Bail Slip The Appellant/1st Accused viz., Sukumaran S/O. Chandrasekaran was directed to be released on Bail as per order of this Honourable Court dated 10.07.2006 made in Crl.MP.No.1/06 in Crl.Appeal No.513/2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.6.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.513 of 2006 Sukumaran .. Appellant/Ist Accused Vs. State rep. by The Inspector of Police Pennagaram Police Station Dharmapuri District. .. Respondent/Complainant Appeal filed under Section 374 (2) of Cr.P.C against the judgment dated 17.5.2006 made in S.C.No.342 of 2004 on the file of learned Additional Sessions Judge, Fast Track Court, Dharmapuri. For Appellant : Mr.AR.L.Sundaresan, S.C. For Ms.AL.Gandhimathi For Respondent : Mr.N.R.Elango Addl. Public Prosecutor J U D G M E N T (Delivered by P.D.DINAKARAN,J.) Appellant was convicted in S.C.No.342 of 2004 for the offence under Sections 302 and 203 IPC, Section 36-A and E of the Tamil Nadu Forest Act and Section 3 read with Section 25(1-B)(a) of Arms Act, for which he was sentenced to undergo life imprisonment with a fine of Rs.2,000/-, in default to undergo three months rigorous imprisonment; rigorous https://hcservices.ecourts.gov.in/hcservices/ imprisonment for two years with a fine of Rs.500/-, in default to undergo three months simple imprisonment; rigorous imprisonment for two years with a fine of Rs.7,500/-, in default to undergo three months simple imprisonment; and rigorous imprisonment for two years with a fine of Rs.500/-, in default to undergo three months simple imprisonment, respectively. Therefore, he is before this Court in this appeal. 2. According to the prosecution the occurrence took place at about 6.30 a.m. on 5.6.1988. Their case is, the appellant/A1, Forest Range Officer, while he was going in the jeep driven by one Chinnakolandai/A2, in the Kattampatti Road, near Dharmapuri-Pennagaram Road, opened fire from his DBBL gun on the driver Basha, who was driving the lorry bearing Registration No.ADA 4869, by intercepting the lorry, and then, he loaded 64 sandalwood logs weighing 276 kgs and kept a SPML country gun in order to make it appear that the driver of the lorry was smuggling the same without valid authority and also lodged a complaint at about 11 am in that regard. To prove their case, the prosecution examined P.Ws.1 to 16 besides marking Exs.P1 to P23 and M.Os.1 to 15. The defence had examined D.W.1. (a) It is the evidence of P.W.1 that he had not seen A1 and he knew A2. On 3.6.1988, when he went to get money from one Mahonaran, he was asked by the said Manoharan to go along with P.W.2 and the deceased to smuggle sandalwood logs. As such, at about 3 am, the deceased was driving the lorry bearing Registration No.ADA 4869 and he was sitting next to the deceased and P.W.2 and cleaner Jahir were sitting next to him. After filling petrol and taking rest, they reached Dharmapuri and from there, they proceeded to Pennagaram. While going near Athanoor, a green colour jeep bearing registration No.TNT 2296, was coming behind their lorry. When he asked the deceased to go slow, the deceased turned towards Kattampatti Road and the vehicle got stopped. All got down from the lorry and started running. The jeep was parked behind the lorry. Suddenly, he heard the noise of gun shooting. Immediately, he turned and saw A2 and two others and A2 shooting the deceased. The deceased was found dead near the lorry with wound on his head. The injuries were found on the back side of the body of the deceased. He was taken to the Forest Office, along with others. When they were enquired as to whether they came to smuggle sandalwood logs, they replied yes. He also stated that he could identify the gun used for shooting the deceased and that the gun shown in the Court was not used for shooting the deceased. However, he was treated as hostile witness. (b) P.W.2, who is an agricultural coolie, stated in his evidence that he knew the deceased and A1. He was asked by one Mani to bring lorry from one Manoharan of Kallipatti to load woods. He, along with the deceased, P.W.1 and cleaner went to Hosur in the lorry. When they reached Kattampatti, they saw a green colour forest jeep with forest officials coming. On noticing the forest jeep, the driver drove the lorry fast, but the lorry stopped. Immediately, cleaner, followed by https://hcservices.ecourts.gov.in/hcservices/ him and P.W.1, started running. While running nearly a furlong, he heard the noise of shooting in the gun and the forest officials caught them. He saw the driver lying dead with wound caused by the gun. He was taken to the forest office where he fainted. When he was enquired as to the occurrence, he stated that he