B A I L S L I P That the Appellants/Accused namely Sakthivel and Parthiban were directed to be released on bail made in Criminal MP.No.4075/2003 dated 24.4.2003 in Crl.A.No.711/2003 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.2.2011 Coram The Hon'ble Mr. Justice A.ARUMUGHASWAMY Criminal Appeal No.711 of 2003 1. Sakthivel 2. Parthiban ... Appellants/Accused 1 and 2 Vs. State rep. by Inspector of Police Chevvapet Police Station ... Respondent/Complainant Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the I Additional Sessions Judge cum Chief Judicial Magistrate, Salem in S.C.No.308 of 2002 dated 31.3.2003. For Appellant :- Mr.V.Parthiban For Respondent:- Mr.S.Kumanan Govt. Advocate (Crl.Side) JUDGMENT The appellants/accused 1 and 2 stand convicted for the offence under Sections 304 Part II read with 34 IPC and 326 read with 34 IPC and sentenced to undergo rigorous imprisonment for ten years and rigorous imprisonment for three years and to pay a fine of Rs.1000/- each in default to undergo rigorous imprisonment for six months by the judgment of the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Salem in S.C.No.308 of 2002 dated 31.3.2003. The sentences imposed on the accused were directed to run concurrently. Challenging the said conviction and sentence, the appellants have come forward with the present appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution is that the deceased Rajeshkanna, A1 and P.W.2 were doing business in sago under the name and style of J.S.R, in which they were all partners. Subsequently, since some dispute arose between them, the deceased and P.W.2 left A1 and started their own business. A1 and A2 alone were doing the said business . When the deceased and P.W.2 urged A1 to settle the accounts, A1 asked them to come on 26.4.2001 so that the accounts could be settled. A1 asked P.W.1 also to come on 26.4.2001. On 26.4.2001 at 9.30 p.m., when P.W.1 went to the shop of A1, the deceased, P.W.2 and A1 were present. During such settlement of accounts, it was found that A2 Sakthivel was liable to pay a sum of Rs.3.5 lakhs to the deceased and P.W.2. When they demanded A1 to settle the amount, A1 took patta knife from the drawer and attacked the deceased. A2 also attacked the deceased and P.W.2 with knife. P.W.2 was taken to Hospital by P.W.5 one Kannan. The deceased was taken to Gokulam Hospital by P.W.1 and then the deceased was taken to Government Hosptial, where the Doctor declared the deceased Rajeshkhanna dead. Thereafter P.W.1 gave a complaint to the Chevvapet Police Station. P.W.11 Sub Inspector of Police registered a case in Cr.No.340 /2001 under Sections 302, 307 IPC and prepared Ex.P15 FIR. On receipt of the copy of the FIR, P.W.12 the Inspector of Police, took up investigation, proceeded to the scene of occurrence at 2 a.m. and prepared an observation mahazar Ex.P3 and a rough sketch Ex.P16. He completed the investigation and laid the charge sheet against the accused under Sections 302 and 307 read with 34 IPC. 3. Before the trial court on the side of the prosecution P.Ws.1 to 12 were examined, Exs.P1 to P17 were filed and M.Os. 1 to 18 were marked. On the side of the defence, D.Ws 1 to 4 were examined, Exs.D1 to D16 were filed and M.Os. 1 and 2 were marked. 4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, the accused denied their complicity. The trial court on consideration of the oral and documentary evidence convicted the appellants and sentenced them as stated above. 5. As there was no representation on behalf of the appellants, notice was issued to the learned counsel for the appellant who reported no instructions. Even though notice was taken to the accused, there was no representation for the appellants. Hence Mr.Parthiban was appointed as legal aid counsel and he has appeared in this matter. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned legal aid counsel for the appellants contended that A1 also sustained grievous injuries, but no investigation has been made as regards the injuries caused to A1. Therefore, he submitted that lesser punishment can be given. Even though he raised variouis grounds against the sentence imposed by the trial court, at the time of arguments, the learned counsel appearing for the appellant confined his argument only with respect to the quantum of punishment alone and prayed for leniency in the sentence. 7. The learned Government Advocate (Criminal Side ) has no objections for the same. 8. From the records it is seen that during the incident, the deceased and other persons attacked the accused and in this regard no investigation was made. D.Ws.1 to 4 have spoken about the injury caused to A1. P.W.2 Jai Ganesh has given dying declaration before D.W.1 Judicial Magistrate,. D.W.4 Doctor in his evidence would state that A1 sustained fracture on his nose, which was grievous in nature and A1 also sustained simple injuries. D.W.4 Doctor in his evidence would state that A1 sustained fracture on his nose, which was grievous in nature and A1 also sustained simple injuries. He would further state that as A1 complained of pain, he sent him for taking X ray. D.W.4 would also state that A2 also sustained simple injuries. D.W.2 Doctor in his evidence would state that A1 sustained nose injury and he took X ray of the nose injury and gave Ex.D5 report . From the above materials, I am of the view that the investigation has not been properly made and the injury caused on the accused has also not been considered. Without considering this aspect, the trial court has convicted the accused for the offence under Sections 304 Part II read with 34 IPC and 326 read with 34 and sentenced them to undergo 10 years rigorous imprisonment under Section 304 Part II IPC read with 34 and two years under Section 326 read with 34 IPC. I am of the view that the sentence of ten years rigorous imprisonment under Section 304 Part II IPC is on the higher side. 9. Considering the fact that the A1 also suffered grievous injuries and further the accused have to maintain their families, I am of the view that in order to meet the ends of justice, the sentence imposed by the trial court under Section 304 Part II read with 34 IPC could be reduced to seven years and accordingly sentence is modified into seven years of rigorous imprisonment instead of 10 years. In other respects the conviction and sentence imposed by the trial court under Section 326 read with 34 IPC is confirmed. https://hcservices.ecourts.gov.in/hcservices/ 10. With the above modification, the appeal stands dismissed. The counsel appearing for the accused is entitled to get remuneration from the Tamil Nadu Legal Services Authority, Chennai. Krr/ Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The I Additional Sessions Judge cum Chief Judicial Magistrate, Salem 2.The Public Prosecutor High Court, Chennai. 3.The Inspector of Police Chevvapet Police Station, Salem. 4.The Judicial Magistrate No.II, Salem. 5.The Principal Sessions Judge, Salem. 6.The Superintendent, Central Prison, Coimbatore. + 1 cc to Mr. V. Parthiban, Advocate SR No.11980 TRM(CO) SR/16.3.2011 Crl.A.No.711 of 2003 https://hcservices.ecourts.gov.in/hcservices/