Madras High Court
Senthur vs The State Represented By on 29 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
Crl.A(MD)Nos.28 & 238 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)Nos.28 & 238 of 2020
Crl.A(MD)No.28 of 2020:
Senthur ... Appellant /
Accused
Vs.
The State represented by
The Inspector of Police,
Maniyachi Police Station,
Thoothukudi District.
(Crime No.32 of 2017) ... Respondent /
Complainant
Prayer: Criminal Appeal filed under Section 372 of Code of Criminal
Procedure, 1973 to call for the records in S.C.No.236 of 2018 on the file of the
learned II Additional District and Sessions Judge, Thoothukudi and set aside
the judgment dated 05.09.2019 and acquit the accused / appellant.
For Appellant : Mr.P.Banu Prasath
For Respondents : Mr.T.Senthil Kumar
Additional Public Prosecutor
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Crl.A(MD)No.238 of 2020:
The State represented by
The Inspector of Police,
Maniyachi Police Station,
Thoothukudi District.
(Crime No.32 of 2017) ... Appellant
Complainant
Vs.
Chendur ... Respondent /
Accused
Prayer: Criminal Appeal filed under Section 378(i) of Code of Criminal
Procedure, 1973 to call for the records in S.C.No.236 of 2018 on the file of the
learned II Additional District and Sessions Judge, Thoothukudi and set aside
the judgment dated 05.09.2019 and convict the accused / appellant.
For Appellant : Mr.T.Senthil Kumar
Additional Public Prosecutor
For Respondents : Mr.C.Mayil Vahana Rajendran
COMMON JUDGMENT
Crl.A(MD)No.238 of 2020 has been filed by the State questioning the
judgment dated 05.09.2019 made in SC.No.236 of 2018 acquitting the accused
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Senthur under Section 302 of IPC and finding him guilty of the lesser offence
under Section 326 of IPC. Crl.A(MD)No.28 of 2020 has been filed by
Senthur / accused, questioning the very same judgment and seeking total
acquittal. By the impugned judgment, the accused was found guilty for the
offence under Section 326 of IPC and sentenced to 7 years Rigorous
Imprisonment and a sum of Rs.1000/- was levied as fine, in default, sentence to
undergo 6 months Simple Imprisonment was imposed. The appellant was also
found guilty of the offence under Section 294(B) of IPC and a sum of Rs.1000/-
was levied as fine, in default, sentence of 3 months was also imposed. The
appellant was also found guilty for the offence under Section 506(ii) of IPC and
sentenced to undergo 7 years of Rigorous Imprisonment. He was also
sentenced to pay fine of Rs.500/-. Default sentence was also imposed.
2.The case of the prosecution is as follows :
Gopalsamy / deceased used to interact with Shanthi / wife of the
accused. The accused developed suspicion over the same. On 04.10.2017, at
about 09.30 p.m, Sekar / son of Gopalsamy (PW1) and Vasantha / wife of
Gopalsamy (PW2) were talking to each other inside their house. The deceased
was also at home. The accused came there and banged the door with casuarina
stick. PW.1 Sekar came out. The accused employing indecent and foul
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Crl.A(MD)Nos.28 & 238 of 2020language, asked where his father was. Gopalsamy then accosted him.
Thereupon, the accused questioned him as to why he was talking to his wife
though he had repeatedly asked him not to do so. He then hit Gopalsamy
successively on his head, left cheek as well as jaw. Gopalsamy was rushed to
Government Hospital, Ottapidaram. He passed away at midnight on
05.10.2017.
Sekar(PW1) lodged Ex.P1 complaint before the Inspector of Police,
Maniyachi Police Station. It was registered as Crime No.32 of 2017 at about
03.00 a.m on 05.10.2017 for the offences under Sections 294(b), 302 and
506(ii) of IPC. PW18 was then working as Inspector of Police, Maniyachi
Police Station. He took up the investigation and went to the spot at around
04.00 a.m. He prepared observation mahazar and also rough sketch. He
collected the blood stained earth samples. He examined the witnesses and
recorded their statements. Inquest was held at 07.00 a.m on 05.10.2017.
Ex.P18 is the inquest report. Post-mortem was conducted at around 11.30 a.m.
The accused was arrested at around 11.30 p.m near Muramban bus stop. The
confession statement was taken from the accused in the presence of the Village
Administrative Officer, Ananthi and Village Assistant, Velusamy at around
12.30 p.m. Based on the disclosure statement, casuarina stick MO1 was seized
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from the house of the accused. At around 13.30 hrs, the blood stained cloths of
the deceased were seized. After obtaining the forensic reports and examining
the medical witnesses, final report was filed before the learned Judicial
Magistrate No.1, Kovilpatti.
3.The final report was taken on file in PRC.No.26 of 2018. The case
was later committed to the Principal Sessions Court, Thoothukudi and made
over to II Additional District and Sessions Judge, Thoothukudi in SC.No.236 of
2018. Charges were framed against the accused for the offences under Sections
294(b), 302 and 506(ii) of IPC. The accused pleaded not guilty and claimed to
be tried.
