IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 25.11.2009 Coram THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH Crl.A.No.385 of 2009 Karthik @ Karthi ..Appellant/Sole Accused ..Vs.. State, rep. by the Inspector of Police, Dharapuram Police Station, Erode District. ..Respondent/Complainant (Crime No.518/2006) Appeal filed to set aside the order dated 29.4.2009 passed in S.C. No.10 of 2009 on the file of the learned Additional District and Sessions Judge, Dharapuram (Fast Track Court No.III, Erode). For Appellant : Mr. N. Arun Kumar For Respondent : Mr. Babu Muthu Meeran Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 29.4.2009 passed by the learned Additional District and Sessions Judge, Dharapuram (Fast Track Court No.III), Erode in S.C. No.10 of 2009, whereby the sole accused stood charged, tried and found guilty for the offences under Sections 341, 324, 302 and 506 (ii) (4 counts) of the Indian Penal Code and sentenced to undergo Simple Imprisonment for one month for the offence under Section 341 of the Indian Penal Code; Rigorous Imprisonment for two years for the offence under Section 324 of the Indian Penal Code; Life Imprisonment with a fine of Rs.10,000/- in default to undergo Rigorous Imprisonment for three years for the offence under Section 302 of the Indian Penal Code and Rigorous Imprisonment for two years and to pay a fine of Rs.2,500/- in default to undergo Rigorous Imprisonment for six months for each count for the offence under Section 506(ii) (4 counts) of the Indian Penal Code. https://hcservices.ecourts.gov.in/hcservices/ 2. The short facts necessary for the disposal of the case can be stated thus: (i) P.W.2 is running a photo studio at Palani. P.W.1 belongs to Dharapuram village and close relative of P.W.2 and has also been employed in his studio. P.W.4 is the younger brother of P.W.2. P.W.3 also belongs to the same village. The deceased is the younger brother of P.W.2. On the date of occurrence i.e. on 2.8.2008, P.Ws.1 to 4 and the deceased went to Dharapuram in a Maruti Esteem car, which belongs to P.W.2. The same was driven by P.W.2. They reached Dharapuram at about 5.30 p.m. and they went to a hotel and had dinner. (ii) Thereafter, when they proceeded to P.W.1's aunt's house, on the way to Anumanthapuram, at about 11.15 p.m., the accused was found standing in front of the temple along with his two wheeler T.V.S. 50. They raised the sound by giving horn, but the accused did not notice. Instead, the accused knocked the car door. Immediately P.W.2 stopped the car and questioned the conduct of the accused and there was a wordy altercation caused between them and thereafter, they had left the place. (iii) P.Ws.2 to 4 along with the deceased went to Anumanthapuram and stopped the car. P.W.1 and the deceased proceeded by walk towards west and some times later, when they were returning to the house of P.W.1's aunt, the accused came in a two wheeler, waylaid them and by taking an aruval from his back, attempted to attack the deceased. (iv) When P.W.1 intervened to prevent the same, the first attack fell on the left shoulder of P.W.1. P.Ws.2 to 4, who were standing nearby, on hearing distressing cry made by P.W.1, moved towards the place of occurrence. The deceased was running westward in order to escape from the accused, but he tumbled on his feet and fell down. The accused went near him and attacked him on his chest. When the deceased tried to escape, the accused chased him and attacked him on his left shoulder, which was witnessed by P.Ws.2 to 5, who, by raising hue and cry, went near him. The accused threatened them by saying, "if they dared to near him, they would meet dire consequence". (v) Thereafter, P.W.1 went to Dharapuram police station and gave Ex.P1 complaint to P.W.18, Sub Inspector of Police. On the strength of the said complaint, a case was registered in Crime No.1518 of 2008 for the offences under Sections 341, 324, 302 and 506 (ii) I.P.C. and P.W.1 was sent to the hospital along with memo. Express F.I.R. Ex.P18 was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ (vi) On receipt of medical memo, P.W.8 Doctor attached to Government hospital gave treatment to P.W.1 and accident register was marked as Ex.P4. (vii) P.W.19 Inspector of Police, who took up the investigation, proceeded to the place of occurrence and prepared observation mahazar Ex.P13 and also rough sketch Ex.P19. He conducted inquest in the presence of witnesses and panchayatars and the inquest report is marked as Ex.P20. He also recovered M.Os.2 to 4 sample earth, blood stained earth and two wheeler under the cover of mahazar Ex.P12. The dead body was sent to the Hospital along with requisition Ex.P21 for conducting post-mortem. (viii) P.W.7 Doctor, who conducted post-mortem on the dead body, issued post-mortem Certificate Ex.P2, wherein he has opined that the death would have caused due to shock and haemorrhage and injuries sustained by him. (ix) Pending investigation, the accused was arrested on 4.8.2008. He came forward with the confession statement voluntarily in the presence of witnesses and the admissible portion of the same is marked as Ex.P16. Pursuant to the confession statement, the accused produced M.O.1 aruvall and M.O.10 series currencies and the same were recovered under the cover of mahazars Ex.P14 and P15 and he was sent to judicial remand. All the materials recovered from the dead body and place of occurrence and M.O.1 aruval, the weapon of crime were all subjected to chemical analysis and the chemical analysis report and serological report are marked as Ex.P9 and P10 respectively. On completion of investigation, the final report was filed. 3. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. In order to substantiate its case, the prosecution examined P.Ws.1 to 19 and relied on Exs.P1 to 21 and also relied on M.Os.1 to 17. 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. No defence 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 Sections 341, 324, 302 and 506 (ii) (4 counts) of the Indian Penal Code and sentenced him as referred above. Hence, this appeal filed at the instance of the appellant/accused. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, though the prosecution had marched on eye witnesses, a discrepancy was found among the witnesses, which would clearly indicate that their evidence is false. https://hcservices.ecourts.gov.in/hcservices/ According to the prosecution, the occurrence had taken place in the night hours. The Trial Court has not found that since occurrence took place at night hours, P.W.1 would not have seen the occurrence. Though P.W.1 was examined as injured witness, he has given evidence that at that time, when he attempted to go to the rescue of the deceased, he sustained the first injury. Had it been true, he should have prevented the accused from committing the act, but he has not done so. 6. Learned counsel would further submit that P.W.s2 to 5 would not have seen the occurrence at all. The occurrence had taken place at 11.15 p.m., that too at night hours. At that time, they would have been inside the house and they would not have seen the occurrence and the medical evidence canvassed would also not in favour of the prosecution. 7. Learned counsel added further that the alleged confession statement and the recovery of M.O.1 aruval from the accused are all nothing but cooked up documents, but in vain. Even assuming that the prosecution has put forth its evidence regarding the weapon of crime, it is not suffice to support the prosecution. 8. The second line of argument putforth by the learned counsel appearing for the accused is that if the Court takes its view that the prosecution has proved factually that it was the accused, who attacked the deceased at the time of occurrence and caused his death, the act of the accused would not attract the penal provisions of murder. The occurrence took place at 11.15 p.m. Even according to the prosecution, P.W.2 was driving the car and the accused was standing in the way and despite horn, he did not move and when the car was stopped, the accused knocked the car at back side, it was the deceased, who got down from the car and quarrelled with him. Ex.P1 complaint, which is the earliest document, would clearly indicate that within a short span of 15 minutes, the occurrence had taken place. Hence, it has to be taken into consideration that due to sudden provocation, the accused has acted so and the act of the accused was neither intentional nor deliberate, but it was only compelled by the situation and hence it would not attract the penal provision of murder and this legal position has got to be considered by this court. 9. This Court heard the learned Additional Public Prosecutor on the above contentions. 10. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Karthikeyan, brother of P.W.2, in an incident that had taken place at 11.15 p.m. on 2.8.2008, met his death due to homicidal violence and following the complaint given by P.W.1, the case was registered and after registration of the case, the Investigating Officer conducted https://hcservices.ecourts.gov.in/hcservices/ inquest. It is also not in dispute that following the inquest made by P.W.19, the body was sent to the Government Hospital for post- mortem and the Doctor, who has conducted the post-mortem, has given his categorical opinion that the deceased would appear to have died due to shock and haemorrhage and the injuries sustained by him. Apart from this, the cause of death as put forth by the prosecution was never questioned by the accused and hence, there is no impediment for this Court to accept the case as put forth by the prosecution about the cause of death at the time and place of occurrence. 11. With reference to the charges levelled against the accused/appellant, the prosecution examined P.Ws. 1 to 5 as eye witnesses, out of whom, P.W.1 was the injured witness. It is well settled preposition of law that in a given case like this, when the eye witness happened to be an injured witness, the evidence of the injured witness cannot be discarded unless and until strong circumstance is noted or reason is brought forth. 