IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 03.03.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.698 of 2009 1. Ashok Kumar 2. Mohan ... Appellants/Accused 1 & 2 ..Vs.. State, rep. by the Inspector of Police, Sangagiri Police Station, Salem District. ... Respondent/Complainant (Crime No.615/2006) Appeal filed against the judgment dated 30.01.2009 passed by the learned Additional District and Sessions Judge, Salem (Fast Track Court No.1) Salem in S.C. No.160 of 2007. For Appellant : Mr. R. Sankara Subbu For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 30.01.2009 passed by the learned Additional District and Sessions Judge (Fast Track Court No.1) Salem in S.C. No.160 of 2007, whereby the first appellant stood charged for the offences under Sections 324 and 302 of the Indian Penal Code and the second appellant stood charged for the offence under Section 302 of the Indian Penal Code and the third accused stood charged for the offence under Section 323 of the Indian Penal Code and on trial, the first appellant was found guilty for the offences under Sections 324 and 302 of the Indian Penal Code and awarded punishment to undergo Rigorous Imprisonment https://hcservices.ecourts.gov.in/hcservices/ for two years for the offence under Section 324 of the Indian Penal Code and to undergo Life Imprisonment and to pay a fine of Rs.1,000/- in default to undergo Simple Imprisonment for six months for the offence under Section 302 of the Indian Penal Code and found second appellant guilty for the offence under Section 302 of the Indian Penal Code and awarded punishment to undergo Life Imprisonment and to pay a fine of Rs.1,000/- in default to undergo Simple Imprisonment for six months and found third accused guilty under Section 323 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for one month. 2. The short facts necessary for the disposal of the case can be stated thus: (i) P.W.1 is the wife, P.W.2 is the daughter and P.W.10 is the son of the deceased Kannupaiyan. P.W.3 is the grand daughter and P.W.4 is the sister of the deceased. P.W.10 Ramesh was employed as a Cleaner. During the relevant time, the first accused was working as Driver. Two years 3 months prior to the occurrence, the first accused gave Rs.6,000/- to P.W.10 with a request to hand over the said amount to his mother. P.W.10 took Rs.1,000/- out of the same and gave the balance amount to the mother of the first accused. Though many times there was a demand for the payment of the said amount, it was not effected and hence, they were on inimical terms. (ii) On the date of occurrence, when P.Ws.1 to 4, 10 and 11 were present along with the deceased, accused 1 to 3 came to the spot and there was a demand for the payment of the money and there was a quarrel. In that process, the first accused attacked P.W.10 on his left shoulder with knife. On seeing this, the father of P.W.10 viz. deceased Kannupaiyan intervened. Immediately accused 1 and 2 dashed his head on the nearby wall. He was found unconscious and later on, died at the spot itself. The third accused attacked P.W.1 with hands and caused injury on the forehead. All the accused fled away from the place of occurrence. This was witnessed by all the witnesses. (iii) P.W.1 proceeded to respondent-police and gave Ex.P12 complaint. P.W.15 Sub Inspector of Police received Ex.P12 complaint and on the strength of which, a case was registered in Crime No.615 of 2006 for the offences under Sections 323, 324 and 302 of the Indian Penal Code. Express First Information Report Ex.P21 was despatched to the Court along with Ex.P12 complaint. (iv) P.W.16 Inspector of Police took up investigation and proceeded to the spot and made an inspection of the place of occurrence and prepared observation mahazar Ex.P1 and rough sketch Ex.P22. He also recovered earth containing vomited particles M.O.3 and ordinary earth M.O.4. Thereafter, he conducted inquest on the https://hcservices.ecourts.gov.in/hcservices/ dead body and prepared Ex.P23 inquest report and sent the dead body for the purpose of autopsy. P.Ws.1 and 10 got treatment in the Government Hospital, Salem and the Accident registers and the Wound Certificates are marked as Ex.P10 and 9 respectively. (v) P.W.8 Doctor, after conducting autopsy on the dead body, issued the post-mortem Certificate Ex.P11, wherein the following injuries are found:- " (1) Abrasion Rt. Elbow 1x1 cm, 0.5x0.5cm, 0.5x0.5 cm. (2) Contusion both side occipital region of scalp 8x6 cms dark red (3) Sub dural and sub arachnoid haemorrhage over the both occipital lobes of brain (antemortem) OPINION:- Died due to the effects of head injuries." (vi) Thereafter, P.W.17, Inspector of Police conducted further investigation. Pending investigation, the first and second accused were arrested on 4.6.2000. They gave confession statements voluntarily and the same were recorded in the presence of witnesses. The admissible portion of the same were marked as Ex.P3 and P25 respectively. Pursuant to the confession statement, the first accused produced M.O.5 knife and the same was recovered under the cover of mahazar. The third accused was arrested on 7.6.2006 and she gave confession statement voluntarily and the same was recorded in the presence of witnesses. (vii) All the accused were sent for judicial remand. All the material objects were sent to Forensic Department for chemical analysis and chemical analysis reports are marked as Ex.P17 and P20 respectively. 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 19 witnesses and relied on 26 documents and also relied on M.Os.1 to 5. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. On the side of the accused, three witnesses were examined. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, https://hcservices.ecourts.gov.in/hcservices/ found the first accused guilty under Sections 324 and 302 of the Indian Penal Code, found second accused guilty under Section 302 of the Indian Penal Code and found third accused guilty under Section 323 of the Indian Penal Code and awarded punishment as referred to above. Since the third accused had already undergone the imprisonment imposed on him, he was released. Hence this appeal is filed at the instance of the accused 1 and 2/appellants. 