Sundar v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 26.06.2025 CORAM :

THE HONOURABLE Dr. JUSTICE R.N.MANJULA 1.Sundar 2.Poomayil ... Appellants/Accused 1 &2 Vs.

State rep. by The Inspector of Police, C-2, Subramaniyapuram Police Station, Madurai Town (In Crime No.312 of 2011) ... Respondent/Complainant PRAYER: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, to set aide the judgment made in S.C.No.383 of 2013 dated 28.02.2017 on the file of the 1st Additional District and Sessions Judge, Madurai.

For Appellants : Mr.C.Vakeeswaran For Respondent : Mr.K.Gnanasekaran Government Advocate (Crl.side)

JUDGMENT

This Criminal Appeal has been filed by the accused 1 and 2 against the judgment dated 28.02.2017 passed by the learned I Additional District and Sessions Judge, Madurai, in S.C.No.383 of 2013.

2. The brief facts of the case are as follows: (i) P.W.1 is the defacto complainant. P.W.2 is the brother-in-law of P.W.1. P.W.2 was constructing a new house at Palanganatham, Madurai. During construction, the first accused used to send the waste water from the second accused father's house through the house site of P.W.2. Due to this, there was difference of opinion between the parties. Due to this, on 02.03.2011 at about 10 a.m. while construction work was taking place in the house of P.W.2 at his place, the first accused came there and at that time P.W.1 questioned as to why the first accused was releasing waste water through P.W.2's house, for which the first accused abused P.W.1 in filthy language. At that time, the second accused came there and induced the first accused to kill the complainant PW.1. By saying so, the second accused threw the aruval on the leg of P.W.1, and

therefore she sustained simple injury on the right fore leg. At that time the deceased Ilavarasan came to that spot. On his arrival, the first accused with an intention to murder him, assaulted on Ilavarasan's head with wooden log. He further attacked P.W.2 with wooden log and caused simple injuries. When other people attempted to pacify them, the accused 1 and 2 criminally intimidated that they would not leave them without killing and left the scene of occurrence. Initially the said Ilavarasan admitted in hospital for treatment. However, he died on 03.03.2011. (ii)After completion of investigation, a charge sheet was filed against the accused for the offences under Sections 294(b), 302, 323 and 324 IPC.

(iii)The Judicial Magistrate No.4. Madurai, has taken cognizance of the case in P.R.C.No.40 of 2011. On completion of formalities, the case was committed to the court of the Principal District Judge, Madurai under Section 209 Cr.P.C. Thereafter, this case was made over by the Principal District Court, Madurai, to the Court of I Additional District and Sessions Judge, Madurai, for disposal.

(iv) On appearance of the accused 1 and 2 and their counsel, and after hearing both sides, on being satisfied that prima facie reasons exist for framing charges, charges were framed against the accused. On questioning upon the charges, the accused 1 and 2 pleaded not guilty and therefore proceedings were issued for commencement of trial. (v) In order to prove the charges, the prosecution examined 18 witnesses as P.W.1 to P.W. 18 and marked 32 documents as Ex.P1 to Ex.P32 and 5 materials were marked as M.O.1 to M.O.5. On the side of the accused, one witness was examined as D.W.1 and two documents were marked as Ex.D.1 and Ex.D.2.

(vi) On completion of the prosecution evidence, when the accused were questioned under Section 313 of the Code of Criminal Procedure, with respect to the incriminating circumstances appearing in evidence against them, they denied their complicity in the crimes.

(vii) Having considered the oral and documentary evidence, the Sessions Court found the first accused guilty for the offence under Sections 294(b), 323, 304(1) IPC and the second accused guilty for the offence u/s 324 IPC and the accused are convicted and sentenced to undergo imprisonment as follows:

1st Accused 2nd Accused Section 294(b) - to undergo 3 months rigorous imprisonment Section 324 IPC - to undergo one year rigorous imprisonment and to pay fine of Rs.10,000/- in default to undergo 2 months rigorous imprisonment Section 323 IPC - to undergo 1 year rigorous imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 months rigorous imprisonment -- Section 304 (1) IPC - to undergo 10 years rigorous imprisonment and to pay a fine of Rs.15,000/- in default to undergo one year rigorous imprisonment -- (viii) Aggrieved over that, the accused 1 and 2 have filed the present appeal.

