IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.824 of 2007 Dhanasekar @ Attumavoo .. Appellant/Accused A1 vs State Rep. By Inspector of Police Puliyanthoppu Police Station Puliyanthoppu, Chennai Crime No.246/2004 .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.III, Chennai, in S.C.No.303 of 2006 dated 19.1.2007. For Appellant : Mr.P.Venkatasubramanian For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.III, Madras, made in S.C.No.303 of 2006 whereby the appellant shown as A-1, along with one Venkatesan shown as A-2, stood charged, tried and found guilty under Sections 341 and 302 read with 34 of IPC and awarded one month Simple Imprisonment for the first charge and life imprisonment along with a fine of Rs.1000/- and default sentence for the second charge. Though A-2 was found guilty, he has not preferred any appeal. 2. The short facts necessary for the disposal of this appeal could be stated thus: (a) P.W.1 Masthan, was carrying on his business in meat. His son by name Raguman was the deceased in the case, and the other son P.W.4 was also in that trade. The deceased Raguman had developed illicit intimacy with the mother of A-1 and A-2, and the same was brought to the notice of P.W.1. Despite the warning given by P.W.1, the deceased continued to have the illicit intimacy. On the date of occurrence namely 18.4.2004, at about 9.30 A.M., A-2 came to the place where Raguman was carrying on his business. He wanted to purchase the goat which was found dead, and there was a quarrel https://hcservices.ecourts.gov.in/hcservices/ in the purchase of the same. At that time, immediately, uttering the words "the deceased was interfering in the family affairs and also in the business", A-2 instigated his brother A-1 who is the appellant herein, to cut him. Immediately, A-1 took a knife from his shop and attacked him on different parts of the body. This was witnessed by P.Ws.2, 3 and 4. Both the accused fled away from the place of occurrence. (b) P.Ws.1 and 3 immediately took the severely injured Raguman in an auto and proceeded to the respondent police station. P.W.14, the Head Constable, attached to the respondent police station, who came out of the police station, on seeing the deceased Raguman in a serious condition advised them to take him to the hospital. Accordingly, he also accompanied them to the hospital. (c) P.W.13, the Doctor, who was on duty, admitted him, and subsequently, the treatment was given by P.W.16, the Doctor. Ex.P10 is the accident register copy. Thereafter, P.W.1 returned to the police station and gave a report, Ex.P1, to the Sub Inspector of Police, P.W.15, who on the strength of Ex.P1 registered a case in Crime No.243 of 2004 under Sections 341, 109 and 307 of IPC. The printed FIR, Ex.P7, was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.17, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P12, and a rough sketch, Ex.P11. All the material objects were recovered from the place of occurrence. Despite the treatment, Raguman died. On intimation, the case was altered to Sec.302 of IPC. The express report, Ex.P14, was sent to the Court. Then, he conducted inquest on the dead body of Raguman in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P15. Further, a requisition, Ex.P4, was given by the Investigator to the hospital authorities for the purpose of autopsy. (e) P.W.9, the Professor and HOD, Department of Forensic Medicine, Stanley Medical College and Hospital, Chennai, on receipt of the said requisition, conducted autopsy on the dead body of Raguman and has issued a postmortem certificate, Ex.P6, with his opinion that the deceased would appear to have died of cut injuries to the neck. (f) Pending the investigation, A-1 was arrested on 2.5.2004 when he volunteered to give a confessional statement, which was recorded in the presence of two witnesses, and the admissible part is marked as Ex.P18. Consequent upon the same, he produced M.O.1, knife (vettukathi), which was recovered under a cover of mahazar, Ex.P19. Thereafter, he was sent for judicial remand. A-2 who was arrested in connection with Crime No.377 of 2004, was shown arrest in this case, and he gave a confessional statement which was recorded. He was sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and also the weapon of crime M.O.1, knife, were subjected to chemical analysis which resulted in the reports, Ex.P5, the serologist's report, Ex.P7, the chemical analyst's report, Ex.P8, https://hcservices.ecourts.gov.in/hcservices/ the Biological report, and Ex.P21, the serologist's report. On completion of the investigation, the Investigating Officer filed the final report. 3. The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 21 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, both the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty as per the charges and awarded the punishment as referred to above. Hence, this appeal at the instance of the appellant who was A-1 before the trial Court. 