IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 03.12.2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRL.A.No.503/2009 1.Madhavan 2.Murugaiyan .. Appellants/A1 & A3 Vs State by the Inspector of Police Periyathatchur Police Station Villupuram District. .. Respondent / Complainant [Cr.No.134 of 2008] Appeal filed u/s.374[2] Cr.P.C., against the Judgment dated 07.08.2009 passed by the learned Additional District and Sessions Judge [FTC-I], Tindivanam in SC.No.22 of 2009. For Appellants : Mr.S.Ashok Kumar, SC for Mr.P.Palaninathan For Respondent : Mr.Babu Muthu Meeran, Addl. Public Prosecutor JUDGMENT [Judgment of the court was delivered by M.CHOCKALINGAM, J.] This appeal challenges the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.1, Viilupuram District made in SC.No.22/2009 dated 07.08.2009 whereby the accused stood charged and tried and the appellants/A1 and A3 were found guilty for the offence u/s.302 and 302 read with 34 IPC respectively and were awarded the punishment of life imprisonment while A2 was acquitted from the charge by the trial court. 2.Short facts necessary for the disposal of the appeal can be stated as follows:- [a]P.Ws.1 and 3 are the sons of the deceased Perumal, P.W.2 is the wife of the deceased and all are the residents of Rettanai village. The family of P.W.1 and the accused had their lands adjacent to each other and in between their lands, there was a common https://hcservices.ecourts.gov.in/hcservices/ ridge over which they had a long standing quarrel. On 19.05.2008, i.e., the day of occurrence, at about 8.00 a.m., the deceased accompanied by P.W.1, went to the field and was carrying on the agricultural operations. At that time, A1 was placing thorns on the common bund. The same was questioned by P.W.1 following which there was a scuffle between A1 and P.W.1. Immediately, A1 went to his house and brought his father and brother who are A2 and A3 respectively and all of them were armed with wooden logs. On reaching the scene of occurrence, A2 quarreled with the deceased and pushed him down. A1 assaulted the deceased with wooden log-M.O.1, on the left side of the head while A3 assaulted the deceased with M.O.2- Wooden log on the left chest. The victim fell down dead and all the accused fled away from the scene. The said incident was witnessed by P.Ws.1 to 3. [b]P.W.1 went to the respondent Police Station where P.W.10, the Sub-Inspector of Police was on duty at the relevant point of time and received the complaint of P.W.1 under Ex.P.1 and on strength of which, registered a case in Cr.No.134/2008 for the offences u/s.302 IPC. Ex.P.6, the Express FIR was despatched to the court. [c]P.W.12, the Inspector of Police, took up further investigation, went to the scene of occurrence, prepared an Observation Mahazar-Ex.P.2 and a rough sketch-Ex.P.8 in the presence of witnesses; examined the witnesses and recorded their statements. He also recovered M.Os.3 and 4-blood stained earth and sample earth respectively under a cover of Mahazar-Ex.P.3. He also held inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.9, the Inquest Report. He also sent the dead body for postmortem along with a requisition. [d]P.W.11, the doctor attached to the Government Hospital, Tindivanam, received a requisition from the Inspector of Police on 20.05.2008 and conducted autopsy on the dead body of the deceased at about 11.45 a.m. P.W.11 also issued Ex.P.7, the Post Mortem Certificate wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to head injury sustained by him. [e]In continuance of the investigation, on 20.05.2008 at about 4.00 p.m. the Inspector of Police arrested the accused 1 to 3 in the presence of witnesses and A1 voluntarily came forward to give a confessional statement, the admissible part of which is marked as Ex.P.4 pursuant to which M.Os.1 and 2 [wooden logs] were recovered in the presence of witnesses under a cover of Mahazar, Ex.P.5.The accused were sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and the material objects recovered pursuant to the confessional statement of A1, were subjected to chemical analysis pursuant to requisition. https://hcservices.ecourts.gov.in/hcservices/ [f]On completion of investigation and filing of the final report, the case was committed to Court of sessions; and necessary charges were framed and in order to substantiate the charges, the prosecution examined 12 witnesses [P.Ws.1 to 12], marked 9 exhibits [Exs.P.1 to 9] and produced 5 material objects [M.Os.1 to 5]. 3.When the accused were questioned u/s.313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution against them, they denied them as false and on the side of the accused, D.W.1, doctor, was examined and 4 exhibits, viz., Ex.D.1 to 4 were marked Hearing the arguments advanced on either side and also considering the materials available, the trial court took a view that the prosecution has proved its case beyond reasonable doubt and thus, rendered the judgment of conviction and sentence as against the appellants as stated supra and acquitted A2 from the charge. As against the said conviction and sentence, the accused/appellatns [A1 and A3] have preferred the above appeal. 