Marimuthu v. The State representedby the Inspector of PoliceKeelapolur Police StationAriyalur District

Bail SlipThe Appellant/Accused Viz., Marimuthu was directed to bereleased on bail in and by the order of this court dated 26.3.2002in Crl.MP.2426/02.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE :01.04.2008CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCriminal Appeal No.309 of 2002Marimuthu..Appellant/AccusedVersusThe State representedby the Inspector of PoliceKeelapolur Police StationAriyalur District. ..Respondent/ComplainantCriminal Appeal filed against the Judgment dated 20.02.2002,made in S.C.No.68 of 2001, on the file of the Principal DistrictJudge, Perambalur, convicting the appellant herein for an offenceoffence under Section 304(ii) of IPC and sentencing him for fouryears rigorous imprisonment with a fine amount of Rs.1000/-.For Appellant: Mr.A.MeenakshisundaramFor Respondent : Mr.J.C.Durai Raj Government Advocate (Crl. Side)JUDGMENTThis appellant stands convicted by the learned PrincipalSessions Judge, Perambalur in S.C.No.68 of 2001, for the offenceunder Section 304(ii) of IPC and sentenced him for four yearsrigorous imprisonment with a fine amount of Rs.1000/- in defaultto undergo three months rigorous imprisonment. Aggrieved by thesaid conviction and sentence, this appeal has been preferred bythe appellant.2. The case of the prosecution is that P.W.1 is the residentof Keelapolur Village. About 10 years back he became sick andwas immobilized. His wife Amsavalli only had taken care of the https://hcservices.ecourts.gov.in/hcservices/ family. P.W.1's wife's sister was married by the accused. Boththe families were living in the same house and there was somepartition. There was only one entrance for that. About two yearsprior to the date of evidence one day at 10.00p.m., after closingthe door, P.W.1, his wife the deceased and their daughter were allsleeping. The accused who came there shouted as to why the doorwas closed and he also beat the deceased and P.W.1. There was aPanchayat and thereafter P.W.1 was not in talking terms with theaccused. On 19.09.1999, at 10.00p.m., while the deceased andtheir daughter were sleeping. The accused after eating washed hishands and sprinkled water on them. The deceased questioned theaccused as to why he was not pouring water at the open place, butpouring the water on them, then the accused questioned herwhether she would die if the water falls on her. Immediately, thedeceased asked him if she died whether he would save her husband.Then the accused caught hold of the hair of the deceased, pulledher down and beat her on the back and kicked her on the stomach.As P.W.1 questioned, he was also kicked by the accused. P.Ws. 3and 4 came and intervened. The deceased cried due to stomachpain and vomited. One Ramalingam came and took the deceased tothe hospital and she was taken to a private clinic. On the nextday, the deceased was taken to the Tanjure Medical CollegeHospital. On 21.01.1999 she died in the hospital. The Policewere informed. 3. P.W.10, the Sub Inspector of Police of Keelapolur PoliceStation on receiving the telephonic information from the Constablefrom the Hospital, he went to the hospital and saw the body of thedeceased and thereafter obtained Ex.P.1 from P.W.1 at 11.30p.m.,and also obtained his left thumb impression and came back to thePolice Station at 3.00p.m., and registered the case in CrimeNo.353 of 2009 for the offence under Section 302 IPC.4. P.W.14, Inspector of Police of Keelapolur Police Stationtook up the investigation and went to the scene of occurrence andprepared the rough sketch Ex.P.6 and also prepared the observationmahazar and went to the hospital and held inquest and preparedEx.P.7 inquest report.5. P.W.9, post mortem Doctor received the requisition on22.09.1999 at 1.30p.m., and held autopsy and noticed the followinginjuries:“External Injuries:1.Dark brown coloured abrasions noted over.i. Medical aspect of lower part of left knee 1 x 1cms.ii. Below the right knee 2 x 1 cms.iii.Lateral to left elbow 2 x 1 cms.iv. Abraded contusion over the hair margin of https://hcservices.ecourts.gov.in/hcservices/ middle of forehead measuring 4 x 4 cms.v. Abrasion of 1 x 1 cms over the back of rightelbow with surrounding contusion over an area of 4x 4 cms.vi. Multiple scratch abrasions of various sizescresenteric abrasions nail markings noted overclavicular area, left side of neck, supra sternalnotch areas, front of middle of neck.2. Contusion (bluish black) noted over the lower thirdof medical aspect of right thigh measuring 4 x 4 cms xmuscle deep. 3. Abdomen was found distended.Internal Injuries:4. On dissection of abdomen – about 2.5 liters of bilestained fowl smelling yellowish brown coloured fluidcame out immediately after opening the abdomen. Aperforation tear noted 5 cm away from the duodenaljejunal flexure over the jejunum measuring 1.5 x 1.5cms x lumen deep. Another perforation over the 3rd partof duodenum on the anterior aspect measuring 1 x 1 cms xlumen deep. Contusion over the root of mesenterymeasuring 4 x 4 cms. Multiple small contusions ofvarious sizes over the coils of small intestine. Coilsof small intestine were found matted together. Flakesof greenish yellow coloured fowl smelling pus notedsticking on to the stomach, liver and coils of smallintestine.5. On reflecting the scalp sub scalp contusion notedover both sides frontal regions.All the above mentioned injuries were of antemortem innature due to blunt injury of abdomen involving thehallow viscus of abdomen. The Doctor opined that the deceased would appear to havedied due to the septic complications of blunt injury of abdomenperforation peritonitis. Ex.P.4 is the post mortem certificate. 6. P.W.15 took up further investigation on 25.02.2000 andalso examined the witnesses and P.W.16 continued the investigationfrom 05.12.2000 and on completing the investigation laid the finalreport under Sections 352, 325 and 302 IPC on 27.02.2001.7. When the accused was questioned with regard to theincriminating circumstances, he denied his complicity. https://hcservices.ecourts.gov.in/hcservices/