4. Advancing arguments on behalf of the appellant, the learned Counsel Mr.P.Venkatasubramanian would submit that according to the prosecution, the occurrence has taken place at about 9.30 A.M. on 18.4.2004; that it was claimed by the prosecution that the case was registered originally under Sec.307 of IPC in Crime No.243 of 2004 by the respondent police at about 10.30 A.M.; that it is highly doubtful whether Ex.P1, the report, could have been given as claimed by P.W.1 and also the FIR could have come into existence as put forth by the prosecution since there are number of inconsistent versions available from the evidence of the witnesses; that according to P.W.1, from the place of occurrence, he first proceeded to the police station along with the injured, and therefrom he took him to Stanley Hospital, and thereafter, he again went to the police station and gave a report; that when he gave the report, it was well within his knowledge that his son Raguman already died; that according to the prosecution, P.W.4 was the person who took P.W.1 and also the injured in the auto to the police station; that according to him, he directly went to Stanley Hospital and after only admitting the deceased at the hospital, they proceeded to the police station; that according to P.W.14, P.W.1 came to the place along with the injured, and he accompanied them to Stanley hospital and thereafter, they came to the police station, and a report has been received; and that all put together would go to show that Ex.P1, the report, and the consequent FIR could not have come into existence as put forth by the prosecution. 5. Added further the learned Counsel that in the instant case, though the case was registered under Sec.307 of IPC at about 9.30 A.M. and subsequently it was altered to Sec.302 of IPC at 3.00 P.M. on the death of Raguman, both the FIRs have reached the Judicial Magistrate at the same time namely at 10.20 P.M. on that day; that if really a case was registered at 9.30 A.M. and it was subsequently altered to Sec.302 of IPC, the delay should not have been caused; that this would be telling that the case could not have been registered as put forth by the prosecution; that further in the instant case, the evidence put forth by the witnesses regarding the occurrence, was highly discrepant; and that all would https://hcservices.ecourts.gov.in/hcservices/ go to show that the prosecution has miserably failed to prove its case. 6. Added further the learned Counsel in the second line of his argument that even as per the prosecution case, the deceased Raguman had illicit intimacy with the mother of A-1 and A-2, and it was also brought to the notice of P.W.1, the father of the deceased, and despite the warning, he continued to have the same; that apart from that, even as per the evidence adduced by the prosecution, at the time of the occurrence, in the purchase of the dead goat, there was a quarrel between A-2 and also the deceased; that in that process, A-1 has acted so; that it is pertinent to point out that A-1 is also the brother of A-2, with whose mother the deceased had got illicit intimacy; that being provoked by the circumstances in a sudden quarrel, he has acted so, and hence, the act of the appellant would not attract the penal provisions of murder, but it would be culpable homicide not amounting to murder, and this aspect has got to be considered by this Court. 7. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious attention over the same. 8. It is not in controversy that the son of P.W.1 namely Raguman, in an incident that took place at 9.30 A.M. on 18.4.2004 in his business place was taken to the hospital and despite the treatment given, he succumbed to the injuries on the very day. Originally, the case was registered under Sec.307 of IPC, and subsequently, it was amended on his death to Sec.302 of IPC. Following the inquest made by the Investigator, P.W.17, the dead body was subjected to postmortem by P.W.9, the Doctor, who has given a categorical opinion as a witness before the Court and also through his postmortem certificate marked as Ex.P6, that Raguman died of cut injuries to the neck. Contrary contentions were not raised by the appellant's side either before the trial Court or before this Court, and hence no impediment is felt in recording that Raguman died out of homicidal violence. 9. In order to substantiate the fact that it was A-1, the appellant before this Court, attacked Raguman with a knife (vettukathi) at the instigation of his brother who is shown as A-2, the prosecution examined P.Ws.1, 2 and 3 as eyewitnesses. It is true that P.W.1 is the father; but, P.Ws.2 and 3 are independent witnesses. All the three witnesses have spoken in one voice that the deceased Raguman had developed illicit intimacy with the mother of the accused persons, and despite the warning by P.W.1, he continued the same, and on the date of occurrence, in the bargain made by A-2 for the purchase of the dead goat, there was a quarrel between A-2 and the deceased. At that juncture, it was A-2, who instigated his brother A-1 to cut him. Immediately, A-1 rushed to his shop nearby, took M.O.1, knife, and attacked him indiscriminately and caused his death. This ocular testimony stood fully corroborated by the medical evidence. Apart from that, yet another circumstance noticed by the Court, is the recovery of M.O.1, knife, pursuant to the confessional statement voluntarily given by A-1/appellant and also recorded by the Investigator, and https://hcservices.ecourts.gov.in/hcservices/ the evidence in that regard also remained unshaken. All put together would clearly be pointing to the complicity of A-1 in attacking Raguman at the time and place of occurrence. 