IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 28..07..2022

CORAM

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Criminal Appeal No.769 of 2019

Anbu @ Anbalagan, aged 28 years,

Son of Arjunan

… Appellant  / Sole Accused

-Versus-

State Rep. By

The Inspector of Police, Singarapettai Police Station, Krishnagiri District.

[Crime No.18 of 2014]

… Respondent

Appeal filed under Section 374(2) of The Code of Criminal Procedure, 1973, against the judgment of conviction and sentence dated 26.09.2019 recorded by the learned Additional Sessions Judge, Krishnagiri, in S.C.No.16 of 2018.

For Appellate	:	Mr.C.R.Malarvannan
For Respondent	:	Mr.S.Vinoth Kumar, Government Advocate (Criminal Side)

JUDGEMENT

The appellant, sole accused in S.C.No.16 of 2018 on the file of the learned Additional Sessions Judge, Krishnagiri, has come up with this Criminal Appeal challenging the conviction and sentence imposed by the Trial Court under

Section 304(ii) of IPC to undergo imprisonment  for ten years of Rigorous Imprisonment and to pay a fine of Rs.50,000/- in default of payment of fine, to suffer Simple Imprisonment for a further period of 6 (Six) months.

The case of the prosecution in brief is as follows:-

2. When P.W.15 was on duty at Singarapettai Police Station, P.W.1–Sudhakar appeared before him and lodged a complaint alleging that on 16.01.2014 at about 08.00 p.m., the appellant rode his motor cycle TN-24-M8887 in a high speed and in a rash manner upon which his brother Jaisankar, admonished him and again at 11.00 p.m. on the same day when the said Jaisankar was walking to his uncle Chinnapaiyan’s house, the accused came with a Koduval and pecked on the left side of his head and by turning the Koduval hit on the right side of the chest and immediately thereof, all the persons present at the spot pacified both of them and his brother was taken to his house. However, in the early morning at about 05.00 a.m., his brother felt uneasy and was rushed to the hospital upon which the Doctor examined him and declared as brought dead.
3. On the strength of the said allegations, a case in Crime No.18 of 2014 was registered for the offence under Sections 147, 148 and 302 of IPC and was taken up for investigation initially by P.W.15 and thereafter, by P.W.16, who completed, the investigation and laid a final report proposing the accused as guilty for the offence under Section 302 of IPC. The said final report was taken on file by the learned Judicial Magistrate, Uthangarai, in P.R.C.No.08 of 2014 and after appearance of the accused and furnishing of copies as per Section 207 of Cr.P.C. the learned Magistrate committed the case to the Principal Sessions Judge, Krishnagiri who, in turn, took up the case on file as S.C.No.16 of 2018 and made over the same to the Additional Sessions Judge, Krishnagiri for trial.
4. Upon considering the materials on record, the Trial Court framed charges against the accused for offence punishable under Section 302 of IPC.

Upon questioning, the accused denied the charge and stood trial.