8. The prosecution has examined 16 witnesses and marked 7exhibits and the defence has neither examined any witness normarked any exhibits.9. The trial Court considered the evidence of the witnessesand convicted the accused. P.W.1 is the husband of the deceasedand he had been present at the time of occurrence. His evidenceis corroborated by the evidence of his daughter P.W.2 with regardto the occurrence. The evidence of P.Ws.1 and 2 are cogent andconvincing. There is no reason for P.Ws.1 and 2 to deposefalsely against the accused and the defence also has not suggestedanything.10. The learned counsel for the appellant submitted that theaccused did not have the intention of causing the death of thedeceased and he had no knowledge that by his act would cause thedeath of the deceased. The occurrence had taken only in spur ofthe moment after the wordy quarrel. The deceased also died onlytwo days after the occurrence due to complications and due toimproper treatment.11. The learned Government Advocate submitted that though theaccused did not have the intention of causing death, he might havehad knowledge that by his act he is to cause the death of thedeceased. Kicking on the abdomen is a dangerous act and therebythe accused had knowledge that he is to cause an injury which islikely to cause the death.12. The deceased was attacked by the accused on 19.09.1999 at10.00p.m. She was taken to the Doctor P.W.13 who had a privateclinic and there she was treated only for her stomach pain. Asthe pain did not subside even on the next day, P.W.13 has statedthat no X-ray facility was available. Therefore, the deceasedwas sent to the Tanjore Medical College Hospital. Though on20.09.1999 evening the deceased was sent to the Tanjore GovernmentMedical College Hospital. But the Doctor who admitted in thehospital is not examined in this case and no record of admissionis also marked in this case. There is no evidence also at whattime the deceased was admitted and died in the hospital. Theevidence available is that the Sub Inspector of Police, P.W.10received information from the hospital about the death of thedeceased on 21.09.1999 at 7.50p.m. The Grade-I Constable – 1883who gave the information also not examined. Therefore it appearsthat the deceased had died even before taking treatment in theTanjore Government Medical College Hospital. As per Ex.P.4 postmortem certificate, the external injuries found on the deceasedare only minor injuries. The death is due to internal injuries onthe abdomen. The death was caused due to the internal injurieswhich are the result of the attack on the abdomen. The evidence https://hcservices.ecourts.gov.in/hcservices/ of P.Ws.1 and 2 is that the accused kicked the deceased on thestomach. Therefore, there is every possibility of causinginternal injury of abdomen.13. The only question now is that to what extent the accusedhad knowledge about causing the internal injury by his act. Theperforation caused on the duodenal jejunal flexure was the resultof the blunt force on the abdomen. Even so, whether it can bedefinitely said that by kicking on the abdomen, the accusedcould have the knowledge that the perforation is to be caused,which may result in death. The post mortem Doctor had not statedin his evidence that the internal injuries caused was sufficientto cause death or in the nature likely to cause death. On theother hand, the Doctor had admitted during the cross examinationthat the deceased died due to septicemia as she was not givenproper treatment. It is not established in this case by medicalevidence that the death was the direct result of the attack on thedeceased. Though it could be said that the accused intentionallyattacked the deceased on the stomach and caused an injury, itcannot be definitely said that he had all the knowledge by suchact that internal injury is to be caused which could lead todeath. On the facts of this case, unimpeachable conclusion cannotbe drawn against the accused that he possessed the knowledge thatthe death was likely consequences of his criminal act. Though insome cases, the beatings and kicks may attract knowledge on thepart of the accused about the death of the deceased, since theinjury caused may cause death in the ordinary course of nature.In the present case, it is not established that internal injurycaused was sufficient to cause death in the ordinary course ofnature.14. In the result, the conviction and sentence of the accusedunder Section 304(ii) IPC is set aside instead of that he isconvicted under Section 325 IPC and sentenced to a period of onlyone year rigorous imprisonment, since eight years had elapsedafter the occurrence. The fine amount imposed already is retainedfor the offence under Section 325 IPC.15. The appeal is partly allowed.KsrSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate, Ariyalur.2. Do Thro' The Chief Judicial Magistrate, Perambalur.3. The Principal District Judge, Perambalur.4. The Superintendent, Central Prison, Tricy.5. The Inspector of PoliceKeelapolur Police StationAriyalur District.6. The Public ProsecutorHigh Court Chennai.7. The Inspector of Police, Trichy Contonment Police Station, Trichy.8. The District Collector, Perambalur.9. The Director General of Police, Chennai.+ 1 cc to Mr. N. Nithianandam, Advocate SR No. 17971 Criminal Appeal No.309 of 2002SP(CO)SR/15.4.2008