IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 29.03.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.16 of 2010 Jayaraj ... Appellant/Accused ..Vs.. State, rep. by Inspector of Police, Sullur Police Station, Coimbatore District. ... Respondent/Complainant Appeal filed against the judgment dated 16.12.2009 passed by the learned Principal District and Sessions Judge, Coimbatore in S.C. No.126 of 2009. For Appellant : Mr. AR. L. Sundaresan, Sr. counsel for Mr. V. Paul Das For Respondent : Mr. V.R. Balasubramaniam, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 16.12.2009 passed by the learned Principal District and Sessions Judge, Coimbatore in S.C. No.126 of 2009, whereby the sole accused stood charged, tried and found guilty as per the charge of murder and awarded with life imprisonment and to pay a find of Rs.1,000/- in default to undergo Rigorous Imprisonment for two months. 2. The short facts necessary for the disposal of the appeal can be stated as follows:- https://hcservices.ecourts.gov.in/hcservices/ (i) P.W.1 is the son of the deceased. P.W.3 is the wife of the deceased. P.W.4 is the daughter of the deceased. P.W.5 is another daughter of the deceased, who was given in marriage to the accused. P.W.1, the deceased along with the members of his family were residing at Anna Nagar, Kannampalaiyam within the jurisdiction of the respondent-police. P.W.5 was married to the accused/appellant and she was ill-treated by the accused since he was entertaining suspicion over the fidelity. (ii) On the date of occurrence i.e. 16.10.2006 at about 3.30 p.m., there was a wordy altercation in front of the house of the accused and the deceased was questioning the conduct of the accused. P.W.6, who was proceeding to his house, witnessed the same, but he did not entertain any suspicion and thereafter, he went to his house. When he was taking his lunch, again he heard the noise. At that time, a wordy altercation was going on. The accused entered into the house, brought an aruval and attacked the deceased on his left side of the neck. This was witnessed by P.Ws.7 and 8 also. On hearing the distrusting cry, the accused ran away from the place of occurrence. (iii) P.W.1 and others went to the respondent-police and gave Ex.P1 complaint, on the strength of which, P.W.14 Inspector of Police registered a case in Crime No.422 of 2008 for the offence under Section 302 of the Indian Penal Code. Express First Information Report Ex.P15 was despatched to the Court. P.W.14 took up investigation, proceeded to the spot, made an inspection and prepared observation mahazar Ex.P9 and rough sketch Ex.P15. (iv) Thereafter, he conducted inquest on the dead body in the presence of the witnesses and the inquest report is marked as Ex.P16. He sent the dead body through P.W.13 Head Constable for conducting autopsy. P.W.2 Doctor conducted autopsy on the dead body and issued post-mortem Certificate Ex.P3, where he has opined that the deceased would appear to have died of shock and hemorrhage due to the injuries sustained by him. In the said Certificate, he noted the following injuries:- " INJURIES (ANTE MORTEM) 1. A oblique cut wound 8x4 cm, with mildly abraded margins seen on the left antero lateral neck the anterior end is seen 4 cm below angle of left lower jaw and upper posterior blunt end is seen 7 cm below and back of left ear. Tailing of the wound 2 cms length seen in the anterior end. The wound has passed obliquely downwards and inwards cutting the underlying big blood vessels on the left side of neck and the left lateral process of C5 & C6 vertebrae and has ended cutting https://hcservices.ecourts.gov.in/hcservices/ the left side of C7 partially entering into the cervical canal and cutting the cord at that level partially. 2. An oblique abrasion 3x1 cm over the lateral aspect of right eye brow." (v) P.W.14 Inspector of Police examined the witnesses and recorded their statements. P.W.14 sent all the material objects for chemical analysis. Chemical Analysis report and Serological reports are marked as Ex.P6 and 7 respectively. Pending investigation, he arrested the accused on 19.10.2006 and recorded the confession statement given by him voluntarily and the admissible portion of the same is marked as Ex.P10. Pursuant to the confession statement, the accused produced M.O.4 aruval and the same was recovered under the cover of mahazar Ex.P10 in the presence of witnesses. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 15 witnesses and relied on 17 documents and also relied on M.Os.1 to 8. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. One witness was examined and one document was marked on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded the sentence as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned senior counsel would submit that in the instant case, the prosecution had examined as P.Ws.1, 3 to 8 as eye witnesses, out of whom P.Ws.1, 3 to 5 have turned hostile and the prosecution relied on the evidence of P.Ws.6 to 8. Insofar as the evidence of P.W.8 is concerned, his name was not referred to in Ex.P1 report. 6. Learned senior counsel further added that insofar as the evidence of P.W.7 and 8 is concerned, it is quite clear that those witnesses could not have been present at the place of occurrence at all. Even the reading of Ex.P1 report would clearly indicate that they came to the place of occurrence, only after the occurrence was over and they found the deceased in a pool of blood. Hence, it is quite clear that they would not have seen the occurrence at all. P.Ws.7 and 8 had candidly admitted that the accused caught red handed and he was also sent to the Hospital in the ambulance. He would https://hcservices.ecourts.gov.in/hcservices/ further add that blood stained aruval was recovered and handed over to the police immediately. 7. Learned counsel further added that it is quite clear that the accused also sustained injury. It is evident from the evidence of D.W.1 that the accused had taken treatment for two days. The prosecution had not explained anyone of the aforesaid circumstances, The accused was arrested on 19.10.2006 and he gave the confession statement and consequent upon the same, he produced the weapon of crime. In the face of evidence of P.W.7 and 8, it is quite clear, that part of the evidence is nothing but false. Though it is claimed that the weapon contained blood stain, the same was not sent for chemical analysis. No explanation is forthcoming from the prosecution for not sending the same for chemical analysis. In the same transaction, the accused also sustained injury. This fact is even admitted by the investigator. The prosecution is bound to explain the injury sustained by the accused. The prosecution has miserably failed to prove the case beyond reasonable doubt. But the Trial Court has taken an erroneous view. Hence, he prayed for acquittal in the hands of the Court. 