5. In order to prove the charge, the prosecution examined P.W.1 to P.W.16 and marked Ex.P.1 to P.23 and also produced M.O.1 to M.O.8. Upon being questioned about the material evidence on record and the incriminating circumstances, the accused denied the same as false. Thereafter, one Dr.Chitra was examined as D.W.1 and Ex.D.1 and D2 were marked on behalf of the defence. The Trial Court, thereafter, proceeded to hear the learned Additional Public Prosecutor on behalf of the prosecution and the learned counsel on behalf of the defence, by a judgment dated 26.09.2019, concluded that on account of the accosting and intercepting of the accused by the deceased, in a sudden fit of rage, the accused went inside his house and came with a Koduval and attacked the deceased and therefore, found the accused guilty for the offence punishable under Section 304(ii) of IPC and sentenced him as stated supra.
6. I have heard Mr.C.R.Malarvannan, the learned counsel appearing on behalf of the Appellant/Accused and Mr.S.Vinoth Kumar, the learned Government Advocate (Criminal Side) appearing on behalf of the Respondent/State.
7. The learned counsel for the appellant taking this court through the evidence on record, firstly, would submit that in this case, the evidence of the eye-witness are in contradiction in respect of material part of it, namely in what manner the accused hit the deceased. Therefore, the version of the eye witnesses are unbelievable. Secondly, he would submit that in this case it may be seen that after scuffle, both sides were persuaded and pacified and went home. Even as per the prosecution, the occurrence took place at about 11.00 p.m. in the night and thereafter, the deceased was feeling fine and he was at his home. Therefore, if really the death is on account of any injury caused by the accused, it is sheer negligence on the part of the family members and other witnesses examined by the prosecution in this case in not taking him to the hospital immediately. The very fact that the injury is said to have happened  at 11.00 p.m. and the accused was conscious and oriented till 05.00 a.m. on the next day, and only thereafter, he felt the need of going to the hospital, would by itself prove that it is not on account of the action of the accused that the death has taken, but, on account of the sheer negligence of the deceased himself as well as the relatives of the deceased and also the witnesses who were present at the scene of occurrence in not immediately taking the deceased to the hospital for treatment for his injuries. Therefore, the learned counsel would submit that the appellant cannot be made as responsible for the death of the deceased.
8. The learned counsel would further submit that, in this case, it can be senthat initially the FIR was registered under Sections 147, 148 and 302 of IPC by which it would clear that more than one person was involved in the scuffle and, therefore, by way of after thought, the accused alone has been singled out and was prosecuted. No explanation whatsoever has been given by P.W.15 and P.W.16, the investigating officers to register the case under Section 147, 148 and 302 of IPC and thereafter arraying only the appellant as sole accused in the case.
9. This apart, the learned counsel would also submit that in any event, it can be seen that even as per the case of the prosecution, that even though the accused and the deceased were living in the vicinity, all was not well with them. It could be seen that it is only the deceased who was the aggressor in as much as he intercepted, accosted and admonished the accused for riding his own motor cycle in a speedy manner. It may be seen that the accused had not caused any injury to any person while he was riding his own motor cycle. In that view of the matter, when the prosecution case itself that it is only the deceased side which has started the scuffle and all the witnesses including the eye-witness have clearly and categorically deposed that after the wordy quarrel, the accused rushed inside his house and came out with Koduval and even then, when he came near the deceased, he was able to control himself and therefore, he only pecked and caused a minor injury on the head  and controlled himself and in a casual manner only hit with the rear side of the Koduval on the chest of the deceased. Therefore, it would be clear that the accused never had any intention to kill the deceased. Even to convict the appellant under Section 304(ii) of IPC, admittedly, in this case, even the Trial Court has come to the conclusion that the accused had no intention to kill the deceased or the attack was deadly. Now, only on the other limb, based on which the Trial Court convicted the appellant under Section 304(ii) of IPC is that  he has used the deadly weapon and therefore, he has knowingly hit the deceased.
10. The learned counsel would submit that even though the accused in this case has used Koduval, the witnesses have clearly spoken that he has controlled himself and, therefore, he hit the deceased on the chest by using the ‘Kaipidi’ (ifg;gpo) that is by reversing the Koduval and further if the corresponding medical opinion of the doctor is taken into account, it can be seen that there was no contusion or severe injury on the skin or outside of the left side chest. Therefore, it was very unfortunate that the fracture of the rib bone had happened and therefore, in any event, it cannot be said that the accused had hit the deceased with the knowledge that it is likely to cause death. Therefore, the learned counsel would submit that, in any event, the conviction can only be for the offence under Section 326 of IPC and not under Section 304(ii) of IPC.
11. In respect of his submissions, the learned counsel also relied upon the judgments of the Honourable Supreme Court India in Baliraj Singh v. State of Madhya Pradesh [(2017) 14 SCC 291 : MANU/SC/0500/2017], more

particularly, paras 5, 10 & 11 for the proposition that in this case the statement of eye witnesses are not worthy of the confidence of this court. He would rely upon the judgment of the Honourable Supreme Court in Ramesh Kumar  v. State of Madhya Pradesh [(2010) 6 SCC 685 : MANU/SC/0339/2010], more

specifically, paras 13 to 15 for the proposition that unless it can be concluded on the basis of the record that the act of the accused is in such a manner to the effect that it is imminently dangerous and that it must in all probability cause death or such bodily injury as is likely to cause death, then only the accused can be prosecuted for the offence under Section 304(ii) of IPC. He would further draw the attention of this court that in that case also the accused had hit the deceased with a Dhanda.

