SEKARAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The Principal Sessions Judge, Kanyakumari District at Nagercoil, vide judgment and order dtd. 22/3/2002, convicted the appellant for committing murder and sentenced him to life in prison together with fine of Rs.1000.00, in default to undergo rigorous imprisonment for 6 (six) months. Aggrieved thereby, the appellant invoked the jurisdiction of the Madras High Court, Madurai Bench, under sec. 374(2) of the Code of Criminal Procedure, 1973. The High Court, vide judgment and order dtd. 12/11/2009, allowed the appeal in part. The appellant was convicted for an offence under sec. 304-Part II, of the Indian Penal Code, 1860 ("IPC", hereafter) and sentenced to five years' rigorous imprisonment. Still dissatisfied, the judgment and order of the High Court has been carried by the appellant in appeal before this Court.

(2.) The prosecution case is that the victim, Palas, and his wife (PW-3) after returning from their respective jobs on 12/3/1996, had been to a tea stall run by Velukutti (not examined). At the tea stall were present Ponnaian (not examined) and Wilson (PW-2). In their presence, Palas had demanded Rs.50.00, being his wages, from the appellant. Incidentally, Palas was a "coconut cutting coolie" working under the appellant. Hearing such demand, the appellant abused Palas in filthy language which was followed by physical abuses by and between them. Suddenly, the appellant picked up one rubber stick (lying on the back side of the tea stall) and hit Palas on the front and back sides of his head while exhorting him to get lost. On receiving such blow from the appellant, Palas fell down whereupon Ponnaian, Devaraj (PW-1) and PW-3 separated the two (appellant and Palas). Holding the rubber stick, the appellant threatened those present thereat that they would have to suffer the same consequences as Palas, if any of them challenged him. Thereafter, the appellant fled towards the north side. Palas was taken to a private nursing home, viz. Sivanandam Nursing Home at Panichamuttu (sic, Panachamoodu) village, Kanyakumari district, and admitted there on the same day. On 13/3/1996, the doctor at the nursing home (PW-7) advised shifting of Palas to another hospital, whereafter he was taken to a government hospital, viz. Medical College and Hospital, Thiruvananthapuram (the nearest government hospital, although in a State different from the State where the alleged incident occurred). Palas was admitted there at on 13/3/1996 at 11.00 p.m. but, unfortunately, breathed his last on 14/3/1996 at about 07.15 p.m. A death intimation memo (Ex. P3) was issued by the doctor (PW-8). It was on the following day, i.e. 15/3/1996, that the first information report ("FIR", hereafter) was registered on a complaint by Devaraj (PW-1) against the appellant for the offence punishable under sec. 302, IPC at Arumanai Police Station at about 09.00 a.m. On 15/3/1996 itself, post mortem was conducted by an Assistant Professor of Forensic Medicine and Deputy Police Surgeon, Medical College, Thiruvananthapuram (PW-9). The post mortem report (Ex. P5) revealed the opinion that "head injury" sustained by Palas was the cause of death.

(3.) Before the Sessions Court, 11 (eleven) witnesses were examined on behalf of the prosecution. The trend of cross-examination suggested that Palas died of a head injury that he sustained due to a fall from a tree. While the Sessions Court was of the view that the prosecution had been successful in establishing the charge against the appellant beyond reasonable doubt, the High Court while exercising appellate jurisdiction considered the oral testimony of PWs 2 and 3 and held that it had no hesitation to hold that it was the appellant who caused the head injury resulting in the death of Palas. However, at the same time, the High Court was of the view that the attendant circumstances and evidence brought on record unmistakably showed that the appellant may not have intended to cause the death of Palas. There was a quarrel between the appellant and Palas with regard to demand of wages prior to the occurrence, the appellant did not possess any weapon and that the appellant picked up the rubber stick from behind the tea stall and attacked Palas - all these led to the conclusion that there was no premeditation or intention on the part of the appellant to commit the murder of Palas. Being of the view that the incident of assault leading to the ultimate death of Palas had happened at the spur of the moment, the High Court was also of the view that Exception- II of sec. 300, IPC stood attracted and consequently, the appellant could not be held liable under sec. 302, IPC; instead, he would be liable for the offence of culpable homicide not amounting to murder punishable under sec. 304-Part II, IPC. It was as a result of such a finding and recording of conviction that the High Court proceeded to impose on the appellant the sentence of 5 years' rigorous imprisonment.