did not know anything. Hence, he was treated as hostile witness. (c) P.W.3, an agricultural coolie, residing at Rangapuram Kattukottai, deposed that when she was sleeping, she heard a noise and since she delivered baby at that time, she did not go. But, when she went later, she saw a person lying dead with head injuries, near a lorry. She was treated as hostile witness. (d) P.W.7, Watcher of Tamil Nadu Forest Department, deposed that he knew the accused, but he did not know about the occurrence. He was also treated as hostile witness. (e) P.W.8 is the husband of P.W.3 and brother of P.W.2. He deposed that he knew the deceased and he heard that the deceased was shot dead by the first accused. (f) P.W.10, the then Inspector of Police, on receipt a copy of the FIR at about 12 noon from the Sub Inspector of Police, who received the complaint on 5.6.1988 at about 11 am and registered the FIR, Ex.P8 in Crime No.108/88 under Section 302 IPC, commenced the investigation by reaching the crime scene. He prepared Observation Mahazar, Ex.P1 and rough sketch, Ex.P10. He conducted inquest over the dead body. Ex.P11 is the inquest report. He recovered some material objects from the body of the deceased under mahazar Exs.P2 and P3. He recovered the sandalwood logs from the lorry under Ex.P5 and the lorry under Ex.P6. Thereafter, he recorded the statements. He sent the material objects for chemical examination with requisition, Ex.P15 to the Magistrate. P.W.11 is the Head Clerk who sent material objects for chemical examination and received the chemical analyst's reports Exs.P17 and P18 and Serologist report Ex.P19. P.W.15 is the Scientific Assistant who issued Pellets report, Exs.P20 and P23. P.W.4 has attested observation mahazar, Ex.P1. P.W.5 has attested seizure mahazar, Ex.P2. P.W.6 has attested seizure mahazar, Ex.P6. (g) P.W.10 sent the body for postmortem, with requisition, Ex.P7 through the Constable, P.W.9. Ex.P21 is the post mortem certificate wherein it was opined that the deceased appeared to have died of shock and internal haemorrhage due to the injuries to the vital organs of the body. (h) In the meanwhile, P.W.14 was appointed by the Government to conduct Magisterial enquiry and accordingly, he conducted enquiry and submitted his report, Ex.P12. P.W.13, who was then working as P.A. to the Revenue Divisional Officer, deposed that on receipt of the report https://hcservices.ecourts.gov.in/hcservices/ from P.W.14, he prepared a document and sent it to the Inspector of Police. (i) P.W.12, Inspector of Police, who succeeded P.W.10 on his retirement, continued the investigation and recorded the statements of the Doctor who conducted postmortem and the corpse constable. (j) P.W.16, Inspector of Police, who succeeded P.W.12, on completion of the investigation, filed the charge sheet, Ex.P22 on 27.3.2003 against the appellant/A1 under Sections 302 read with 203, IPC, Section 36-A and E of the Tamil Nadu Forest Act read with Section 25(1-B)(a) of Arms Act, and against A2 under Section 302 read with 109, IPC. 3. The case was committed to Court of Sessions and charges were framed and since the accused denied their complicity in the offence, the case was taken up for trial. 4. When the accused were questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts. The 1st accused examined himself as D.W.1. 5. The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the appellant/1st accused as aforementioned and acquitted the 2nd accused. Hence, the present appeal by the 1st accused. 6. Mr.AR.L.Sundaresan, learned senior counsel appearing for the appellant, contending that the prosecution has not come forward with clear and consistent evidence implicating the appellant, as there are several infirmities in the prosecution case, put forth the following submissions in order to assail the conviction and sentence imposed on the appellant: (a) there is absolutely no motive for the accused to commit the offence; (b) when the second accused was acquitted disbelieving the evidence, the conviction of the appellant on the basis of the very same evidence is erroneous; (c) the contradictions in material particulars in the evidence of P.Ws.1 and 2 would make their evidence untrustworthy; and (d) the appellant was compelled to shoot the deceased in order to exercise his right of self-defence, while discharging his duty, since the deceased, who was smuggling https://hcservices.ecourts.gov.in/hcservices/ the sandalwood and contraband, attempted to retaliate against the appellant and therefore, the appellant is entitled to the benefit under Exception 2 of Section 300, IPC. 7. Per contra, learned Additional Public Prosecutor contends, (a) when the prosecution has proved its