12. The learned also relied upon the judgment in Abdul Razak v. The State of Karnataka [(2015) 6 SCC 282 : MANU/SC/0639/2015], more

particularly, para 9 of the judgment for the proposition that if the concerned persons are not taking the victim to the hospital  and if they are careless and negligent, then, the conduct of such relatives and other witnesses are being responsible for the death of the deceased, the appellant/accused cannot be held liable for causing death.

13. The learned counsel also relied upon the judgment in Shahid Khan v. State of Rajasthan [(2016) 4 SCC 96 : MANU/SC/0254/2016], more fully relied upon paras 15 to 19 of the said judgment.
14. The learned counsel also placed reliance on the judgment in Sudhakar v. State [(2018) 5 SCC 435 : MANU/SC/0252/2018], wherein it was held by the Honourable Supreme Court that if there is no information from the hospital to the police station that would also be a ground to doubt the case of the prosecution. He would further submit that in this case, the hospital in which the deceased is said to have been brought dead and the police station are just adjacent.

 

15. The learned counsel also relied upon the judgment in Hari Krishnan v. Sukhbir Singh, [(1988) 4 SCC 551 : MANU/SC/0183/1988], more fully relied upon para 7 of the judgment, whereby the Honourable Supreme Court considered the similar attack by the blunted side of the knife and held that when it happened by virtue of quarrel, the offence under Section 307 of IPC cannot be made out.
16. The learned counsel also relied upon the judgment of the High Court of

Bombay in Dnyaneshwar Dagdoba Hivrekar v. The State of Maharashtra [(1982) Crl.L.J. 1870 : MANU/MH/0022/1982, more fully upon, paras 7 & 8 for the proposition that the manner, type of weapons and the type of attack have to be taken into account to conclude whether the offence would fall in the respective pigeon hole of Section 304(ii) of IPC or Section 326 of IPC. He would also rely upon the judgment of this court in Sankar v. State [2017-2-LW (Crl) 927], more particularly, paras 17 to 19 of the said judgment whereunder while considering the weapon used and also the nature of injury which was minor and also by payment of compensation, the offence was treated as one under Section

325 of IPC. The learned counsel would, therefore, submit that this is a case where the appeal has to be allowed firstly, by totally acquitting the appellant or in any manner, appropriately modifying the conviction and imposing appropriate punishment.

17. Per contra, Mr.S.Vinoth Kumar, the learned Government Advocate (Criminal Side) appearing for the respondent/State would submit that admittedly, in this case, the incident had happened in the middle of the road, and therefore, there were eye-witnesses to the incident. Eye-witnesses namely, P.Ws.1 to 3 and 6 to 10 have witnessed the incident of whom, P.Ws.6 to 8 have turned hostile and the other witnesses have clearly and categorically spoken about the incident. Considering the fact that the occurrence took place in a sudden provocation and in a fit of rage, the Trial Court has modified the charge and convicted the appellant under Section 304(ii) of IPC even though originally the charge was framed under Section 302 of IPC. He would submit that the contention of the learned counsel for the appellant that the accused had not hit the deceased knowingly cannot be accepted because of the weapon used, which is ‘Koduval’. He would further submit that only because of the nature of the injury being internal injury, the accused could not be immediately taken to the hospital.

