BAIL SLIP The Appellant/Accused viz. Devaraj was directed to be released on bail as per order of this Court dated 30.11.2006 and made in Crl.M.P.No.4434/2006 in Crl.A.No.349/2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.4.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.349 of 2006 Devaraj .. Appellant/Accused Vs. State rep. by The Inspector of Police Pennagaram Police Station Dharmapuri. .. Respondent/Complainant ----- Appeal against the judgment dated 2.3.2006 made in S.C.No.367 of 2004 on the file of learned Additional Sessions Judge, Dharmapuri. ----- For Appellant : Mr.P.N.Prakash For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The appellant, sole accused in S.C.No.367 of 2004 on the file of the learned Additional Sessions Judge, Dharmapuri, stands convicted under Sections 302 and 307 IPC for causing the death of one Kamala and for causing injuries to P.W.2 in the same transaction. On being convicted, the appellant was sentenced to https://hcservices.ecourts.gov.in/hcservices/ rigorous imprisonment for life with a fine of Rs.1,000/-, in default, rigorous imprisonment for three months for the offence under Section 302, IPC and rigorous imprisonment for seven years with a fine of Rs.1,000/-, in default, rigorous imprisonment for three months for the offence under Section 307, IPC and the said sentences were ordered to run concurrently. 2. The case of the prosecution, in nutshell, is as under. (a) The deceased and P.W.2 are husband and wife. The accused is their neighbour. P.W.2, Revenue Inspector, was constructing a house at Pennagaram, by engaging P.W.7, Contractor, through whom, P.W.6, Mason was employed to raise the compound wall. The said construction was objected to by the appellant on the ground that his land was encroached by P.W.2, which turned into a wordy quarrel and made the deceased to claim that the construction of compound wall was being made in their land. On questioning the accused as to why he was objecting to the construction of the compound wall, the appellant got annoyed and declaring that he could not live in his land peacefully unless he would do away with the deceased and P.W.2, took Soorikathi, M.O.1 from his waist and stabbed the deceased on the left side of her chest. When P.W.2 questioned the attack of the appellant on the deceased, the appellant stating that he would also do away with him, inflicted stab injury on P.W.2 on his left side chest with M.O.1. Thereafter, the appellant left the scene of occurrence stating that he would do the same to P.W.1, brother of the deceased and P.W.4, daughter of the deceased and P.W.2. (b) The public, who gathered at the scene of occurrence, took the deceased and P.W.2 to the hospital at Pennagaram, where, P.W.3, Doctor declared that the deceased succumbed to injuries on the way to the hospital and gave first aid to P.W.2. Thereafter, P.W.2 was admitted in the Government Hospital at Dharmapuri. (c) P.W.1, brother of the deceased and eye witness to the occurrence, lodged a complaint Ex.P1 on the file of Pennagaram Police Station at about 2 pm. In his evidence, he deposed about the about the occurrence due to the land dispute between the deceased and P.W.2 and the appellant. (d) P.W.4, daughter of the deceased and P.W.2, also speaks about the quarrel between the deceased and the appellant and the attack of the appellant. https://hcservices.ecourts.gov.in/hcservices/ (e) P.W.5, an auto driver, took the deceased to the hospital in his auto. But, he was treated as hostile witness. (f) P.W.6, Mason, who constructed the compound wall in the land of P.W.2 and the deceased, based on the instruction of P.W.7, is an eye-witness to the occurrence. (g) P.W.7, Contractor, deposed that when he went to the place of occurrence at about 1 pm on the date of occurrence, he was informed by the public that the appellant stabbed the deceased and P.W.2. (h) P.W.15, Sub Inspector of Police registered a case against the appellant in Crime No.945 of 2001 under Sections 302 and 307, IPC and forwarded a copy of the FIR to the Inspector of Police. (i) The then Inspector of Police, on receipt of the FIR, proceeded to the scene of occurrence at 3.45 pm, where he prepared an observation mahazar, Ex.P2 and drew a rough sketch, Ex.P17. He collected M.Os.5 and 6 under