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2023 Supreme(Mad) 41
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. JAYACHANDRAN, SUNDER MOHAN, JJ.
Alagarsamy - Appellant
Versus
The State, rep by The Inspector of Police, Keelavalavu Police Station, Melur, Madurai District (in Crime No.98 of 2012) – Respondent
Crl. A. (MD) No.604 Of 2019
Decided On : 02-01-2023
For the Appellant : Mr. J. Gunaseelan Muthiah.
For the Respondent: Mr. A. Thiruvadikumar Additional Public Prosecutor.
Headnote:
Indian Penal Code, 1860 - Section 300, 302, 304(1) - Criminal Procedure Code, 1973 - Section 374 - Criminal Appeal - Guilty and charged - Calling for records pertaining - Charges framed - Offence of murder - Punishment for culpable homicide not amounting to murder - Appeals from convictions - Criminal Appeal is filed by life convict, who was found guilty and charged under Section 302 IPC by trial Court -Held, Court holds that act of accused falls within exemption(IV) under section 300 IPC being culpable homicide not amounting to murder and hence punishment under Section 302 is not sustainable - Accused liable to be punished only for offence under Section 304(1) of IPC - Regarding question of sentence, accused who is appellant herein, at time of occurrence was about 30 years and has committed above said offence in heat of passion and therefore, it is appropriate to modify sentence and accordingly, sentence is modified to effect that appellant/accused is directed to undergo five years rigorous imprisonment and to pay a fine of in default, further to undergo rigorous imprisonment for one year - Criminal Appeal is partly allowed.
JUDGMENT :
[G. Jayachandran, Sunder Mohan, JJ.]
[PRAYER: Criminal Appeal filed under Section 374 of the Code of Criminal Procedure, calling for the records pertaining to the conviction and sentence passed in S.C.No.306 of 2016, dated 3.1.2018, on the file of the Ist Additional Sessions and District Judge, Madurai.]
1. This Criminal Appeal is filed by the life convict, who was found guilty and charged under Section 302 IPC by the trial Court.
2. According to the prosecution, the deceased and the accused are neighbours. They have the persistent dispute regarding pathway. On the day of the event, after attending a funeral, both were returning home and due to previous enmity, quarrel erupted in between them on the way to home and ended in accused murdering the deceased by hitting the deceased with a grinding stone on the fore-head.
3. The Criminal Law was set in motion by the deceased, who was at the relevant point of time inside the house and came out of the house on hearing the alarming noise, she saw the accused sitting on her husband and causing injury with stone on the head. Two other witnesses who were neighbours also came out hearing the noise. Seeing them, the accused has flew away from the scene of occurrence. Hoping that the injured husband is alive, P.W.1 has arranged for ambulance, but the ambulance people on examining the deceased, informed her that he is dead. Narrating the same complaint – Ex.P1 was lodged by P.W.1 and the same was taken up for investigation. On completion of investigation, the accused was found committed for the offence under Section 302 IPC, charges framed by the trial Court and accordingly, the accused was tried.
4. To prove the charges, prosecution has examined 16 witnesses, marked 17 exhibits and 7 material objects through them. On behalf of the defense, neither witnesses were examined nor documents were marked.
5. The trial Court, considering the cumulative evidence of P.W.1, P.W. 2 and PW.3, who are the witnesses to the occurrence, who came to the scene of occurrence on hearing the alarming noise of the deceased saw the accused sitting upon the deceased and hitting him with the grinding stone, which is marked as MO.1. P.W.4, witness who has attested the complaint Ex.P1 held that offence of culpable homicide committed by the accused is proved through the eye-witnesses.
6. The Post-mortem Certificate is marked as Ex.P2, which discloses the nature of injuries sustained by the deceased, which was fatal. The Doctor who has conducted the autopsy has opined that those injuries might have been caused by using MO1 Grinding Stone. At the time of arrest, blood-stained clothe of the accused were collected and the same was sent to Serology Test. The blood-stain found in the grinding stone, lungi and shirt of the accused confirmed to be human blood. However, the group of the blood was not conclusive as per Ex.P11.
7. The Trial Court, after considering the evidence at length, has imposed life sentence with fine of Rs.5000/-, in default, to undergo one year rigorous imprisonment for the proved offence under Section 302 IPC.
8. Aggrieved by the conviction and sentence imposed by the trial Court, the present Criminal Appeal is filed on the ground that there is considerable delay in registering the FIR and forwarding the same to the Judicial Magistrate Court concerned. While the occurrence took place on 14.6.2012 at about 9.15 p.m., the complaint was lodged with a delay of 2 hours and 15 minutes and the FIR was forwarded to the Judicial Magistrate only on the next day. The delay was not properly explained by the prosecution.
9. The learned counsel for the appellant submit that the prosecution has failed to prove the motive regarding pathway not proved. The previous enmity between the deceased and the accused. The evidence of P.W.1, P.W.2 and P.W.3 are unnatural and even according to them, they did not see the deceased being attacked by the accused directly. They came out from the house only on hearing the noise and saw t
