IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 08.03.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.813 of 2009 Gopalasamy ... Appellant/Sole Accused ..Vs.. State, rep. by Inspector of Police, B-6 Peelamedu Police Station, Coimbatore, Coimbatore District. ... Respondent/Complainant Appeal filed against the judgment dated 20.11.2009 passed by the Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore, Coimbatore District in S.C. No.101 of 2009. For Appellant : Mr. V. Kathirvelu For Respondent : Mr. V.R. Balasubramanian Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 20.11.2009 passed by the Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore, Coimbatore District in S.C. No.101 of 2009, whereby the sole accused/appellant stood charged for the offence under Section 302 of the Indian Penal Code, tried and awarded life imprisonment and to pay a fine of Rs.10,000/- in default to undergo Rigorous Imprisonment for two months. 2. The short facts for the disposal of the case can be stated thus:- (i) P.Ws.1, 2, 11 and 17 are neighbors. The deceased was https://hcservices.ecourts.gov.in/hcservices/ also residing nearby their house. The deceased has already got married. During the relevant time, he left his family in a distance place, since he was employed at Coimbatore. Equally, the accused also, who got married, left his family away in a distance place and came to Coimbatore to eke his livelihood. P.W.3, who has already got married deserted her husband and developed illicit intimacy with the accused. While so, the deceased developed illicit intimacy with P.W.3 and apart from that, he married her in a nearby temple in the evening hours of 4th February,2008. (ii) On the same day at about 10 p.m., when the deceased was breaking open the lock, P.Ws.1 and 10 questioned him as to why he was doing so. He said that he lost his key. Thereafter, he parked his motorcycle and got into the house. P.Ws.1 and 10 entered the house of the deceased and while they were talking, the deceased informed them that he married P.W.3 that day. Immediately, P.Ws.1 and 10 questioned him as to whether it is with the knowledge of his mother. The deceased told them that she went to the native place and hence he did not obtain her consent. After some times, he got the cell phone of P.W.1 and informed his brother about the marriage through cell phone. Thereafter, P.Ws.1 and 10 left the house leaving the deceased. (iii) At about 2.45 a.m., on hearing the barking noise of the dog, P.W.2 came out of the house and saw both the deceased and the accused. The deceased was wearing jatti and the accused was seen in black colour 'T' shirt and pant and they were fighting with each other. At that time, the deceased placed his hand on the chest and fell down. Thereafter, P.W.2 witnessed the accused running from the place of occurrence. He was asking the deceased whether he wanted to give any medical aid, but within a short span of time, the deceased died. (iv) The other neighbor P.W.1 rushed to the respondent- police and gave Ex.P1 complaint at about 4.30 a.m. P.W. 16 Sub Inspector of Police, who was on duty, on the strength of Ex.P1 report, registered the case in Crime No.164 of 2008 for the offence under Section 302 of the Indian Penal Code. The First Information Report Ex.P18 was despatched to the Court. (v) On receipt of Ex.P1 complaint, P.W.20 Inspector proceeded to the spot, made an inspection and prepared observation mahazar Ex.P2 and sketch Ex.P20. He recovered blood stained earth and sample earth from the place of occurrence under the cover of mahazar Ex.P3. He also took photographs of the dead body and remnants through photographer and they are marked as Ex.P19 series. (vi) Thereafter, P.W.20 Inspector conducted inquest on https://hcservices.ecourts.gov.in/hcservices/ the dead body and prepared inquest report Ex.P21 in the presence of witnesses and panchayatars and thereafter, the dead body was sent for post-mortem. P.W.13 Doctor, who has conducted post- mortem, issued post-mortem Certificate Ex.P9 and Final Opinion Ex.P10, wherein she has opined that that the deceased would appear to have died of shock and hemorrhage due to abdominal injury sustained by him. In the post-mortem Certificate, the following injuries are noted:- " The following antemortem injuries are seen in the body:- (1) Reddish abrasions seen over the following regions: -3x2cm over front of left shoulder seen 6 cm inner to top of shoulder, -4x1.5cm in the outer aspect of left arm seen 13 cm below top of left shoulder, -5x4 cm seen over front of left knee. -4x1.5 cm seen over inner aspect of left wrist. 