BAIL SLIP --- The Appellant/Accused Viz., Raja was directed to be released on bail as per the order of this Court dated 15.7.2002 and made in Crl.M.P.No.6467/2002 in Crl.A.No.1027/2002. ----- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.1027/2002 Raja Appellant/Accused Vs The State by Inspector of Police Vellankani Respondent/Complainant Crime No.520/2000 Prayer:- This Criminal Appeal is filed against the judgement dated 7.6.2002 passed in SC.No.106/2002 by the learned Additional Sessions Court, Nagapattinam, convicting and sentencing the Appellant for the offence under Section 307 of IPC to under go 3 years of Rigorous Imprisonment and to pay a fine of Rs.500/- in default to undergo 3 months Rigorous Imprisonment. For Appellant : Mr.M.Prakash for Mr.R.Srinivas For Respondent : Mr.Hasan Mohammed Jinnah, APP ORDER This Criminal Appeal is filed against the judgement dated 7.6.2002 passed in SC.No.106/2002 by the learned Additional Sessions Court, Nagapattinam, convicting and sentencing the Appellant for the offence under Section 307 of IPC and sentenced to under go 3 years of Rigorous Imprisonment and to pay a fine of Rs.500/- in default to undergo 3 months Rigorous Imprisonment. 2. The case of the Prosecution in a nutshell is as follows:- a. PW.1 Velmurugan/injured, one Jothibasu, PW.5 Nallathambi and PW.6 Sekar were the employees in the Wine Shop namely Raavana https://hcservices.ecourts.gov.in/hcservices/ Wines owned by PW.4 Ravindran. The accused is residing near by the said Wine Shop situate at Aryanattu Street in Velankanni. On 6.10.2000 at about 10.00 p.m. when the employees were engaged in taking stocks, the accused came there and asked for a quarter bottle of brandy tendering only Rs.25/- for which the cost price is Rs.50/- and PW.1 refused to give the brandy for Rs.25/-. The accused told him that although PW.1 is working in the shop situated in his place, but not giving brandy for the accused at the price tendered by him and went away. Within a few minutes, he came again and entered into the wine shop and kicked PW.1, who came out of the shop. At that time, the accused stabbed him with a broken koli soda bottle MO.1 on the left neck and as a result of which, PW.1 started bleeding profusely from the injury. The accused ran away from the scene of occurrence PW.5, PW.6, PW.4 and Jothi Basu have witnessed the said incident. b. PW.5 took him to the Nagai Government Hospital where he was given first aid and was sent to the Thanjavur Medical College Hospital. He had taken treatment for about 4 months. PW.4 Doctor attached to the Nagai Government Hospital found the following injuries on PW.1 and Ex.P1 is the wound certificate:- "01. ,lj jhilf;F fPH; cs;s fGj;J gFjpapy; 3x3x3 br/kP mstpy; xU btl;Lf;fhak; ,Ue;jJ/ me;j fhaj;jpypUe;J ,uj;jk; gPwpl;Lf;bfhz;L te;jJ/ 2. ,lJ jhilapy; 2x1x1 br/kP mstpy; xU btl;Lf;fhak; ,Ue;jJ/ 03/ ,lJfhJf;F gf;fj;jpy; 1x1/4x1/4 br/kP mstpy; xU btl;Lf; fhak; ,Ue;jJ/" c. PW.3 Doctor attached to the Tanjore Medical College hospital, who gave further treatment to PW.1, opined that the 1st injury on his neck is grievous, which has resulted in the cut of carotid artery. d. Jothibasu who also witnessed the incident (now working in abroad) lodged a complaint with the Pw.9 Sub Inspector of Police, Velanganni who came to Nagapattinam Government Hospital on receiving intimation and PW.9 registered a case in Cr.No.520/2000 under Section 307 of IPC and took up the case for investigation and prepared observation mahazar Ex.P2 and a rough sketch Ex.P7 and arrested the accused near South Poigai Nallur Vichimaram Bus Stand and recorded his confession statement in the presence of PW.8 and seized MO.1 broken soda bottle under a cover of mahazar Ex.P4. Inspector of Police Gurusamy took up the case for further investigation, examined the Doctors and witnesses and recorded their statements and thereafter, PW.10 Inspector of Police after completing the investigation filed a final report. https://hcservices.ecourts.gov.in/hcservices/ 3. The case was taken on file in SC.No.106/2002 by the learned Additional Sessions Court, Nagapattinam and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 10 witnesses and also relied on Exs.P1 to P7 and 1 Material Object. 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.M.Prakash, the learned counsel for the Appellant would submit; (1) that there was no acceptable evidence to show that PW.1, PW.5 and PW.6 were working in the wine shop and the narration of the incident by those witnesses could not have been occured in the manner as projected by the Prosecution; (2) that even according to PW.1, the place of occurrence was in front of ATR Lodge and not in front of Raavana Wines and that the Prosecution was not placing the true story before the court. (3) that the Appellant had neither motive nor the intention to commit murder of PW.1 (4) that the motive behind the false implication of the Appellant was because he objected to the illegal bar run by PW.4; the injury sustained by PW.1 in some other occurrence was used to wreck vengeance against the Appellant. 8. A case of this nature should be given a holistic approach. PW.1, PW.5, PW.6 and Jothi Basu were working in PW.4's Wineshop. There is no material elicited from the evidence of those witnesses that they were not the employees of the said wine shop. The genesis of the occurrence is that the accused wanted PW.1 to give a quarter bottle for a lesser price which was refused by PW.1 and enraged by this, the Appellant had attacked PW.1 with a broken soda bottle. PW.1 has been seriously injured and PW.5 had taken him to the Nagai Government Hospital which is evident from the PW.2's [Doctor] evidence. Therefore, the contention that PW.1, https://hcservices.ecourts.gov.in/hcservices/ PW.5 and PW.6 are not the employees of the wine shop merits no consideration. 