4.Advancing the arguments on behalf of the appellants/A1 and A3, the learned senior counsel for the appellants would submit that in the instant case, the prosecution has miserably failed to prove its case beyond reasonable doubt. It is true that the prosecution has examined P.Ws.1 to 3 as eyewitnesses to the occurrence. P.Ws.1 and 3 are the sons of the deceased and P.W.2 is the wife of the deceased and as such, they are interested witnesses and their evidence should not be believed. It is also contended that the prosecution has suppressed all the material facts which were necessary for coming to a right conclusion. According to the prosecution, the occurrence is said to have taken place at about 8.00 a.m. on 19.05.2008 and all the accused came to the scene armed with wooden logs and A2 pushed the deceased down and A1 and A3 assaulted the deceased with wooden logs and the deceased succumbed to the injuries. But, it is pertinent to point out that A1 and A2 also sustained injuries in the said occurrence. According to the prosecution, immediately after the occurrence, P.W.1 went to the Police Station and gave a complaint at about 12.30 p.m. But, even prior to that A3 went to the respondent Police Station and gave a complaint against the prosecution parties. But, no case was registered and the complaint was treated by way of petition and after the registration of the case at the instance of P.W.1 under Ex.P.1 on 19.05.2008, a case was registered in Cr.No.135/2008 at the instance of A3 on the next day, i.e., 20.05.2008. 5.Learned Senior counsel contended that the prosecution has failed to produce all the relevant and necessary records and documents including the FIR in respect of the case registered at the instance of A3. But, it was the accused who marched DW.1-Doctor as a witness on their side, who gave treatment to A1 and A2 and marked the Accident Registers, viz., Ex.D3 and D4, FIR in Cr.No.135/2008 as Ex.D2 and the complaint of A3 as Ex.D1 and as such, the prosecution https://hcservices.ecourts.gov.in/hcservices/ has thoroughly suppressed all the above documents, viz., Exs.D1 to D4. 6.Learned Senior counsel would further contend that P.Ws.1 to 3 though claimed to be the eyewitnesses to the occurrence, they have not whispered anything about the injuries sustained by A1 and A2 and equally, there is no whisper about A1 and A2 sustaining injuries in the complaint-Ex.P.1. All would go to show that the prosecution has miserably failed to place the required materials before the court to find out the truth of the case. The learned senior counsel submitted that the medical opinion canvassed through the doctor did not corroborate with the ocular testimony. As could be seen from the available materials, there was a free fight between the parties in which course, A1 and A2 sustained injuries and the non-explanation of the injuries sustained by A1 and A2 was fatal to the prosecution case. Under such circumstances, the prosecution has failed to prove the genesis of the occurrence and thus, it is a fit case where the trial court ought to have acquitted the accused but failed to do so. 7.The learned senior counsel in the second line of argument would contend that even assuming that the prosecution has proved that it was the accused who caused the death of the deceased, their act would not attract the penal provision of murder. Even according to the prosecution case, when A1 went to the spot and placed thorns on the common bund, there was a quarrel between P.W.1 and A1 at first and thereafter, A1 accompanied by A2 and A3, went to the scene and again there was a quarrel between the deceased and A2 and in a heat of passion, they have attacked the deceased. Since, there was a free fight and provocation following which there was sudden quarrel, it cannot be said that A1 to A3 had got any intention or common intention to cause the death of the deceased. Hence, the penal provision of murder would not be attracted and this legal position has got to be taken into consideration by this court. 8.Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made on either side. 9.It is not in controversy that one Perumal, the husband of P.W.2, following an incident that took place at about 8.00 a.m. on 19.05.2008, was done to death in his fields. Following the registration of the case in Cr.No.134/2008 for the offence u/s.302 IPC, the investigation was taken up by the Inspector of Police, P.W.12 and after conducting the inquest, the dead body was sent for postmortem. P.W.11-the doctor attached to the Government Hospital, Tindivanam, has given his opinion that the deceased would appear to have died of shock and haemorrhage on account of head injury sustained by him. The doctor has given his opinion as a witness before the court and also through Ex.P.7-the Post Mortem Certificate to that effect. The death of the deceased due to homicidal violence, as put forward by the prosecution was never disputed by the https://hcservices.ecourts.gov.in/hcservices/ appellants before the trial court or before this court and the trial court did not feel any impediment in recording so and it has got to be affirmed. 