Pilluvetti @ Chinnamaran v. The Inspector Of Police

Bail Slip The Appellants/Accused namely Pilluvetti @ Chinnamaran S/o.Murugan (A1) and Murugan S/o.Chinnamaran (A1 and A3 in SC.No.10 of 2011 on the file of the 1st Additional District and Sessions Judge, Coimbatore dated 24.02.2012) were directed to be released on bail as per order of this court dated 03.04.2012 in CRL.MP.No.3 of 2012 and MP.1 of 2013 dated 26.03.2012 in CRL.A.No.199 of 2012 on the file of this court.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.07.2018

CORAM

THE HONOURABLE Mr.JUSTICE R.PONGIAPPAN Crl.A.No.199 of 2012

1. Pilluvetti @ Chinnamaran [A1]

2. Murugan,M. [A3] .. Appellants/Accused 1 & 3 Vs.

The State, rep by The Inspector of Police, Vadakki Palayam Police Station, Pollachi Taluk, Coimbatore District.

(Cr.No.196/2010) .. Respondent/Respondent Prayer:

Appeal filed under Section 374 of Code of Criminal Procedure, against the judgment dated 24.02.2012 in S.C.No.10 of 2011 passed by the learned 1st Additional District and Sessions Judge, Coimbatore.

For Appellants : Mr.V.Sivakumar For Respondent : Mrs. T.P. Savitha Government Advocate (Crl.Side)

J U D G M E N T

The first and second appellants are arrayed as A-1 and A-3 in S.C.No.10 of 2011 on the file of the learned first Additional District and Sessions Judge, Coimbatore. They stood charged for the offences under Sections 341, 302 read with 34 IPC. The accused denied the charges and opted for trial. Therefore, they were put on trial on the charges. After fullfledged trial, the learned first Additional District and Sessions Judge, Coimbatore found them guilty for the offences under Sections 341, 304(2) IPC. The first appellant accordingly convicted under Section 304(2) IPC and sentenced to undergo Rigorous Imprisonment for 5 years and to pay a fine of Rs.2,000/- in default to undergo 2 months Rigorous Imprisonment and a term of one month Simple Imprisonment for the offence under Section 341 IPC.

Further, the second appellant is convicted for the offence under Section 323 IPC and sentenced to undergo 6 months Simple Imprisonment and to pay a fine of Rs.500/- in default to undergo 1 month Simple Imprisonment, and a term of one month Simple Imprisonment for the offence under Section 341 IPC. Challenging the said conviction and sentence, the appellants are before this Court with this appeal.

2. The case of the prosecution in brief is as follows: (i). On 19.07.2010, the deceased Veeramuthu while returning to his home with his mother and brother, near Aircel Tower at the Harijan Colony in Soolakkal Village, the accused 1 to 3 intercepted and pulled down the deceased. Further, A1 hit him with an umbrella, while A2 and A3 stamped on his neck. Due to the attack made by the accused, the deceased become unconscious. Next day, he was taken to Government Hospital, Pollachi. After examining him, the Doctor, attached with the said Hospital, referred the deceased to the Coimbatore Medical College and Hospital for further treatment. For which, they issued a referral sheet under Ex.D.1. In CMC Hospital, Coimbatore, PW13 admitted the deceased as inpatient and prepared an accident information report under Ex.P.14. (ii). PW14 Dr.Venkatesh attached with CMC Hospital treated the deceased Veeramuthu for the next 25 days and for which, he maintained a case sheet under Ex.P.15. Further he sent intimation to Vadakki Palayam Police Station with regard to the occurrence.

(iii). After receiving the intimation, PW.10, the then Sub Inspector of Police went over to the CMC Hospital and on verification, he find out that the injured is in the stage of unconscious. So, he examined PW.1 and recorded the statement under Ex.P.1. Based on the said statement, he registered a case in Crime No.196/2010 for the offences under Sections 341 and 307 IPC. Thereafter, he sent the all relevant records to Judicial

Magistrate, who is having jurisdiction. The copy of the same has been forwarded to PW12 for the purpose of investigation. (iv). On 22.07.2010, at about 12 p.m, P.W.12, the then Inspector of Police, Pollachi Taluk, after receiving the case records went over to the scene of occurrence and in the presence of PW5 and one Maran, he prepared an Observation Mahazar under Ex.P.2. Further, he drawn the rough sketch under Ex.P.11, he examined the witnesses and recorded their statements. On the same day, at about 20.30 hrs, near Mettupalayam railway gate, he arrested the first accused in the presence of P.W.6 and recorded the confession statement given by him, pursuant to the same, he recovered M.O.1 under Ex.P.13 seizure mahazar. Admissible portion of the confession statement is marked as Ex.P.12. On the same day, in the mid night, P.W.12 arrested A2 and A3.

