IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRIMINAL APPEAL No.355 of 2009 Sindy ..Appellant ..vs.. State by Inspector of Police, Kothagiri Police Station, Nilgiris District. (Crime No.419 of 2007) ..Respondent Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment of the learned Sessions Judge, Nilgiris at Udhagamandalam, made in S.C.No.36 of 2007, dated 21.09.2007. For Appellant : Mr.S.Swamidoss Manokaran For Respondent : Mr.Babu Muthu Meeran, A.P.P., JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Nilgiris at Udhagamandalam, made in S.C.No.36 of 2007, whereby the sole accused stood charged, tried and found guilty under Section 302 I.P.C.and awarded the life imprisonment. 2. Short facts necessary for the disposal of the appeal can be stated thus: (a) P.W.1 is the son of the deceased. The accused and P.W.3 are the brothers of the deceased Ayyasami. They all belonged to Irula community and are the residents of Sundapatti. They partitioned their garden land. The Electricity Board erected three poles in the land on the land of the accused and one pole in the land of the accused. Hence, the deceased gave a petition to the authorities of the Electricity Board for compensation. At that time, the accused and the deceased were quarreling as to the claim of compensation. On https://hcservices.ecourts.gov.in/hcservices/ 07.08.2006 at about 3.30 PM., when P.W.1 and his mother P.W.2 along with others were sitting at the pial of the house, the accused quarreled with the deceased and cut him with a knife on his mastoid region. It was witnessed by P.Ws.1 and 2 and others also came on hearing the distressing cry of the deceased and the accused ran away from the place of crime. Immediately P.W.s.1, 3 and 4 took him to the Nilgiris Adivasi Welfare Association Hospital, Kozhikkarai, where P.W.8, the doctor on duty, immediately attended him at 4.15 PM and he noted the injuries in the case sheet given by him marked as Ex.P-9. (b) On receipt of the information, P.W.10, the Sub Inspector of Police, Kotagiri, rushed to the hospital and recorded the statement of P.W.1, which is marked as Ex.P-1, since the deceased was unconscious. P.W.10 returned to the police station and registered a case in Crime No.419 of 2006 under Sections 324 and 506(ii) IPC and the first information report, which is marked as Ex.P-12, was sent to the Court. The Sub-Inspector examined all the witnesses and recorded their statements. Despite the treatment, Ayyasami died on 08.08.2006 and an intimation was given to the police and the amended first information report was despatched to the Court. (c) P.W.11, the Inspector of Police, proceeded to the spot, made an inspection, prepared an observation mahazar Ex.P-3 and also sketch Ex.P-14 and has also caused photographs to be taken through P.W.7 and the photographs are marked as Ex.P-8 series. He also recovered M.Os.2 and 3, blood stained earth and sample earth under the cover of mahazar Ex.P-4 and M.O.4 under the cover of Ex.P-5 mahazar. Then the investigator conducted inquest on the dead body of Ayyasami in the presence of witnesses and panchayatdars and Ex.P-15 is the inquest report. Thereafter, he sent the dead body to the hospital for the purpose of post-mortem along with his requisition. (d) On receipt of the said requisition, P.W.9, doctor attached to the Kotagiri Government Hospital, conducted autopsy on the dead body of Ayyasamy and gave a post-mortem certificate, Ex.P-11 wherein she opined that the deceased would appear to have died due to vital organ injury (brain) and severe haemorrhage and shock. (e) Pending investigation, the accused was arrested on 09.08.2006 in the presence of P.W.6 and other witnesses and he gave a confessional statement and the admissible portion is marked as Ex.P- 6. Pursuant to which, he produced M.O.1 which was recovered under the cover mahazar Ex.P-7 and he was sent for judicial remand. P.W.11 sent the material objects for chemical analysis and pursuant to which, the analysis report Ex.P-18 and the serology report Ex.P-19 were actually received by the Court and on completion of investigation, P.W.11 filed the final report against the accused under section 302 I.P.C. https://hcservices.ecourts.gov.in/hcservices/ (f) The case was committed to the Court of Session, Nilgiris at Udhagamandalam and necessary charge was framed. In order to substantiate the charge, the prosecution examined 11 witnesses and also relied on 19 exhibits and 4 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant/accused guilty and awarded the punishment of life imprisonment, which is the subject matter of challenge before this Court. 3. Advancing arguments on behalf of the appellant, the learned Counsel would submit that P.W.1 is the son and P.W.2 is the neighbour of the deceased and thus, they are the interested witnesses; that it is admitted that the deceased and the accused had actually been quarreling all along; that so far as P.W.2 was concerned, he has also taken a partisan attitude and in so far as the other witnesses, after hearing the noise only, they came to the place and thus, they could not speak about the occurrence; that originally when he was taken to the hospital, it was not mentioned to the private doctor P.W.8 as to who attacked him and in the instant case, the medical opinion canvassed was not in favour of the prosecution; that the doctor who gave the initial treatment has categorically admitted in the cross examination that the injuries found on the skull could be possible by a fall on a sharp edged object; that the alleged confession and also the recovery of M.O.1 were all cooked up for the prosecution and that they are the fabricated documents and thus, the prosecution has miserably failed to prove the case. 4. Further, on the second line of arguments, the learned counsel would submit that even assuming that the prosecution has proved the factual position that it was the accused who caused his death, in the instant case, the act of the accused would not attract the penal provision of murder; that according to P.Ws.1 to 3, there was a quarrel at the time of incident and in a hit of passion, the accused could have committed the act and though it was done with the knowledge, he had no intention to cause the death and thus, it would not attract the penal provision of murder and that without considering the above aspects of the matter, the trial court has taken an erroneous view and hence he is entitled for acquittal. 