5. Advancing arguments on behalf of the appellants, learned counsel would submit that in the instant case, the Trial Court has not properly appreciated the defence plea though occurrence took place in night hours. P.Ws.1 and 2, who have examined as witnesses, are close relatives. On a careful scrutiny, the Trial court should have rejected their evidence since there are lot of discrepancies in the evidence. Three witnesses were examined on the side of defence. It is made clear that P.W.10 borrowed Rs.6,000/- and when the same was demanded, there was a wordy quarrel. The defence witnesses viz. D.Ws.1 to 3 have categorically spoken to the fact that when the quarrel was going on, the said Kannupaiyan fell down on the floor. It was a natural death. Therefore, the evidence of D.Ws.1 to 3 that they were actually present at the scene of occurrence should be believed. 6. Learned counsel added further that when two theories are available regarding the occurrence, the one which is favourable to the accused should be taken into consideration. In this case, D.Ws.1 to 3 have narrated the occurrence. It is quite clear that neither first accused nor second accused attacked either P.W.1 or P.W.10. In the instant case, all the witnesses are close relatives, who are planted witnesses. The evidence put forth in respect of confession statement and recovery is nothing but false and vague. The medical opinion was also not in favour of the prosecution. 7. Learned counsel added further that in the instant case, if the Court takes the view that the prosecution has proved its case viz. as to. how accused 1 and 2 dashed the deceased on the whole and caused his death, then the act of the accused would not attract the penal provisions of murder. All the witnesses, who are eye witnesses, have clearly spoken that there was a demand for return of money by the first accused and in that process, there was a quarrel, following which the occurrence had taken place. It was neither intentional nor pre-determined. This Court has to consider the same and render justice. 8. This Court heard the learned Additional Public Prosecutor on the above contentions. https://hcservices.ecourts.gov.in/hcservices/ 9. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Kannupaiyan, husband of P.W.1 was done to death in the incident that had taken place in the midnight of 1.6.2006. Following the case registered by the P.W.15 Sub Inspector of Police, the case was taken up for investigation by P.W.16 Inspector of Police and after conducting inquest, the dead body was subjected to post-mortem and P.W.8 Doctor, who conducted autopsy, issued Ex.P11 post-mortem Certificate, where he opined that the deceased appear to have died due to the effects of head injury. He has also given evidence as to the contents given in the post-mortem. The appellants have not disputed this part of evidence as put forth by the prosecution and thus, the Trial Court is perfectly correct in recording that the deceased died due to homicidal violence. 10. In order to substantiate the case of the prosecution that both the appellants dashed the said Kannupaiyan nearby wall and caused his death instantaneously, the prosecution has marched P.Ws.1 to 4, 10 and 11 as eye witnesses. The Court cannot go unmindful of the caution made by the Apex Court on principles of law. When the eye witnesses happen to be the close relatives, the Court must exercise careful scrutiny. Even after applying the test, the Court is of the considered opinion that their evidence is natural and acceptable. 11. Apart from the above, P.W.10, who is also injured, has been examined by a medical Person and Accident Register was also produced. It is also a well settled principle of law that in a given case like this when the eye witnesses happen to be injured witnesses, their evidence should not be discarded or rejected, in the absence of any strong circumstance or reason. In the instant case, the Court is unable to see any reason or circumstance. Apart from that the ocular testimony projected by the prosecution is in total corroboration to the medical evidence. 12. The added circumstance is the recovery of knife by the police pursuant to the confession statement given by the accused. All would go to show that the prosecution has proved its case that it was the appellants, who dashed the head of the deceased nearby wall and caused his instantaneous death. Hence the contention put forth by the learned counsel for the appellant does not carry merit. 13. Insofar as second line of argument is concerned, the Court is able to see force in the contention of the learned counsel for the appellant. It is admitted by the prosecution that few years prior to the occurrence, when P.W.10 was working as Cleaner and the first accused was workin as Driver, the first accused handed over a sum of Rs.6,000/- to P.W.10 and asked him to pay the https://hcservices.ecourts.gov.in/hcservices/ same to his mother, but P.W.10 took Rs.1,000/- and paid remaining amount. When he was demanding for the said amount, even according to the witnesses, at the time of incident, there was a quarrel between P.W.10 and the accused. While it was going on, it was the deceased who intervened and thus, due to the sudden quarrel and being provoked by the intervention of the deceased, the accused have acted so and dashed him on the wall. 14. Thus, the act of the appellants 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 appellants would attract the penal provisions of section 304(I) I.P.C. and awarding punishment of 7 years Rigorous Imprisonment would meet the ends of justice. 15. Accordingly, the conviction of the sentence imposed on the appellants under section 302 I.P.C. alone are modified and instead the appellants are convicted under section 304(I) I.P.C and sentenced to undergo 7 years Rigorous Imprisonment. With this modification in conviction and sentence, this criminal appeal is dismissed. ssa. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Judicial Magistrate No.I, Sankagiri. 2. The Chief Judicial Magistrate, Salem. 3. The Additional District and Sessions Judge, Fast Track Court No.1, Salem. 4. The Superintendent, Central Prison, Salem. https://hcservices.ecourts.gov.in/hcservices/ 5. The District Collector, Salem. 6. The Director General of Police, Madras – 4. 7. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. R. Sankarasubbu, Advocate SR No.15161 Crl. A. No.698 of 2009 RJ(CO) SR/12.3.2010 https://hcservices.ecourts.gov.in/hcservices/