IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 03.09.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. SATHYANARAYANAN Crl. A. No.234 of 2010 Nagaraj ... Appellant/Accused ..Vs.. The State, rep. by the Inspector, Kaveripattinam Police Station, Kaveripattinam, Krishnagiri District. ... Respondent/Complainant (Crime No.186 of 2004) Appeal filed under section 374 (2) of Cr.P.C against the judgment dated 8.3.2010 passed by the learned Principal District and Sessions Judge, Krishnagiri in S.C. No.63 of 2008. For Appellant : Mr. P. Mani For Respondent : Mr. N.R. Elango, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 8.3.2010 passed by the learned Principal District and Sessions Judge, Krishnagiri in S.C. No.63 of 2008, whereby the sole accused stood charged, tried and found guilty for the offences under Sections 302 and 506 (2) of the Indian Penal Code and awarded punishment to undergo life imprisonment and to pay a fine of Rs.2,000/- in default to undergo six months Rigorous Imprisonment for the offence under Section 302 of the Indian Penal Code and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.500/- in default to undergo Rigorous Imprisonment for three months for the offence under Section 506(ii) 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.1 was living with his deceased father in Nedungal. P.W.2 is the friend of P.W.1. P.W.3 is the wife of the deceased. P.W.4 is the daughter of the deceased. They were all residents of the same village. The accused/appellant also belongs to the same village. They got lands adjacent to each other and there was conflict in the past. (ii) On the date of occurrence i.e. on 1.3.2004 in the morning hours, there was a wordy quarrel between the deceased and also the accused and thereafter, on the evening hours also at about 6.00 p.m., when P.Ws.1 to 4 were doing agricultural operation along with the deceased, the accused came over there and there was a wordy altercation and immediately, the accused entered into the house, take M.O.4 spade and attacked the deceased on his neck, as a result of which, he died on the spot. (iii) P.W.1 went to the respondent-police and gave complaint Ex.P1. On the strength of the same, P.W.7 Sub Inspector of Police registered a case in Crime No.186 of 2004 for the offence under section 302 of the Indian Penal Code and despatched the Express First Information Report Ex.P8 to the Court. On receipt of copy of First Information Report, P.W.9 Inspector of Police proceeded to the spot, made an inspection and prepared observation mahazar Ex.P2 and rough sketch Ex.P9. Thereafter, P.W.9 conducted inquest on the dead body in the presence of panchayatars and the inquest report is marked as Ex.P10. (iv) P.W.9 also recovered M.O.2 blood stained earth, ordinary earth M.O.1 from the place of occurrence in the presence of witnesses under the cover of mahazar Ex.P3 Thereafter, the dead body was subjected to post-mortem through requisition. P.W.6 Doctor attached to the Government Hospital conducted post-mortem and issued post-mortem Certificate Ex.P7 wherein he has opined that the deceased would appear to have died of shock an hemorrhage and due to the injury in vital organ. (v) Pending investigation, the accused was arrested on 2.3.2004 in the evening at about 4 p.m. and the accused gave confession statement voluntarily and the same was recorded in the presence of the witnesses and the admissible portion of the same is marked as Ex.P4. The accused also produced M.O.4 spade and the same was also recovered in the presence of witnesses under the cover of mahazar Ex.P5 and thereafter, the accused was sent for judicial remand. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. https://hcservices.ecourts.gov.in/hcservices/ Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 10 witnesses viz. P.Ws.1 to 10 and relied on 11 documents viz. Ex.P1 to P11 and also relied on M.Os.1 to 6. 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 scrutinizing the materials available on record, found the accused guilty under Sections 302 and 506(ii) 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 the occurrence had taken place at 6.00 p.m. on 1.3.2004. According to the prosecution, the occurrence was witnessed by P.Ws.1 to 4. Admittedly, P.W.1 is the son; P.W.3 is the wife and P.W.4 is the daughter of the deceased. Apart from this, P.W.2 is shown as friend of P.W.1. When the Court was not ready to believe the evidence of P.Ws.2 to 4 and their evidence was not useful to the prosecution, the learned Trial Judge should not have believed the evidence of P.W.1 for the reason that P.W.1 is the son of the deceased and apart from that, P.W.1 has categorically claimed that he went to the police station and made a report at about 10 p.m. When the occurrence had taken place at 6 p.m. and the police station situated 6 k.m. away from the place of occurrence. 