10.In the instant case, in order to substantiate the acts of the accused, the prosecution examined P.Ws.1 to 3 as eyewitnesses before the trial court. It is not in controversy that there was a common ridge in between the lands of the parties and they were on the warpath in the long past and on the date of occurrence at about 8.00 a.m., it was A1 who first placed thorns on the ridge and the said act of A1 was questioned by P.W.1. It is also true that admittedly, there was a quarrel between P.W.1 and A1 at that time and immediately, A1 went to his house and brought A2 and A3 and committed the offence. At this juncture, the contention made by the learned senior counsel appearing for the appellants that the prosecution failed to bring to the notice of the court, the genesis of the occurrence, cannot be accepted. From the narration of the case and also from the materials placed before the court, the genesis of the occurrence was very clear. At the time of occurrence, A2 pushed the deceased down and according to the prosecution, it was A1 who attacked the deceased with wooden log-M.O.1 on head and A3 attacked the deceased with M.O.2-wooden log on the left chest. As could be seen from the Post Mortem Certificate-Ex.P.7, the doctor, P.W.11 has opined that the deceased had died out of shock and haemorrhage due to the head injury sustained by him. This injury, viz., the head injury, was actually caused by A1. Insofar as the injury caused by A3, it could be seen from Ex.P.7 that a contusion on the left chest about 20 x 20 cm, red in colour with peeling of skin was found, which would go to show that the said injury was caused by A3. Thus, the medical opinion canvassed through P.W.7 was actually in support of the prosecution case since it fully corroborates with the ocular testimony projected through the evidence of P.Ws.1 to 3. 11.The next contention raised by the learned senior counsel is that it was A3 who went to the respondent Police Station first and gave the complaint and then only P.W.1 gave Ex.P.1-complaint but the said complaint of A3 came to be registered on the next day morning, i.e., 20.05.2008. It is also contended that A1 and A2 were also injured in the said occurrence and their Accident Register copies were marked under Ex.D.3 and D.4 respectively. It is pertinent to point out that insofar as the complaint given by A3, the same came to be registered on the next day morning only. It is true that the FIR- Ex.D2 is also available for the defence. But, the injuries that were sustained by A1 and A2, as could be seen from Exs.D3 and D4, were only that of pain and both were treated as Out-Patients and the injuries are simple and superficial. Hence, the contention of the learned senior counsel in that regard cannot be given much credence and it cannot be stated that the prosecution has failed to give any explanation for the injuries sustained by the accused 1 and 2. It is well settled proposition of law that in every case, the prosecution need not explain the injury sustained by the accused and that too, in https://hcservices.ecourts.gov.in/hcservices/ a given case like this, where the injury is simple or superficial in nature. In the instant case, A1 and A2 were treated as Out-Patients and there was a complaint of pain only and as such, the prosecution is not duty bound to explain the so-called injuries sustained by A1 and A2. 12.Insofar as the second line of argument of the learned senior counsel that the act of the accused would not attract the penal provision of murder, from the materials available on record, it would be quite clear that there was a quarrel between the parties when the occurrence had taken place. It is true that A1 had no intention to cause the death of the deceased but his attack on the head caused the instantaneous death and thus, the act of A1 is not done intentionally to cause the death of the deceased but he should have done with the intention of causing the said injury on the head and the same was sufficient in the ordinary course of nature to cause the death, but the act was preceded by a quarrel. Hence, the act of A1 cannot be termed as murder but culpable homicide not amounting to murder and accordingly, it would attract section 304[Part I] IPC and awarding the punishment of seven years rigorous imprisonment would meet the ends of justice. 13.As far as the act of A3 is concerned, he had attacked the deceased with wooden log on the left chest and the injury is evident as noted above and A3 had no intention to cause the death or there is anything to indicate that he shared the common intention with A1. Under such circumstances, the act of A3 would attract section 326 IPC and awarding the punishment of five years rigorous imprisonment would meet the ends of justice. 14.Accordingly, the conviction and sentence imposed by the trial court on A1 under Sec.302 IPC are set aside and instead, he is convicted under Sec.304 (Part I) IPC and is directed to suffer 7 (seven) years Rigorous Imprisonment. The conviction and sentence imposed on A3 under Sec.302 r/w 34 IPC are set aside and instead he is convicted under Sec.326 IPC and is directed to undergo Rigorous Imprisonment for 5 (five) years. The period of sentence already undergone by the appellants shall be given set off. 15.In the result, with the above modification in conviction and sentence, this Criminal Appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ap To 1.The Additional District and Sessions Judge FTC-1, Villupuram District. 2.-do-Through The Principal Sessions Judge, Villupuram 3. The Judicial magistrate No.II, Tindivanam. 4. -do-Through the Chief Judicial Magistrate, Villupuram. 5. The Superintendent, Central Prison, Cuddalore 6.The Inspector of Police Periyathatchur Police Station Villupuram District. 7.The Public Prosecutor, High Court, Chennai. Judgment in Crl.A.No.503 of 2009 GV (CO) SS (14.12.2009) https://hcservices.ecourts.gov.in/hcservices/