3. The learned counsel for the appellants has made the following submissions:

i) The trial Judge has not properly appreciated the motive attributed against the accused despite it is unbelievable. ii) There is contradiction in mentioning the place of occurrence by the prosecution witnesses.

iii) P.W.1 to P.W.3 are interested witnesses and close relatives. Their evidence has been completely relied by the trial court which is not correct.

iv)The earliest information which was obtained by P.W.12, the Sub-Inspector of Police from the deceased Ilavarasan has been suppressed by the prosecution.

v) The second FIR has been registered at 8.00 p.m in the night hours and that weakness on the case of the prosecution was omitted to be noticed by the trial Judge. The evidence of arrest, confession and recovery of weapon is not reliable because P.W.8 and P.W.9, who signed in the mahazar, have turned hostile.

vi)Even though it is stated in the First Information Report that P.W.1 was attacked by 'aruval', the police have recovered only 'vangaruval'.

vii) When the trial Judge has arrived at the conclusion that there is no premeditative motive for convicting the appellant for the alleged occurrence, the trial Judge ought to have acquitted the accused.

4. The learned Government Advocate (Crl.side) submitted that the judgment of conviction calls for no interference. The deceased was mercilessly assaulted by the accused and death occurred as a cumulative nature of the head injuries attributed by the first accused and merely because the witnesses are the close relatives will not make their evidence doubtful or unacceptable. A conjoint reading of the evidence of P.W.1 to P.W.3 would show that they were present in the place of occurrence. He prayed for dismissal of this appeal.

5. I gave my anxious consideration to the submissions made on either side and carefully perused the materials available on record.

6. The houses of the mother of the deceased (P.W.1) and her brother in law (P.W.2) were situated nearby. The accused 1 and 2 are the mother and son and their house is situated on the southern side of P.W.2's house. As the second accused intended to buy the house of P.W.2, there was an enmity between the accused and P.W.2. As P.W.2 started to construct a house on his site, the first accused was in the habit of causing troubles to him by releasing the waste water through ''Veeramudayan Vaikal'' through the house site of P.W.2.

7. On 02.03.2011 at about 10.00 a.m, P.W.2 along with P.W.1 and others were removing water from the land. At that time, the first accused came there and on seeing them, P.W.1 asked him why was he repeatedly releasing the waste water on his house site. Immediately, the first accused abused her in filthy language and the second accused, who is mother of the first accused joined him. The second accused asked the first accused to kill P.W.1 and by saying so, the second accused threw ''vangaruval'' and due to that P.W.1 sustained injuries on the right fore leg. The deceased Ilavarasan came to the rescue of his mother P.W.1. At that time,

the first accused with wooden log hit the deceased in a forcible manner and Ilavarasan collapsed on the spot.

8. P.W.2 went near Ilavarasan and the first accused hit him also with the wooden log and caused injuries. On hearing the noise, people gathered and spotted the accused 1 and 2. Even P.W.1 and P.W.2 while going away, the accused intimidated them. P.W.1, P.W.2 and along with Ilavarasan were taken to Meenakshi Mission Hospital for treatment on 03.03.2011. But the deceased succumbed to his injuries.

9. P.W.1 and 2 are not only injured witnesses but also eye witnesses. They have deposed in the evidence about what had happened in the alleged day of occurrence. The evidence of P.W.1 and P.W.2 are cogent and consistent. The evidence of P.W.1 and P.W.2 are also corroborated. Both P.W.1 and P.W.2 have stated that the first accused used to pass waste water on the site of P.W.2's house. On the date of occurrence also, P.W.2 along with his relative P.W.1, her son and others tried to remove the water from his site. When the illegal act of the first

accused was questioned by P.W.1, the second accused also joined and quarreled. During that course of quarrel, she threw the 'vangaruval' on P.W.1 and P.W.1 has also stated in her evidence that the deceased came to her rescue and he was also beaten up by the first accused with wooden log.