2) Cut wounds seen in the following regions: -3x0.5x0.25 cm muscle deep, seen in the back of proximal phalanx of right thumb, -2x0.5x0.25cm over inner aspect of proximal phalanx of right little finger, -9x0.5x0.25cm over center of right palm 5 cm below wrist joint, -3.5x0.25x0.25cm seen 7 cm below right nipple, 3) 2x0.25 cm scratch wound seen in the front of center of neck 9 cm below chin. 4) Vertically oblique stab injury 5x2cm noted in the center of abdomen, 17cm above umbilicus in the midline through which the mesenteric fat is seen protruding out. The wound passes downwards and inwards penetrating the anterior abdominal wall, peritoneum and https://hcservices.ecourts.gov.in/hcservices/ the stomach through and through, 3x2 cm in both its anterior and posterior walls and has ended piercing the inferior vene cava 0.25x0.2 cms entering into lumen. The margins of the wound are clean cut and the lower end is sharp. The total length of the wound track is about 16 cm. Peritoneal cavity contains 2500 ml of blood with clots." (vii) On 5.2.2010, the accused was arrested. 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. He also produced M.Os.9 to 11 knife, weapon of crime, grey colour pant, black colour 'T' shirt respectively and the same were recovered under the cover of mahazar Ex.P20. The accused was sent for judicial remand. All the material objects were sent to the Forensic department and the reports received from them are marked as Ex.P12, 24 and 25. 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 23 witnesses and relied on 27 documents and also relied on M.Os.1 to 13. 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 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 punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, Mr.V.Kathirvelu, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case. Learned counsel would submit that P.Ws.1 and 10 were examined to the effect that they were talking to the deceased on the previous night, but they have not spoken anything about the occurrence. According to the prosecution, P.Ws.2 and 17 were examined as eye witnesses. The statement of P.W.17 though claimed to have been recorded on the very `day, it reached the Court after two months Therefore, no evidentiary value can be given to his evidence. 6. Insofar as the evidence of P.W.2 is concerned, it is unreliable. He came out of the house on hearing the barking sound of the dog and saw the accused and the deceased coming out of the https://hcservices.ecourts.gov.in/hcservices/ house and thereafter, he saw the accused ran away from the place of occurrence. When he came out, within a short span of time P.W.1 and other witness came there. Had it been true, he should have immediately informed P.W.1 about the incident, but he has not done so. Hence, it would be quite clear from Ex.P1 report alleged to have been given by P.W.1 in which there is no mentioning about the presence of the accused at all and hence the evidence of P.W.2 should not have been relied on by the prosecution. 7. Except the evidence of P.W.2, the prosecution has no evidence to offer. It is true, the prosecution relied on the alleged recovery of M.Os.9, 10 and 11. The Trial Court was not prepared to accept the same since the recovery is not as one envisaged under Section 27 of the Indian Evidence Act. Equally the evidence was also not taken as per the procedure contemplated under law. The Trial Court should not have accepted both the evidence but the Trial Court relied on the evidence of P.Ws.2 and 17. For the above reasons the evidence of P.W.2 and 17 should have been rejected. Hence the prosecution has miserably failed to prove its case, but the Trial Court has taken erroneous view. The accused is entitled for acquittal in the hands of this Court. 8. Learned counsel added further in his second line of argument that even according to P.W.2 and 17, there was a wordy altercation between the accused and the deceased, following the same, the occurrence took place. All would indicate the fact that the act of the accused is neither intentional nor premeditated. Hence, the act of the appellant would be one culpable homicide not amounting to murder. 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 Pannerselvam died in an incident that had taken place in the night hours of 4.2.2008. After the case was registered under Section 302 of the Indian Penal Code, the Investigating Officer took up the investigation and conducted inquest on the dead body and sent the dead body for post-mortem. P.W.13 Doctor, who conducted post- mortem issued post-mortem Certificate Ex.P9 and Final opinion Ex.P10, where she opined that the deceased died due to shock and haemorhage due to abdominal injury sustained by him. This fact was never disputed by the appellant. Hence there is no impediment for this Court for recording the same and accordingly, it has been recorded . 