4.The prosecution examined PW1 to PW18. Ex.P1 to Ex.P21 were
marked. MO1 to MO6 were also marked. Incriminating circumstances were
put to the accused under Section 313 C.r.P.C. He characterized them as false.
On the side of the accused, no evidence was adduced. After considering the
evidence on record, the trial Court by the impugned judgment dated 05.09.2019
found the accused guilty only in respect of the offences under Sections 326,
294(b) and 506(ii) of IPC. Challenging the acquittal in respect of the offence
under Section 302 of IPC, the State has filed Crl.A(MD)No.238 of 2020.
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Challenging the conviction and sentence, the accused filed Crl.A(MD)No.28 of
2020.
6.Heard the learned Additional Public Prosecutor appearing for the
State as well as the learned counsel appearing for the accused. They reiterated
the respective contentions set out in the memorandum of grounds of Criminal
Appeal.
7.The learned Additional Public Prosecutor would submit that the
Court below, after accepting the case of the prosecution and the evidence
projected by them, arbitrarily found the accused guilty only for the lesser
offence under Section 326 IPC. In support of his contention that the Court
below had completely misdirected itself in law, the learned Additional Public
Prosecutor relied on the decision reported in (2022) 4 SCC 227 (State of
Uttarakhand Vs Sachendra Singh Rawat) and the decision reported in (1972)
3 SCC 118 (Gudar Dusadh Vs State of Bihar).
8.On the other hand, the learned counsel for the accused submitted
that the accused ought to have been acquitted in toto.
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9.We carefully considered the rival contentions and went through the
evidence on record.
10.It is beyond dispute that Gopalsamy, father of PW1 and the
husband of PW2 died on account of homicidal violence. The only question that
calls for consideration is whether there is any legally acceptable evidence to
connect the accused Senthur with the crime. In support of their case, the
prosecution had examined as many as 3 eye-witnesses. PW1 is none other than
the son of the deceased. He deposed that he was in his house on 04.10.2017 at
around 09.30 p.m. He heard a loud banging on the door. When he came out, he
saw the accused standing outside holding a Casuarina stick in his hand.
11.The accused wanted to know the whereabouts of Gopalsamy.
Hearing this, Gopalsamy came out. Immediately the accused attacked the
deceased by hitting him on his head, left cheek and jaw. After inflicting the
aforesaid injuries, the accused uttered intimidatory remarks and left the spot.
Thereupon, Gopalsamy was rushed to Government Hospital, Ottapidaram in a
jeep belonging to the Panchayat President, Sudalaimuthu and he was admitted
there at around 11.30 p.m. Gopalsamy passed away at around 12.15 p.m. PW1
lodged Ex.P1 complaint before the Maniyachi Police Station at around 03.00
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a.m. PW2 wife of the deceased and mother of PW1 also affixed her signature.
PW1 identified MO1 Casuarina stick as the one with which the accused
attacked his father. His testimony could not be shaken during cross
examination.
12.PW2 Vasantha was the wife of the deceased Gopalsamy. She
deposed that the accused was their neighbour. Shanthi was the wife of the
accused. According to PW2, her husband treated the said Shanthi like his
daughter. But the accused developed suspicion over their relationship. He used
to quarrel with Gopalsamy often in that regard. On 04.10.2017 at around 09.00
p.m, she was present in the house along with her husband and son (PW1). She
also deposed regarding the occurrence on the same lines as that of her son. Her
evidence also could not be shaken during cross examination. Though PW1 and
PW2 are related witnesses, they cannot be characterized as interested witnesses.
They are natural witnesses. The occurrence took place right outside the house
of the deceased at around 09.30 p.m. A catena of judicial pronouncements of
the Hon’ble Supreme Court are to the effect that the evidence of a closely
related witness cannot be disbelieved merely on the ground that the witnesses
are related to each other or the deceased. If the evidence has a ring of truth to it,
is cogent, credible and trustworthy, it should be relied upon. [Jodhan Vs. State of
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M.P., (2015) 11 SCC 52 ]. In the facts and circumstances of this case, the son and
wife of the deceased can only be called as natural witnesses.
13.PW3 Balasubramanian is also the resident of the locality. He is an
independent witness. He was standing outside his house and chatting with few
others at around 09.30 p.m on 04.10.2017. His testimony fully corroborates
the evidence of PW1 and PW2. He came to the spot immediately after the
occurrence had taken place. He deposed that he joined PW1, PW2 and others
in taking Gopalsamy to the hospital. PW7 signed as a witness in the
observation mahazar Ex.P3 and the seizure mahazar Ex.P4. PW10 Ananthi was
working as Village Administrative Officer in Malaipatti Village and she signed
as a witness in the confession statement (Ex.P5) and recovery mahazar (Ex.P6).
PW11 was the duty Doctor in Government Hospital Ottapidaram. It was he
who admitted Gopalsamy and gave him first aid. He issued Ex.P7 accident
register. It was he who issued certificate certifying that Gopalsamy passed
away on 05.10.2015 at 00.15 hrs. He conducted post-mortem on 05.10.2017
and issued Ex.P8 post-mortem certificate. He had noted as many as 6 injuries
on the body of Gopalsamy. He opined that the deceased Gopalsamy appeared
to have died due to the fatal head injury suffered by him. PW17 was working
as Sub Inspector of Police and it was he who registered Crime No.32 of 2017
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on the basis of Ex.P1 complaint lodged by PW1 Sekar, son of the deceased.