a mahazar, Ex.P6, attested by the witnesses. He conducted inquest over the body of the deceased. Ex.P18 is the inquest report. After the inquest was over, he prepared Ex.P7, requisition, and handed over the same as well as the body of the deceased to a police constable, P.W.13, requesting the doctor to conduct autopsy. He recorded the statements of P.W.1 and others. (j) On receipt of Ex.P7, requisition for post mortem, P.W.10, Medical Officer attached to the Government Hospital, Dharmapuri conducted autopsy over the dead body of the deceased and opined that the deceased would appear to have died of shock and haemorrhage especially due to injury to vital organs, viz. heart and lung. Ex.P8 is the post mortem certificate. (k) In the meantime, the then Inspector of Police arrested the appellant and enquired him in the presence of P.W.8 and another. The appellant gave voluntary statement in the presence of P.W.8. The admissible portion of the statement is Ex.P4. Based on the statement of the appellant, M.O.1 was recovered under mahazar, Ex.P5. He collected the blood stained clothing of the deceased, M.Os.2 to 4 under Ex.P31, after completion of the post mortem. He recorded the statements of P.W.10, Medical Officer who conducted post mortem, P.W.14, Constable who handed over the express FIR to the Judicial Magistrate and P.W.13, https://hcservices.ecourts.gov.in/hcservices/ Constable who carried the body for post mortem. He sent the material objects to Court with a requisition, Ex.P10 to send them for chemical analysis. P.W.12 is the Head Clerk, who submitted the articles for chemical analysis. Ex.P12 is the chemical analysis report and Ex.P13 is the serologist report. (l) As the then Inspector of Police was transferred on 25.1.2002, the investigation was taken over by P.W.17. P.W.17 recorded the statements of the witnesses. He also recorded the statements of P.W.16, Doctor who treated P.W.2 and issued Ex.P16, wound certificate and P.W.11, Doctor who examined the injuries on P.W.2 and issued wound certificate, Ex.P9. (m) On completion of the investigation, P.W.17 filed the final report against the appellant under Sections 302 and 307, IPC. The case was committed to Court of Sessions and charges were framed and since the accused denied his complicity in the offence, the case was taken up for trial. (n) The appellant was questioned under Section 313 Cr.P.C. as to the incriminating circumstances appeared against him, to which, the accused denied. Neither any witness was examined nor any documentary evidence was produced on his side. (o) The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the appellant aforementioned. Hence, the present appeal. 3. The learned counsel for the appellant, inviting our attention to the evidence of eye-witnesses P.Ws.1, 2, 4 and 6, contends that since the deceased questioned the appellant as to his objection for the construction of compound wall in their land, the appellant got provoked and attacked her with Soorikathi, M.O.1, which the villagers used to have in their waist. As the deceased being the aggressor, who provoked the appellant, the appellant had committed the offence due to sudden provocation and hence, the offence under section 302, IPC has not been made out and therefore, seeks modification of the conviction for lesser offence. 4. Per contra, the learned Additional Public Prosecutor contends that if the appellant had no intention to commit the offence, he would not have uttered, while attacking the deceased on her left side chest, that he could not live peacefully unless he would do away with her. Similarly, when P.W.2 resisted the appellant, he again uttered that he would also do away with him https://hcservices.ecourts.gov.in/hcservices/ and inflicted injury on P.W.2 on his left side chest. Further, he had also threatened the other eye witnesses who tried to prevent him. Therefore, the contention that the appellant had no intention to commit the offence has to be rejected. 5. We have given our careful consideration to the submissions of both sides and also perused the entire materials available on record. 