11. In order to substantiate the charge levelled against the appellant, the prosecution relied on three piece of evidence. https://hcservices.ecourts.gov.in/hcservices/ Firstly the evidence of P.Ws.1, 2 and 17. Secondly, recovery of M.O.9, to 11 knife, pant and 'T' shirt alleged to have been recovered following the confession statement given by the accused. Thirdly, the footprints that were taken from the occurrence 12. The Trial Court relied on the evidence of P.Ws.2 and 17 for sustaining the conviction. It is true, P.Ws.1 and 10 have been shown as witnesses who were talking with the deceased on the previous night, but their evidence was available to prove the motive what is attributed to the accused. According to the prosecution case, P.W.3, deserting her husband, developed illicit intimacy with the accused and was staying with him. At that time, the deceased intervened and married her on the very day. This information was passed on by the deceased to P.Ws.1 and 10 in respect of which they have given clear evidence. The occurrence had taken place in the night hours of 4.2.2008 and according to P.W.1, on hearing the sound of barking dogs, came out of the house and found both the accused and the deceased coming out of the house attacking each other. He has stepped further. When he found them, the accused was running from the place of occurrence. The deceased fell down putting his hands in the chest and he died within a few minutes. 13. Learned counsel for the appellant brought to the notice of this Court, P.W.1, when he went to the police station, would claim that P.W.2 was also present. Thereafter he gave complaint. Had it been true the name of the accused would have been mentioned in the complaint, but not so, which would be quite clear that P.Ws.1 and 2 were not present. One would naturally expect that when the accused was present at the scene at the time of occurrence, immediately after seeing the death of the person, the grip of attention would have naturally diverted and he just got into the house. Merely because P.W.1 has not stated the name of the accused in Ex.P1 complaint, it cannot be taken that P.W.1 could not have seen the occurrence. 14. The evidence of P.W.2 has got to be believed for the simple reason that the evidence of P.W.2 was recorded on the very day and it reached the Court immediately. The contention of the learned counsel for the appellant that P.W.2 was the planted witness cannot be accepted. The evidence of P.W.2 is that he has seen both the accused and the deceased fighting with each other and thereafter, the deceased fell down by putting his hands on the chest. This fact coupled with the statement recorded on the very day and reached the Court next day would prove that P.W.2 has spoken the truth 15. Insofar as the evidence of P.W.17 is concerned, it https://hcservices.ecourts.gov.in/hcservices/ cannot be accepted. Had it been true as claimed by the investigation that statement was recorded from P.W.17, there was no need to send the same after two months. In a case like this, the Court need not go for plenty of witnesses, but Court can rely on acceptable evidence. P.W.2 is a natural witness, who has narrated that except the accused, no one should have committed the damage and caused his death. The prosecution is successful enough to bring home the guilt of the accused, who had attacked and caused his death. 16. Insofar as second line of argument is concerned, this Court is able to see force in the contention put forth by the learned counsel for the appellant. Even according to P.W.2, there was a wordy altercation between the appellant and the deceased at his house. Further, motive was also established. When the accused had developed illicit intimacy with P.W.3 and staying with her, the deceased intervened and also married her and thus, all these circumstances provoked the accused. There was a wordy altercation and in that process, he acted so, which would not attract the provisions of murder. Hence, convicting the accused under Section 304(i) of the Indian Penal Code and awarding him seven years of Rigorous Imprisonment would meet the ends of justice. 17. Accordingly, the conviction of the sentence imposed on the appellant under Section 302 of the Indian Penal Code is modified and instead the appellant is convicted under Section 304 (I) of the Indian Penal Code and sentenced to undergo 7 years Rigorous Imprisonment. With this modification, the appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Judicial Magistrate No.6, Coimbatore. 2. The Chief Judicial Magistrate Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 3. The Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore. 4. The Superintendent, Central Prison, Coimbatore. 5. The District Collector, Coimbatore. 6. The Director General of Police, Madras – 4. 7. The Public Prosecutor, High Court, Madras. 8.The Inspector of Police, B6 Peelamedu Police Station, Coimbatore. Copy to: The Section Officer, Criminal Section, High Court, Madras. +1cc to Mr.V.Kathirvelu, Advocate Sr 15806 PUR(CO) km/22.3. Crl. A. No.813 of 2009 https://hcservices.ecourts.gov.in/hcservices/