SUBRAMANIAM Vs. STATE

JUDGEMENT

(1.) THIS Criminalappeal has been filed by Subramaniam, the accused in Sessions Case No.15 of 1977 on the file of the Court of Sessions, Pondicherry Division, against the conviction of the accused by the Second Additional Sessions Judge, Pondicherry of an offence punishable under section 325, Indian Penal Code and the sentence of Rigorous Imprisonment for six months awarded to him for that offence holding that the offence of murder punishable under section 302, Indian Penal Code for which the accused was tried has not been made out by the prosecution. The accused Subramaniam is the brother of Balaraman P.W. 12, while Velmurugan P.W. 1 is the brother of the deceased Subramanian,thevictim in this case. Arumugam P.W. 3 and Maruvu alias Sambasivam P.W.6 are the sons of Egambaram P.W. 8. The accused and his brother P.W. 12, P.Ws. 1, 3, 6 and 8 are residents of Maduvapet which is within the territorial jurisdiction of D. Nagar Police Station, Pondicherry. On 3rd July, 1977 P.W. 12 quarrelled with P.W.8 on the allegation of P.W. 12 that P.W. 8 was grazing his cattle in the filed of P.W. 12. In that quarrel, P.W. 12 slapped and kicked P.W.8 near his abdomen,and P.W. 6 the son of P.W. 8 separated them. P.W. 8 informed his other son P.W. 3 about that incident and he questioned P.Ws. 12 about why he beat P.W. 8. Then P.Ws. 3 and 12 fought with each other and subsequently P.Ws. 3, 8 and 12 went to Lawspet Police Station where P.W. 12 gave a report Exhibit P. 7 to the Assistant Sub -Inspector of Police P.W. 12 alleging that there was a quarrel between him and P.W. 8 at about 5a.m on 3rd July, 1977 about the cattle grazing in the field and later at 6 a.m. on that day P.W. 3 asked him (P.W. 12) near a motor shed situate close to the Lawspet toddy shop about why he beat his father P.W. 8 and that when he denied having beaten P.W.8. P.W. 3 fisted him on the left side of his chest and pushed him down. The Assistant Sub -Inspector of Police P.W. 16 who received Exhibit P.7 at 7.10 p.m. on 3rd July, 1977 sent P.Ws. 8 and 12 to the Government General Hospital Pondicherry with a constable. Dr. Prabhakara Rao.P.W.13, the Assistant Surgeon, Government General Hospital, Pondicherry, examined P.W. 8 at 8.25 p.m. on that day and found on him a contusion on the left side of the face, upper lip and cheek and tenderness on the left sub -costal region and issued the wound certificate Exhibit P. 10. On the same day at 8.35 p.m. P.W. 13 examined P.W. 12 and could not find any external injury on him and issued the certificate Exhibit P.9. P.W. 16 treated the offence in the case registered on Exhibit P.7 as non -cognizable and sent away P.Ws. 8 and 12 after warning them.

(2.) ON 4th July, 1977 at 5 a.m. the accused asked P.W. 6, the brother of P.W. 3 and son of P.W. 8 as to why he beat P.W. 12 on the previous day. Though P.W. 6 denied having beaten P.W. 12, the accused beat P.W. 6. At that time, P.W. 3 went there, and P.W. 3 and the accused caught hold of each other and fought and fell down and the people there separated them. Subsequently, the accused and his brother P.W. 12 took the wooden frame M.O. 1 and a cart peg respectively and chased P.W. 3 towards the west. At that time the deceased Subramaniam was going north with a bottle in his hand for purchasing tea in Lawspet. Then the accused gave a blow with M.O. 1 on the head of the deceased which P.W. 1 witnessed from Mariamman temple. The accused was stunned at the incident and he stopped for a while but on seeing P.W. 1 proceeding towards his injured brother he ran away from the scene of the occurrence. The deceased fell down unconscious and bleeding after receiving the blow from the accused. P.W. 1 lifted up the deceased, his injured brother, and left him in the hands of the Chinnaponnu who came there and went to fetch water. When Nagammal, P.W.2, the sister of the deceased and P.W. 1 and Chinnaponnu were giving water to the deceased, P.W. 12 stood there. When P.W. 1 slapped P.W. 12 and asked him about why the accused beat the deceased, and P.W. 12 told him that the accused beat the deceased due to mistaken identity, and so saying P.W. 12 left the place. Subsequently, P.W. 1 carried the deceased to Lawspet Police Station where he gave the report Exhibit p.1. In the report P.W. 1 had stated that when P.W. 3 was running near P.W. 1 -s house chased by the accused, the deceased went with a bottle to purchase tea at Lawspet and the accused mistook him for P.W. 3 and beat him with a wooden frame and caused a bleeding injury on his head.

(3.) THEN the Medical Officer General Hospital, Pondicherry, P.W. 14 examined the injured Subramaniam, the victim, at 11.25 A.M. on 4th July, 1977 and found an injury on the scalp of the deceased and sent the deceased who was vomiting, to the Emergency Surgical Ward, and later issued the certificate Exhibit P. 13. He examined P.W. 12 at 11.30 A.M. on 4th July, 1977 and found on him a deep wound with hematoma on the skull. He admitted him in the hospital for observation. He issued the wound certificate Exhibit P. 11 to P.W. 12 and another certificate Exhibit P. 12 to P.W. 12 on 8th July, 1977 after P.W. 12 was discharged from the hospital on 6th July, 1977.