9. The occurrence had taken place on the eastern side of the shop that is opposite to the ADR Lodge. In Ex.P2 observation mahazar the blood stain has been noted on the eastern wall of the Ravana Wines. PW.1 has categorically stated that when the Appellant kicked him he came out of the shop and he was attacked with a broken soda bottle by the accused only outside the wine shop. Hence, there cannot be any doubt with regard to the place of occurrence and the consistent evidence let in by the Prosecution would undoubtedly prove that PW.1 was attacked outside the wine shop on its eastern side. 10. The FIR was lodged almost immediately in the Nagai Government Hospital by one Jothi Basu who is now in abroad. PW.2 stated that PW.1 was not in a position to speak clearly due to the grievous injury sustained by him. PW.9 Sub Inspector of Police who registered the case has stated that since PW.1 was unable to speak, Jothi Basu one of the co-employees gave the complaint at abut 12.30 a.m. in the early morning on 7.10.2000 that is within two hours from the time of occurrence. Jothi Basu could not be examined as he is not available in India. In any event, the fact that a report had been lodged by him which prompted the investigating officer to register a case so as to enable him to start the investigation is not in dispute. 11. Though PW.4's evidence indicated that he was not present at the time of occurrence, but he has spoken to the fact that PW.1, PW.5 and PW.6 were his employees. He has stated that on hearing that the accused had stabbed PW.1, he immediately rushed to the wine shop and took him to the hospital. Whereas PW.5 and PW.6 have witnessed the incident and they supported the Prosecution case in entirety. That apart, PW.1 being an injured witness there was hardly any possibility on the part of PW.1 to implicate the Appellant falsely. 12. The medical evidence corroborates the Prosecution case. PW.2 has stated that there were three injuries, but all those injuries are likely to be caused by one stab with a broken soda bottle. Indisputably, a broken soda bottle will have different sharp edges and when it is forced on the neck of a person, it will cause corresponding injuries. In the cross examination, PW.2 has made it clear, which is extracted below:- ",e;j 3 fha';fsk; xnu Fj;jpdhy; Vw;go tha;g;g[ cs;sJ/ ,e;j 3 fha';fSk; xd;Wf;bfhd;W bjhlh;gpilah fha';fs;/ xnu Fj;jpdhy; ,e;j 3 fha';fSk; Vw;gl;ljhy; ,itfs; xd;Wf;bfhd;W bjhlh;g[ila fha';fs; vd;W Twfpnwd;/@ 13. The first injury which had severed the carotid artery https://hcservices.ecourts.gov.in/hcservices/ is said to be the grievous injury. So apart from the evidence of PW.1, PW.5, PW.6 which are sufficient to bring home the charge as against the Appellant herein, it may be noted that PW.4 has to some extent supported the case of the Prosecution. 14. The submission made by the learned counsel for the Appellant that there was no prior motive or premeditation for the attack by the Appellant requires favourable consideration as the entire incident had taken place in a heat of passion when PW.1 refused to give brandy at the cost requested by the Appellant. There is no prior enmity between them. It cannot also be said that his intention was to kill him. Though Doctors PW.2 and 3 have stated before the court that the injured was unable to use his right limbs properly, but they did not say that the injuries were sufficient in the course of nature to cause death. 15. Having regard to the evidence on record, the Appellant is liable to be convicted under Section 326 of IPC and not under Section 307 of IPC. Hence,the conviction against the Appellant is altered to one under Section 326 of IPC and imposition of sentence is modified to 2 years Rigorous Imprisonment. In view of the nature of injuries suffered by PW.1, a fine of Rs.500/- appears wholly inadequate. From the injuries suffered by PW.1 it is evident that though the Appellant did not intend to kill him altogether but he had surely crippled him for a life time. In my opinion, the Appellant must be imposed a fine of Rs.5000/- apart from Rs.500/ already imposed. 16. In the result, this Criminal Appeal is partly allowed. The conviction is modified into one under Section 326 of IPC and the Appellant is sentenced to undergo two years Rigorous Imprisonment and to pay a fine of Rs.5000/- in addition to Rs.500/- in default to undergo six months Rigorous Imprisonment. On realisation of the amount of fine of Rs.5000/-, it shall be paid to PW.1 as compensation under Section 357 of Code of Criminal Procedure. 17. It is seen from the records that the Appellant had been enlarged on bail by this court. The bail granted in favour of the appellant is cancelled and the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the unexpended period of sentence. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Srcm https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Additional Sessions Judge, Nagapattinam. 2. -Do- Thro The principal Sessions Judge, Nagapattinam. 3. The Public Prosecutor, High Court, Madras 4. The Additional Judicial Magistrate, Nagapattinam. 5. -Do- Thro The Chief Judicial Magistrate, Nagapattinam. 6. The Inspector of Police, Velankani 7. The Director General of Police, Mylapore, Chennai-4 8. The District Collector, Nagapattinam. +1 cc to Mr.R.Srinivas, Advocate, SR.No.61492 Order in Crl.A.No.1027/2002 NG {CO} TP/25.11.2009. https://hcservices.ecourts.gov.in/hcservices/