6. Learned counsel further added that P.W.5 Village Administrative Officer has candidly deposed that he phoned over to the police station regarding the occurrence and after he went to the place of occurrence, he found the police came to the scene of occurrence. All would clearly indicate that the first information given by P.W.5 Village Administrative Officer to the police Officers has been thoroughly suppressed. Ex.P1, which was given by P.W.1 could not have been the first information report. 7. Learned counsel added further that the investigator would claim that he recovered M.O.4 spade from the accused in the presence of P.W.5 Village Administrative Officer at about 4 p.m. on 2.3.2004 on his arrest, pursuant to the confession statement given by the accused. Contrarily, a perusal of Ex.P10 inquest report would clearly indicate that the description of M.O.4 was actually found therein. Apart from this, learned counsel, pointing to the evidence of investigator, would submit that Ex.P10 inquest report was prepared by him at about 7 a.m. on 2.3.2004 and if to be so, in the absence of any weapon on hand, such a https://hcservices.ecourts.gov.in/hcservices/ description could not have been inserted in Ex.P10 document. It would clearly indicate that the alleged arrest and confession statement and recovery of M.O.4 spade are nothing but false. But the learned Trial Judge has erroneously accepted that piece of evidence. 8. Learned counsel further added that what was available to the prosecution is the evidence of P.W.1. So long as the evidence of P.W.1 is the solitary evidence, which lacks corroboration and self consistency, the prosecution has not proved its case beyond reasonable doubt. Hence, the judgment passed by the learned Trial Judge has got to be set aside. 9. Learned counsel, in his second line of argument, would argue that even according to P.W.1, there was a long pending dispute between the families. On the morning hours of 1.3.2004, the accused/appellant and also the deceased father of P.W.1 had a wordy altercation. Again, on the evening hours, when P.Ws.1 to 4 were carrying on agricultural operation along with the deceased, the accused came over there and there was a wordy altercation for about ten minutes. At that juncture, the accused got into the house, took M.O.4 spade and attacked him and hence the act of the accused is neither intentional nor premeditated, but only due to sudden quarrel and provocation. Hence, it has got to be considered by the Court. 10. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the submissions made. 11. It is not in controversy that in the incident that had taken place in the evening hours of 1.3.2004, the father of P.W.1 Lakshmanan was done to death. Following the inquest made by the Investigating Officer, the body was subjected to post-mortem and the Doctor, who conducted post-mortem, issued post-mortem Certificate Ex.P7 where he has opined that the deceased would appear to have died of shock and hemorrhage and due to the injury in vital organ sustained by him. Hence, the cause of death as put forth by the prosecution before the Trial Court was never disputed by the accused. Hence, no impediment is felt by the learned Trial Judge in recording so. 12. In order to prove the charges levelled against the accused, the prosecution examined four witnesses. Out of whom, the learned Trial Judge was not ready to believe the evidence of P.Ws.2 to 4 for the reasons stated by him, but the learned Trial Judge has believed the evidence P.W.1. It is true, P.W.1 is the son of the deceased. It is settled principles of law that merely because of relationship of the deceased and P.W.1, his evidence need not be discarded. Before accepting his evidence, a careful https://hcservices.ecourts.gov.in/hcservices/ scrutiny is necessary. Apart from that criminal legal system does not require the quantity of evidence, but only quality of evidence. 13. As rightly explained by the learned Trial Judge, the evidence of P.W.1 inspires the confidence of the Court. According to P.W.1, there was a long pending dispute between the deceased and the accused and there was a wordy altercation on the morning hours of 1.3.2004. On the same day, in the evening hours, when P.Ws.1 to 4 were doing agricultural operations along with the deceased, the accused came over there and there was a wordy altercation, following which the accused went to the house and took the M.O.4 spade and caused the death of the deceased. Apart from this, the evidence of P.W.1 is fully corroborated by the medical evidence adduced by the Doctor. 