12. In the instant case, P.W.1, who accompanied the deceased at the time of occurrence, has also spoken about the earlier incident. According to P.W.1, he and P.Ws.2 to 4, came along with the deceased in a maruthi car belonging to P.W.2 and driven by P.W.2. When they were coming to Dharapuram, the accused was found standing along with his two wheeler in the middle of the road. Despite the sound of horn, he did not move. When the car was stopped, the accused knocked the car at back and hence the deceased got down from the car and questioned the conduct of the accused and fifteen minutes later, the occurrence took place. 13. When P.W.1 and the deceased were returning from their walk and proceeding towards P.W.1's aunt's house, the accused came suddenly in a two wheeler and attacked the deceased. In that process, P.W.1 intervened, in which, he sustained injury. Insofar as the injuries sustained by P.W.1 are concerned, he was examined by the Doctor and accident register is marked as Ex.P4. Hence, from the evidence of P.W.1, it is clear that he sustained injury in the course of same transaction and thus, the Court is unable to see any iota of evidence to disbelieve the evidence of P.W.1. In sofar as the commission of crime by the accused is concerned, the evidence of P.W.1 is fully corroborated with the evidence of P.Ws.2 to 5 and this evidence stood fully corroborated by medical evidence. 14. Yet another circumstance against the accused was the recovery of M.O.1, aruval, the weapon of crime. The accused/appellant had given confession statement voluntarily at the time of arrest and the same was also recorded in the presence of witnesses. The production of M.O.1 weapon of crime by the accused, following the confession statement given by him voluntarily, would indicate that the accused had nexus to the crime and that the prosecution had unshaken evidence. The prosecution produced Ex.P8 https://hcservices.ecourts.gov.in/hcservices/ chemical analysis report and Ex.P9 serological report, which would clearly indicate that the blood group of the body of the deceased as well as the M.Os. recovered from the accused contain the same blood group. 15. All would go to show that the prosecution had proved the case that it was the accused, who has actually attacked the deceased and caused his death and at knife point, threatened all the witnesses. In view of the available evidence, the Court is unable to agree the contention of the learned counsel appearing for the appellant and the same is liable to be rejected and accordingly, it is rejected. 16. The second line of argument is that the act of the accused would not attract the penal provisions of murder since the act of the accused was due to sudden provocation and it was neither intentional nor deliberate. The Court is unable to agree with the contention raised by the learned counsel appearing for the appellant. The narration of entire evidence is that when P.W.2 is driving his car on the way to Dharapuram, the accused was standing in the middle of the road, and despite the horn, he did not move aside and when the car was stopped, he knocked the car back and when the deceased questioned the conduct of the accused, there was a wordy altercation and thereafter, after some time, when P.W.1 and the deceased were walking towards the house of P.W.1's aunt, again the accused came to the spot, armed with aruval and attacked the deceased. When the deceased was attacked, it was P.W.1, who intervened to save him, in which course, P.W.1 sustained injury and when the deceased attempted to escape from the place, the accused by chasing him continuously, attacked him and by his act, he has caused the death of the deceased. 17. Now at this juncture, the contention of the learned counsel appearing for the appellant that there was a quarrel and in the heap of quarrel, due to sudden provocation, the accused acted so, cannot be accepted for the simple reason that the earlier incident was over. Apart from that, if there was any provocation on the part of the accused, it was self made and the act of the accused was not due to sudden provocation and if it is a sudden provocation, it should have been caused by the deceased and not by the accused. Hence, the provocation was self made and not the defence. The act of the accused moving from the place and coming with an aruval and caused the death of the deceased instantaneously cannot be stated to be a sudden provocation. 18. The Trial Court is perfectly correct in convicting the accused for the offences under Sections 341, 324, 302 and 506 (ii) (4 counts) of the Indian Penal Code and sentenced him as referred to above and sufficient evidence was noticed by the Court and all the https://hcservices.ecourts.gov.in/hcservices/ charges are proved by the prosecution. Hence the appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Judicial Magistrate, Dharapuram. 2. do- Through The Chief Judicial Magistrate, Dharapuram. 3. The Additional District and Sessions Judge, (Fast Track Court No.III), Erode. 4. -do- Through The Principal Sessions Judge, Erode. 5. The Director General of Police, Madras – 4. 6. The District Collector, Erode. 7. The Superintendent, Central Prison, Coimbatore. 8. The Inspector of Police, Dharapuram Police Station, Erode District. 9. The Public Prosecutor, High Court, Madras. Copy to: The Section Officer, Criminal Section, High Court, Madras. + 1 c.c. to Mr. C. Ram Kumar, Advocate. S.R.No.63700. Crl.A.No.385 of 2009 KS (CO) GSK 14.12.2009. https://hcservices.ecourts.gov.in/hcservices/