SURESH Vs. STATE

JUDGEMENT

(1.) THIS Criminal Appeal has arisen out of the judgment passed by the I Additional District and Sessions Judge, Dharmapuri District at Krishnagiri, dated 23.01.2003 in S.C.No. 89 of 2002, convicting the appellant/accused under Section 304 (ii) IPC and sentencing him to undergo seven years rigorous imprisonment.

(2.) THE case of the prosecution in a nut-shell is as follows:- (i) PW1-Krishnan's brother is deceased Narasimhan. PW1-Krishnan is residing along with his sister/PW2-Rani and deceased Narasimhan. PW1 is cultivating the land of one Krishnan and Madhappan, on lease basis. During the time of occurrence, he had taken the license of coconut thope and he was doing coconut business. THE accused-Suresh is running a tailoring shop. For the coconut business, PW1-Krishnan has obtained a loan of Rs.1500/- from the accused and repaid Rs.1000/-. THE balance due is Rs.500/-. (ii) On 16.06.2000, at about 5.00 p.m., PW1-Krishnan and his sister/PW2- Rani were doing agricultural work at the leasehold property, at that time, the appellant/accused is alleged to have came there and demanded the balance amount of Rs.500/-. Further, the accused had slapped PW1 on his cheek and he threatened that if he did not pay the balance amount, he will beat him and admit him in the hospital. That factum has been intimated to deceased Narasimhan, who is PW1's elder brother. On 17.06.2000 at 10.00 a.m., PW1-Krishnan and deceased Narasimhan went to the tailoring shop of accused and questioned him about the incident that had taken place on 16.06.2000 at 5.00 p.m., as a result of which, there arose a wordy altercation between deceased Narasimhan and accused. At that time, the accused is alleged to have went inside his tailoring shop and brought MO1-iron pipe and assaulted the deceased Narasimhan on his rightside ear, rightside eye and backside of head and he also kicked him with his foot, due to which, deceased Narasimhan has sustained bleeding head injuries and that has been witnessed by PW3-Mallappan, PW4-Pugalanthi and PW8-Krishnan. THEn, the accused kept the iron pipe in his shop. THE deceased Narasimhan died on the spot itself. (iii) PW10-Balakrishnan, Inspector of Police, received a complaint at 1.00 p.m. and registered a case in Cr.No. 381 of 2000 for the offence under Section 302 IPC. THE printed F.I.R. is Ex.P12. THEn, he despatched the same to Judicial Magistrate, Krishnagiri, and he had taken up the matter for investigation and went to the place of occurrence at 2.15 p.m. and in the presence of PW5-Anbalagan, Village Administrative Officer and Village Mineal preferred an observation mahazar-Ex.P2 and drawn the rough plan Ex.P13. THE ordinary earth-MO3 and blood stained earth-MO2 were seized under Ex.P3-Seizure Mahazar. From 3.00 p.m. to 6.00 p.m. he conducted the inquest and the inquest report is Ex.P14 and he handed over the body to PW9-Lakshmanan, Police Constable, along with requisition-Ex.P6 to conduct the autopsy. (iv) PW6-Dr.V.Shanmugam received the requsition-Ex.P6 and he conducted the autopsy and gave the post-mortem certificate-Ex.P7 pointing out the injuries :- "External Injuries: 1) Right eye is swollen and congested. 2) A lacerated injury 7 x 1 cm upper left ear and mastoid area. 3) A contusion 5 x 5 cm over left cheek and posterior area. Internal Examination: Heart: 150 grams empty. Lungs: Right 350 grams left 300 grams C/s. Pale, Stomach empty. Liver 1100 grams C/s . Pale, Spleen 80 grams C/s. Pale, Kidney each 90 grams C/s. Pale, Bladder empty, Skull 'M' shaped fracture involving both temporal and parietal bones in the middle of skull. Subdural Haemorrhage present. Brain 1200 grams. Both temporal lobes are contused." THE doctor has opined that the deceased appear to have died of shock and haemorrhage, injury to vital organ brain and would have died about 18 to 24 hours prior to post-mortem. After autopsy, the body of deceased Narasimhan was handed over to the relatives. He handed over the belongings of deceased Narasimhan, viz., MO4-blood-stained shirt, MO5-blood-stained lungi, MO6-shorts and MO7-Cord pieces, to PW10-Balakrishnan, Inspector of Police. (v) On 18.06.2000 at 12.00 p.m., PW10-Balakrishnan, Inspector of Police, arrested the accused at Seelapalli Bus Stand in the presence of PW5-Anbalagan, Village Administrative Officer and another, who was identified by PW1-Krishnan and at that time, he gave a confession. THE admissible portion is Ex.P4. He had taken MO1-iron pipe from his tailoring shop and handed over the same to PW10, which was seized under Ex.P5-Seizure Mahazar. THEn, PW10 returned to the Police Station along with accused and material objects. THEn, he sent the material objects under Form-95 to the Court. He also gave a requisition-Ex.P8 for sending the material objects to chemical examination. THE letter of Judicial Magistrate, Krishnagiri, is Ex.P9. THE chemical analyst's report is Ex.P10 and serologist report is Ex.P11. After examining the other witnesses, he concluded the investigation and filed the chargesheet against the accused under Section 302 IPC. (vi) THE learned Sessions Judge after following the formalities framed the charge against the accused under Section 302 IPC. He pleaded not guilty. After the completion of the evidence on the side of prosecution viz., PWs 1 to 10 and Exs.P1 to P14 and MOs 1 to 7, the accused was questioned under Section 313 Cr.P.C. as to the incriminatory circumstances found in the evidence of the prosecution witnesses and the accused flatly denied them as false. THE learned Sessions Judge after considering the oral and documentary evidence came to the conclusion that the accused is guilty under Section 304 (ii) IPC and convicted him under Section 304 (ii) IPC and sentenced him to undergo imprisonment as indicated above.

(3.) THE admitted fact is that the deceased Narasimhan and PW1-Krishnan and PW2-Rani are brothers and sister. It is also true that PW1-Krishnan has borrowed a sum of Rs.1500/- and repaid a sum of Rs.500/- and the balance amount repayable is Rs.500/-. On the fateful day viz., on 16.06.2000, at 5.00 p.m., the appellant/accused went to the leasehold property, where, PW1-Krishnan and his sister/PW2-Rani were doing agricultural work and demanded the balance amount of Rs.500/-. PW1-Krishnan has intimated the same to deceased Narasimhan. On 17.06.2000 at 10.00 a.m., PW1-Krishnan and deceased Narasimhan went to the tailoring shop of accused and questioned him about the incident that had taken place on 16.06.2000 at 5.00 p.m., as a result of which, there arose a wordy altercation between deceased Narasimhan and accused. At that time, the accused is alleged to have went inside his tailoring shop and brought MO1-iron pipe and assaulted the deceased Narasimhan. It is true that PW3-Mallappan and PW4-Pugalanthi, turned hostile. PW2-Rani is not an eye witness.