(v). In the said circumstances, on 15.08.2010, P.W.11 Annadurai had received the death intimation of Veeramuthu from Coimbatore Medical College Hospital. Ex.P.8 is the death intimation. Subsequent to the receipt of death intimation, since P.W.12 is out of station, the Inspector of Police, Pollachi East (P.W.11) took up the case for investigation and prepared the inquest report in the presence of witnesses and panchayatars. Ex.P.10 is a inquest report. Further, he examined the witnesses and recorded their statements. After completing the above formalities, he sent a requisition letter to the Hospital Authorities through P.W.9 Head Constable for conducting post mortem.

(vi) On receipt of the requisition letter, P.W.8 who is the Doctor attached with CMC Hospital conducted autopsy and issued a post mortem certificate under Ex.P.6. During the time of post mortem, he found the following injuries: " (i). Recently healed pressure abrasion 8 X 1 cm noted on anterior aspect of the left mid arm. (ii). Recently healed wound (I.V. drip line) 2 X 1 cm noted on lateral aspect of left lower forearm.

(iii). Healing abrasion 3 X 1 cm note on anterior aspect of lower end of right leg.

(iv). Healing bed sore wound 4 X 3 cm noted on the right side hip (v). Recently healed abrasion 3 X 2 cm noted on posterior aspect of right lower arm. On dissection of Scalp, Skull and Dura: Sub scalpal contusion variegated in colour measuring 8 X 4 cm noted on right fronto parietal region. Brain found edematous.

Contusion 4 X 3 cm with central

liquefaction noted on bifrontal region of brain. Diffuse sub dural and sub arachaoid hemorrhages noted on entire brain. Cerebral spinal fluid increased in volume with blood stained.

On dissection of neck: A transversely oblique contusion in variegated in colour 6 X 4 cm noted on right side neck. The medial end is starting from midline and lateral aspect of thyroid cartilages, the upper lateral end is 4 cm right to midline."

(vii) After completing the process of post mortem, he given opinion as the death is due to head injury and its complication. Subsequent to the completion of post mortem, P.W.11 altered the section of law as section 302 IPC under Ex.P.9 and handed over the case records to P.W.12 for further investigation. On receipt of the case records, P.W.12 perused the records and filed a final report under Section 302 r/w 34 IPC against the accused.

3. Based on the materials available on record, the Trial Court framed charges against the accused as stated supra and the accused denied the same. In order to prove the case of prosecution, as many as 14 witnesses were examined as P.W.1 to P.W.14 and 15 documents were marked as P.1 to P.15, besides one material object which was marked as M.O.1.

4. Out of the said witnesses, P.W.1 is the mother of the deceased, who is an eye witness to the occurrence, has stated in her evidence that as on 19.07.2010 at about 9.00p.m., when he was returning to his home along with his husband and the deceased, the appellant and other accused intercepted and thereafter, the second accused (now acquitted) pulled down the deceased, further, the first accused in this case assaulted the deceased and caused injury on his head. Subsequent to that after seeing the villagers, all the accused were ran away from the scene of occurrence. She has further stated on the next day, the injured was taken to the Government Hospital, Pollachi, in the said hospital after giving initial treatment the Doctor referred the injured to the Coimbatore Medical College Hospital for further treatment.

5. P.W.2 (Murugesh) is the brother of the deceased Veerapan, who is also an eye witness to the occurrence has narrated the entire occurrence as stated by P.W.1, further, he stated about the enmity of deceased with the accused.

