IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.967 OF 2007 Settu alias Augustian .. Appellant/Sole Accused Vs. State by Inspector of Police, Omalur Police Station, Salem District (Crime No.767 of 2003) .. Respondent/Complainant This criminal appeal has been preferred under Section 374 (2) Cr.P.C. against the judgment of the First Additional Sessions Judge, Salem made in S.C.No.389 of 2006, dated 17.9.2007. For Appellant : Mr.M.Devaraj, Amicus Curiae For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the First Additional Sessions Division, Salem made in S.C.No.389 of 2006, whereby the sole accused/appellant stood charged under Section 302 IPC, tried, found guilty as per the charge and awarded life imprisonment and to pay a fine of Rs.15000/-, in default to undergo one year R.I. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)P.W.1 is the wife and P.W.2 is the daughter of the deceased Arockiasamy. The accused/appellant, the deceased and https://hcservices.ecourts.gov.in/hcservices/ one Kaveri had a common Well. The electricity service connection of the electric motor pumpset stood in the name of the deceased. There was a long pending quarrel among the deceased and the accused in respect of the electricity service connection, which stood in the name of the deceased. On the date of occurrence, i.e. on 19.09.2003 at about 8.15 p.m., when P.Ws.1 to 3 and the deceased were just chatting in front of the house and near the Well, the accused came there and opened the lid of the motor pumpset. The deceased questioned the accused as to why he opened the lid of the motor pumpset and why you came during this time. Immediately, the accused replied that "I will do like this" and so saying, he took the knife and stabbed the deceased on his chest. The accused fled away from the place of occurrence with the weapon of crime. This was witnessed by P.Ws.1 to 3. b)Immediately, Arockiasamy was taken to the Omalur Government Hospital, where he was given treatment and for further treatment, he was taken to the Government Hospital, Salem, where he was under treatment. On receipt of the intimation, P.W.7, the Sub Inspector of Police, went to the Government Hospital, Salem. Since the deceased Arockiasamy was unconscious, P.W.1 gave statement to P.W.7, which was marked as Ex.P.1. On the strength of the same, he registered a case in Crime No.767 of 2003 under Section 307 IPC. Ex.P.11, the F.I.R. was despatched to the Court. c)P.W.8, 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.4, the observation mahazar and Ex.P.14, the rough sketch. He recorded the statements of the witnesses. The accused was arrested on 23.9.2003 and he has come 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. Then, the accused was sent for judicial remand. d)On 2.10.2003, Arockiasamy, who was under treatment, died and on intimation, P.W.7 altered the case into Section 302 IPC and Ex.P.13, the alteration report was despatched to the court. On receipt of the copy of the alteration report, P.W.8 proceeded 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.15, the inquest report. Then, the dead body was sent for the purpose of post-mortem. e)P.W.6, the Doctor attached to the Government Mohan Kumaramangalam Medical College Hospital, Salem, 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 due to the effects of stab injury to the lung. f)P.W.10, the Inspector of Police, took up further investigation and on completion of the investigation, he 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 10 witnesses and also relied on 18 exhibits and 1 M.O. 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. On the side of the defence, D.Ws.1 and 2 were examined, but no document was marked. 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 found the accused guilty as per the charge and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case; that it is true, the prosecution has marched three witnesses as occurrence witnesses, who are P.Ws.1 to 3; that P.W.1 is the wife and P.W.2 is the daughter of the deceased and hence they are interested witnesses; and that if their evidence is scrutinized carefully, it would indicate that they are not only inconsistent to each other, but also self contradictory and under these circumstances, their evidence should have been rejected. 5.Added further the learned counsel that so far as P.W.3 was concerned, he has categorically admitted even in the chief examination that he did not see the accused stabbing the deceased and hence the evidence of P.W.3 was of no use to the prosecution; that the medical evidence also did not corroborate with the ocular testimony projected through P.Ws.1 and 2; that originally, the deceased was taken to Omalur Government Hospital and thereafter, he was taken to Salem Government Hospital, where he lived for a period of 14 days and died on 02.10.2003; that originally, the case was registered under Section 307 IPC and subsequently, it was altered to Section 302 IPC; that there was only one stab injury; that the post-mortem Doctor's opinion was that the deceased would appear to have died due to the effects of stab injury and that the deceased lived for 14 days from the date of occurrence. 6.Added further the learned counsel that in the instant case, if the court comes to the conclusion that it was the accused who stabbed the deceased, as a result of which the deceased died, the act of the accused would not attract the penal provision of murder for the simple reason that even at the time of occurrence, according to the evidence of P.Ws.1,2 and 3, there was a quarrel and it is an admitted fact that actually the electricity service connection was in the name of the deceased, over which there was a long pending quarrel and at the time when the accused came to open the lid of motor pumpset, there arose a quarrel among them and in that process, the accused attacked the https://hcservices.ecourts.gov.in/hcservices/ deceased and hence it was neither intentional nor premeditated and under these circumstances, the act of the accused would not attract the penal provision of murder and further, there was only one stab injury and the deceased died after 14 days and hence these are the mitigating circumstances, which have got to be taken into account by the court. 