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2021 Supreme(Mad) 3413
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.VAIDYANATHAN, G.JAYACHANDRAN, JJ.
Muthupandi - Appellant
Vs.
State rep. by The Inspector of Police, Aruppukottai Taluk Police Station, Virudhunagar District. - Respondent
Crl.A.(MD)Nos.66 and 113 of 2019
Decided On : 02-12-2021
Advocate Appeared:
For the Appellant : Mr.R.Dinakaran, Mr.A.K.Azhakarsamy for Mr.M.Vijayarajan
For the Respondent: Mr.A.Thiruvadikumar
Headnote:
Criminal Procedure Code,1973 - Section 313 and 428 – Indian Penal Code,1860 - Sections 34, 294(b), 341, 352, 336, 506(ii) and 302 - Postmortem Certificate - Recovered stone used to assault - Case of prosecution in nutshell is that on at when one was walking near appellant and appellant in respectively stopped him and demanded money to buy Brandy - They abused in filthy language and picked quarrel with him - When refused to give money pushed him down and instigated to throw stone and kill - Accordingly lifted a stone weighing about lying nearby and put it on deceased - When son of deceased came to rescue his father caught hold of him - After ensuring that lost his breath A-2 left scene of crime - A-1 who got injury in melee got himself admitted in hospital – Murder has been committed without any premeditation and out of sudden provocation - Act of the accused will fall under the fourth exception to Section 300 of I.P.C. Hence, the appellants are liable to be punished under Section 304(i) of I.P.C. and not under Section 302 of I.P.C. Para 18.
Finding of the Court:
Case of defence is that first information report marked as Ex.P.1 seems to have been recorded on hours at Government Hospital - Whereas in evidence of P.W.15 Investigation Officer it is admitted that injured was taken from Government Hospital to Government Hospital Madurai and admitted - Therefore presence of in Government Hospital is impossible - In this regard it is to be noted that though Investigation Officer has stated that deceased admitted in Government Hospital Madurai relevant Accident Register or any other document of that Hospital to show time of admission is filed - Defence had not called for Accident Register to show that injured was shifted to Government Hospital itself - Therefore this Court is of view that neither the doubt raised by defence regarding presence of P.W.1 in occurrence place nor suppression of first complaint is without any basis.
Result: Criminal Appeals are partly allowed.
JUDGMENT :
S.VAIDYANATHAN, G.JAYACHANDRAN, J.
These Criminal Appeals are filed to set aside the judgment of conviction and sentence passed in S.C.No.166 of 2012, dated 22.01.2019, on the file of the Additional District and Sessions Court, Virudhunagar and to acquit the appellants/accused from the charges levelled against them.
2. The case of the prosecution in nutshell is that, on 06.03.2012 at 6.00 p.m. when one Moorthy (the deceased) was walking near Balavanatham, Therkupatti Irrukankudi Vilakku, Muthupandi (A-1) and Kalimuthu (A-2) [the appellant in Crl.A.(MD)No.66 of 2019 and the appellant in Crl.A.(MD)No.113 of 2019, respectively] stopped him and demanded money to buy Brandy. They abused Moorthy in filthy language and picked quarrel with him. When Moorthy refused to give money, Kalimuthu (A-2) pushed him down and instigated Muthupandi (A-1) to throw stone and kill Moorthy. Accordingly, Muthupandi lifted a stone weighing about 9.850 K.Gms. lying nearby and put it on the deceased. When Selvam (P.W.1), the son of the deceased came to rescue his father, Kalimuthu caught hold of him. After ensuring that Moorthy lost his breath, A-2 left the scene of crime. A-1, who got injury in the melee, got himself admitted in the hospital.
2.1. Selvam (P.W.1) along with one Kannan (P.W.2) took the injured Moorthy to Virudhunagar Government Hospital in an Auto. On receipt of the intimation from the Hospital authorities, Nagarathinam (P.W.14), the Sub- Inspector of Police attached to Aruppukottai Taluk Police Station went to the Government Hospital, Virudhunagar. Since the injured was not in a position to give statement, he recorded the statement of his son Selvam (P.W.1), registered a case in Crime No.67 of 2012 under Sections 294(b), 341 and 307 of I.P.C. The injured Moorthy was later shifted to Government Rajaji Hospital, Madurai, for better treatment.
2.2. Meanwhile, Jeyakodi (P.W.15), Inspector of Police, Aruppukottai Taluk Police Station, who took up the investigation, arrested Kalimuthu (A-2) on 07.03.2012 at 09.30 a.m. and remanded him to judicial custody after recorded his confession statement. Based on the confession statement, P.W.15 recovered the stone used to assault Moorthy. On 12.03.2021 at 9.45 a.m., the injured Moorthy died. Therefore, altered F.I.R. for offences under Sections 294(b), 341, 352, 336, 506(ii) and 302 of I.P.C. read with Section 34 of I.P.C. was prepared and forwarded to the learned Judicial Magistrate, Aruppukottai. The first accused Muthupandi, who sustained injury in the melee was admitted in the Government Hospital, Virudhunagar and got discharged on 14.03.2012. Thereafter, P.W.15 arrested A-1 and remanded to judicial custody.
2.3. On completion of investigation, final report against A-1 and A-2 was filed before the learned Judicial Magistrate and numbered as P.R.C.No.39 of 2012. Since the offence being exclusively triable by Court of Sessions, the case was committed to the learned District and Sessions Judge, Virudhunagar. On committal, the case made over to the learned II Additional District and Sessions Judge, Virudhunagar. The following Charges were framed against the accused.
''Charge 1: Against A-1 and A-2 for offence under Section 294(b) of I.P.C.
''Charge 2: Against A-1 for offence under Section 302 of I.P.C.
''Charge 3: Against A-2 for offence under Section 302 r/w. 109 of I.P.C.
''Charge 4: Against A-2 for offence under Section 342 of I.P.C.
''Charge 5: Against A-1 for offence under Section 506 (ii) of I.P.C.''
Both the accused denied the charges and claimed to be tried. Accordingly, in the trial for the prosecution, 15 witnesses and 20 exhibits were marked, besides 4 material objects. No witnesses, documents or material objects marked on the side of the accused. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., both the accused denied the same as false.
2.4.On ap