5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 6. It is not in controversy that one Ayyasamy, the father of P.W.1, following an incident that had taken place at Sundapatti on 07.08.2006 at about 3.30 PM, was taken to the Nilgiris Adivasi Welfare Association Hospital, Kotagiri and thereafter, he was taken to the Government Headquarters Hospital, Nilgiris, where he died on 08.08.2006. Originally the case was registered by P.W.10, the Sub Inspector of Police, in Crime No.419 of 2006 under sections 324 and 506(ii) I.P.C. and on his death, the case was converted into section 302 I.P.C. The Inspector of Police had taken up the further investigation of the case and after conducting the inquest, the dead body was subjected to post-mortem by P.W.9, who has given a categorical opinion, as a witness before the Court and through the contents of the post-mortem certificate, Ex.P-11 that he had died of vital organ injuries sustained by him. The learned counsel, by inviting the attention of this Court to the fact that while P.W.8, who gave the initial treatment, was cross examined by the appellant before the trial Court, he had given an opinion that the injuries could have been caused by falling on a sharp edged stone, had contended that the said medical opinion, which was not in favour of the prosecution, cannot be countenanced even for a moment, for the simple reason that the injuries found on the head of the deceased, as could be evident from the post-mortem certificate Ex.P-11, were incised wounds. Therefore, in the above stated circumstances, such wounds could have been caused only by a 'vettu kathi', as put forth by the prosecution. It is true that P.W.1 is the son of the deceased, but merely on the ground of relationship, his evidence cannot be discarded, rather it has to be scrutinized carefully. P.W.2 is his neighbour and there is no reason or circumstance to disbelieve the evidence of P.W.2. The evidence of P.W.1 that when he was chatting with P.W.2 and his mother, the accused came there and attacked his father with a vettu kathi was fully corroborated by the evidence of P.W.2 in one voice. The medical evidence canvassed through the post mortem certificate also stood as a corroborative piece of evidence. Yet another circumstance against the accused is the evidence of P.W.6, which is about the recovery of M.O.1. According to him, on 09.08.2006, the accused came forward to give a confession statement voluntarily, which was recorded and on the basis of which, M.O.1 was recovered under a cover of mahazar Ex.P-7, would be pointing to the nexus of the crime of occurrence. All these things, in the considered opinion of the court, would be suffice to hold that it was the accused who had cut him on the skull and head, as a consequence of which, death was caused and hence, the contentions put forward by the learned counsel for the appellant have to be rejected and, accordingly, they are rejected. 7. In so far as the second line of arguments is concerned, the Court is of the view that there is some force in the contention. The deceased Ayyasamy and the accused are brothers. They divided their garden land. Electricity Board erected three poles in the land of the deceased and one pole in the land of the accused. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, the deceased made a petition to the Electricity Board for compensation and on that ground, there were frequent quarrels between the brothers. This is spoken to by all the witnesses and on the date of occurrence, i.e., on 07.08.2006, when P.Ws.1 and 2 were chatting, the accused came there and both the brothers had quarreled with each other as usual and P.W.3 had also heard the noise of the quarrel. In a hit of passion, the accused cut him with vettu kathi and caused the injuries. All these things would go to show that the accused had no intention to cause death and actually, he has acted in the exchange of words and hit of passion. Under such circumstances, it would not attract the penal provision of murder and instead, it would come under section 304 Part-I of the Indian Penal Code. In the considered opinion of the Court, the punishment of 7 years rigorous imprisonment under the stated circumstances would suffice to meet the ends of justice. Accordingly, the conviction and sentence of life imprisonment under section 302 IPC awarded by the trial court is modified into one of 7 years rigorous imprisonment under section 304 Part-I IPC and the period already undergone by the accused is ordered to be set off. Criminal appeal is disposed of accordingly. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar gl To 1.The Sessions Judge, Nilgiris at Udhagamandalam. 2.-do- Thro' The Principal Sessions Judge, Nilgiris. 3.The Inspector of Police, Kothagiri Police Station, Nilgiris District. (Crime No.419 of 2007) 4.The Public Prosecutor, High Court, Madras. Copy to : The Section Officer, Criminal Section, High Court, Madras. + 1 CC to Mr.S.Swamidoss Manokaran,Advocate,SR.55789 Crl.A.No.355 of 2009 AKR(CO) EM/2.11.09 https://hcservices.ecourts.gov.in/hcservices/