PERIYASAMY vs THE INSPECTOR OF POLICE
- Court
- Madras High Court
Crl.A(MD) No.74 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 02.11.2026
DELIVERED ON: 03.11.2026
CORAM
THE HON'BLE MR.JUSTICE D.LINGESWARAN
Crl.A(MD) No.74 of 2019
CNR:{HCMD010346972019}
Periyasamy
..Appellant/Sole Accused
Vs
The Inspector of Police
Muthaiahpuram Police Station,
Thoothukudi District.
Crime No.357 of 2016
..Respondent/Complainant
Prayer : This Criminal Appeal is filed under Section 374(2) of Cr.P.C, to
call for the records in S.C.No.126 of 2017 on the file of the learned II
Additional District and Sessions Judge, Thoothukudi, Thoothukudi
District and set aside the judgment dated 07.12.2018 and acquit the
appellant of the charges leveled as against him.
For Appellant :Mr.A.Thiruvadi Kumar
For Respondent :Mr.A.Robinson
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal is filed challenging the judgment passed by
the II Additional District and Sessions Judge, Thoothukdi, Thoothukudi
District in S.C.No.126 of 2017 dated 07.12.2018.
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2. The case of the prosecution:
The case of the prosecution is that on 10.10.2016 at 10.30 a.m., in
the Gypsum yard belonging to JVP Contractors, situate behind the SPIC
at Muthiahpuram, Thoothukudi, the appellant, who was operating a JCB
machine, hit a lorry bearing registration No.TN 69 K 5411. Therefore, the
driver of the lorry, Mr.Sudhakar, and the deceased Raja @ Maharajan
quarrelled with the appellant. The duo had abused the appellant using
filthy language. Enraged by the invectives, directed at him, the appellant
lifted the deceased Raja @ Maharajan and Mr.Sudhakar in the bucket of
the JCB machine. Sudhakar managed to jump from the bucket and
escaped, but the accused threw the deceased from a height and repeatedly
struck him on his head and other parts of the body. The deceased died on
the spot. A First Information Report was lodged and registered as Crime
No.357 of 2016 with Muthiahpuram Police Station. The accused was
arrested, witnesses were examined, evidence was collected and a Final
Report was filed, against the accused under Section 302 of IPC before the
learned Judicial Magistrate No.2, Thoothukudi.
3. The case was taken on file as P.R.C.No.46 of 2016 by the
learned Judicial Magistrate No.2, Thoothukudi, and after following due
process, it was committed to the learned Principal Sessions Judge,
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Thoothukudi. Subsequently, the learned Sessions Judge made over the
case to the II Additional Sessions Judge, Thoothukudi for trial. The trial
was conducted, and the prosecution examined 16 witnesses and exhibited
18 documents and 12 material objects. The defence exhibited 3
documents. No oral evidence was adduced on behalf of the defence. The
learned Trial Judge, after considering the entire evidence on record, came
to the conclusion that culpable homicide committed by the accused fell
within the Exception 1 to the definition of murder under Section 300 of
IPC. The learned Trial Judge concluded that the appellant, whilst
deprived of the power of self control by grave and sudden provocation,
caused the death of the deceased Raja @ Maharajan. While acquitting the
accused under Section 302 of IPC, the Trial Judge convicted him under
Section 304 of IPC and sentenced him to undergo 10 years of Rigorous
Imprisonment along with the fine of Rs.1,000/- with a default sentence of
6 months of Simple Imprisonment. The period of imprisonment already
undergone was ordered to be set off under Section 428 of Cr.P.C.
Aggrieved by the conviction and sentence, the present appeal is filed.
4. Heard both sides. The entire evidence on record is carefully
considered.