10. Now, the contentions put forth by the learned Counsel for the appellant remain to be considered. The first contention that there was discrepancy in Ex.P1, the report, which would go to the root of the matter cannot be countenanced. The occurrence has taken place at about 9.30 A.M. in the business place of the deceased. The occurrence was witnessed by P.Ws.1, 2 and 3. From the evidence of the witnesses, it would be quite clear that immediately from the place of occurrence, Raguman was taken in a serious condition to the Police Station in an auto, and the Head Constable of the Police Station examined as P.W.14, came out of the Station, and on looking at the serious condition, he also accompanied P.W.1 and the injured to Stanley Hospital, where he was admitted by P.W.13, the Doctor. P.W.16 gave treatment to him. The accident register copy is also given, and thus the earliest document in the entire case is the accident register copy which has come into existence even before the case was registered under Sec.307 of I.P.C. in Crime No.243 of 2004. From the evidence of P.W.16, it would be quite clear that Raguman was not admitted in the hospital pursuant to a police memo, but he was actually admitted by P.W.1. Thus, it would go to show that though seriously injured Raguman was taken to the police station, no information was given; but, the Head Constable who came out of the police station, in view of the serious condition, accompanied Raguman and P.W.1 to the hospital. From the evidence of P.W.1, it would also be quite evident that thereafter, he came to the police station and gave a report, Ex.P1, on the strength of which a case came to be registered under Sec.307 of I.P.C. At the time when Ex.P1 was given by P.W.1 at the respondent police station, Raguman was alive. Only thereafter, when P.W.1 went to the hospital, he came to know about the factum of death of Raguman, and thereafter, the case was altered to Sec.302 IPC. As far as Ex.P1 is concerned, it leaves no doubt in the mind of the Court and therefore, that contention has got to be rejected. 11. As far as the other contention that the FIR under Sec.307 IPC and the amended FIR under Sec.302 IPC both have reached the Court on that day, and there was a delay is concerned, it is true that originally the case was registered under Sec.307 IPC, and subsequently P.W.17, the Inspector of Police, took up the matter for investigation, proceeded to the spot, made an inspection, enquired the witnesses and recorded their statements, and thereafter, the death intimation of Raguman was received from the hospital. Then, the case was altered to Sec.302 of IPC. Once the case was altered to Sec.302 IPC, the same Police Officer took up further investigation, enquired the witnesses and also conducted the inquest and prepared the inquest report. Thereafter, a requisition was given for the purpose of postmortem. Once it was amended to Sec.302 of IPC, even before the FIR under Sec.307 IPC was despatched to the Court, the police thought it fit that both should go together by which no infirmity or flaw is noticed by the Court. As regards the delay, since the FIR under Sec.302 IPC was made at about 3.00 P.M., it has reached the Court on that day by https://hcservices.ecourts.gov.in/hcservices/ 10.20 P.M. In the instant case, this delay which has taken place in the natural course of events, would, in the considered opinion of the Court, in no way affect the case of the prosecution. Therefore, the contentions put forth by the learned Counsel for the appellant do not merit acceptance in respect of the factual position, and they are liable to be rejected and accordingly rejected. Thus it can be held that the prosecution has proved that at the instigation of A-2, A-1 has attacked the deceased with M.O.1, knife, and caused his death as a direct consequence, and the prosecution was successful enough in proving the factual position. 12. Insofar as the second line of argument put forth by the learned Counsel for the appellant, this Court is able to see force in the same. In the instant case, even according to the prosecution, the deceased Raguman developed illicit intimacy with the mother of A-1 and A-2, and despite the warning given by P.W.1, he continued to have the same. On the date of occurrence also, in the purchase of dead goat, there was a quarrel between the deceased and A-2, and in that process, A-2 has uttered the words "he was creating problem both in the family and also in the business", and hence he instigated A-1 who happened to be the brother of A-2 and also the son of the deceased lady with whom the deceased developed illicit intimacy, to kill him. Under the circumstances, being provoked, A-1 immediately took a knife and cut him. It was due to the quarrel and also sudden provocation, and hence the act of A-1 would not attract the penal provision of murder, but it would attract the provisions of Sec.304 (Part I) of IPC and awarding 7 years Rigorous Imprisonment would meet the ends of justice. 13. Accordingly, the conviction and sentence imposed by the trial Court under Sec.341 of IPC are confirmed. The conviction and sentence of life imprisonment under Sec.302 read with 34 of IPC are set aside, and instead, the appellant/A-1 is convicted under Sec.304 (Part I) of IPC for which he is directed to suffer seven years Rigorous Imprisonment. The fine amount and the default sentence imposed by the trial Court, will hold good. 14. With the above modification in conviction and sentence, this criminal appeal is dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT NO.III, CHENNAI. 2. THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHENNAI. https://hcservices.ecourts.gov.in/hcservices/ 3. THE SUPERINTENDENT OF PRISON, CENTRAL PRISON (CONVICT) PUZHAL, CHENNAI-6. 4. THE DIRECTOR GENERAL OF POLICE, CHENNAI. 5. THE DISTRICT COLLECTOR, CHENNAI. 6. THE INSPECTOR OF POLICE PULIYANTHOPPU POLICE STATION PULIYANTHOPPU CHENNAI CR.246/2004. 7. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. CRL.A.No.824 of 2007 NTK (CO) GSK 18.11.2008. https://hcservices.ecourts.gov.in/hcservices/