14. As rightly pointed out by the learned counsel for the appellant, the alleged claim of investigator that he arrested the accused at about 4 p.m. on 2.3.2004 and he gave confession statement voluntarily and following the same, he produced M.O.4 spade cannot be accepted. In view of the contents what is found in Ex.P10 inquest report would clearly indicate that it contains the description of M.O.4 spade. As rightly pointed out by the learned counsel for the appellant, in the absence of weapon on hand, such a description cannot be given. The inquest report was prepared even as per the admission of Investigating Officer at 7 a.m. on 2.3.2004. He claimed that he arrested the accused at 4 p.m. on 2.3.2004. Under such circumstances, the alleged confession statement given by the accused and also the recovery of M.O.4 spade is nothing but false and that piece of evidence has got to be rejected. 15. The contention put forth by the learned counsel for the appellant that there was a first information given by the Village Administrative Officer P.W.5 to the police Officer and the same is actually suppressed cannot be countenanced. P.W.5 Village Administrative Officer has admitted that he gave information to the police through phone as to the incident and P.W.1 has also deposed that when he returned from the police station, two police Constables were present in the place of occurrence. The very information to the police station that the incident had taken place and few Constables are posted at the place of occurrence in order to avoid the untoward happenings at that place cannot be taken as first information as the law envisages under Section 154 of the Criminal Procedure Code. In view of the same, the contention put forth by the learned counsel for the appellant cannot be countenanced. In that context, the decision of the Supreme Court reported in the case of ANIMIREDDY VENKATA RAMANA v. PUBLIC PROSECUTOR, HIGH COURT OF A.P. ((2008) 2 S.C.C. (CRL.) 600) has got to be applied. Thus, the evidence was placed by the https://hcservices.ecourts.gov.in/hcservices/ prosecution properly before the Trial Court to record the finding that it was the accused, who has caused the death of the deceased by attacking him with knife and caused the death instantaneously. 16. Insofar as the second line of argument, the Court is able to see force in the contention of the learned counsel for the appellant. Even as per the evidence of P.W.1, there was a dispute pending for a long time. On the date of occurrence, during morning hours, there was a wordy altercation. According to P.W.1, when they were all doing agricultural operation in the field along with the deceased, the accused came over there and both the appellant and the deceased quarrelled for ten minutes. At that juncture, the accused rushed to his house, took a spade and attacked the deceased and caused his death. At the time when the accused came to the place of occurrence he was unarmed. Hence, the act of the accused is neither intentional nor premeditated, but due to sudden quarrel between the accused and the deceased, Under the circumstances, the act of the accused would not attract the penal provisions of murder, but only culpable homicide not amounting to murder and therefore, the act of the accused would attract the penal provision of section 304(1) of the Indian Penal Code and awarding punishment of seven years Rigorous Imprisonment would meet the ends of justice. 17. Accordingly, the conviction and sentence imposed on the appellant under Section 302 of the Indian Penal Code alone is modified and instead, the appellant is convicted under Section 304 (I) of the Indian Penal Code and sentenced to undergo Seven years Rigorous Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. The fine and default sentence imposed by the Trial Court under Section 302 of the Indian Penal Code will hold good. 18. With the above modification in conviction and sentence, the criminal appeal is disposed of. ssa. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Judicial Magistrate, Krishnagiri. 2. Do Through The Chief Judicial Magistrate Krishnagiri. 3. The Principal District and Sessions Judge, Krishnagiri. 4. The Superintendent, Central Prison, Krishnagiri. 5. The Inspector, Kaveripattinam Police Station, Kaveripattinam, Krishnagiri District. 6. The District Collector, Krishnagiri. 7. The Director General of Police, Madras – 4. 8. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. P. Mani, Advocate SR No.66195 Crl. A. No.234 of 2010 NG(CO) SR/21.9.2010 https://hcservices.ecourts.gov.in/hcservices/