IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.3.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.380 of 2007 Raman S/o.Kulandai .. Appellant / Accused Vs. State rep. by Inspector of Police Jamunamarathur Police Station Vaniyambadi, Tirupattur Taluk Vellore District. (Cr.No.182/04) .. Respondent / Complainant Appeal against the judgment dated 29.11.2006 made in S.C.No.114 of 2006 on the file of learned Additional District & Sessions Judge, Fast Track Court, Tirupattur Vellore District & to Setaside the Conviction & sentence imposed against him & acquit the appellant. For Appellant : Mr.M.N.Balakrishnan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The sole accused, younger brother of the deceased, on conclusion of the trial, suffered the judgment of conviction and sentence dated 29.11.2006 made in S.C.No.114 of 2006 on the file of learned Additional District & Sessions Judge, Fast Track Court, Tirupattur, to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for six months for the offence under Section 302, IPC. Hence, the accused has preferred the above appeal. 2. The allegation in the charges framed against the accused is that on 18.7.2004 at about 6.30 am, at Melnellimarathur Village, the accused, on noticing the deceased cutting a tree in the common pathway belonging to himself and the deceased and due to the land dispute, armed with Koduval alleged to have caused injury on the neck, left cheek and left https://hcservices.ecourts.gov.in/hcservices/ shoulder with an intention to kill him and the deceased was succumbed to the injuries on 20.7.2004 at 12.30 pm in the hospital and thereby alleged to have committed an offence punishable under Section 302, IPC. 3. The prosecution case in nutshell is as follows: (a) It is the evidence of P.W.1, son of the deceased, that there was a land dispute between his father and the accused, who is the younger brother of the deceased. The previous enmity was with regard to the claim of the accused for one cent of land and there was continuous quarrel between the accused and the deceased. On 18.7.2004, both the deceased and P.W.1 went to the land and the deceased was cutting the trees, which is in the common pathway, since there was difficulty in proceeding to the land, due to which they were made to proceed through the land of the accused. At that time, the accused suddenly came to the scene of occurrence and delivered cut on the backside of the deceased by saying that the land would come to his possession only after finishing the deceased. Thereafter, the accused delivered further two cuts on the deceased and the deceased fell down. The deceased was taken with the help of P.W.3 to the Government Hospital at Vaniyambadi. First aid was given to the deceased and thereafter, the deceased was sent to the Government Hospital at Vellore. The deceased has given a complaint, Ex.P1 to the Police and attested his thumb impression. (b) P.W.2 is the wife of the deceased who speaks about the motive for the case of the prosecution, viz. the land dispute between the accused and the deceased. The occurrence was informed to her by her son, P.W.1 and she accompanied the deceased to the hospital. (c) P.W.3 is an independent witness who knows about the accused and the deceased. He took the deceased to the Government Hospital, by engaging a van, accompanied by P.W.1. He has also spoken about the motive, viz. the land dispute between the accused and the deceased. (d) P.W.11, Sub Inspector of Police, on 18.7.2004, coming to know about the admission of the deceased as an inpatient at Vellore Government Hospital, received the complaint, Ex.P1 given by him. On the next day, reached the Police Station and registered a case in Crime No.182 of 2004 for an offence under Section 307, IPC. Ex.P8 is the FIR. He despatched the FIR to the Court, reached the scene of occurrence at 8 am and prepared observation mahazar, Ex.P2. He examined the witnesses, prepared rough sketch Ex.P9 and again visited the Government Hospital and examined the witnesses present over there. On 20.7.2004 at 12.30 pm, he arrested the accused. Pursuant to the voluntary statement given by the accused, M.O.3, knife was recovered under recovery mahazar, Ex.P11. The admissible portion of the statement is Ex.P10. Thereafter, the accused was remanded to judicial custody. At 3.45 pm, he received an intimation about the death of the deceased and thereafter, altered the offence into one under Section 302, IPC and prepared Special Report Ex.P12, reached the Police Station at 5.15 pm and handed over the https://hcservices.ecourts.gov.in/hcservices/ investigation to the Inspector of Police. Exs.P13 and P14 are recovery mahazars. (e) P.W.4 has attested the observation mahazar, Ex.P2 prepared by P.W.11. (f) P.Ws.5 and 6 are the Assistants working in the office of the Village Administrative Officer, who attested the recovery mahazar. However, both these witnesses have been treated as hostile since they have stated that they have only signed the mahazar. (g) P.W.7 is the Head Constable, who, on receipt of the altered FIR, delivered the same to the learned Magistrate and superior officers. (h) P.W.9 is the Doctor attached to the Government Hospital, Vaniyambadi, who examined the deceased and issued wound certificate, Ex.P6. (i) P.W.10 is the medical officer attached to the Government Hospital, Vellore, who stated that the deceased was shifted to from the Government Hospital, Vaniyambadi to the Government Hospital, Vellore and the deceased was found unconscious. After giving treatment, the deceased was advised to be taken to the Government Hospital at Madras. The report given is Ex.P7. (j) P.W.13, Investigating Officer, on