Bail Slip The 2nd appellant/2nd Accused is Easwaran was directed to be released on bail as per the order of this Court dated 26.4.2010 and made in Crl. Mp. NO.1 of 2010 in Crl. Appeal No.260 of 2010. IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 30.08.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. SATHYANARAYANAN Crl. A. No.260 of 2010 1. K. Raja 2. Easwaran 3. Ashok ... Appellants/Accused Nos.1to3 ..Vs.. State, rep. by the Inspector of Police, P-6, Kodungaiyur Police Station, Chennai. ... Respondent/Complainant Appeal U/s.374(2) Cr.PC. filed against the judgment dated 26.3.2010 passed by the learned Additional District and Sessions Judge (Fast Track Court No.IV), Chennai in S.C. No.374 of 2009. For Appellant : Mr. V. Gopinath, Sr. counsel for Mr. L. Mahendran For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 26.3.2010 passed by the learned Additional District and Sessions Judge (Fast Track Court No.IV), Chennai in S.C. No.374 of 2009, whereby the accused/ appellants, three in numbers, stood charged, tried, found guilty and awarded punishment as follows:- Sl.N o. Rank of the accused Charge Findings Sentence 1. 1st accused 341 r/w 34 I.P.C. 302 r/w 34 I.P.C. 506(ii) r/w 34 I.P.C. Guilty Guilty Guilty Pay a fine of Rs.500/- in default to undergo one month Simple Imprisonment. Life Imprisonment and to pay a fine of Rs.5,000/- in default to undergo six months Simple Imprisonment Rigorous Imprisonment for two years and to pay a fine of Rs.500/- in default to undergo three months Simple Imprisonment. 2. 2nd accused 341 r/w 34 I.P.C. 302 r/w 34 I.P.C. 506(ii) r/w 34 I.P.C. Guilty Guilty Guilty Pay a fine of Rs.500/- in default to undergo one month Simple Imprisonment. Life Imprisonment and to pay a fine of Rs.5,000/- in default to undergo six months Simple Imprisonment Rigorous Imprisonment for two years and to pay a fine of Rs.500/- in default to undergo three months Simple Imprisonment. https://hcservices.ecourts.gov.in/hcservices/ Sl.N o. Rank of the accused Charge Findings Sentence 3. 3rd accused 341 r/w 34 I.P.C. 302 r/w 34 I.P.C. 506(ii) r/w 34 I.P.C. Guilty Guilty Guilty Pay a fine of Rs.500/- in default to undergo one month Simple Imprisonment. Life Imprisonment and to pay a fine of Rs.5,000/- in default to undergo six months Simple Imprisonment Rigorous Imprisonment for two years and to pay a fine of Rs.500/- in default to undergo three months Simple Imprisonment. 2. The short facts necessary for the disposal of the case can be stated thus: (i) P.W.1 is the father of the deceased Aravindan, who is his second son, was done to death in the instant case. On 23.2.2009, P.W.1, along with his two sons, went to the house of one Velu, who is the friend of the deceased, since the wife of Velu died. At that time, there was a wordy quarrel between the deceased and the accused and the same was pacified by P.W.1. (ii) Thereafter, on the same day, at about 4 p.m., when funeral procession was going on, again there was a wordy altercation between the accused persons and the deceased. Immediately the first accused took an iron rod from nearby Hardware shop and attacked him on his head and accused 2 and 3 attacked him with hands. The same was witnessed by P.Ws.1, 2, 6, 7 and 8. Thereafter, the accused ran away from the place of occurrence. The deceased was taken to the private-Pavithra Hospital where he was given first aid and he was referred to the Government Stanley Hospital where he was actually given treatment and the Accident Register is marked as Ex.P11. (iii) On receipt of intimation, P.W.18 Sub Inspector of Police proceeded to the Government Hospital, where he recorded the statement of P.W.1. On the strength of the same, a case came to be registered in Crime No.93 of 2009 for the offences under Sections 341, 307, 506(ii) of the Indian Penal Code. Express First Information Report Ex.P16 was sent to the Court. (iv) On receipt of the copy of the First Information Report, P.W.19 Inspector of Police proceeded to the spot and prepared observation mahazar Ex.P17 and rough sketch Ex.P18 respectively. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, he also recovered blood stained shirt under Form 95. Pending investigation, the first accused was arrested on 24.2.2009 and he came forward to give confession statement and the same was recorded in the presence of witnesses. The admissible portion of the same is marked as Ex.P19. The first accused also produced M.O.2, blood stained half sleeve white shirt which was recovered under the cover of mahazar Ex.P20. Thereafter, on 25.2.2009, accused 2 and 3 were arrested and they have given confession statements voluntarily and the same were recorded in the presence of witnesses. Despite treatment, the said Aravindan died in the Stanley Hospital on 28.2.2009. On receipt of intimation, the case was altered to one under Section 302 of the Indian Penal Code and the amended First Information Report Ex.P22 was sent to the Court. (v) Thereafter, P.W.19 Inspector of Police conducted inquest on the dead body and the inquest report is marked as Ex.P23 in the presence of Panchayatars. Thereafter, pursuant to the requisition made by the Investigator, P.W.9 Doctor, attached to the Government Stanley Hospital, conducted post-mortem on the dead body and issued Ex.P5 post-mortem Certificate where he has opined that the deceased would appear to have died due to head injuries. Thereafter, P.W.20 Inspector of Police took up the case for further investigation and on completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 20 witnesses viz. P.Ws.1 to 20 and relied on 23 documents viz. Ex.P1 to P223 and also relied on M.Os.1 and 2. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinizing the materials available on record, found the accused guilty under Sections 341 read with 34, 302 read with 34 and 506(2) read with 34 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the appellants. 5. Advancing arguments on behalf of the appellants, learned Senior Counsel would submit inter-alia that the occurrence had taken place on 23.2.2009 at about 4.30 p.m. In order to prove the case, though the prosecution examined P.Ws.1, 2, 3, 6, 7 and 8 as eye witnesses, P.W.6 has turned hostile, P.Ws.2 and 3 are brothers of the deceased and P.Ws.7 and 8 are close to the victim and also to P.Ws.1 and 2. Pointing to the evidence of these eye witnesses, learned counsel would submit that accused 2 and 3 were found guilty under Sections 302 read with 34, 341 read with 34 and 506(ii) read with 34 https://hcservices.ecourts.gov.in/hcservices/ of the Indian Penal Code by the Trial Court. Not even a case under Section 323 of the Indian Penal Code was registered against them. Insofar as accused 2 and 3 are concerned, according to the prosecution case, they beat the deceased with hands, but not even complained of pain or its corresponding injury. 6. Learned Senior counsel further added that prior to the occurrence, there was a wordy altercation between the accused and the deceased and the same was pacified by P.W.1. Thereafter, when funeral procession was going on, again there was a wordy quarrel between the deceased and the accused and the occurrence had taken place. Thus, it would be quite clear that there could not have been any common intention for accused 2 and 3 to share the same. In the absence of medical evidence canvassed through ocular testimony, accused 2 and 3 are entitled for acquittal in the hands of the Court. 7. Learned Senior counsel added further that insofar as first accused is concerned, it is an admitted position that when the funeral procession was going on, there was a wordy altercation and at that time, the first accused was really unarmed anything and due to sudden provocation, he took the iron rod found nearby the Hardware shop and attacked the deceased only once on the head. All would clearly indicate the fact that the act of the first accused is neither intentional nor premeditated, but only due to sudden provocation. 8. Learned Senior counsel added further that it is pertinent to point out that when the procession was going on, the occurrence has taken place. It was the deceased, who has provoked the first accused. Apart from that, the occurrence had taken place at about 4.30 p.m. on 23.2.2009, but the deceased died on 28.2.2009. All would clearly indicate the fact that even assuming the Court comes to the conclusion that as a result of the attack made by the first accused, the death has occurred, it would not attract the penal provisions of murder, but only grievous hurt and the same is neither intentional nor premeditated. Hence, this Court has to consider the same. 9. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the submissions made. 10. It is not in controversy that following the incident that had taken place at 4.30 p.m. on 23.2.2009, one Aravindan, second son of P.W.1 was admitted in the hospital and despite treatment, he died. The case which was initially registered under Section 307 of the Indian Penal Code, on the death of the said Aravindan, was converted to one under Section 302 of the Indian Penal Code. Pursuant to the inquest made on the dead body, P.W.9 Doctor has conducted post-mortem on the dead body and issued post-mortem https://hcservices.ecourts.gov.in/hcservices/ Certificate Ex.P5 and P.W.9 has categorically stated that the deceased died out of the head injury sustained by him and thus, the prosecution is successful enough to prove the fact that he died out of homicidal