Therefore, in this case, there was no negligence on the part of the relatives or the other witnesses who were present at the scene of occurrence as the deceased was not complaining any unbearable pain and because the incident happened during night at 11.00 p.m. they thought it fit to go to the hospital next day morning. However, when the deceased complained uneasiness, early morning of the next day, they family members of the deceased have promptly taken him to the hospital. Therefore, absolutely, there is no negligence whatsoever on the part of the relatives or the other witnesses and therefore, the judgments relied on by the learned counsel for the appellant in this regard will not come to his aid in this case. Therefore, the learned Government Advocate (Criminal Side) would submit that there is nothing for this court to interfere in the present appeal.

18. I have considered the rival submissions made on either side and perused the material records of this case.
19. A cumulative reading of the testimonies of the eye-witnesses and the other evidences on record including the corroborating medical evidence in this case, it is clear that the appellant, enraged by the fact that he was admonished for riding his motor cycle in a speedy manner and when again came into direct confrontation at about 11.00 p.m. a wordy quarrel and a scuffle ensued. It can be seen that the deceased – Jaisankar, pulled down the motor cycle of the appellant and immediately thereof, in a fit of rage, he went in and rushed out his house with a Koduval in his hand. Even though he charged against the deceased, it can be seen from the evidence on record that at the last moment, he was able to control his rage and anger and he stopped by pecking on the head. The corresponding injury spoken to by the doctor would also confirm the same that it was a minor injury on the head. After pecking on the head, while taking back his hand with Koduval, again he had turned his hand and hit the deceased on the right side of the chest with the handle of the Koduval and immediately, thereafter, both sides were pacified and they had gone back. Therefore, all these facts would go to show that firstly, the appellant did not have any intention to kill the deceased. Secondly, the attack was not deadly in nature. Thirdly, it cannot even be said that the appellant indulged in any act which can be reasonably believed or with the knowledge of any reasonable man that it would cause the death of the person. But, however, it is unfortunate that still one of the rib bones got fractured. It is in this context, the evidence of P.W.12 Doctor which becomes relevant and it is useful to extract the relevant portion which reads as under:-

“gpnujj;jpd; kPJ xU btspg;g[w fhak; fzg;gl;ljhf Fwpg;gpl;Ls;nsd; vd;why; rhp/ khh;g[ gFjpapy; btspg;g[w fha’;fs; fhzg;gltpy;yiy vd;why; rhp/ gpnujj;ij vf;!nu vLj;njdh vd;why; ,yi;y/ xU eghpd; khh;g[ gFjpapy; kG’;fpa ge;J nghd;w Ma[jj;jhy; jhf;Fk;nghJ btspg;g[w fhak; Vwg; lhky; khh;g[ vYk;g[fspy; Kwpt[ Vw;gl tha;g;gpy;iy vd;why; rhpay;y/ nkw;go ge;J nghd;w kG’;fpa Ma[jj;jhy; jhf;Fk;nghJ btspg;g[w fha’;fs; Vwg; lhky; vYk;g[ Kwpt[ Vw;gltha;g;gs[;sJ/ nkw;go btspg;g[wj;jpy; Vw;gl;l fhak; rpwpJ neuj;jpy; kiwe;JtpLk/; XU fl;il nghd;w Ma[jj;jhy; jhf;Fk; nghJ btspg;g[w fhak; Vw;glhky; vYkg; [ Kwpt[ Vw;gLkh vd;why; btspg;g[w fha’;fSld; vYkg; [ Kwpt[ Vw;glyhk;. btspg;g[w fhak; ,y;yhkYk; vYk;g[ Kwpt[ Vw;glyhk/; xU fodkhd M[ajj;jhy; jhf;fg;gLk;nghJ Kjypy; fd;wpa fha’;fs; Vw;gLk; vd;why; rhp/ me;j fd;wpa fhaj;jpd; cs;gFjpapy; css;s jirfspy; mjd; fhuzkhf tpist[ Vw;gLk; vd;why; rhp/”

Therefore, even in the description of  injuries, neither any contusion nor any lacerated wound were seen on the right side of the chest. But, still unfortunately, there was a fracture of one of the rib bones on the right side of the chest. It in this context, I am of the view that the action of the appellant can be visualized that he neither caused injury with an intention to cause the death nor with the knowledge that it is likely to cause the death and therefore, I am of the view that on the facts and circumstances of the case, only an offence under Section 326 of IPC is made out. In this regard it is useful to extract the paras 13 to 15 of the judgment of the Honourable Supreme Court in Ramesh Kumar [cited supra] relied upon by the learned counsel for the appellant.