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Arguments:
5. The learned counsel for the appellant fairly conceded that the
evidence of eye witness, namely PW1 Muthukrishnan, was hard to get
over. A careful perusal of the evidence of PW1 clearly shows that the
defence did not deny the quarrel. It was suggested to PW1 that the
deceased during the quarrel, tripped and fell down on the bucket of the
JCB and sustained the fatal injuries. The suggestion was denied. It is also
on record in Ex.P14 that the appellant had also lodged a First Information
Report in Crime No.359 of 2016 in respect of the same incident, wherein
he had narrated the incident and admitted the attack on the deceased. The
evidence of Dr.Manoharan (PW9) and the autopsy report in Ex.P5 show
that the various injuries and fractures on several parts of the body of the
deceased, including his head and T10 vertebra could not have been
sustained due to accidental fall on the bucket of the JCB machine. As the
finding of the Trial Court was unassailable the learned counsel for the
appellant argued, relying upon Ex.P14 statement that the case of the
appellant would not fall under Exception 1 of Section 300 of IPC, rather,
it would fall under Exception 4 of Section 300 of IPC and therefore,
would be punishable only under Section 304 Part II of IPC and not under
Section 304 Part I of IPC. The learned counsel for the appellant, in fine,
prayed for reducing the sentence of the appellant.
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6. Per contra, the learned Additional Public Prosecutor submitted
that the appellant repeatedly struck the deceased on the head and all over
the body and crushed to death on the spot, which indicates the clear
intention of the appellant to kill the deceased. He relied upon the
evidence of PW1 and the evidence of the doctor (PW9) who conducted
autopsy and noted the injuries in Ex.P5, and prayed for upholding the
conviction under Section 304 Part I of IPC and the sentence of
imprisonment awarded thereon.
7. Discussions:
The principal contention advanced on behalf of the appellant is that
the occurrence took place in the heat of passion, upon a sudden quarrel,
following the deceased hurling filthy and abusive words against the
appellant connecting his mother. This Court is unable to accept the said
contention. Exception 4 to Section 300 of IPC contemplates a situation
where culpable homicide is committed without premeditation, in a
sudden fight, in the heat of passion upon a sudden quarrel, and without
the offender having taken undue advantage or acted in a cruel or unusual
manner. All the four requirements are cumulative in nature. Even
assuming that the occurrence was preceded by a sudden quarrel and that
the deceased had abused the appellant, connecting his mother, in filthy
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language, the applicability of Exception 4 cannot be determined merely
by referring to the circumstances which preceded the occurrence. The
manner in which the assault was perpetrated and the conduct of the
accused during the occurrence are equally relevant considerations.
8. In the case on hand, the evidence establishes that the appellant
was operating a JCB machine and, in the course of the occurrence, he
lifted both the deceased and another person (Mr.Sudhakar). While one of
them managed to jump out and escaped, the deceased remained in the
bucket. The appellant thereafter used the bucket of the JCB machine to
throw the deceased down from a height and repeatedly strike him on his
head and other parts of the body. The assault was not a single or
spontaneous act resulting in an unintended injury. On the contrary, the
repeated use of a heavy mechanical bucket against the deceased,
particularly against his head and other vital parts of the body,
demonstrates the nature and gravity of the attack.
9. The deceased sustained multiple fractures and extensive injuries
on his head and various parts of his body and succumbed at the spot. The
nature, number and distribution of the injuries, read along with the
manner in which the weapon of assault was employed, leave no room for
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treating the occurrence as an ordinary consequence of a sudden quarrel.
10. More importantly, the appellant was operating a heavy earth-
moving machine and was in complete control of its movements. He had
the ability to stop the machine or desist from further assault. Instead, he
chose to use the bucket of the JCB machine repeatedly against the
deceased. The fact that the appellant continued the assault even after the
deceased had been thrown down assumes considerable significance. Such
conduct cannot be characterised as an act committed merely in the heat of
passion or as an uncontrolled reaction to verbal provocation.
11. It is true that the deceased had allegedly abused the appellant,
connecting his mother, in filthy language. Such provocation may explain
the circumstances which led to the occurrence, but it cannot, by itself,
justify the manner in which the appellant chose to retaliate. Verbal abuse,
however reprehensible, does not confer upon a person the right to inflict
repeated and potentially fatal injuries upon another. The appellant, by
repeatedly using the bucket of the JCB machine against the deceased,
clearly exceeded the limits of any permissible reaction to the alleged
provocation.