6. P.W.3 (Poosarimaran) is the father of the deceased, he has stated after knowing the occurrence, he came to the scene of occurrence and on next day morning, he admitted the deceased in the Pollachi Government Hospital. P.W.5 (Aruchamy) who is the

neighbour of the deceased has stated previous to the occurrence there was a frequent quarrel happened between the families of deceased and the accused. P.W.6 is the witness attested in the observation Mahazar prepared by the Investigation Officer. Even though, P.W.6 is the witness to the confession statement given by A1, he had not supported the case of prosecution, thereby, he was treated as hostile witness. PW.7 is the relative of the deceased given evidence with regard to the preparation of inquest report by the Investigation Officer. P.W.8 is the Doctor, who conducted the post mortem, stated in his evidence about the ante mortem injuries and post mortem injuries found on the deceased Veeramuthu. Further, he gave opinion about the cause for death. P.W.9 is the Special Sub Inspector of Police has stated about the handing over of the dead body to the Doctor for conducting post mortem.

7. P.W.10, the then Sub Inspector of Police, Pollachi west deposed with regard to the statement recorded from P.W.1 and about the registration of the case. P.W.11 and P.W.12 are the Inspector of Police stated in their evidence about the manner of investigation conducted in this case. P.W.13 and P.W.14 are the Doctors examined on the side of the prosecution has stated about the details of treatment given to the deceased. They have stated in their evidence with regard to the admission of deceased in the CMC Hospital, Coimbatore and about the treatment given to him.

8. Learned Trial Judge with reference to the incriminating materials adduced by the prosecution questioned the accused under Section 313 Cr.P.C., for which, they denied as false. However, two witnesses have been examined as DW1 and DW2 on the side of the accused. Further, he marked a referral sheet issued by Pollachi Government Hospital as Ex.D.1.

9. Among the defence witness, DW1 (Kalathur Maran) is the relative of the first accused Chinnamaran. One Kittan is the brother of Chinnamaran, DW 1 has stated before the occurrence, the first accused is joined with the wife of Kittan and leads the family life. Further, the deceased Veeramuthu is born to Thulasi through the Kittan. Further, he has stated that the deceased Veeramuthu is a habitual drinker.

10. DW2 Veeran has stated that the deceased Veeramuthu is the son of one Kittan. Further, the deceased is frequently consumed liquor.

11. Learned Trial Judge on perusal of the materials placed on record and on considering the arguments advanced on both sides, convicted and sentenced the appellants/accused as stated supra. Challenging the same, the present criminal appeal has been filed.

12. Today when the appeal is taken up for consideration, I have heard Mr.V.Sivakumar, learned counsel appearing for the appellants and Mrs.T.P.Savitha, learned Government Advocate (Crl.Side) appearing for the respondent.

13. The learned Counsel appearing for the appellants would contend that previous to the occurrence, the appellants and the deceased are not having any previous enmity. Thereby, alleging that the appellants have motivation to kill the deceased is invented only for the purpose of this case. He would further contend that the evidence given by PW 1 to PW 4 are having lot of contradictions, which affected the rootstock of prosecution. He further contend that the prosecution has not shown the correct date, on which the occurrence is happened, he would contend that the evidence given by the prosecution does not show the correct place in which the alleged occurrence is happened. Finally, he submits the evidence given by DW 1 and DW 2 clearly established the deceased is drunkard, and the attack made by the accused is not a reason for the death of the deceased Veeramuthu. Accordingly, he prayed to set aside the conviction and sentence imposed upon the accused.

14. Per contra, the learned Government Advocate would contend that the witnesses examined on the side of the prosecution clearly established, only due to the attack made by the appellants, death had occurred to the deceased. With regard to the date of occurrence, the evidence given by PW 4 is very clear and proved that the occurrence had happened only in the mid night of 20.07.2010. Further, he would contend the minor contradictions arisen in the evidence of PW 1 to PW 4 is no way affected the case of the prosecution. According to him, interference is not necessary in the Judgment rendered by the trial Court.

15. The submission made by either side Counsel are considered. Admittedly, previous to the occurrence the family of the accused and the family of the deceased are developed enmity in respect to the division of common property. In this regard, the evidence given by PW 4 clearly shows the said aspect. Moreover, in the cross examination of PW 1, she specifically admitted due to the land dispute, there are frequent quarrel between the deceased and the accused. Further, PW 3 who is the father of the deceased has also admitted the previous enmity. However, since the previous enmity is a double edged weapon,to find out the truth, it is necessary to see the evidence given by other witnesses.