10. The above material aspect has also been spoken by P.W.2 in his evidence in a clear manner. The evidence of P.W.2 about events that had taken place before the occurrence, during the occurrence and after the occurrence are cogent and consistent and it does not suffer from any material contradictions. Even though the learned counsel for the appellant submitted that there are certain contradictions in the evidence of P.W.1 and P.W.2, a combined reading of their evidence does not leave any doubt and it is right for the trial court to ignore the minor contradictions and rely on their evidence.

11. In fact, the occurrence was witnessed by other eye witnesses P.W.3 and P.W.4 also. P.W.3 was present in the place of occurrence when

P.W.1 and P.W.2 were working there to remove water from the house site of P.W.2.

12. The learned counsel for the appellants submitted that there is no possibility to let out water from ''veeramudayan canal'' to P.W.2's house. When P.W.7 was cross-examined on the physical features and the course of the water flow, he asserted that the distance between the place of occurrence and the opening point of ''veeramudayan vaikal'' is just 1⁄2 km and the wall of the said vaikal is three feets away above the floor and six feet below the floor and hence, water from the said canal can be let to P.W.2's house. P.W.2 have also asserted the same in his evidence, hence, motive for the occurrence as stated by the prosecution has been accepted by the trial court only after appreciating its possibility and reliability of the evidence of P.W.1 and P.W.2.

13. P.W.3, eye witness, is a Mason, who was working at the house site of P.W.2 and he was also helping to remove the water along with P.W.1 and P.W.2. Hence, the presence of P.W.3 in the place of occurrence

is natural and possible and his evidence also corroborates the evidence of P.W.1 and P.W.2 in all material aspects.

14. P.W.4, is a chance witness. On the date occurrence, he had also occasioned to witness the occurrence and in his evidence, he supported the case of the prosecution. The combined reading of the evidence of P.W.4 in all probabilities and possibilities would clearly present the case of the prosecution only in the manner how it was alleged by the prosecution.

15. P.W.5, who is the father of the deceased, the husband of P.W.1 also stated about the previous motive with regard to letting the water and his evidence also strengthened the case of the prosecution.

16. Even though the learned counsel for the appellants invited the attention of this Court to the evidence of P.W.7 in respect of physical features of ''veeramudayan canal'' especially to his evidence that the wall of canal is 3 feet above the ground, his evidence alone is not sufficient to

reject the possibility of water from ''veeramudayan vaikal'' flowing in the house site of P.W.2. It is because of the fact that P.W.1 and P.W.2 in their cross-examination clearly stated thus:

''It is not correct to state that the distance between the opening point of ''veeramudayan vaikal'' and P.W.2's house site is half parlong and the opening point of ''veeramudayan vaikal'' is near to P.W.2's house site''

17. It is also submitted that in the complaint (Ex.P.1), it is stated that the weapon used during the occurrence was 'aruval'. But the Investigating Officer had recovered 'vangaruval'. Ex.P.1 is the complaint given by P.W.1 while she was in the hospital. P.W.1 was taking treatment as in-patient as she was injured due to the occurrence and her son was in the critical condition. In such mental state, P.W.1 cannot be expected to be conscious to indicate the weapon whether it has to be mentioned as 'aruval' or 'vangaruval'. People used to mention 'aruval' for some types of weapons which have sharp edge. In the evidence of P.W.1 she has very much clearly stated about the weapon used by saying that it was 'vangaruval' and the evidence has been corroborated by other witnesses.

In the evidence of P.W.2 to P.W.4 also there is no confusion and contradiction in the weapon alleged to have been used for the occurrence and the weapon recovered by the police.

