Bail Slip The Appellant/ Accused namely Tamizhvendan was directed to be released on bail as per the order of this Court dated 23.1.2007 and made in Crl.M.P.No.1/2007 in Crl.A.NO.24/2007 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.24 OF 2007 Tamizhvendan .. Appellant/ Accused Vs. State rep. by the Inspector of Police, Valavanur Police Station, Villupuram District Crime No.425 of 2004 .. Respondent/ Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Villupuram Sessions Division, Villupuram made in S.C.No.215 of 2005, dated 8.11.2006. For Appellant : Mr.V.Murugesan For Respondent : Mr.P.Kumaresan, APP https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Division, Villupuram made in S.C.No.215 of 2005, whereby the sole appellant/accused stood charged under Sections 302 and 506(ii) IPC, tried, found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.2000/-, in default to undergo three months R.I. and he was found not guilty under Section 506(ii) IPC and was acquitted of the said charge. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)The accused/appellant and the deceased Thulasingam are sons of P.W.4. P.W.1 is the wife of the deceased. P.W.4 owned 1 acre and 75 cents of land, which he divided among his sons and gave 60 cents to each, while he retained the remainder. There was a common motor pump set in the land. The accused was having a key, while the deceased was keeping an another key. b)Just prior to the date of occurrence, the key, which was kept by the deceased in the motor pump set room, was not found. Thereafter, a panchayat was convened. At that time, the accused was demanding 20 cents of land from P.W.4, who is also amenable for the same. c)On the date of occurrence, namely on 12.6.2004 at about 7.00 a.m., the deceased along with his wife P.W.1, went to his land and questioned the accused as to his key. At that time, there was a wordy altercation between the accused and the deceased. In that process, the accused took the knife and attacked the deceased on his left chest. The deceased fell down. The occurrence was witnessed not only by P.W.1, but also by P.Ws.2 and 3. Immediately, the accused fled away from the place of occurrence. d)The deceased was immediately taken to the Government Hospital, Cuddalore, where he was examined by P.W.9, the Doctor, who has issued Ex.P.6, the accident register. The deceased was declared dead. P.W.14, the Sub Inspector of Police attached to the respondent police station, on receipt of the copy of Ex.P.1, the complaint from P.W.1, registered a case in Crime No.425/2004 under Sections 294, 506(ii) and 302 IPC. Ex.P.10, the F.I.R. was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ e)P.W.15, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.11, the rough sketch. He recovered the bloodstained earth and sample earth under a cover of mahazar. Then, he proceeded to the Government Hospital, Cuddalore 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. f)P.W.10, the Doctor attached to the Government Hospital, Cuddalore, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.8, the post- mortem certificate, wherein the Doctor has opined that the deceased would appear to have died of stab injury on left side chest wall with shock. g)Pending investigation, the Investigator has arrested the accused on 14.6.2004, who has come forward to give confessional statement voluntarily and the same was recorded by the Investigator. The admissible part of the same was marked as Ex.P.4, pursuant to which 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 on requisition given by the Investigator through the concerned Judicial Magistrate, which resulted in two reports, namely Ex.P.15, the Chemical Analyst's report and Ex.P.16, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report. 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 15 witnesses and also relied on 16 exhibits and 8 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 on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty under Section 302 IPC and awarded life imprisonment and has acquitted the accused under Section 506(ii) IPC. Hence this appeal has arisen at the instance of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing arguments on behalf of the appellant, the learned counsel has made the following submissions: a)The occurrence has taken place on 12.6.2004 at 7.00 a.m. P.Ws.1 to 3 are shown as eyewitnesses. The relationship between the deceased family and the accused family were strained. P.W.1 is the wife of the deceased and she is interested and thus, her evidence could not be given any credence. So far as P.W.3 was concerned, according to him, he came to the place of occurrence after the occurrence was over and hence he could not have seen the occurrence at all. So far as P.W.2 was concerned, he is interested in the family of the deceased. Further, their evidence was not in corroboration with the other evidence and hence the lower court should have rejected the testimony of P.Ws.1 to 3. b)In the instant case, the prosecution relied on and the lower court has also accepted the evidence as to the alleged confessional statement and the recovery of M.O.1, knife. The prosecution would claim that he was arrested on 14.6.2004 and pursuant to his confessional statement, M.O.1 was recovered under a cover of mahazar. But, in the instant case, according to the evidence of P.W.1, the accused was found in the police station in the afternoon. If to be so, the arrest, confessional statement and the recovery, as claimed by the prosecution, are false and hence it has got to be rejected. But, the lower court without appreciation of the contention put forth by the defence, has accepted that part of the evidence. Hence it has got to be rejected. Further, M.O.1, knife was not subjected to chemical analysis and under these circumstances, the prosecution has miserably failed to prove its case beyond reasonable doubt. c)The second line of argument put forth by the learned counsel for the appellant is that even assuming that the factual position that it was the accused who attacked the deceased with knife and caused his death, is accepted by the court, the act of the accused under the given circumstances would not attract the penal provision of murder for the reasons that even according to P.Ws.1 and 2, who are the eyewitnesses, there was a wordy quarrel as to the missing of key between the accused and the deceased and further, the accused was questioned by the deceased as to the missing of key and therefore, in that quarrel, the accused attacked the deceased. Under these circumstances, it would be quite clear