case beyond reasonable doubt by adducing clear and cogent evidence against the appellant, the question of acquitting the appellant like the second accused does not arise; (b) though P.Ws.1 and 2, who are eye witnesses, have been treated as hostile, their evidence cannot be rejected in toto in view of the settled principles of law; (c) even though there was a delay in lodging the complaint by the appellant, the same, by itself, would not be fatal, when the prosecution has established its case beyond reasonable doubt; and (d) the deceased sustained injuries only on his back, as per the postmortem certificate Ex.P21, and therefore, the plea of self-defence should not be accepted, since the said plea was taken only at the time of deposition by the appellant. Accordingly, he contends that there are no errors or infirmities in the evidence let in by the prosecution and therefore, the conviction and sentence imposed on the appellant has to be confirmed. 8. We have given careful consideration to the submissions of both sides and also perused the entire materials, both oral and documentary. 9. The learned senior counsel though contended that the delay of nearly four hours in lodging the FIR would be fatal to the case of the prosecution, since the prosecution explained the delay by stating that the appellant, in the meantime, made arrangements to load sandalwood logs as well as gun on the lorry in question making it to appear that the deceased was smuggling sandalwood and while apprehending him, the occurrence took place, and in the backdrop of the evidence of prosecution witnesses who have stated that they started in the morning and boarded the empty lorry to load sandalwood, we do not see any reason to sustain the contention that the delay in lodging the FIR is fatal to the case of the prosecution. https://hcservices.ecourts.gov.in/hcservices/ 10.1. Apropos to contention that the evidence of eye witnesses are untrustworthy since they turned hostile, it is trite law that in the event of a portion of evidence not being consistent with the statements given under 161 and the witness stands declared hostile, that does not, however, mean and imply total rejection of the evidence and the portion which stands in favour of the prosecution or the accused may be accepted, but the same shall be subjected to close scrutiny. 10.2. In the light of the above, a perusal of the evidence of P.Ws.1 and 2, who were travelling with the deceased in the lorry at the time of occurrence, would make it clear that the appellant was implicated to the extent he was chasing the lorry driven by the deceased and that there was no one present at the scene except the appellant. Therefore, that part of the evidence of P.Ws.1 and 2 cannot be brushed aside. Further, the appellant himself lodged the complaint Ex.P8 wherein he has stated that he opened fire on the deceased exercising the right of self-defence. 10.3. It is the admitted version of the appellant in the FIR, Ex.P9 that he only shot the deceased with gun. The medical evidence also makes it crystal clear that the deceased died due to injuries found on his back. Therefore, we have no hesitation to hold that the deceased died only due to homicidal violence, that too at the hands of the appellant herein. 11.1. The prosecution has not come forward with any specific motive, nor there is any material available on record to show some animosity between the appellant and the deceased. The fact remains that the appellant is a public servant working as Forest Range Officer and while discharging his official duty at the time of occurrence, he intercepted the lorry on suspicion of smuggling sandalwood and when the deceased got down from the lorry, the appellant is said to have shot the deceased with knowledge that it would cause the death of the deceased. Further, it is not the case of the appellant that he fired a shot or two in the air cautioning the inmates of the lorry. 11.2. It is the case of the appellant that the deceased was involving in smuggling sandalwood and other contraband and when the appellant intercepted the lorry while discharging his duty, since the deceased attempted to attack the appellant and to flee away from the scene of occurrence, in order to exercise his right of self defence, the appellant was forced to shoot the deceased. But, the learned trial Judge rejected the said plea on the ground that same was not taken at the earliest stage during the examination of the prosecution witnesses and https://hcservices.ecourts.gov.in/hcservices/ it was taken only at the time of deposition of the appellant. At this juncture, it is relevant to note that the medical evidence shows that the deceased sustained injuries on his back and if the deceased, as narrated by the appellant, had attempted to attack him, injuries would not have been inflicted on the back of the deceased. 