is answered accordingly.13.In fine, the appeal is dismissed confirming the conviction passedby the learned trial Judge in S.C.No.191 of 2000 on the file of the IAdditional Sessions Judge, Dharmapuri at Krishnagiri, under Section 304(ii) IPC, but the sentence alone is modified to that of the period alreadyundergone and a fine of Rs.25,000/- in default to undergo one year SIinstead of 7 years RI. Time for payment of fine amount is 4 weeks fromthis date.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarssvTo1.The Additional Sessions Judge, Dharmapuri at Krishnagiri.2.The District & Sessions Judge, Dharmapuri at Krishnagiri.3.The Judicial Magistrate NO.II, Dharmapuri.4.-do-The Chief Judicial Magistrate, Dharmapuri at Krishnagiri.5.The Public Prosecutor, High Court, Madras.6.The District Collector, Dharmapuri at Krishnagiri.7.The Director General of Police, Mylopure, Madras-4.8.The Inspector of Police, Bommidi Police Station, Dharmapuri.+ 1 cc to Mr.T.Murugamanikkam Advocate SR.NO.50221AD(CO)RD 17.8.07Crl.A.No.1047 of 2001