violence and the same was never disputed by the accused at any stage. Hence, the Trial Court was perfectly correct in recording so. 11. In order to substantiate that it was the first accused who attacked the deceased with iron rod, the prosecution has examined P.Ws.1, 2, 6, 7 and 8. P.Ws.1 and 2 are related to the deceased. P.W.6 has turned hostile. Hence, his evidence is not useful to the prosecution. But, P.Ws.7 and 8 have actually corroborated the evidence of P.W.1 and they have spoken in one voice that there was a wordy quarrel between the accused and the deceased at the house of one Velu when his wife was died and the same was pacified by P.W.1. Thereafter, at the time of funeral procession also, there was a wordy altercation. It was the first accused, who took the iron rod from the hardware workshop situated near by the scene of occurrence and attacked on the head of the deceased. 12. Thus, it would be quite clear from the evidence that the first accused was actually unarmed and due to sudden quarrel at the time of funeral procession, he took the iron rod nearby the hardware shop and attacked the deceased and thus, it would be quite clear that the attack made by the first accused is neither intentional nor premeditated but due to the wordy quarrel and sudden provocation which arose at the time of funeral procession and hence the act of the first accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder and therefore, the act of the first accused would attract the penal provision of Section 304(II) of the Indian Penal Code and awarding five years rigorous imprisonment would meet the ends of justice. 13. Insofar as accused 2 and 3 are concerned, the learned Trial Judge has committed an error in finding them guilty by applying section 34 of the Indian Penal Code. The factual matrix even as per the prosecution is quite clear that there was a funeral procession going on and there was a wordy altercation, pursuant to which the occurrence had taken place and hence there was no common intention among the accused 1 to 3. Apart from this, insofar as accused 2 and 3 are concerned, there was a specific case of the prosecution that they beat the deceased even before the first accused attacked him. There is no medical evidence canvassed by the prosecution in this regard. Not even a pain is complained as found in Accident Register copy. All would clearly indicate that insofar as accused 2 and 3 are concerned, the overt acts attributed against them were not proved. In the absence of any common intention to be shared and also in the absence of any evidence that they have attacked the deceased and killed him, accused 2 and 3 are entitled for acquittal and they are acquitted of all the charges. https://hcservices.ecourts.gov.in/hcservices/ 14. Accordingly, the conviction and the sentence imposed on the first accused/appellant under Section 302 read with 34 of the Indian Penal Code alone is modified and instead the first accused is convicted under Section 304(II) of the Indian Penal Code and sentenced to undergo five years Rigorous Imprisonment. The period of sentence already undergone by the first accused is ordered to be given set off. The fine and default sentence imposed by the Trial Court under Section 302 read with 34 of the Indian Penal Code will hold good. The conviction and the sentence imposed on the first accused under Sections 341 read with 34 and 506(2) read with 34 of the Indian Penal Code is set aside. 15. The conviction and sentence imposed on accused 2 and 3 under Sections 302 read with 34, 341 read with 34 and 506(2) read with 34 of the Indian Penal Code are set aside and they are acquitted of all the charges levelled against them. They are directed to be set at liberty forthwith unless their custody is required in connection with any other case. Fine amount, if any, paid is directed to be refunded to them. 16. With the above modification, the criminal appeal is disposed of. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ssa. To 1. The Additional District and Sessions Judge,Fast Track Fourt-IV, Chennai. 2. -do- Through The Principal Sessions Judge, Chennai. 3. The X Metropolitan Magistrate, Egmore, Chennai. 4. -do- Through The Chief Metropolitan Magistrate, Egmore, Chennai. 5. The Judicial Magistrate, Sriperumbadur. 6. -do- Through The Chief Judicial Magistrate Kancheepuram. https://hcservices.ecourts.gov.in/hcservices/ 7. The District Collector, Chennai. 8. The Director General of Police, Madras – 4. 9. The Superintendent, Central Prison, Chennai. 10. The Public Prosecutor, High Court, Madras. 11. The Inspector Of Police, P.6 Kodungaiyur Police Station Chennai. Crl. A. No.260 of 2010 JRG(CO) EU 22.09.2010. https://hcservices.ecourts.gov.in/hcservices/