18. Even though the arrest and recovery witnesses have turned hostile, there is no reason to disbelieve the evidence of the Investigating Officer who stated in all clear terms how arrest and recovery of vangaruval was made. The evidence of the Investigating Officer is corroborated with the evidence of the injured and eye witnesses. Hence, the trial court is right in accepting the evidence of the Investigating Officer on this aspect. The accused were well known to the injured and hence their identity is not an issue.

19. Doctor- P.W.17, who has done post-mortem and gave postmortem certificate, opined that the deceased would appear to have died of head injury.

20. The another Doctor-P.W.16, has also stated that some injuries found in the body of the deceased when he was brought to the hospital along with P.W.2 and through the scan report, it was found that in the left side of brain of the deceased, there was heavy blood leakage. During cross-examination, P.W.16 stated that he noticed the two lacerated injuries on P.W.2 and that those injuries can be inflicted by sharp weapons.

21. P.W.15, the Doctor who examined P.W.2 and issued wound certificate stated that P.W.2 had cut injuries on her left eyebrow and there was cut injury on the right side head parietal region.

22. P.W.12, who is the Sub Inspector of Police, had gone to the hospital at about 2.15 p.m on 03.03.2011 on getting intimation from the hospital. He has also stated that the deceased was in Intensive Care Unit and P.W.1 and P.W.2 were also under treatment. The deceased was not in a condition to speak and hence, he has got the complaint statement from P.W.1 and registered the First Information Report after coming to the

Police Station at about 8. p.m on the same day and thereafter sent the First Information Report to the Court and the Superior.

23. The contention of the learned counsel for the appellants is that, P.W.12 has already obtained a statement from a male person when he went and visited the deceased and that was suppressed. When P.W.12 was examined on this aspect, he was suggested that he got the statement from a male person, who was with the injured person. Though she has stated 'yes' by inadvertence immediately she stated that he got the statement from the mother of the deceased namely Panchavarnam. Once again it was suggested to P.W.12 that he had only obtained statement from a male person he denied it stoutly. There is no suppression on any previous statement and the First Information Report which is marked as Ex.P.9 can be considered as a First Information Report. Hence, there is no technical flaw seems to be present to paralyze the case of the prosecution.

24. The learned trial Judge in all confidence had chosen to rely on the evidence of the injured witnesses. The testimony of the injured witnesses can carry a significant weight in this type of cases and just because of the fact that they are interested and related witnesses, their evidence cannot be discarded.

25. In this regard, it is essential to refer the judgment of the Hon'ble Supreme Court held in Mohd.Ishaque and others V. State of West Bengal and others reported in 2013(14) SCC 581. The relevant portion of the judgment is extracted herein under: "16. PW 1, PW 2, PW 4 in the present case sustained serious injuries and their evidence was believed by the court. It is trite law that the testimony of injured witnesses is entitled to great weight and it is unlikely that they would spare the real culprit and implicate an innocent person. Of course, there is no immutable rule of appreciation of evidence that the evidence of injured witnesses should be mechanically accepted, it should also be in consonance with probabilities (Ref: Makan Jivan v. State of Gujarat-, Machhi Singh v. State of Punjab?, Jangir Singh v. State of Punjab-).

17. In this respect, reference may be made to the judgment of this Court in Jaishree Yadav v. State of U.P.Z wherein this Court held that whether witnesses are interested persons and whether they had deposed out of some motive cannot be the sole criterion for judging credibility of a witness, but the main criterion would be whether their physical presence at the place of occurrence was possible and probable''.

26. In the instant case, more sufficient evidence is available from the statement of the injured witnesses and the other eye witnesses with regard to the presence of the accused in the place of occurrence. So there is nothing to improbabilize their presence and so the evidence of the injured witnesses and the eye witnesses can be accepted without any doubt.

27. On the same aspect, the Hon'ble Supreme Court has held in Brahm Swaroop vs. State of U.P [2011(6) SCC 288] that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as

he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.