receipt of the FIR handed over by P.W.12, took up further investigation on 20.7.2004 and reached the scene of occurrence at 5.45 pm. Since the observation mahazar and rough sketch had already been prepared by P.W.11, he conducted inquest over the body of the deceased and examined the witnesses present over there. Ex.P16 is the inquest report. The dead body of the deceased was despatched for post mortem through P.W.8. After completion of the post mortem, blood stained clothing of the deceased were recovered. (k) P.W.12, the medical Officer, on receipt of the requisition, conducted autopsy over the dead body of the deceased on 21.7.2004 at 11.30 am and opined that the death of the deceased was due to cervical spine injury and its complications. Ex.P15 is the post mortem report. (l) In continuation of the investigation, the investigating officer examined the witnesses, received reports from the Chemical analyst and opinion from medical officers and on conclusion of the investigation, filed the final report before the Court against the accused for offence under Section 302, IPC. (k) The case was committed to Court of Sessions and charge was framed and since the accused denied his complicity in the offence, the case was taken up for trial. In order to substantiate the charges levelled against the accused, the prosecution examined P.Ws.1 to 13, https://hcservices.ecourts.gov.in/hcservices/ filed exhibits P1 to P16 and marked material objects M.Os.1 to 3. (m) On completion of the examination of the prosecution witnesses, the accused was questioned under Section 313, Cr.P.C. on the incriminating materials for which the accused denied any complicity of the offence committed and claimed innocence. Neither oral nor documentary evidence was adduced on the side of the defence. The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the appellant aforementioned. (n) Aggrieved against the conviction and sentence, the accused has preferred the present appeal. 4. The learned counsel for the appellant assails the conviction and sentence on the following grounds: (i) The only eye witness in the case of the prosecution is P.W.1, who is none other than the son of the deceased. In view of the long standing property dispute, the family members are highly inimical and therefore, the interested testimony of P.W.1 cannot be relied upon. (ii) P.W.2, wife of the deceased, also speaks about the motive for the case of the prosecution. However, she is also an interested witness. Apart from P.Ws.1 and 2, other witnesses are formal witnesses. (iii) Even accepting the case of the prosecution that the accused was already present in his land and only at that time, the deceased and P.W.1 proceeded to the land and while so proceeding, since the deceased started cutting the trees leading to his land, which is situated in the common land in dispute between the land of the accused and the deceased, the accused, on noticing the same, in view of the long standing dispute and enmity for five years for the possession of one cent of land, deprived of his self control, took out the weapon and reached the scene of occurrence, which is nearby and caused injury on the deceased. It is the deceased who started removing the bushes and trees over there which has created an impression in the mind of the accused that the disputed one cent of land is going to be cultivated by the deceased. At any rate, the occurrence commenced only on the act of the deceased and the accused, only after seeing the deceased removing the tree, has committed the offence. Under such circumstances, the offence under Section 302, IPC has not been made about since there is no intention on the part of the accused to commit the murder of the deceased. 5. Per contra, learned Additional Public Prosecutor contends that (i) the occurrence was witnessed only by P.W.1, who is the son of the deceased. He is the natural witness who accompanied the deceased to the land, where the occurrence had taken place. Merely because he https://hcservices.ecourts.gov.in/hcservices/ happened to be closely related to the deceased, his evidence cannot be brushed aside. (ii) Similarly, since P.W.2 also speaks about the motive for the occurrence, her witness also cannot be rejected on the ground that she is wife of the deceased and therefore, she is an interested witness. (iii) It is true that the deceased started cutting trees, which were found in the common land. It is the case of the prosecution that the deceased had cut the trees, only for the purpose of facilitating his easy entry to the land. But this was mistaken by the accused as if the disputed one cent of land is being taken possession by the accused and therefore, the occurrence has taken place. The dispute, which was in existence for five years and the assault by the accused with deadly weapon would substantiate the offence under Section 302, IPC. 6. We have perused the entire materials on record and heard the submission of both sides. 7. The question that arises for our consideration is as to whether the prosecution has established its case beyond all reasonable doubts. 8. Before we proceed to consider the issue in question, let us first analyse whether the death of the deceased was due to homicidal violence. The doctor, P.W.12, was examined on this aspect and he has stated in his evidence that the deceased died due to cervical spine injury and its complications. He has issued Ex.P15, post mortem certificate describing the injuries found on the dead body. He has further stated that the injuries would have been caused with a sharp- edged weapon. Hence, we do not have any difficulty in holding that the death of the deceased was due to homicidal violence. 