IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-12-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.628 of 2010 1.Doss 2.Bharathi .. Appellants vs The State represented by its: Inspector of Police Muthupettai Police Station Thiruvarur District (Crime No.381/2006) .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the District and Sessions Judge, Thiruvarur, made in S.C.No.15/2008 dated 17.9.2010. For Appellants : Mr.K.M.Subrahamaniyam For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Sessions Division, Thiruvarur, made in S.C.No.15/2008 whereby the appellants stood charged namely A-1 under Sections 341 and 302 of IPC and A-2 under Sections 341 and 302 r/w 34 IPC, and on trial, A-1 was found guilty under Sec.302 r/w 34 IPC and A-2 under Sec.302 IPC, and both were awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the daughter of the deceased Maniyarasan. P.Ws.2 to 6 were all neighbours residing in the same village. A-1 and A-2 are brothers. All the parties were residents of Chettipulam Village within the jurisdiction of the respondent police. Fourteen days prior to the occurrence, there was a wordy altercation between the accused and the deceased when the dog of the deceased caught the neck of the hen of the accused. There was a complaint to the police, and the https://hcservices.ecourts.gov.in/hcservices/ parties were called and pacified. Thereafter, there was another quarrel in taking water from the public pipe. (b) While the matter stood thus, on 28.11.2006 at about 5.30 P.M., P.W.1 went to take bath in the irrigating channel situated outside the village. While she was taking bath, the deceased father after finishing his work, came over there to take bath. P.Ws.2 to 6 were working in the nearby field. At that time, A-1 and A-2 armed with wooden-logs, came to the place. A-2 attacked the deceased on the arms and legs, while A-1 attacked him on his forehead. When P.W.1 raised a distressing cry, P.Ws.2 to 6 rushed to the spot. When they were rushing, they also found the accused committing the crime. Then the severely injured victim was taken to the Government Hospital, Thiruthuraipoondi. P.W.12 was the Doctor who medically examined him and declared him dead. He also gave an intimation to the respondent police station marked as Ex.P8. In the meanwhile, P.W.1 proceeded to the respondent police station and gave Ex.P1, the complaint, on the strength of which, P.W.17, the Sub Inspector of Police, registered a case in Crime No.381/2006 under Sections 341, 323 and 307 IPC. The printed FIR is marked as Ex.P15. (c) On receipt of the copy of the FIR, P.W.18, the Inspector of Police of the Circle, reached the Station, and at that time, an intimation, Ex.P8, that Maniyarasan died at the hospital was received. Then the case was altered to Sec.302 IPC, and the altered FIR is Ex.P16. Both Exs.P15 and P16 were sent to the Judicial Magistrate, Thiruthuraipoondi, through a Constable. Following the same, P.W.18, the Inspector of Police, took up investigation, proceeded to the Government Hospital, conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P17, the inquest report. Thereafter, he proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P18. (d) On a requisition, P.W.13, the Civil Surgeon, attached to the Government Hospital, Thiruthuraipoondi, conducted autopsy on the dead body of Maniyarasan and has issued Ex.P9, the postmortem certificate, wherein he opined that the deceased would appear to have died of head injury about 16 to 20 hours prior to autopsy. (e) Pending investigation, both the accused persons were arrested on 30.11.2006, when they came forward to give confessional statements voluntarily. The same were recorded in the presence of witnesses. The admissible part of the confessional statement of A-1 is marked as Ex.P19, and that of A-2 is Ex.P20. Then A-1 produced M.O.1, wooden- log, which was recovered under a cover of mahazar, Ex.P6. Equally, M.O.2, wooden-log, produced by A-2, was recovered under Ex.P7, mahazar. Then both the accused were produced before the Judicial Magistrate where they were judicially remanded. Thereafter, a requisition was given for the purpose of sending all the material objects recovered from the place of occurrence and from the dead body, and also M.Os.1 and 2, the weapons of crime, to the Forensic Sciences Department for chemical analysis which brought forth the chemical analyst's report, Ex.P13, and also the serologist's report, Ex.P14. On https://hcservices.ecourts.gov.in/hcservices/ completion of investigation, the Investigating Officer filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 18 witnesses and also relied on 20 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, 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 on either side, and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the accused/appellants guilty and awarded the above punishment. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel would submit that in the instant case, the prosecution came with the story that there was a wordy altercation between the accused and the deceased 14 days before, when the dog of the deceased caught the neck of the hen of the accused, but this was not found in Ex.P1, the report; that another motive was also attributed that there was a wordy altercation at the time of taking water from the public pipe; that the same was also not found in Ex.P1, and thus the motive that was attributed, was not only trivial, but also cannot lead to the inference that the accused had got any motive to act or to commit such a heinous crime of murder. 5.Added further the learned Counsel that according to P.W.1, on 28.11.2006 in the evening hours, she went to take bath in the irrigating channel situated away from the village; that it is an admitted position that there are number of tanks situated within the village; and that while so, there was no need for her to go to a distant place to take bath and that too, lonely. At this juncture, the learned Counsel would also point out that the evidence of P.W.1 as if she was present at the time of occurrence cannot but be false; that after coming to know that her father was actually killed, she would have gone to the spot, and after finding the dead body, she has gone to the police station and that was the reason; that though the occurrence is alleged to have taken place at about 5.30 P.M., she has given the complaint at about 7.30 P.M., and the case was registered originally under Sec.307 IPC at about 8.30 P.M.; and that the FIR has reached the Judicial Magistrate, Thiruthuraipoondi, at about 10.30 P.M. 6.The learned Counsel pointing to the evidence of P.W.18, the Inspector of Police, would submit that both Ex.P15, the printed FIR, under Sec.302 IPC, and also the altered FIR, Ex.P16, under Sec.302 IPC were sent to the Judicial Magistrate's Court at the same time; that according to P.W.17, the Sub Inspector of Police, immediately the case was registered under Sec.307 IPC and the FIR, Ex.P15, was sent to the Court; that contrarily, P.W.18 has stated that after he came to the police station, the death intimation was received, and the case was altered to Sec.302 IPC, and both the FIRs were sent together; that https://hcservices.ecourts.gov.in/hcservices/ even the police constable who took the FIRs to the Judicial Magistrate's Court, was not examined; that it would be clearly indicative of the fact that both the FIRs were registered at the same time; and that it would also go to show that only after the death of the deceased, the complaint was given, and the case was registered. 7.Added further the learned Counsel that P.W.1 has categorically stated that all other witnesses P.Ws.2 to 6 were present at the time of occurrence; that the witnesses have categorically admitted that they were all working in the field, and after hearing the distressing cry, they came to the place; that even in Ex.P1, the names of P.Ws.4 to 6 did not find place, and thus the presence of P.Ws.4 to 6 was ruled out; that as far as P.Ws.2 and 3 are concerned, they have categorically admitted that after hearing the distressing cry, they were rushing from the field, and hence it would be quite evident that they could not have seen the occurrence at all; that in such circumstances, P.W.1 was the solitary evidence available for the prosecution; that for the reasons stated above, the evidence of P.W.1 was thoroughly doubtful that she could not have seen the occurrence at all, and hence the prosecution has miserably failed to prove the case; and that even though the Investigator claimed that both the wooden- logs, M.Os.1 and 2, were recovered from A-1 and A-2 respectively pursuant to the confessional statements, they were not sent for chemical analysis for the reasons best known to the Investigator. 8.Added further the learned Counsel that the evidence of P.W.17, the Sub Inspector of Police, who registered the case, and P.W.18, the Investigator, who conducted investigation, was thoroughly discrepant which would go to the root of the matter; that what is all available in the instant case, is only the medical reports namely the death intimation and the postmortem certificate, projected through P.W.12, the Doctor, and also P.W.13, the Doctor, who conducted postmortem and gave opinion that he died out of the injuries sustained on the head, respectively; that except this, the prosecution had no evidence to offer; that under the circumstances, the motive, the direct evidence and also the recovery of the material objects all actually failed; that under the circumstances, the trial Judge should have rejected the case of the prosecution outright, but has found both the appellants guilty, and hence the judgment of the trial Court has got to be set aside. 