28. The above logic is applicable to the instant case also. The mother of the deceased, who got injuries and other injured persons were already present in the occurrence. They have seen that the first accused was causing fatal injuries on the head of the deceased with wooden log. They have also seen that the second accused was throwing vangaruval on the leg of P.W.1 and when the first accused was attacking P.W.2, with wooden log.

29. The evidence of P.W.2, Jeyapal, who is also injured and the brother-in-law of P.W.1 also tallies in all material aspects of evidence of P.W.1. P.W.3, who is a Mason, had witnessed the occurrence and his evidence had corroborated in all essential aspects in this case. P.W.4, who is a chance witness, came to the place of occurrence incidentally had witnessed the occurrence and had stated not only about the occurrence

but the instance, which had taken place consequent to the occurrence and he had given intimation to the Ambulance. So, the holistic appreciation of the evidences available on the prosecution left no room for doubt and hence, it is right for the trial court to give due credence to their evidence to hold the accused guilty.

30. In view of the above narrations, the finding of guilt and conviction against the first accused for the offences under Section 294(b) and 323 IPC is confirmed.

31. From the evidence of Doctor and the post-mortem report, it has been made clear that the deceased had died due to head injury. The postmortem report Ex.P.8 was given by P.W.18 and the evidence of P.W.18 confirmed the same. The death was caused due to the head injuries inflicted by the first accused due to the blow given by him with wooden log in a sudden provocation during the course of fight between himself, his mother,P.W.1 and P.W.2. In this background, the finding and conviction against the first accused for the offence under Section 304(1)

IPC for having attacked the deceased to death needs elaborate discussion.

32. In order to convict the accused under part-I of Section 304 IPC, the accused ought to have caused death with an intention to cause death or caused such fatal injury as is likely to cause death. With regard to provision of Part-II of Section 304 IPC, the accused ought to have caused death of the deceased by doing the act with knowledge that it is likely to cause death but without any intention to cause death.

33. Differentiation between Section 304(1) IPC and 304(2) IPC is as to whether the accused had acted with an intention to cause death or just with an knowledge his act might cause death. The trial Judge had convinced that there was no premeditative motive. The occurrence was a sudden provocation. So, the trial court was convinced not to punish the accused for murder, but only for culpable homicide not amounting to murder. While convicting the accused under Section 304(1) IPC, there was no much discussion seem to have been made. The trial Judge had arrived at a conclusion to punish the accused under Section 304(1) IPC as the accused had given forcible blow which inflicted a fatal injury on

the deceased. The trial Judge ought to have applied his mind whether such an act has been committed with an intention to cause death. If so, from what evidence or circumstances such an intention is inferred should be highlighted. Some one can say that he is going to kill other. That alone is not sufficient to prove the intention but the attack itself should be of such a nature that intention is patent.

34. In the instant case, the mother of the first accused is the second accused herein, who had arrived to the place of occurrence and induced the first accused to attack. In their evidence, P.W.1 and P.W.2 have stated that the second accused exactly used the word ''kill P.W.1'' only and not the deceased. The first accused did not attack P.W.1 but he attacked P.W.

2. The deceased rushed near P.W.2/his mother since she had sustained injuries due to the attack made by the first accused. At that juncture, the first accused gave a fatal blow with wooden log on the head of the deceased without even having any intention to cause death of the deceased. However he could have got the knowledge that if such kind of fatal blows are given on the head of a human with the wooden log, that

would cause death. So, the trial Judge ought to have categorized the act of culpable homicide committed by the first accused under Section 304part 2 IPC.

35. In this regard, it is worthwhile to refer the judgment of the Hon'ble Supreme Court in State of Andra Pradesh vs. Rayavarapu Punnayya and another reported in 1976(4) SC 383. The Hon'ble Supreme Court has made elaborate discussion as to how the offence should be considered as murder or culpable homicide not amount to murder. The essential part of the discussion as found in paragraphs 21 to 25 are extracted herein under:

''21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is

prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.