7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 8.It is not in controversy that one Arockiasamy, the husband of P.W.1 and the father of P.W.2, following the incident that took place on 19.09.2003 at about 8.15 p.m., was taken to Omalur Government Hospital and thereafter, he was taken to the Salem Government Hospital, where he died after 14 days, i.e. on 2.10.2003. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.6, the Doctor, who has given his opinion that the deceased would appear to have died due to the effects of stab injury to the lung. He has also issued Ex.P.9, the post-mortem certificate to that effect. The fact that the deceased died as a direct consequence of stab injury, was not the subject matter of controversy before the trial court. Hence without any impediment, it has got to be recorded so. 9.In order to substantiate that it was the accused who stabbed Arockiasamy at the time and place of occurrence, the prosecution has marched three witnesses, out of these three witnesses, P.W.3 was the only independent witness. As rightly contended by the learned counsel for the appellant, when the evidence of P.W.3 is scrutinized, the court has no option than to reject his testimony with regard to the fact that Arockiasamy was stabbed by the accused, but the prosecution fortunately had the evidence of P.Ws.1 and 2. It is true, P.W.1 is the wife and P.W.2 is the daughter of the deceased. But merely on the ground of relationship, their evidence cannot be branded as interested evidence, but the court before accepting their evidence has to apply the test of careful scrutiny. Even after application of the test, the court is satisfied that their evidence has got to be accepted, since it has inspired the confidence of the Court. The trial court has rightly accepted their evidence. Both have spoken in one voice that at the time of occurrence, it was the accused who came to the spot and opened the lid of the motor pumpset and the same was questioned by the deceased and there was a quarrel and in that quarrel, the accused took the knife and stabbed the deceased on his chest once. Thus, the ocular testimony projected through P.Ws.1 and 2 stood fully corroborated by the medical evidence through P.W.6, the Doctor, who has conducted post-mortem and issued Ex.P.9, the post-mortem certificate. 10.Further, in the instant case, the yet another https://hcservices.ecourts.gov.in/hcservices/ circumstance against the appellant/accused was the recovery of M.O.1, knife pursuant to the confessional statement given by the accused. The witness examined as to the arrest, confessional statement and also the recovery of M.O.1, knife, remained unshaken despite cross examination in full. Thus, the prosecution to its advantage had the direct evidence and also the other pieces of evidence as narrated above in order to come to the conclusion that it was the accused who stabbed the deceased. Further, the opinion of the post-mortem Doctor was also available that the death has ensued as a direct consequence of the stab injury. Hence the contentions put forth by the learned counsel for the appellant and also as recorded above do not carry any merit whatsoever and hence they are liable to be rejected. Accordingly, they are rejected. 11.Insofar as the second line of argument advanced by the learned counsel for the appellant, the court is able to see sufficient force in the contentions put forth. Even as per the evidence of P.Ws.1 and 2, who are the occurrence witnesses, the accused came over there and opened the lid of the motor pumpset and the same was questioned by the deceased and there was a quarrel between the accused and the deceased and at that time, the accused took the knife and stabbed him once on his chest. The deceased lived for 14 days from the date of occurrence and died on 2.10.2003. Thus, under these circumstances, it cannot be stated that the act of the accused was intentional or premeditated, but at the same time, when he stabbed the deceased on his chest, he should have got the knowledge that it is likely to cause death 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, since the accused has acted due to sudden quarrel between them. Under these circumstances, the act of the accused would attract the penal provision of Section 304(II) IPC and awarding punishment of 5 years R.I. would meet the ends of justice. 12.Accordingly, the conviction and sentence imposed on the appellant by the trial court under Section 302 IPC are set aside and instead the appellant is convicted under Section 304(II) IPC and is directed to undergo 5 years R.I. The period of sentence already undergone by the appellant shall be given set off. The fine amount 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. https://hcservices.ecourts.gov.in/hcservices/ 13.Mr.M.Devaraj, Amicus Curiae counsel is entitled to get remuneration from the Tamil Nadu Legal Services Authority, Chennai. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The First Additional Sessions Judge, Salem. 2.The Superintendent, Central Prison, Salem. 3.The Additional Superintendent, Central Prison, Coimbatore. 4.The Inspector of Police, Omalur Police Station, Salem District. 5.The Additional Public Prosecutor, High Court, Madras. 6.The Secretary, Tamil Nadu Legal Services Authority, Chennai. +1cc to Mr.M.Devaraj, Advocate SR 67445 PUR (CO) km/12.12. CRL.A.NO.967 OF 2007 https://hcservices.ecourts.gov.in/hcservices/