16. In the trial Court, the complaint given by PW 1 was marked as Ex.P.1. In the complaint, PW 1 has specifically stated on 19.07.2010, when he was returning from the bus stop along with the deceased, all the accused are came in a opposite direction and during the time of occurrence, the 1st accused waylaid the deceased and catch hold the hands of the deceased. Thereafter, the other accused in this case pressing the throat of the deceased and kicked on his abdomen. Further, the 1st appellant/accused by using the umbrella repeatedly attacked the deceased on his head. Thereafter, after seeing the husband of PW 1 and one Chinnan, they are all ran away from the scene of occurrence. The said averment mentioned in the complaint was clearly stated by PW 1 in the trial Court.

Further, the evidence given by PW 1 are corroborated through the evidence of PW 2 and PW 3. Complimentary to the said evidence, PW 8, who is the Doctor conducting autopsy over the dead body of the deceased gave opinion as the death is due to the head injury and its complications. So the said evidence given by PW 1 to PW 3 and PW 8 clearly established the case of the prosecution. In otherwise, the minor contradictions available in the evidence of the said witnesses is no way created a platform for allowing this appeal.

17. In respect to the date of occurrence, the witnesses examined on the side of the prosecution are all stated as alleged occurrence had happened on 19.07.2010. Further, PW 4 who is the Mediator attempted to solve the dispute between the accused and the deceased has also stated that, on the next day morning (20.07.2010), the accused in this case came to his house and reported the occurrence, as yesterday night they assaulted the deceased. So according to their evidence, the occurrence is happened on 19.07.2010 at about 9.00 am. In the said circumstances, PW 1 has stated on the next day of occurrence, the deceased was admitted in the Pollachi Hospital and thereafter, he was referred to the Coimbatore Medical College Hospital.

But on go through the evidence given by PW 13, who is the Doctor treated the deceased, as well as on go through the particulars available in Ex.D.1, Referral Sheet issued by the Doctor attached with Pollachi Government Hospital disclosed that the deceased was initially admitted in the Hospital on 21.07.2010. For the intervening period, there is no explanation is offered either from the prosecution or from the accused. Further, on go through the evidence of PW 13, who is the Doctor attached with Coimbatore Medical College Hospital has stated at the time of admitting the deceased in the Hospital, it was reported that the occurrence had happened on 20.07.2010 at about 7.30 pm. Moreover, only after admitting the deceased in the Hospital, the police officer came and received the complaint from PW 1 on 22.07.2010.

So culling out the entire evidence, it is presumed PW 1 and PW 2 being the illiterate, rustic ladies wrongly mentioned the date of occurrence as 19.7.2010.

though, PW 1 has specifically stated in the complaint as the occurrence had happened on 19.07.2010, the said complaint was received by the sub inspector only on 22.07.2010. So, the evidence given by PW 1 and PW 2 with regard to the date of occurrence, only the mistake and I am of the considered view that the said lapses alone did not dilute the prosecution case entirely.

18. Secondly, the learned Counsel for appellant would contend, the evidence given by the Doctor is not in accordance with the evidence given by PW 1 in respect to the injury sustained by the deceased. Further, as per the Post Mortem Report, the deceased sustained abrasions on both the hands. But according to the evidence given by PW 1 and PW 2, all the accused attacked the deceased on his forehead and on the throat. So the evidence given by the Medical Officer is not in accordance with the PW 1 and PW 2.

19. On considering the said submission, it is true in the Post mortem report, it was mentioned as, the deceased is having abrasions in both the hands. In this context, PW 13 Dr. Meena, who admitted the deceased as inpatient in Coimbatore Medical College Hospital on 21.07.2010, has specifically stated the deceased sustained abrasions in the right forehead, for which, she issued Accident Register Copy under Ex.P.14. Accordingly, at the time of admitting the deceased in the Hospital, he sustained only one injury in the forehead. In this regard, PW 1 and PW 2 had clearly stated during the time of occurrence, the 1st appellant in this case by using the umbrella attacked the deceased on his forehead. Thereby, I am of the opinion that the evidence given by the medical officer is also supported the evidence given by the occurrence witnesses. So, there is no merit in the submission made by the appellant's counsel.

