IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.615 of 2009 Selvaraj .. Appellant vs State rep. By Inspector of Police Paravakottai Police Station Tiruvarur District Crime No.55 of 2008 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Sessions Judge, Tiruvarur, made in S.C.No.45 of 2009 dated 30.9.2009. For Appellant : Mr.S.Ashok Kumar Senior Counsel for Mr.P.Palaninathan For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Sessions Division, Tiruvarur, made in S.C.No.45 of 2009 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs.10000/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the wife of the deceased Senthamilselvan. They were residents of Ullikottai within the jurisdiction of the respondent police station. P.W.2 is the neighbour. P.W.4 is the Village Administrative Officer of the said place. Both the accused and the https://hcservices.ecourts.gov.in/hcservices/ deceased had a long standing dispute over a fence situated in between their lands. On 24.5.2008 at about 10.00 P.M., when the deceased was returning to his house along with P.W.1, the accused was coming in the opposite direction. When they met each other, the accused uttered "I could live peacefully, if I finish you off". Following the same, there was a wordy altercation, and the accused took a spade and attacked him on his head and left knee. The occurrence was witnessed by P.Ws.1 and 2. Then, the accused fled away from the place of occurrence. (b) P.Ws.1 and 2 took the deceased in an auto to the Government Hospital, Mannargudi. The Doctor who examined him, declared him dead. An intimation was given to the respondent police station. On receipt of the said information, the Sub Inspector of Police, P.W.7, proceeded to the hospital and recorded the statement of P.W.1, which is marked as Ex.P1. On the strength of Ex.P1, P.W.7 registered a case in Crime No.55 of 2008 under Sec.302 of IPC. The printed FIR, Ex.P8, was despatched to the Court. (c) On receipt of the copy of the FIR, P.W.8, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P8. Then he recovered bloodstained earth and sample earth under a cover of mahazar. The place of occurrence and also the dead body were photographed through a Photographer, P.W.5. The photos and its negatives were marked as Ex.P7 series and Ex.P8 series respectively. Then the Investigator conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P10, the inquest report. A requisition was given to the hospital authorities for the purpose of autopsy. (d) P.W.6, the Assistant Surgeon, attached to the Government Hospital, Mannargudi, on receipt of the said requisition, conducted autopsy on the dead body of Senthamilselvan and has given his opinion in Ex.P7, the postmortem certificate, that the deceased would appear to have died of hypovolemic and neurogenic shock due to massive blood loss from the back of the knee left. (e) Pending investigation, the Investigator came to know that the accused surrendered before the Judicial Magistrate, Thanjavur, on 26.5.2008. Then the Investigator applied for police custody, and the same was ordered. During police custody, he was enquired, and he gave a confessional statement voluntarily. The same was recorded in the presence of witnesses. The admissible part of the confessional statement is marked as Ex.P5 pursuant to which he produced M.O.1, spade, and M.Os.5 and 6 bloodstained clothes, which were recovered under a cover of mahazar. Then he was sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department pursuant to the requisition given by the Investigator to the concerned Court. Two reports were received namely Ex.P11, chemical analyst's report, and Ex.P12, the serologist's report. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the https://hcservices.ecourts.gov.in/hcservices/ prosecution examined 9 witnesses and also relied on 12 exhibits and 8 material objects. On completion of evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined; but, two documents were marked on his side. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence entered a judgment of conviction and sentenced him to life imprisonment. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.S.Ashok Kumar would submit that in the instant case, P.Ws.1 and 2 were shown as eyewitnesses; that P.W.1 is the wife and P.W.2 is the neighbour; that from the evidence, it could be seen that P.W.2 belonged to a nearby village; that P.W.1 is interested in the deceased and hence her evidence before acceptance should be scrutinised carefully; that if this test is applied, the trial Court should have rejected her evidence; that as far as the occurrence part is concerned, there are lot of discrepancies between the evidence of the eyewitnesses namely P.Ws.1 and 2; and that the ocular testimony projected by the prosecution through these witnesses did not get the corroboration from the medical opinion canvassed through P.W.6, the Doctor. 5.Added further the learned Senior Counsel that the prosecution would claim that the accused came forward to give a confessional statement voluntarily when he was in police custody ordered by the Court, and he also produced the bloodstained clothes and the weapon of crime, M.O.1; that these documents were all nothing but fabricated in order to strengthen the prosecution case, and the same also did not even help the prosecution; that under the circumstances, the prosecution has miserably failed to prove its case, and hence he is entitled for acquittal. 6.Added further the learned Senior Counsel in the second line of his argument that even assuming that the prosecution has proved the factual position that it was the accused who attacked him with the knife and caused the death, the act of the accused would not attract the penal provision of murder; that admittedly, there was a wordy altercation between the accused and the deceased at the time of the occurrence; that according to the eyewitnesses, the wordy altercation was going on for nearly about an hour; that apart from that, it is not the case of the prosecution that he was actually carrying on a spade; that he would have picked up the same from aside; that apart from that, according to the medical opinion, the injury found on the knee was fatal, and blood was oozing from the injury found on the left knee; that all would go to show that he could not have any intention to cause the death of the deceased; that when there was a wordy altercation, due to the quarrel and sudden provocation he has acted so; that there is nothing to indicate any intention to cause the death; that under the circumstances, it would not attract the penal provision of murder; that it would fall under the exception, and hence this legal position has got to be taken into consideration https://hcservices.ecourts.gov.in/hcservices/ if the Court comes to the conclusion that the factual position has been proved by the prosecution. 