11.3. Further, we do not see any material to substantiate the version that the appellant exercised his right of self defence, except the evidence of the appellant, who examined himself as D.W.1. As already noticed, the medical evidence shows that the deceased sustained bullet injuries on his back which proves the case of prosecution that the deceased, chased by the appellant, got down from the lorry and started running from the scene and the appellant shot at him. As the case of the prosecution is corroborated by the medical evidence from the perusal of post mortem certificate Ex.P21, we do not see any substance in the defence plea of self defence. 11.4. It is pertinent to note that even according to the appellant as D.W.1, he intercepted the lorry during the discharge of his official duty and stopped the lorry on information of smuggling. It is seen from the enquiry report of the Sub Collector that there was neither instant threat to the life of appellant, nor there was any reasonable apprehension of danger to his body. Therefore, with a view to apprehend him on suspicion of smuggling sandalwood, the appellant resorted to shoot the deceased, and he exceeded the powers given to him by law and caused the death of the deceased. 11.5. At this juncture, it would be pertinent to refer Exception 3 to Section 300, IPC, which reads thus: 300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— 2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— https://hcservices.ecourts.gov.in/hcservices/ 4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.—Culpable homicide is not murder if the offender , in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.— Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. https://hcservices.ecourts.gov.in/hcservices/ Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent." 11.6. A reading of Exception 3 to Section 300, IPC would make it clear that the act of the appellant viz., shooting the deceased with knowledge that it would cause the death of the deceased, while discharging his duty, on suspicion that the deceased was smuggling sandalwood, but without any motive, would come under Exception 3 of Section 300, IPC. Therefore, we are of the considered opinion that the case would fall under Section 304 Part II, IPC, as culpable homicide not amounting to murder. 12. That apart, even though it can be adduced from the available evidence that the deceased and P.Ws.1 and 2 boarded the empty lorry in the morning to load sandalwood, since the prosecution has not established that it is the appellant who loaded sandalwood logs as well as gun on the lorry after the occurrence, but before the complaint was lodged in order to make it appear that the deceased was smuggling sandalwood and in the attempt to apprehend him, the occurrence took place, we are of the considered view that the trial Court has erred in convicting the appellant on other charges. 13. In the result, (i) the conviction and sentence imposed on the appellant for the offence under Section 302 IPC is set aside and instead, the appellant is convicted under section 304, Part-II IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/-, in default to undergo rigorous imprisonment for 3 months; (ii) the conviction and sentence imposed on the appellant for the offence under Section 36-A and E of the Tamil Nadu Forest Act read with Section 25(1-B)(a) of Arms https://hcservices.ecourts.gov.in/hcservices/ Act is set aside and the appellant is acquitted from the above charges. The fine amount paid for the above offences shall be refunded to the appellant; and (iii) The bail bond, if any, executed by the appellant shall stand cancelled. The trial Court is directed to take steps to secure the appellant and to commit him to undergo the remaining period of sentence. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kpl To 1. The Additional Sessions Judge (Fast Track Court), Dharmapuri. 2. -do-thro' The Principal Sessions Judge, Dharmapuri. 3. The Judicial Magistrate, Pennagaram, Dharmapuri District. 4. -do- Thro' The Chief Judicial Magistrate, Dharmapuri @ Krishnagiri. 5. The Chief Judicial Magistrate, Salem. 6. The District Collector, Dharmapuri District, 7. The Director General of Police, Mylapore, Chennai. 8. The Superintendent, Central Prison, Vellore. https://hcservices.ecourts.gov.in/hcservices/ 9. The Inspector of Police, Pennagaram Police Station, Dharmapuri District. 10. The Public Prosecutor High Court, Madras. Crl.A.No.513 of 2006. CK(CO) RVL 11.07.2008 https://hcservices.ecourts.gov.in/hcservices/