9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that one Maniyarasan, the father of P.W.1, following an incident that had taken place at about 5.30 P.M. on 28.11.2006, was taken to the Government Hospital, Thiruthuraipoondi and was declared dead by P.W.12, the Doctor, as could be seen from the death intimation, Ex.P8. Following the requisition given by the Investigating Officer, P.W.18, the dead body was subjected to postmortem. P.W.13, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that he died out of head injury sustained by https://hcservices.ecourts.gov.in/hcservices/ him. The cause of death as put forth by the prosecution, before the trial Court was never disputed by the appellants nor before this Court, and hence no impediment is felt by the Court in recording that he died out of homicidal violence. 11.In order to substantiate that both the accused/appellants have attacked the deceased sharing their common intention, and caused the death of the deceased at the time and place of occurrence, the prosecution marched six witnesses, and P.Ws.2 to 6 were actually the neighbours who according to them, were working in the nearby field. At the outset, it has got to be stated that it is highly doubtful whether P.Ws.4 to 6 could have been in the place of occurrence at all since their names are not found in the FIR. It is pertinent to point out that according to P.W.1, she went to take bath and also for washing clothes in the irrigating channel which is situated outside the village. Now, the contention put forth by the learned Counsel that while there are 2 or 3 tanks available inside the village, there was no need for her to go outside cannot be accepted for the simple reason that in both the tanks, there were actually number of persons taking bath, and that too, in the evening hours. In such circumstances, it is quite natural for a lady in a village to go to a place where the other persons were not found witnessing, and therefore, she would have chosen to go to that place. But, it is not a far off one, but an irrigating channel situated outside the village. That apart, the irrigating channel would be having the flow of water, and under the circumstances, that contention has got to be rejected. 12.According to P.W.1, when she was taking bath, her father came there after finishing his work, and A-1 and A-2 came there armed with wooden-logs, and it was A-2 who first attacked him on the arms and legs, and thereafter, A-1 attacked him on the forehead, and at that time, she raised a distressing cry, and the other witnesses came to the place. At this juncture, the learned Counsel pointing to the evidence of P.Ws.2 and 3 would urge that they could not have seen the occurrence at all. This contention cannot be countenanced for the simple reason that both P.Ws.2 and 3 have spoken in one voice that at the time of occurrence, they were working in the field, and on hearing the distressing cry of P.W.1, they rushed to the spot and at that time, they found both the accused/appellants moving from the place of occurrence. It can be well stated that their evidence could be taken only to the extent that they have seen both the appellants/accused running from the place of occurrence with the wooden-logs. Thus the prosecution had the benefit of this witness to that extent. It would be quite clear that the evidence of P.Ws.2 and 3 would corroborate the testimony of P.W.1. The evidence of P.W.1, despite the cross- examination in full, remained unshaken. Thus it would lead to the facts that both of them came there armed with wooden-logs, and A-2 attacked him on the arms and legs, while A-1 attacked him on the forehead. This ocular testimony stood fully corroborated by the medical evidence projected by the prosecution through P.W.13, the Doctor, who conducted autopsy. 13.Yet another circumstance against the appellants/ accused was the recovery of M.Os.1 and 2, wooden-logs, from A-1 and A-2 https://hcservices.ecourts.gov.in/hcservices/ respectively pursuant to the confessional statements recorded by the Investigating Officer in the presence of witnesses. The prosecution has marched P.W.11 in order to prove the arrest, confession and recovery. Now the recovery of the wooden-logs namely the weapons of crime, pursuant to the confessional statements voluntarily made by the appellants, would be a strong piece of evidence pointing to the nexus of the accused with the crime. At this juncture, the contentions put forth by the learned Counsel for the appellants that the wooden-logs were not sent for the purpose of analysis cannot be a reason to reject the testimony. 