VELU v. The Inspector of PoliceK.Kalathur Police StationPerambalur.(Crime No.39/2000)

Bail ShipThe Appellant /Accused was directed to be release on bail as per the order of this court dated 8.10.01 and made Crl.R.C.NO.7029/2001IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.08.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.940 of 2001VELU..Appellant/accused -vs-The Inspector of PoliceK.Kalathur Police StationPerambalur. (Crime No.39/2000) .. Respondent/complainant This appeal is filed against the Judgment made in S.C.No.13 of2001 dated 31.8.2001 on the file of the Principal Sessions Judge, Perambalur. For appellant : Mr.A.Sirajudeen For respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor. JUDGMENT The accused, who has been charged under Section 302 of IPC but wasconvicted under Section304(ii) of IPC by the learned Principal SessionsJudge, Perambalur, is the appellant herein.2. The learned committal Court/ Judicial Magistrate , Perambalur, after taking the case under PRC No.40 of 2000 had issued summons to theaccused and on his appearance copies under Section 207 of Cr.P.C. werefurnished to the accused and committed the case to the Court of Sessionsunder Section 209 of Cr.P.C, since the case is exclusively triable by aCourt of Sessions. The learned Sessions Judge, on appearance of theaccused, had framed charge under Section 302 of IPC and when questionedthe accused pleaded not guilty. https://hcservices.ecourts.gov.in/hcservices/

Before the trial Court, P.Ws 1 to 16 were examined. Exs P1 to P10were exhibited and M.Os 1 to 3 were marked.

P.W.1 is the grand daughter of the deceased Kaliammal. Accordingto her, on 7.3.2000 at about 7.00 p.m, while the deceased was conversingwith her(P.W.1), the accused came there along with Arjunan , Thambavoo, and one Subramanian and the accused had demanded Rs 100/- from thedeceased Kaliammal, but when she had refused to give the amount, theaccused had assaulted on her face, head with hands and also kicked her onthe stomach and dragged her on the ground and also throttled her neck withhands. On hearing the distress call of P.W.1, and one Selvi P.W.2, thedaughter-in-law of the deceased Kaliammal, P.W.3 Thambavoo and P.W.4Arjunan, P.W.5 Krishnan and P.W.6, the wife of Krishnan came to therescue, and the accused took to his heel and that Kaliammal had sustainedinjury on the upper lip, neck, back and on the stomach and was immediatelytaken to the hospital at Kuriyur and later she was brought to the house.

When incriminating circumstances under Section 313 Cr.P.C.were putto the accused, he would deny his complicity with the crime. The accusedhas not adduced any evidence.

After meticulously going through the evidence both oral anddocumentary, the learned trial Judge has ultimately come to a conclusionthat the accused is guilty under Section 304(ii) of IPC and accordinglyconvicted and sentenced the accused under Section 304(ii) of IPC toundergo four years rigorous imprisonment and slapped a fine of Rs.1000/-with default sentence, which necessitated the accused to prefer thisappeal.

Now the point for consideration in this appeal is whether theconviction and sentence by the learned trial Judge against the accusedunder Section 304(ii) of IPC is sustainable for the reasons stated inthe memorandum of appeal?8. Heard Mr. A.Sirajudeen, learned counsel appearing for theappellant and Mr.V.R.Balasubramaniam, learned Additional Public Prosecutorfor the respondent and considered their respective submissions. https://hcservices.ecourts.gov.in/hcservices/

The Point: The learned counsel appearing for the appellant would submit that the caseof the prosecution is that, on the date of the occurrence, the accused hadstrangulated Kaliammal, the deceased with hands, which resulted in herdeath on the next day. But in Ex P1 complaint which was preferred by P.W.1, there is no averments to the effect that at the time of the occurrence, the accused had strangulated Kaliammal.

Further the learned counsel appearing for the appellant wouldalso contend that there is a delay in preferring the first informationreport. The occurrence, according to the prosecution, had taken place on7.3.2000 at about 19.00 hours. According to P.W.9, the complaint waspreferred by P.W.1 on 9.3.2000 at 9.00a.m. The explanation given on theside of the prosecution for the delay is that on the date of occurrence, the eldest son of the deceased Kaliamml viz., P.W.8 was not in station andthat he was informed about the occurrence only at 8.00p.m., on 8.3.2000and that he came to the house and admitted the injured Kaliammal in ahospital at Kuriyur on the same night. But without responding to thetreatment his mother Kaliammal had breathed her last on 9.3.2000 morning.P.W.11 who had registered the first information report and also admit thatP.W.1 came to the police station on 9.3.2000 at 11.00a.m., along with the Village Administrative Officer ,P.W.9 and preferred Ex P1 complaint.

But according to P.W.1, Kaliammal died in the early hours of8.3.2000 itself. According to P.W.8, Kaliammal died only on 9.3.2000.P.W.14 the doctor, who had conducted autopsy on the corpse of Kaliammal, has opined that due to asphyxia due to strangulation, thedeceased would have died. As per Ex P10 inquest report at column 15, thesentence (iffshy; fGj;ij behpj; Jk;)strangulation with hands wasinterpolated . This fact has been admitted by P.W.15 the investigatingOfficer in the cross examination also. So in Ex P1 complaint as well as inEx P10 inquest report, there is absolutely no averments as to thecommission of offence by the accused as to strangulating the deceasedresulting in her death. So the prosecution is miserably failed to provethat the accused had strangulated the victim Kaliammal on the date ofoccurrence and at the place of occurrence which resulted in her death on8.3.2000.

So, I am of the view that the conviction and sentence handed overby the learned trial Judge against the accused cannot be sustainable. Butthere is sufficient evidence through P.W.1 and P.W.2, and Ex P1 will go toshow that the accused had assaulted Kaliammal the deceased with hands on7.3.2000 at about 7.00p.m., causing simple injuries. This part of theevidence of P.W.1 and P.W.2 has been corroborated by the medical evidenceby the Doctor P.W.14 who had issued Ex P8 post mortem certificate notingsimple injuries on the right side of the upper lip , nape and back whichwarrants conviction under Section 323 of IPC . The point is answeredaccordingly. https://hcservices.ecourts.gov.in/hcservices/

In fine, the appeal is partly allowed and the conviction andsentence of the learned Sessions Judge in S.C.No.13 of 2001 on the file ofthe Principal Sessions Judge, Perambalur under Section 304(ii) of IPC isset aside instead the accused is convicted under Section 323 of IPC andsentenced to undergo four months rigorous imprisonment and a fine ofRs.1000/- in default to undergo one month simple imprisonment . The fineof Rs.1000/- already paid by the accused under Section304(ii) of IPC shallbe converted and treated as the fine imposed under section 323 of IPC. Setoff is ordered under Section 428 of Cr.P.C. The trial Court is directed toissue Non Bailable warrant and secure the accused and send him to prisonto undergo unexpended portion of the sentence.sd/-Asst. Registrar/true copy/Sub Asst. RegistrarsgTo1. The Principal Sessions Judge, Perambalur.2. The Judicial Magistrate, Perambalur.3. -do- through the Chief Judicial Magistrate, Perambalur.4. The Public Prosecutor, High Court, Madras5. The Inspector of Police, K.Kalathur Police Station, Perambalur 6. The Superintendent, Central Prison, Trichy7. The District Collector, Perambalur.8. The Director General of Police, Chennai.4.+ 1 cc to Mr.Siraj&Siraj Advocate SR.NO.47805MRD(CO0rd 9.8.07Crl.A.No.940/2001