8. This Court heard the learned Additional Public Prosecutor on the above contentions. 9. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Masanan died in an incident that had taken place at 3.30 p.m. on 16.10.2006. Following the inquest made by the Investigating Officer, the body was subjected to post-mortem and P.W.2 Doctor, who conducted autopsy on the dead body, issued post-mortem Certificate Ex.P3, where he has opined that the deceased would appear to have died of shock and hemorrhage due to the injuries sustained by him. The fact that the deceased died out of homicidal violence was never disputed by the appellant before the Trial Court and equally here also. Hence, the Trial Court is perfectly correct in recording so. 10. In order to substantiate the fact that it was the accused, who attacked the deceased on his left neck and caused his death, the prosecution though examined number of witnesses viz. P.Ws.1, 3 to 8, out of whom P.Ws.1, 3 to 5 have turned hostile. Much comment was made by the learned senior counsel appearing for the appellant on the evidence of P.Ws.6 to 8, who are the eye witnesses. It is true, the name of P.W.8 did not find place in Ex.P1 report. But, the contention of the learned senior counsel that his evidence was brought before the Court could not be accepted. 11. Insofar as the evidence of P.Ws.6 to 8 is concerned, the Court is unable to notice any reason as to why their evidence should be looked into with suspicion and doubt. P.W.6 categorically https://hcservices.ecourts.gov.in/hcservices/ admitted that he saw the wordy altercation between the accused and the deceased and even then, he proceeded to the house. When he was taking food, at that time, he heard the quarrel and then he came out and saw the accused attacking the deceased with aruval on his left neck. This part of evidence remained unshaken. The evidence of P.W.6 is fully corroborated by the evidence of P.W.7. The medical evidence through P.W.2 Doctor, who conducted post-mortem, also fully corroborated this evidence. The contention put forth by the learned senior counsel for the appellant in respect of the evidence of P.W.6 and 7 has got to be rejected since they do not carry any merit whatsoever. 12. Insofar as other part of evidence is concerned, this Court is afraid whether it can be accepted by the Court. The Investigating Officer arrested the accused in the presence of witnesses. P.Ws.6 and 7 have categorically admitted that the accused was actually caught red handed and he was taken in an ambulance. It is quite clear that as claimed by the investigating Officer, the accused was arrested on 19.10.2006 and he came forward to give confession statement and there was a production of weapon of crime. The weapon of crime viz. aruval was produced. According to the witness, that part of the evidence put forth by the prosecution has got to be rejected. At the time of occurrence, the accused also sustained injury and also he had taken treatment for a period of two days. This fact w as spoken to by D.W.1 mother of the accused. But, the prosecution has not explained about this 13. This contention cannot be countenanced for more reasons than one. If really the accused had sustained injury in the same transaction, there is no impediment for him to inform the Doctor that who had attacked him and in turn he would have brought it to the knowledge of police, but he had not done so. Though he claimed he got treatment for two days, no documentary evidence was forthcoming and no medical Certificate was produced. In every case, the prosecution is not duty bound to explain the injury sustained by the accused. The contention put forth by the learned senior counsel for the appellant that when the appellant sustained injury in the same transaction, the same was not explained by the prosecution cannot be countenanced. The prosecution has proved the relevant fact that it was the accused, who cut his father-in-law on his left side of the neck with aruval and caused his death instantaneously. 14. Insofar as second line of argument is concerned, this Court finds some force in the contention of the learned senior counsel appearing for the appellant. The prosecution has projected through the witnesses that there was a wordy altercation between the deceased father-in-law and the accused/son in law. Due to the quarrel, the accused went inside and took out an aruval and caused his death. The act of the accused is neither intentional nor https://hcservices.ecourts.gov.in/hcservices/ premeditated, but due to the quarrel and sudden provocation and thus, the act of the accused would not attract the penal provisions of murder, but culpable homicide not amounting to murder. Hence, the Court is of the considered opinion that the act of the accused would attract the penal provisions of Section 304 Part-I of the Indian Penal Code and awarding Rigorous Imprisonment for seven years would meet the ends of justice. 15. Accordingly, the conviction of sentence imposed on the appellant by the Trial court is modified to one under Section 304 Part-I of the Indian Penal Code, for which he was awarded seven years Rigorous Imprisonment. With this modification in conviction and sentence, this criminal appeal is disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Judicial Magistrate, Coimbatore. 2. The Chief Judicial Magistrate Coimbatore. 3. The Principal Sessions Judge, Coimbatore. 4. The Superintendent, Central Prison, Coimbatore. 5. The District Collector, Coimbatore. 6. The Director General of Police, Madras – 4. https://hcservices.ecourts.gov.in/hcservices/ 7. The Public Prosecutor, High Court, Madras. 8.The Inspector of Police, Sullur Police Station, Coimbatore District. Copy to: The Section Officer, Crl.Section, High Court, Madras. +1cc to Mr.V.Paul Das, Advocate Sr 20998 VSV(CO) km/9.4. Crl. A. No.16 of 2010 https://hcservices.ecourts.gov.in/hcservices/