7.This Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that one Senthamilselvan the husband of P.W.1, who sustained injuries following an incident that had taken place at about 10.00 P.M. on 24.5.2008, was taken to the Government Hospital, Mannargudi where he was declared dead by the Doctor. Following the intimation made, P.W.8, the Sub Inspector of Police, went to the hospital, recorded the statement from P.W.1, came back to the station and registered the case. Thereafter the investigation was taken up by P.W.9, the Inspector of Police. Following the inquest made by him, the dead body was subjected to postmortem by P.W.6, the Doctor, who has given a categorical opinion that he died out of hypovolemic and neurogenic shock due to massive blood loss from the back of the knee left. The cause of death as put forth by the prosecution was never disputed by the appellant. Hence no impediment was felt by the trial Court in recording so and rightly too. 9.In order to establish that it was the accused who attacked him with the spade on his head and left knee and as a direct consequence, the death has ensued, the prosecution has marched two witnesses namely P.Ws.1 and 2. It is true that P.W.1 was the wife of the deceased. It is settled principle of law that merely because of the relationship of the eyewitness, his evidence cannot be discarded. But before acceptance, the Court must apply the careful scrutiny test. In the instant case, even after this test is applied, this Court is satisfied that P.W.1 has come with the truth. According to P.W.1, she was accompanied by her husband, and at about 10.00 P.M., they were on the way, and the accused was coming in the opposite direction, and there was a wordy altercation, and at the time of occurrence, the accused attacked the deceased with the spade on the head and also the left knee. This evidence of P.W.1 stood fully corroborated by the evidence of P.W.2. It is pertinent to point out that P.W.2 had no ax to grind, and no reason or circumstance is brought to the notice of the Court to disbelieve the evidence of P.W.2. The evidence of P.W.2 stood as full corroborative piece of evidence to P.W.1. 10.Apart from the above, the ocular testimony projected by the prosecution through P.Ws.1 and 2 was fully supported by the medical evidence. The external injuries as narrated in Ex.P7 postmortem certificate, would clearly indicate that the ocular testimony was true. The Doctor has given his opinion that the deceased died out of the injuries sustained by him, and the injury found on the left knee was fatal. Yet another circumstance which is against the accused was the recovery of the weapon of crime, M.O.1, spade, and also the bloodstained clothes, pursuant to the confessional statement made by him. The prosecution has examined a witness to speak to the fact that the accused came forward to give a confessional statement voluntarily, and the same was recorded, pursuant to which he produced M.O.1, and also other bloodstained material objects which were https://hcservices.ecourts.gov.in/hcservices/ recovered. Thus the recovery of the weapon of crime from the accused pursuant to the confessional statement was actually indicative of the nexus of the crime with the accused. That apart, the scientific evidence was strong against the accused. A perusal of the serologist's report, Ex.P12, would clearly indicate that the blood group was found tallying. All would go to show that it was the accused who attacked him and caused his death at the place and time of occurrence, and as a direct consequence the death has ensued. Now, the contentions put forth by the learned Counsel in this regard have got to be rejected since they do not carry any merit whatsoever, and accordingly, they are rejected. 11.Insofar as the second line of argument, this Court is able to see force in the same. Even the admitted case of the prosecution was that P.W.1 was accompanied by her husband at the place of occurrence, and the accused was coming in the opposite direction, and there was a wordy altercation. It remains to be stated that in the heat of passion and also due to sudden provocation, the accused had attacked him with the spade, and death has been caused. Under the circumstances, it would clearly indicate that he could not have any intention to cause the death. But, when he attacked him with the spade on the head and also on the left knee, there was overflow of blood. Under the circumstances it should have been his intention to cause injuries that would be sufficient in the ordinary course of nature to cause death, though not intention to cause murder is noticed. In such circumstances, this Court is of the considered opinion that once the act was done following the wordy altercation, it would not attract the penal provision of murder, but would be culpable homicide not amounting to murder. Thus, the act of the accused would attract the penal provision of Sec.304 (Part I) of IPC and awarding 7 years Rigorous Imprisonment would meet the ends of justice. 12.Accordingly, the conviction and sentence imposed on the appellant by the trial Court under Sec.302 IPC are set aside, and instead he is convicted under Sec.304 (Part I) of IPC and is directed to undergo Rigorous Imprisonment for seven years. The fine amount imposed by the trial Court will hold good. The sentence already undergone by him shall be given set off. 13.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. nsv Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Sessions Judge Tiruvarur 2. The Inspector of Police Paravakottai Police Station Tiruvarur District Crime No.55 of 2008 3. The Public Prosecutor High Court, Madras. 4. Judicial Magistrate No.II, Manargudi. 5. The Director General of Police Mylapore, Chennai.-4. 6. The District Collector, Tiruvarur District. 7. The Superintendent Central Prison, Tiruchirapalli. + 1 cc to Mr. P. Palaninathan, CC SR.64406/09 CRL.A.No.615 of 2009 RB(CO) EU 10.12.2009. https://hcservices.ecourts.gov.in/hcservices/