IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.281 OF 2007 Kutty @ Vincent .. Appellant Vs. State rep. by The Inspector of Police, J-6, Thiruvanmiyur Police Station, Chennai. (Crime No.806/2006) .. Respondent This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of the learned Principal Sessions Judge, Chennai made in S.C.No.511 of 2006, dated 31.1.2007. For Appellant : Mr.A.Ramesh, SC for Mr.K.Mohanraj, Baskar & Prakash For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Chennai made in S.C.No.511 of 2006, whereby the sole accused/appellant stood charged under Sections 302 and 324 IPC, tried, found guilty as per the charges and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo three months SI under Section 302 IPC, six months R.I. under Section 324 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)P.W.1 is the daughter-in-law of the deceased Girija. The deceased was running a tea stall at Ashtalakshmi Garden area in a four wheeler. On 13.9.2006 at about 12.00 noon, the deceased and her husband were doing business at the tea stall. At that time, the accused came over there for taking tea. When the deceased gave him https://hcservices.ecourts.gov.in/hcservices/ tea, he quarreled with the deceased and poured it away and also left the place. At about 12.45 p.m., the deceased was talking with P.W.1 in front of her house. At that time, the accused came there and again, quarreled with the deceased. P.W.1 intervened and informed him that if the tea of their shop was not found good, he could go to some other shop and take tea. In that process, when the quarrel between the accused and the deceased reached pitch, the accused immediately went to the nearby beef stall and took M.O.1, knife and attacked the deceased on her chest and when P.W.1 raised alarm, the accused also attacked her on the left side head. The accused fled away from the place of occurrence. P.Ws.2,3 and 6 all came to the place of occurrence. P.W.3 saw the accused running away from the place of occurrence. b)P.W.1 immediately took the deceased to the Royapettah Government Hospital, where P.W.4, the Doctor examined and found her dead and he has given Ex.P.2, accident register. P.W.1 went to the respondent police station and gave Ex.P.1, the complaint to P.W.11, the Inspector of Police, on the strength of which, a case came to be registered in Crime No.806 of 2006 under Sections 341, 324 and 302 IPC. Ex.P.10, the F.I.R. was despatched to the Court. P.W.1 was sent for treatment with the medical memo. P.W.5, the Doctor has given treatment to her and has issued Ex.P.3, the accident register. c)P.W.11 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.4, the observation mahazar and Ex.P.11, the rough sketch. He recovered bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. He also examined the witnesses and recorded their statements. He went to the hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.12, the inquest report. Then, the dead body was sent for the purpose of autopsy. d)P.W.10, the Doctor attached to the Government Hospital, Royapettah, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.9, the post- mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. e)Pending investigation, the Investigating Officer arrested the accused on 15.9.2006 and the accused voluntarily came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.6. Pursuant to the same, the accused produced M.O.1, knife which was recovered under a cover of mahazar. The accused was sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.15, Biology report. On completion of the investigation, the Investigating Officer has filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 11 witnesses and also relied on 15 exhibits and 5 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced on either side, took the view that the prosecution has proved the case beyond reasonable doubt and has given punishments as referred to above, which is the subject matter of challenge before this court. 4.Advancing arguments on behalf of the appellant, the learned Senior counsel would submit that the prosecution has miserably failed to prove its case; that P.W.1 is the daughter-in-law of the deceased and hence she is interested; that her evidence has got to be scrutinised carefully; that even according to P.W.1 and as per Ex.P.1, the report, all other witnesses came to the spot after hearing the distressing cry and hence the other witnesses could not have seen the occurrence at all; that according to P.W.1 , there was a quarrel even in the morning hours, due to which she has falsely implicated the accused; that P.W.1 could not have seen the occurrence at all, since her evidence is self discrepancy; that the medical opinion adduced by the prosecution in respect of P.W.1 and the deceased cannot be accepted; that the medical evidence if scrutinised cannot be stated in corroboration with the ocular testimony projected through P.W.1; that apart from that, recovery of M.O.1 knife pursuant to the alleged confession was nothing but cooked up affairs; that the records have been created to suit the prosecution case, but in vain and thus the prosecution has miserably failed to prove its case. 5.Added further the learned counsel in his second line of argument that even according to prosecution, there was a quarrel between the deceased and the accused in a tea stall in morning hours; that it is true after the purchase of tea, he threw the same and left the place; that at 12.00 noon, the said occurrence has taken place; that according to the prosecution, there was quarrel even at the time of occurrence and when the quarrel reached pitch, the accused took the knife and attacked her and when P.W.1 intervened, she was also attacked; that it is not the case of prosecution that at the time of occurrence, he was armed with any weapon, but because of the quarrel and due to sudden provocation, he 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. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 7.It is not in controversy that Girija, the mother-in-law of P.W.1 was done to death in an incident that took place at the time and place of occurrence as put forth by the prosecution. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.10, the Doctor, who has given his categorical opinion before the court as a witness and also through his post-mortem certificate that the deceased died out of shock and haemorrhage due to the injuries sustained. This fact was never disputed by the appellant before the trial court and hence it has got to be recorded so. 8.In order to substantiate that it was the accused who caused the death of Girija at the time and place of occurrence, the prosecution examined P.W.1. It is pertinent to point out that according to P.W.1 and as per Ex.P.1, it could be seen that all other witnesses have reached the place of occurrence after hearing the distressing cry. According to P.W.3, when she rushed to the spot, she found the accused running from the place of occurrence. Thus, the accused was actually found running from the place of occurrence is the relevant fact, which stands proved through the evidence of P.W.3. It is the settled proposition of law that in a given case like this when one of the eye witnesses happened to be the injured witness, the evidence of such witness should not be discarded unless or until the court is able to notice a strong circumstance or a reason is brought forth. In the instant case, this court is unable to notice so. P.W.1 at the time of occurrence was also attacked by the accused with the knife and she also sustained injuries. She was examined by P.W.5, Doctor who has issued Ex.P.3, accident register which speaks about the occurrence. 9.Further, in the instant case, according to P.W.1, there was a quarrel between the deceased and the accused when the deceased was in her 4 wheeler tea stall and the accused left the place. At about 12.45 p.m. when P.W.1 was with her mother-in-law, the accused came over there and quarreled with both of them and when the quarrel reached pitch, the accused took the knife from the beef stall and attacked the deceased with M.O.1 Knife and caused her death and he has also attacked P.W.1 and caused injuries on her. Immediately, the deceased was taken to the hospital and it was P.W.4, the Doctor, who medically examined her and has issued Ex.P.2, the accident register. Apart from that, the dead body of the deceased was subjected to the post-mortem by P.W.10, the Doctor, who has given Ex.P.9, the post-mortem certificate wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. 10.Yet another circumstance which stood against the appellant/accused was the recovery of M.O.1 knife consequent upon the confessional statement given by the accused and recorded by the Investigating Officer in the presence of the witnesses and M.O.1 was also subjected to chemical analysis. In the instant case, the witness examined by the prosecution for the factum of arrest, confessional statement and recovery of weapon of crime remained unshaken. Thus, it would be pointing to the nexus of the accused https://hcservices.ecourts.gov.in/hcservices/ with the crime. All put together would be sufficient to point out the complicity of the offender namely the accused. Hence the contentions put forth by the learned counsel for the appellant in this regard have got to be rejected and accordingly they are rejected. Thus the prosecution has proved the fact that it was the accused who stabbed the deceased to death and apart from that caused injuries to P.W.1 also at the time of occurrence. 11.The second line of the contention put forth by the learned counsel for the appellant in the considered opinion of the court has got force. Even according to P.W.1, there was quarrel between the deceased and the accused at the four wheeler tea stall in the morning hours and the accused left the place. At about 12.45 p.m., the accused quarrelled with the deceased. It is pertinent to point out that the houses of the accused and the deceased are situated opposite to each other and when they met in the noon hours, they developed quarrel, in which P.W.1 was also available. Even as per the evidence of P.Ws.1 and 3, the quarrel culminated in the occurrence in which the accused took the knife from the nearby beef stall and attacked the deceased and also P.W.1. Thus, it would be quite clear that he remained unarmed and at the time of quarrel when it reached pitch and being provoked, he took the knife from the nearby beef stall and attacked them. 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) I.P.C. and awarding punishment of 7 years R.I would meet the ends of justice. 12.Accordingly, the conviction of the sentence imposed on the appellant under section 302 I.P.C. alone are modified and instead the appellant is convicted under section 304(I) I.P.C and sentenced to undergo 7 years R.I. 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 IPC will hold good. With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1. THE PRINCIPAL SESSIONS JUDGE CHENNAI https://hcservices.ecourts.gov.in/hcservices/ 2. THE COLLECTOR OF CHENNAI CHENNAI 3. THE DIRECTOR GENERAL OF POLICE MADRAS 4. THE SUPERINTENDENT CENTRAL PRISON PUZHAL CHENNAI 5. THE INSPECTOR OF POLICE J-6, THIRUVANMIYUR POLICE STATION CHENNAI 6. THE PUBLIC PROSECUTOR HIGH COURT MADRAS 7. THE IX METROPOLITAN MAGISTRATE SAIDAPET CHENNAI 8. -DO- THRO THE CHEIF METROPOLITAN MAGISTRATE EGMORE, CHENNAI - 8 COPY TO: The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.K.Mohanraj, Advocate, SR.63848 CRL.A.NO.281 OF 2007 NTK(CO) SRA(11/12/2008) https://hcservices.ecourts.gov.in/hcservices/