“13. We have considered the rival submissions and the submissions made by Mr Dubey commend us. We have extracted in the preceding paragraph of our judgment the injuries sustained by the deceased and from a perusal thereof it is difficult to hold that the appellants intended to cause such bodily injuries which they knew to be likely to cause the death. From that it is also not imperative that the appellants intended to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The injuries found on the person of the deceased also do not indicate that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.

14. It has to be borne in mind that the intention of the accused is gathered from the nature of the weapon used, the part of the body chosen for assault and other attending circumstances. Here in the present case according to the prosecution the weapon used for commission of the crime is “lathi” and “danda” and the part of the body chosen cannot be said to be a vital part of the body. Further the injuries are contusions. It seems that the deceased was not taken to the hospital immediately after the occurrence and he died. Perhaps, his life could have been saved had he been given the medical aid immediately.
15. In view of what we have observed above the ingredients for the offence of murder is not made out. However, the appellants have caused grievous hurt by dangerous weapon in furtherance of their common intention and as such the facts proved make out the offence under Sections 326/34 of the Penal Code.”

Therefore, taking into account the manner of injury, part of the body attacked and the corresponding medical evidence, I am inclined to modify the conviction as one under Section 326 of IPC.

20. As far as the other contentions of the learned counsel for the appellant is concerned, in this case, the alleged injury is the fracture of the rib bone which has pierced into the lungs. In this kind of injury, it is common knowledge that immediately the victim would not know the seriousness of the injury because so long as the bone remains intact in pierced part, there will not be any internal bleeding but, the moment there is some displacement of the broken piece of the bone immediately, there will be a sudden internal hemorrhage.
21. It is seen from the post-mortem certificate that an examination of thorax region revealed 500 ml of blood in thoracic cavity and right side of 3,4 & 5 ribs were fractured. In this regard, it is useful to extract the relevant portion at page 724 in MODI’s A Text Book of Medical Jurisprudence and Toxicology, 26^th Edition, by Justice K.Kannan published by LexisNexis page 724,which reads as follows:-

“Ribs.- Fracture of the ribs results from direction

violence as in the case of blows or stabs and from indirect violence as in compression of the chest or on very rate occasions from muscular contraction during violent coughing, sneezing, or straining. It is more dangerous when caused by direct violence as the splinters are driven inwards and are likely to injure the underlying pleura, lungs,heart, large vessels, liver, or diaphragm”

“Symmetrical fractures of the ribs on both sides are often met with, when a person sits on the chest and compresses it considerably by means of the knees or elbows, by trampling under feet, or by means of two bamboos, a process known as bans dola. They may also occur in accidents as in a fall from a height, or when run over by a heavy bullock cart or motor car or when caught between railway buffers. In such cases, the ribs are often fractured in front near the costal cartilages, where the compressing force is applied and near the angles at the back, the force travelling along the ribs. These are not always accompanied by external injuries or ecchymoses of blood in the soft tissues over the ribs. The markedly elastic ribs of a child may escape fracture.” [Emphasis supplied]

2 2. T h u s, it may be seen that the ribs can be fractured even without external injuries or ecchymoses of blood over the ribs. Once the fracture  of the ribs take place, lungs are injured and in respect of lung injury, it is stated in the above referred  Modi’s Text Book on Medical Jurisprudence and Toxicology as follows:-

“Lungs.– Wounds of the lungs may be immediately fatal from profuse haemorrhage or from suffocation due to respiratory embarrassment on account of the presence of blood in the pleural cavity or in the air-passages, or may result in death subsequently from septic pneumonia.”