20. Thereafter, the learned Counsel appearing for the appellant would submit that as per the evidence of PW 2, he is a blind. But he gave evidence as he saw the occurrence, being the blind, seeing the occurrence is impossible. Hence, the evidence given by PW 2 is not having any reliability. On considering the said submission, it is true in the chief examination itself, PW 2 admitted that he is a blind. So it does not possible to see the occurrence as stated by him. Therefore, the submission made by the learned counsel appearing for the appellants is having merits. However, since the evidence given by the Medical officer is in support of the evidence given by PW 1, the evidence given by PW 2 is not at all necessary to accept the case of the prosecution.

21. The learned Counsel appearing for the appellant further contended that as per the evidence given by the doctor, injury sustained by the deceased is might be due to the falling of deceased on the blend edged object. Further, DW 1 and DW 2 who are the neighbours to the deceased have stated that the deceased is a habitual drunkard. In the said circumstances, after falling down in some other place, due to the previous enmity, PW 1 lodged false case against the accused. It is true that the Doctor who treated the deceased admitted as the injury found on the head of the deceased may be happened due to the reason as stated by the appellant Counsel. However, in order to prove the said contention, nobody has been examined on the side of the accused and put forth the occurrence, in which the deceased sustained the said injury. So , without any relevant documents, the said submission made by the appellant counsel could not be accepted.

22. In the light of the above discussion, I hold that during the time of occurrence, the first appellant by using the umbrella attacked the deceased and caused injury on the fore head of the deceased. According to the evidence given by P.W.14, the death of the deceased had happened only consequence of the said injury. Further, during the time of occurrence, the second appellant with an intention to murder the deceased participated in the occurrence and assaulted the deceased and caused simple injury. Thereby, the findings arrived by the Trial Court is found correct.

23. Finally, the learned counsel for the appellant made a submission before this Court that at the time of framing charges on 10.06.2011, the first appellant was aged about 70 years, hence convicting him for the period of 5 years is excessive one, thereby he prayed for some leniency with respect to punishment.

24. On considering the submission made by the learned counsel for the appellants, it is true as of now the first appellant in this case is aged about 78 years, further, only because of the non partition of common property, both of them developed enmity with each other and finally both the appellants committed this offence. Further, both the appellants are leading the life in a harijan colony. Furthermore, both the accused facing this case for the past nearly 10 years, so, I am of view that reducing the punishment is necessary. Therefore, the appeal is partly allowed, the conviction of 5 years awarded by the trial court to the * appellant 1 is reduced to 3 years. Except the said modification, the punishment awarded by the trial Court

is otherwise confirmed. The Trial Court is directed to take steps to secure the custody of the appellants and send them to jail for serving the remaining period of sentence. It is directed that the period of sentence already undergone if any by the appellants shall be given set off, as required under Section 428 Cr.P.C.

s/d- Assistant Registrar(CO) * Corrected as per order 29.11.2018 of this court dated 31.01.2019 in CRL.A.No.199 OF 2012 Sd/- Assistant Registrar Dated:02.04.2019 True Copy Sub-Assistant Registrar msv/vrn To

1. The Judicial Magistrate No.I Pollachi.

2. The Chief Judicial Magistrate Copy already despatched on Coimbatore (for information) 04.01.2019 Issue fresh order copy in Crl.A.No.199 of 2012

3. The learned First Additional Dated 31.01.2019 by RPNJ District and Sessions Judge, Coimbatore.

4. Do Thro The Principal Sessions Judge, coimbatore

5. The Inspector of Police, Vadakki Palayam Police Station, Pollachi Taluk, Coimbatore District.

6. The Superintendent, Central Prison, Coimbatore.

7. The Public Prosecutor, High Court, Madras.

+1 CC to Mr.V. Sivakumar, Advocate sr 50608.

Crl.A.No. 199 of 2012 VSNII(CO) SP(04/12/2018) CS/02/04/2019