14.The other contention put forth by the learned Counsel is that there are discrepancies found in the evidence. It is true that there are discrepancies, but they are minor most which are ordinarily bound to occur when they speak about the occurrence from and out of their human memory. The other contention put forth that Ex.P1, the report, has come into existence after the death of the victim because of which both the FIRs have gone to the Judicial Magistrate's Court together cannot be accepted. It is true and also admitted that both these FIRs namely Exs.P15 and P16, one registered under Sec.307 IPC and the other under Sec.302 IPC, were sent to the Court at the same time after the arrival of the Investigating Officer to the police station. But, at the same time, it is pertinent to point out that in a given case like this, if the case was registered after the death of the victim, there was no reason for registering a case under Sec.307 IPC and within a short span of an hour, for amending the FIR to Sec.302 IPC. If really the death has already ensued, the police officer would have directly registered the case under Sec.302 IPC and there was no need to go for another process of registering a case initially under Sec.307 of IPC and then altering it to Sec.302 IPC. This would in no way either make the case of the prosecution stronger or further advance the case of the prosecution, and hence this contention cannot be accepted. 15.In the case on hand, the occurrence has taken place at about 5.30 P.M., and P.W.1 had gone to the police station and gave Ex.P1, the report, pursuant to which the case came to be registered at 7.30 P.M. Thereafter, an intimation, Ex.P8, was received from the Medical Person, P.W.12, as to the death of the victim. Then the case was altered to Sec.302 IPC at about 8.30 P.M., and the FIRs had reached the Judicial Magistrate, Thiruthuraipoondi, at about 10.30 P.M. Thus the sequence of events would clearly be indicative of the fact that the occurrence has taken place, and the true case was actually placed before the trial Court. Therefore, the contentions put forth by the learned Counsel for the appellants do not carry merit, and they are to be rejected. 16.As far as the nature of the act of the accused is concerned, by sufficient evidence it is proved that A-1 and A-2 came to the spot with the wooden-logs, and A-1 has attacked him on the forehead which injury, according to the Doctor, was fatal and caused the death. Thus it would be quite evident that the act of A-1 was intentional to cause death, and he has got to be found guilty under Sec.302 IPC. 17.As far as A-2 is concerned, this Court is unable to agree with https://hcservices.ecourts.gov.in/hcservices/ the prosecution that he had shared the common intention. When both A- 1 and A-2 carried the wooden-logs and went to the place of occurrence, it cannot be stated that both of them had the intention to cause his death. If really A-2 had the intention to cause death, he would have attacked him on the vital part, but it was he who first attacked him, and that too, only on the arms and legs, and simple injuries have been correspondingly caused. Under the circumstances, as regards A-2, he has got to be found guilty under Sec.324 of IPC, and awarding a punishment of 2 years Rigorous Imprisonment, in the considered opinion of the Court, would meet the ends of justice. 18.Accordingly, the conviction of A-1 under Sec.302 read with 34 IPC is modified, and he is convicted under Sec.302 IPC. The sentence awarded by the trial Court, will hold good. 19.As regards A-2, the conviction and sentence imposed by the trial Court on him under Sec.302 IPC, are set aside, and instead, he is convicted under Sec.324 of IPC and is directed to suffer two years Rigorous Imprisonment. The sentence already undergone by him, shall be given set off. The fine amount imposed by the trial Court, will hold good. 20.In the result, this criminal appeal is, accordingly, disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The District and Sessions Judge Thiruvarur 2.The Inspector of Police Muthupettai Police Station Thiruvarur District 3.The Superintendent, Central Prison,Tiruchirappalli. 4.The Public Prosecutor High Court, Madras. +1cc to Mr.K.M.Subrahamaniyam, Advocate Sr 91080 TAM(CO) km/10.1. CRL.A.No.628 of 2010 https://hcservices.ecourts.gov.in/hcservices/