9.1. It is the case of the prosecution that there was a quarrel for one cent of land which lies in between the land of the accused and the deceased and the same was in existence for five years. Although there was a panchayat to resolve the dispute, as per Ex.P1, complaint given by the deceased, the accused refused to accept the advise of the Panchayatdars and relatives and therefore, the villagers have excommunicated the accused. In such circumstances, the occurrence had taken place. 9.2. It is alleged in Ex.P1, complaint given by P.W.1, son of the deceased that the occurrence took place only at the time when he was removing the tree. The accused looking from a distance rushed to the scene of occurrence with Koduval and questioned the deceased as to how can he cut those trees which were found on the common pathway. Subsequently, he delivered other cuts. On perusal of the evidence of P.W.1, this overt act of the accused, who is none other than the younger brother of the deceased, is corroborated. https://hcservices.ecourts.gov.in/hcservices/ 9.3. Of course, the learned counsel for the appellant contends that the evidence of P.Ws.1 and 2 are not trustworthy since they are interested witnesses. But the law on the point is well settled. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. 9.4. In Dalip Singh v. State of Punjab, (AIR 1953 SC 364), the Apex Court laid down as hereunder:- "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wich to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 9.5. Again in Masalti v. State of U.P., AIR 1965 SC 202, the Apex Court observed that: "But it would, we think, be unreaonsable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. .... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 9.6. Further, in Pulicheria Nagaraju v. State of A.P. (2006) 11 SCC 444, it has been observed: ".. that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the https://hcservices.ecourts.gov.in/hcservices/ evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted." 9.7. In the instant case, the evidence of P.W.1 is that the accused had inflicted cuts on the deceased due to the fact that the deceased started cutting the tree in the common pathway, as there was an enmity between the deceased and the accused due to the land dispute. The overt act of the accused is corroborated by the medical evidence, P.W.12, who had deposed that the deceased died due to cervical spine injury and its complications. Further, he has opined in Ex.P15, post- mortem certificate that the injuries would have been caused with a sharp-edged weapon. More over, the evidence of P.Ws.1 and 2 about the motive is corroborated by the evidence of P.W.3, who took the deceased to the hospital. Therefore, the evidence of P.Ws.1 and 2 cannot be rejected on the ground of interested witnesses. 9.8. While accepting the case of the prosecution insofar as the overt act attributed by the accused is concerned, the fact remains that the deceased started cutting the trees which were found in the common pathway. On perusal of the admissible portion of the voluntary statement given by the accused at the time of arrest, we find that the accused entertained a doubt that the deceased was cutting the trees to cultivate the common disputed land which lies between the land of the accused and the deceased. Therefore, it appears that the accused has lost his self control. However, since the accused and the deceased are agriculturists, the possession of koduval at the time of occurrence cannot be taken as a weapon which was carried by the accused only for the purpose of committing the offence. As a matter of fact, the deceased was also in possession of a koduval similar to that of M.O.3. 10.1. In view of the facts and circumstances of the case, we find that the occurrence took place extemporaneous and we find that there is no pre-meditation on the part of the accused in committing the offence. The occurrence has taken place due to the impression formed by the accused that the common land is going to be occupied and cultivated by the deceased. In view of the long standing enmity and dispute, the deceased could have desisted from doing anything on the disputed land and prevented the occurrence. It is only on account of the conduct of the deceased, the unfortunate occurrence had taken place. 10.2. We are, therefore, of the considered opinion that the offence under Section 302, IPC has not been made out, since the act committed by the accused would amount to culpable homicide, but not murder. Accordingly, in view of the weapon used for the commission of the offence, the appellant is convicted under Section 304 Part I, IPC, https://hcservices.ecourts.gov.in/hcservices/ and the sentence of life imprisonment is modified to rigorous imprisonment for seven years with compensation of Rs.20,000/-, of which, Rs.5,000/- shall be paid to the wife of the deceased and Rs.5,000/- shall be paid to each sons of the deceased, which shall be deposited in fixed for a minimum period of three years, renewable thereafter, till the children of the deceased attain majority. The appeal is partly allowed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar kpl To 1. The Additional District & Sessions Judge Fast Track Court Tirupattur. 2. Do Thro The Principal Sessions Judge, Vellore. 3. The Public Prosecutor, High Court, Madras. 4. The Inspector of Police, Jamunamarathur Police Station Vaniyambadi, tirupattur Taluk, Vellore District. 5. The Superintendent, Central Prison, Vellore. 6. The District Collector, Vellore. 7. The Director General of Police. Bv (Co) krd / 2.5.08 Crl.A.No.380 of 2007. https://hcservices.ecourts.gov.in/hcservices/