that the act of the accused was neither premeditated nor intentional, but it was one done due to sudden quarrel, which arose between the deceased and the accused and hence the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder and therefore, the court has to consider the same. https://hcservices.ecourts.gov.in/hcservices/ 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that Thulasingam, the husband of P.W.1 was done to death in an incident that took place at about 7.00 a.m. on 12.6.2004 in his field. Following the inquest made by P.W.15, the Investigating Officer, the dead body was subjected to post-mortem by P.W.10, the Doctor, who as a witness before the court has given his categorical opinion that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained externally on chest and its corresponding internal injuries. The same is also found in the post-mortem certificate issued by him. The fact that the deceased died out of homicidal violence was not the subject matter of controversy before the trial court and hence the lower court was perfectly correct in recording a finding so. 7.In order to substantiate the fact that it was the accused who stabbed the deceased to death at the time and place of occurrence, the prosecution rested its case on the direct evidence of P.Ws.1 to 3. The court is mindful of caution made by the Apex Court and by the settled principles of law that before accepting the evidence of the relatives, the court must exercise the test of careful scrutiny. So far as P.W.1 is concerned, it is true, she is the wife of the deceased. According to P.W.1, both went to the field on the morning for watering and at that time, the occurrence has taken place. P.W.1 has categorically spoken about the incident and apart from that, she is a family lady. Hence her evidence has inspired the confidence of the court. The trial court has rightly accepted the same. Apart from the evidence of P.W.1, the prosecution to its benefit had the evidence of P.W.2. P.W.2 has spoken about the incident categorically, which stood in corroboration with the evidence of P.W.1. Apart from that, as rightly pointed out by the learned counsel for the appellant, from the evidence of P.W.3, it would be quite clear that P.W.3 came to the place of occurrence only after the accused stabbed the deceased. But, at the same time, it is pertinent to point out that from the evidence of P.W.3, it would be quite clear that the accused was actually found in the place of occurrence with the bloodstained knife. Thus, this is a strong circumstance in favour of the prosecution and against the accused. 8.Apart from that, the evidence projected through P.Ws.1 to 3 stood thoroughly corroborated by the medical evidence given by P.W.10, the Doctor, who conducted autopsy on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate. In the instant case, the learned counsel for the appellant brought to the notice of the court that the alleged confession and recovery https://hcservices.ecourts.gov.in/hcservices/ pursuant to the arrest should not be believed; that the evidence of P.W.1 is to the effect that the accused was found in the custody of police on the evening, but the prosecution would claim that he was arrested on 14.6.2004; that if the evidence of P.W.1 was true that the accused was found in the custody of police in the evening hours on 12.6.2004, the claim by the prosecution that the accused was arrested on 14.6.2004 and he came forward to give confessional statement, pursuant to which M.O.1, knife was recovered, could not be believed and apart from that, the prosecution did not come with any explanation as to why M.O.1, knife, which was alleged to have been recovered pursuant to the confessional statement, was not subjected to chemical analysis and thus, all would go to show that the claim by the prosecution insofar as the arrest, confessional statement and the recovery of M.O.1, have got to be rejected. Even if this part of the evidence that was adduced by the prosecution is rejected, the court is of the considered opinion that the ocular testimony projected by the prosecution stood in corroboration with the medical evidence and under these circumstances, the contentions put forth by the learned counsel for the appellant as recorded above, do not carry any merit whatsoever. The prosecution has brought home the guilt of the accused that it was he who stabbed the deceased to death. 9.So far as the second line of argument put forth by the learned counsel for the appellant is concerned, the court is able to see sufficient force. According to P.W.1, P.W.4 had 1 acre and 75 cents of land and he actually gave 60 cents to P.W.1's family and another 60 cents to accused family and there was a common pump set and there were two keys and one key was with the accused and the other key was in the hands of the deceased. The key of the deceased was found missing. There was a panchayat convened and following the same, on the date of occurrence, the deceased accompanied with P.W.1 went to his field and at that time, it was the deceased who questioned the appellant as to his key. Thus, there was a wordy altercation which has culminated in an incident, in which the accused has taken the knife and stabbed the deceased once on chest, which resulted in the death of the deceased. Under these circumstances, it would be quite clear that the act of the accused was neither intentional nor premeditated nor planned, but it was done due to sudden quarrel, which arose between the deceased and the accused. Hence the act of the accused would not attract the penal provision of 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) IPC and awarding punishment of 7 years R.I. would meet the ends of justice. 10.Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are modified and instead the appellant is convicted under Section 304(I) IPC and sentenced to https://hcservices.ecourts.gov.in/hcservices/ undergo 7 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and default sentence imposed by the trial court will hold good. It is reported that the appelant is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. 11.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, Villupuram. 2.The Inspector of Police, Valavanur Police Station, Villupuram District. 3.The Public Prosecutor, High Court, Madras. 4. The Judicial Magistrate Villupuram. 5. The Chief Judicial Magistrate Villupuram (for information) 6. The Superintendent Central Prison, Cuddalore 7. The Section Officer Criminal Section, High Court, Madras. CRL.A.NO.24 OF 2007 KJI (CO) kk 20/11 https://hcservices.ecourts.gov.in/hcservices/