22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

23. Now let us consider the problem before us in the light of the above enunciation.

24. It is not disputed that the death of the deceased was caused by the accused, there being a direct causal connection between the beating administered by Al and A2 to the deceased and his death. The accused confined the beating to the legs and arms of the deceased, and therefore, it can be said that they, perhaps, had no

"intention to cause death" within the contemplation of clause (a) of Section 299 or clause (1) of Section 300. It is nobody's case that the instant case falls within clause (4) of Section 300. This clause, as already noticed, is designed for that class of cases where the act of the offender is not directed against any particular individual but there is in his act that recklessness and risk of imminent danger, knowingly and unjustifiably incurred, which is directed against the man in general, and places the lives of many in jeopardy. Indeed, in all fairness, Counsel for the appellant has not contended that the case would fall under clause (4) of Section 300. His sole contention is that even if the accused had no intention to cause death, the fact established fully bring the case within the purview of clause (3) of Section 300 and, as such, the offence committed is murder and nothing less.

25. As against this Counsel for the respondent submits that since the accused selected only non-vital parts of the body of the deceased, for inflicting the injuries, they could not be attributed the mens rea requisite for bringing the case under clause (3) of Section 300; at the most, it could be said that they had knowledge that the injuries inflicted by them were likely to cause death, and, as such, the case falls within the third clause of Section 299, and the offence committed was only "culpable homicide not amounting to murder", punishable under Section 304, Part II. Counsel has thus tried to support the reasoning of the High Court''.

36. In view of the above discussions and the judgment cited supra, I am of the view that the first accused ought to have been convicted for the offence under Section 304 part-2 IPC and not under Section 304 part-1 IPC as the nature in which the occurrence had taken place has got the element only to his knowledge and not his intention. Hence, I feel that the conviction of the first accused in respect of the offence under Section 304 part-1 alone has to be modified by finding him guilty for the offence under Section 304 part-2 IPC.

36. Similarly, the finding of guilt and conviction against the second accused under Section 324 IPC in view of her involvement in attacking P.W.1 can also be confirmed. The finding and conviction of the second accused in respect of the offence under Section 324 IPC is confirmed.

37. In fine, i) This Criminal Appeal is partly allowed and the judgment passed in S.C.No.383 of 2013 dated 28.02.2017 on the file of the 1st Additional District and Sessions Judge, Madurai, is modified as follows:

Offence u/s By the Trial Court Modified by this Court 1 st Accused:

Section 294(b) to undergo 3 months (R.I) Confirmed Section 323 IPC - to undergo 1 year(R.I) and to pay a fine of Rs.1000/- i/d to undergo 2 months(R.I) Confirmed Section 304 (1) IPC - to undergo 10 years (R.I) and to pay a fine of Rs.15000/- i/d to undergo one year (R.I) Modified to 304(2) IPC - to undergo 5 years (R.I) and to pay a fine of Rs.15,000/- i/d to undergo one year (R.I) 2 nd Accused:

Section 324 IPC To undergo 1 year (R.I) and to pay a fine of Rs.10,000/- i/d to undergo 2 months(R.I) Confirmed ii) It is learnt that the first accused has already undergone imprisonment for a period of 90 days (from 02.03.2011 to 03.06.2011)and the second accused has undergone imprisonment for a period of 36 days (from 02.03.2011 to 09.04.2011). It is further directed that the period of detention already undergone by the accused shall be given set off under Section 428 Cr.P.C and the sentences shall run concurrently.

iii) The trial court shall take steps to secure the accused to commit them to prison to serve out the remaining period of sentence. 26.06.2025 Index : Yes/No Internet : Yes/No CM To, 1.1st Additional District and Sessions Judge, Madurai. 2.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.

R.N.MANJULA, J CM Judgment made in Crl.A.(MD)No.105 of 2017 26.06.2025