23. When the lung is injured, in cases it may happen that profuse hemorrhage does not happen immediately at the injured part of the lung as it is still covered by the ribs or pierced bone of the ribs. But, once, there is compression of the chest or displacement of the broken / pierced rib bone, it may result in hemorrhage and the condition is known as pneumothorax or or haemopneumothorax which results in the death of the individual. To quote the relevant of the above mentioned Modi’s Tex Book on Medical Jurisprudence and Toxicology is as follows:-

“Contusions or lacerations of the lungs may be produced by blows from a blunt weapon or by compression of the chest even without fracturing the ribs or showing marks of external injury. They may be caused by a severe grinding force of a car wheel running over the chest of a young person. These may cause instantaneous death or may result in pleurisy, traumatic pneumonia, hemothorax, or air embolism. Pneumothorax or haemopneumothorax may occur due to a rupture of the pleura of the lung. Bullae may burst following slight trauma and cause pneumothorax. A spontaneous pneumothorax can result due to spontaneous rupture of the emphysematous bullae of the lung.”

24. Thus, I am of the view that the dicta contained in the judgment in Abdul Razak and Shahid Khan cited supra, will not come to the aid of the appellant. There is no negligence on the part of the deceased or his relatives, given the nature of injury. It is also seen that in this case, the deceased was only 28 years old and was also a married person and his wife was also examined as P.W.10. Now, the said family is also left in lurch as it had lost its breadwinner. Therefore, even though I am of the view that higher compensation is also necessary to do justice, but, at the same time, taking into account the financial status of the appellant/accused, who is also said to be a person in penury, I am inclined to impose a higher fine amount which can be paid by the appellant and out of it a sum may be ordered to be paid as compensation to the family of the deceased Jai Sankar.
25. In view of the foregoing discussions, the conviction of the appellant/accused by the Trial Court for offence under Section 304(ii) of IPC is modified into one under Section 326 of IPC and insofar as the sentence is concerned, the appellant/accused is directed to under go Rigorous Imprisonment for three years  and to pay a fine of Rs.2,05,000/- for offence under Section 326 of IPC and in default of of payment fine, he shall suffer Simple Imprisonment for a further period of seven months.
26. In the result, this Criminal Appeal is partly allowed on the following terms:-

(I) The conviction of the appellant/accused by the learned Additional Sessions Judge, Krishnagiri, in S.C.No.16 of 2018.by judgment dated 26.09.2019 for offence under Section 304(ii) of IPC is set aside and modified as one under

Section 326 of IPC;

• The appellant/accused is sentenced to undergo Rigorous Imprisonment for 3 (Three) years and to pay a fine of Rs.2,05,000/- for offence under Section 326 of IPC and in default of payment of fine, he shall undergo Simple Imprisonment for a further period of 7 (seven) months.
• The appellant/accused is entitled to set off the fine amount of Rs.50,000/- already paid by him.
• The appellant/accused shall pay the balance fine amount of Rs.1,55,000/- within a period of 8 (Eight) weeks from the date of receipt of a copy of this judgment.
• As and when the fine amount is paid, the Trial Court shall pay sum of Rs.2,00,000/- as compensation to P.W.10- Sudha wife of the deceased-Jaisankar without insisting for any formal application and only upon verification of the identity by the respondent police. It is brought to the notice that out of the compensation of Rs.2,00,000/- ordered above, already a sum of Rs.50,000/- has been paid to P.W.10 and therefore, the remaining sum of Rs.1,50,000/- shall be paid to her.

The appellant/accused shall surrender before the Trial Court within two weeks from the date of receipt of a copy of this judgment.  He will be entitled to the set off the period of detention already undergone  by him  under Section 428 of Cr.P.C.

Index           : yes             12..07..2022

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To

1.The Additional Sessions Judge, Krishnagiri, Krishnagiri District.

2.The Inspector of Police, Singarapettai Police Station, Krishnagiri District.

3.The Public Prosecutor, High Court, Madras.

D.BHARATHA CHAKRAVARTHY.J.,

kmk

Criminal Appeal. No.769 of 2019

12..07..2022