IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 18.08.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. SATHYANARAYANAN Crl. A. No.239 of 2010 Kandeepan ... Appellant ..Vs.. State, rep. by Inspector of Police, Ponnai Police Station, Vellore District. ... Respondent Appeal filed against the judgment dated 26.6.2007 passed in S.C. No.264 of 2006 on the file of the Principal Sessions Judge, Vellore. For Appellant : Mr. G. Vinodh Kumar For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 26.6.2007 passed by the Principal Sessions Judge, Vellore in S.C. No.264 of 2006, whereby the sole accused stood charged, tried and found guilty for the offence under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment. 2. The short facts necessary for the disposal of the case can be stated thus: (i) P.W.1 and 7 are sons of the deceased Chinnakkannu and P.W.3 is the nephew of the brother of the deceased. On the date of occurrence that was on 18.5.2006, when the deceased Chinnakkannu was sitting in front of the house, the accused came https://hcservices.ecourts.gov.in/hcservices/ in a drunken mood and talked in a filthy language. When the same was questioned, he took an iron rod and attcked the deceased. All the witnesses P.Ws.1, 3, 4, 5 and 6, who witnessed the occurrence, intervened. The accused ran away from the scene of occurrence. Thereafter, the deceased was taken to S.M.H. Hospital, Ranipet and thereafter to C.M.C. Hospital, Vellore and he was treated by P.W.11 Doctor initially and wound Certificate was also marked is Ex.P10. Despite treatment he died at 2 p.m. (ii) P.W.1 went to the respondent-police and gave Ex.P1 complaint. P.W.14 Sub Inspector-Police received the complaint and registered a case in Crime No.63 of 2006 for the offence under Section 302 of the Indian Penal Code. First Information Report Ex.P16 was despatched to the Court. (iii) On receipt of the copy of the First Information Report, P.W.15 Inspector of Police took up the investigation and went to the place of occurrence and prepared Observation Mahazar Ex.P5 and rough sketch Ex.P17. He seized M.O.4 blood stained earth and M.O.5 ordinary earth from the place of occurrence in the presence of witnesses under the cover of Ex.P6 Mahazar. Thereafter, P.W.15 proceeded to the Mortuary and conducted inquest on the dead body in the presence of witnesses. Ex.P18 is the inquest report. (iv) Thereafter, the dead body was sent for post-mortem and P.W.2 Doctor, on receipt of requisition Ex.P2, conducted autopsy on the dead body and issued post-mortem Certificate Ex.P4 wherein he opined that the death would have caused due to head injury. Pending investigation, the accused was arrested on 20.5.2006, pursuant to which, he gave confession statement voluntarily and the same was recorded in the presence of witnesses and the admissible portion of the same is marked as Ex.P7. Consequent upon the confession statement, the accused produced M.O.1 iron rod and M.O.3 blood stained shirt and the same was recovered in the presence of witnesses under the cover of mahazar Ex.P8. The accused was sent for judicial remand. The Material Objects recovered from the place of occurrence and the Material Objects produced by the accused were sent for chemical analysis on requisition through concerned Court, which resulted in Ex.P12 chemical analysis report and Ex.P14 Serological report. 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 viz. Ex.Ps. 1 to 15 and relied on 18 documents viz. Ex.P1 to P18 and also relied on M.Os.1 to 5. On completion of examination of witnesses on the side of the https://hcservices.ecourts.gov.in/hcservices/ prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined 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 punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that though the prosecution has marched over the evidence of P.Ws.1, 3, 4, 5 and 6, their evidence should not have been relied on, since P.Ws.1 and 3 are relatives and P.W.4 is working as Driver under P.W.1. Hence, before accepting their evidence, a careful scrutiny is necessary. If applied, their evidence cannot be accepted. Though P.Ws.5 and 6 are shown as independent witnesses, they have turned hostile and thus, the direct evidence of those witnesses cannot be relied on. The medical opinion canvassed through the post-mortem Certificate also did not corroborate the ocular testimony. 6. Learned counsel added further that the recovery of M.Os.1 and 3 as if they were recovered subsequent to the alleged confession statement given by the accused in the presence of witnesses is nothing but false. It was a cooked document in order to strengthen the prosecution case. All would clearly indicate that the prosecution has miserably failed to prove its case. 7. The second line of argument put forth by the learned counsel appearing for the appellant is that even if the Court takes the view that the prosecution has proved its factual matrix that the accused attacked the deceased with iron rod and caused his death, it would not attract the penal provisions of murder for the reasons that all the witnesses have categorically spoken to the fact that they have not given statement to the investigating Officer that the accused came to the spot with iron rod. He picked up the iron rod which was found nearby the place of occurrence. Learned counsel, pointing to the evidence of witnesses before the Investigator at the time of interrogation and recording the statement under Section 161 Cr.P.C., would submit that all the witnesses have categorically stated that there was a wordy altercation between the accused and the deceased. Hence, it is quite clear that following the wordy altercation, the accused, who came to the spot unarmed, due to the wordy quarrel, picked up the iron rod M.O.1 which was found nearby the place of occurrence and attacked the deceased. Under the circumstances, the act of the accused is neither intentional nor premeditated. Hence, the act of the accused would not attract the penal provisions of https://hcservices.ecourts.gov.in/hcservices/ murder and this legal position has got to be considered by this Court. 8. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the submissions made. 9. It is not in controversy that one Chinnakkannu, father of P.Ws.1 and 7, following the incident that had taken place on 18.5.2006 at about 10.30 a.m., was taken to the private clinic at Ranipet and thereafter to CMC Hospital, Vellore and despite treatment, he succumbed to injuries. Following the same, a case was registered by the Sub Inspector of Police and investigation was taken up by Inspector of Police, who went to the place of occurrence and conducted inquest on the dead body in the presence of witnesses and sent the dead body for post-mortem and the Doctor, who conducted post-mortem, issued post-mortem Certificate where he opined that the death was caused 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, it is perfectly correct in recording so. 10. In order to prove the case that the accused attacked the deceased and caused his death, the prosecution relied on the evidence of P.Ws.1, 3, 4, 5 and 6. it is also true that P.Ws.5 and 6, though independent witnesses, have turned hostile, which would not help the prosecution case. Now the prosecution is left with the evidence of P.Ws.1, 3 and 4. It is true, they are close relatives to the deceased. But, on the ground of relationship, their evidence cannot be discarded. Before accepting their evidence, a careful scrutiny must be necessary. Even after applying the said test, their evidence inspires the confidence of the Court. All the witnesses have spoken in one voice that the accused came in a drunken mood and used filthy language and thereafter attacked the deceased with iron rod and thereafter, he left the place of occurrence. Apart from that, the medical opinion canvassed through post-mortem Certificate Ex.P4 issued by P.W.2 Doctor is that the death was caused due to the injury sustained by the deceased in skull. Hence the medical evidence is fully corroborated with ocular testimony. 11. A strong circumstance stands against the appellant was the recovery of iron rod from the accused which was produced by him following the confession statement given by him. In this regard, the evidence adduced by the prosecution was accepted by the Trial Court and rightly too. The submission of the learned counsel for the appellant that it was not the accused cannot be accepted. The Trial Judge was correct in recording the finding https://hcservices.ecourts.gov.in/hcservices/ that it was the accused, who attacked the deceased with iron rod, as a direct consequence, the deceased died due to the injuries sustained by him. 12. The second line of argument advanced by the learned counsel for the appellant that even assuming the accused has caused the death of the deceased, the act of the accused is neither intentional nor premeditated. The prosecution witnesses have categorically deposed that the accused came to the place of occurrence in a drunken mood. Nowhere it is stated that he came with iron rod, but they have stated that he took the iron rod near the place of occurrence and attacked the deceased. 13. The Investigator has spoken about two points that none of the witnesses have given any statement at the time of interrogation that the accused came with iron rod. Secondly, when he came to the spot, he came in a drunken mood. There was a wordy quarrel between the accused and the deceased. The accused, who came in a drunken mood, unarmed, due to the wordy quarrel and sudden provocation, took the iron rod which was found nearby the place of occurrence, attacked the deceased and caused his death. Thus, the act of the accused was neither intentional nor premeditated, but it was due to sudden quarrel and provocation and hence the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder and therefore, the act of the accused would attract the penal provision of section 304(I) of the Indian Penal Code and awarding punishment of 7 years Rigorous Imprisonment would meet the ends of justice. 14. Accordingly, the conviction of the sentence imposed on the appellant under section 302 of the Indian Penal Code alone are modified and instead the appellant is convicted under section 304(I) of the Indian Penal Code and sentenced to undergo 7 years Rigorous Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. 15. With the above modification in conviction and sentence, this criminal appeal is disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssa. To 1. The Judicial Magistrate No.I, Wallajah. 2. The Chief Judicial Magistrate Vellore. 3. The Principal Sessions Judge, Vellore. 4. The Superintendent, Central Prison, Vellore. 5. The District Collector, Vellore. 6. The Director General of Police, Madras – 4. 7. The Public Prosecutor, High Court, Madras. +1cc to Mr.G.Vinodh Kumar, SR 61076 MRD(CO) km/31.8. Crl. A. No.239 of 2010 https://hcservices.ecourts.gov.in/hcservices/