6. As per the evidence of P.Ws.1, 2, 4 and 6, who are eye witnesses to the occurrence, there was a dispute between the deceased and P.W.2 and the appellant with regard to the construction of the compound wall. On the date of occurrence, when the appellant objected to the construction of the compound wall, the deceased questioned him as to why he was objecting the construction of compound wall in their land. The appellant, uttering that he could live peacefully only if he would do away with her, took out Soorikathi, M.O.1 from his waist and stabbed her on her left side chest. When P.W.2 resisted the appellant, the appellant also stabbed him on his left side chest by uttering that he would also do away with him. 7. More over, the fact that there was a land dispute between the deceased and P.W.2 and the appellant was proved by the evidence of P.Ws.1, 2 and 4. 8. As per the evidence of the eye witnesses, it was the deceased who questioned the appellant with regard to his objection of construction of the compound wall in their land. Therefore, the deceased was the aggressor who stimulated the appellant. Only on being incited by the act of the deceased, the appellant, took out Soorikathi, M.O.1 from his waist and stabbed the deceased on her left side chest. Therefore, it is clear that only on sudden provocation, the appellant had stabbed the deceased and P.W.2. 9. Though the learned counsel for the appellant inviting our attention to the evidence of P.W.16, Doctor, in the cross, that the injury on P.W.2 would not have been caused by using M.O.1, contends that the weapon used in the commission of offence would not be M.O.1, we are unable to appreciate such discrepancy, because, P.Ws.1, 2, 4 and 6, who are eye witnesses, had clearly stated that the appellant gave a stab on the deceased and P.W.2 by using M.O.1. Further, the injury noted in Ex.P9, wound certificate issued by P.W.11, Doctor in respect of P.W.2 that "Deep lacerated wound 8cm x 5cm x 2cm involving muscles, Fascia over and above left hypochondrium 3-5 above costal margin" is https://hcservices.ecourts.gov.in/hcservices/ only superficial, since no internal organ has been injured. Even though the wound is grievous in nature, since it has not injured any internal organ, it could be inferred that only at the spur of the moment, the appellant deprived of his power of self control, took out Soorikathi, M.O.1 from his waist and stabbed the deceased, who happened to be the aggressor in the entire scene of crime. Further, there was no injury on the internal organ of P.W.2. 10. In view of the facts and circumstances of the case, we are of the considered view that the offence under Section 302 IPC is not made out. The inference that can be arrived based on the materials would depict that the act of the appellant amounts to culpable homicide not amounting to murder, as the occurrence took place on account of the sudden provocation given by the deceased. 11. For all the reasons stated above, the conviction of the accused under Section 302, IPC cannot be legally sustained. Accordingly, the conviction of the appellant under Section 302, IPC is modified to one under Section 304 Part I, IPC for which he is sentenced to undergo rigorous imprisonment for seven years. Fine amount imposed on him for the offence under Section 302, IPC is sustained for his conviction under Section 304 Part I, IPC. Accordingly, the appeal is partly allowed. 12. The appellant is on bail. The bail bonds executed by him shall stand cancelled forthwith and the learned Sessions Judge is directed to take steps to secure the presence of the appellant and commit him to jail to undergo the remaining period of sentence, if any to be undergone. The period of sentence already undergone by him shall be given set off. In the result, the appeal is partly allowed. kpl Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. THE ADDITIONAL SESSIONS JUDGE DHARMAPURI 2. -DO- THROUGH THE PRINCIPAL SESSIONS JUDGE, DHARMAPURI 3. THE JUDICIAL MAGISTRATE PENNAGARAM 4. -DO- THROUGH THE CHIEF JUDICIAL MAGISTRATE, DHARMAPURI 5. THE SUPERINTENDENT CENTRAL PRISON VELLORE 6. THE DISTRICT COLLECTOR, DHARMAPURI 7. THE DIRECTOR GENERAL OF POLICE MYLAPORE, CHENNAI-4 8. THE INSPECTOR OF POLICE PENNAGARAM POLICE STATION DHARMAPURI 9. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS 1 cc to Mr.Anand, Abbul & Vinoth, Associates, SR.19672 gv (co) dv/12.6. Crl.A.No.349 of 2006. https://hcservices.ecourts.gov.in/hcservices/