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12. This Court, therefore, of the considered view that the appellant
cannot claim the benefit of Exception 4 to Section 300 of IPC,
particularly, in view of the cruel and unusual manner in which the assault
was perpetrated. The requirement that the offender should not have taken
undue advantage or acted in a cruel or unusual manner is not satisfied in
the present case.
13. The further contention that the offence ought to be brought
within the ambit of Section 304 Part II of IPC is equally untenable. The
distinction between part I and Part II of Section 304 of IPC lies in the
nature of the intention and knowledge attributable to the accused. Where
the act is committed with the intention of causing bodily injury which is
likely to cause death, the offence would fall under Part I; whereas Part II
applies where there is knowledge that the act is likely to cause death, but
no intention to cause death or such bodily injury as is likely to cause
death.
14. In the present case, the act of the appellant of repeatedly
striking the deceased with the heavy bucket of a JCB machine,
particularly on the head and other vital parts of the body, resulting in
multiple fractures and extensive injuries, is sufficient to establish the
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requisite intention contemplated under Section 304 Part I of IPC. The
repeated nature of the assault and choice of the instrument employed
cannot be brushed aside as mere acts of rashness or a momentary loss of
self-control. The circumstances clearly establish that the appellant
intended to cause bodily injuries which were likely to result in death.
15. This Court finds that the learned Trial Judge has carefully
appreciated the oral and documentary evidence, and has rightly
concluded that the appellant is guilty of the offence punishable under
Section 304 Part I of IPC. The acquittal of the appellant from the charge
of murder, coupled with his conviction under Section 304 Part I of IPC
has already taken into consideration, the distinction between murder and
culpable homicide not amount into murder. This Court finds no
justification to extend the benefit of a further reduction in the nature of
offence.
16. Now, coming to the sentencing aspect, there is nothing in the
Trial Court’s record or in the impugned judgment to show that the
appellant had any bad antecedents. He is the only breadwinner of the
family, as per his plea before the Trial Court. The accused was just 26
years old at the time of occurrence. It is also to be noted after the
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occurrence, he was attacked by the witnesses indiscriminately and
sustained grievous injuries. These mitigating circumstances deserve due
consideration while determining appropriate sentence. Though the
manner in which the appellant committed the offence is undoubtedly
grave and resulted in the death of the deceased, the sentence imposed
must also bear a reasonable proportion to the circumstances of the
offender.
17. It is well settled that, while determining the quantum of
sentence, the Court is required to strike a balance between the
aggravating circumstances surrounding the commission of the offence
and the mitigating circumstances relating to the offender. The object of
sentencing is not merely to punish the offender but also to afford an
opportunity for reformation and rehabilitation, where ever the
circumstance permit. The young age of the appellant, the absence of
previous criminal antecedents and his responsibility as the sole
breadwinner of the family are relevant factors which persuade this Court
to take a lenient view with regard to quantum of sentence.
18. This Court is conscious of the fact that the offence resulted in
the loss of a precious human life and that the gravity of the crime cannot
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be over ruled. Nevertheless, having regard to the over all circumstances
of the case, this Court is of the considered view that the sentence of ten
years Rigorous Imprisonment imposed by the learned Trial Judge is
somewhat excessive and that the ends of justice would be met by
reducing the same to rigorous imprisonment for five years, while
maintaining the conviction under Section 304 Part I of IPC.
19. Conclusion:
Accordingly, the conviction of the appellant under Section 304 Part
I of IPC is confirmed. However, the sentence of ten years Rigorous
Imprisonment is reduced to five years of Rigorous Imprisonment. The
sentence of fine and the default sentence shall remain unaltered. The
appellant is entitled to set off the period of imprisonment already
undergone under Section 428 of Cr.P.C.
20. The Criminal Appeal is partly allowed to the extend indicated
above.
03-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
Indu
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To
1. The Inspector of Police
Muthaiahpuram Police Station,
Thoothukudi District.
2. The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai
Copy To :
Section Officer ( VR Section )
Madurai Bench of Madras High Court
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D.LINGESWARAN, J.
Indu
Crl.A(MD) No.74 of 2019
03-11-2026
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