PW18 was the investigation officer who filed the final report. The learned trial
Judge rendered a categorical finding that the motive for the occurrence has
been convincingly established by the prosecution. The accused had developed
suspicion over the relationship between his wife Shanthi and the deceased
Gopalsamy and that was the reason for launching a murderous attack on
04.10.2017 at around 09.30 p.m. The Court below further found that the case
of the prosecution has been established by the eyewitnesses PW1, PW2 and
PW3. However, after accepting the case of the prosecution as such, the trial
Court suddenly came to the conclusion that it would not be in the interest of
justice to convict the accused for the offence under Section 302 of IPC. It
concluded that the act of the accused is punishable only under Section 326 of
IPC and accordingly found him guilty.
14.This approach of the Court below can only be characterized as
perverse. It has been proved beyond reasonable doubt that the accused attacked
the deceased with MO1 casuarina stick. The accused attacked the deceased on
his head, left cheek and also jaw. The attack was with such force that the
mandible bone pieces got exposed.
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15.Section 300 of IPC is as follows:
“300.Murder.—Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death, or
2ndly.—If it is done with the intention of causing
such bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or—
3rdly.—If it is done with the intention of causing
bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause
death, or—
4thly.—If the person committing the act knows that it
is so imminently dangerous that it must, in all probability,
cause death, or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the risk
of causing death or such injury as aforesaid.”The Hon’ble Supreme Court in the decision reported in (1972) 3 SCC 118
(Gudar Dusadh Vs State of Bihar) interpreted the third clause in the following
terms:
“Clause “3rdly” consists of two parts. Under the
first part, it has to be shown that there was an intention on the
part of the accused to inflict the particular injury which was
found on the body of the deceased. The second part requires
that the bodily injury intended to be inflicted was sufficient in
the ordinary course of nature to cause death. So far as the11/15
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Crl.A(MD)Nos.28 & 238 of 2020first part is concerned, the court has to see whether the injury
which was found on the deceased was the one intended by the
accused or whether it was accidental without his having
intended to cause that bodily injury. Once it is found that the
injury was not accidental and that the accused intended to
cause the injury which was actually inflicted and found on the
body of the deceased, the first part shall be satisfied. The
court would then go into the second part of the clause and
find in the light of medical evidence as to whether the bodily
injury inflicted was sufficient in the ordinary course of nature
to cause death. If the court finds that the requirements of both
the parts have been satisfied, the case shall be held to be
covered by clause “3rdly” unless it falls within one of the
exceptions. ”
16.In the case on hand, it was the accused who went to the house of
the deceased, called him out and attacked him. It shows that the assault was
premeditated and the blow on the head of Gopalsamy was not accidental. The
blow on the head of Gopalsamy with casuarina stick was given with such force
that the mandible bone pieces got exposed. The lacerated injury was 10x4x2
cms over the sub-mandibular region. The accused had struck on the vital part
on the body of the deceased. The post-mortem doctor PW11 had also opined
that it was the head injury that proved to be fatal. Thus the case of the accused
stood covered by the third clause of Section 300 of IPC and he ought to have
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been found guilty of the offence of murder.
17.The Hon’ble Supreme Court in the decision reported in (2006) 11
SCC 444 (Pulicherla Nagaraju @ Nagaraja Reddy v State of A.P) had held
that the trial Court should carefully scrutinize the facts and decide the pivotal
question of intention with care and caution to decide whether the case falls
under Section 302 or 304(i) or 304(ii). Likewise, the Court below should apply
its mind and give reason if the case would fall under Exception 4 or one of the
Exceptions to Section 300 IPC. In the case on hand, the Court below had not
given any reason for acquitting the accused for the offence Section 302 of IPC
and finding him guilty for the lesser offence under Section 326 IPC. Reasons
have to be assigned for coming to any conclusion. In this case, no reason has
been set out at all by the Court below. That is why, we characterise the
approach of the trial below as utterly perverse. The impugned judgment finding
the accused guilty of the lesser offence under Section 326 of IPC is set aside.
The finding of the Court below in respect of the charges under Sections 394(b)
and 506(ii) of IPC are maintained. We hold that the case on hand would fall
within the third clause of Section 300 of IPC. We find the accused guilty of the
offence of murder punishable under Section 302 of IPC.
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18.To hear the accused on the question of sentence, call this case on
30.01.2025.
[G.R.S., J.] [R.P., J.]
29.01.2025
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
MGA
To
1. II Additional District and Sessions Judge, Thoothukudi
2.The Inspector of Police,
Maniyachi Police Station,
Thoothukudi District.
(Crime No.32 of 2017)
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G.R.SWAMINATHAN, J
and
R.POORNIMA, J.
MGA
Crl.A(MD)Nos.28 & 238 of 2020
29.01.2025
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