IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:- 08.03.2010 CORAM THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE C.S. KARNAN CRL. A. NO.816 OF 2009 Karthick .. Appellant .vs. The State of Tamilnadu, rep. by the Inspector of Police, Villupuram West Police Station, Villupuram. .. Respondent Appeal filed against the judgment dated 10.12.2009 passed by the learned Principal Sessions Judge, Villupuram in S.C.No.85 of 2009. For Appellants : Mr. V. Gopinath, Senior Counsel for Mr. M. Devaraj For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 10.12.2009 passed by the learned Principal Sessions Judge, Villupuram in S.C.No.85 of 2009, whereby the appellant stood charged, tried and found guilty under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment. 2. The short facts necessary for the disposal of the appeal can be stated thus: (i) P.W.1 is the brother of the deceased. P.W.2 is the cousin brother of the deceased. When P.Ws.1 to 3 were standing in the Naickenthope Arunthathiyar Street, on the date of occurrence viz., on 25.07.2008 at about 4.30 p.m., they found the accused and the deceased were quarreling. Immediately the accused took the wooden log, which was lying by the side and attacked the deceased on the back of the head. The accused ran away from the place of occurrence. https://hcservices.ecourts.gov.in/hcservices/ (ii) The deceased was taken to the Government Hospital, Villupuram, where P.W.7 Doctor examined him and declared him dead. P.W.1 went to the respondent-police and gave Ex.P1 complaint. On the strength of Ex.P1 complaint, P.W.8 Sub Inspector of Police, registered a case in Crime No.441 of 2008 for the offence under Section 302 of the Indian Penal Code. Ex.P10 First Information Report and Ex.P1 complaint were despatched to the Court. (iii) P.W.9 Inspector took up investigation, proceeded to the place of occurrence, made an inspection and prepared observation mahazar Ex.P2 and rough sketch Ex.P11 in the presence of witnesses. Thereafter, he conducted inquest on the dead body in the presence of witnesses and panchayatars and the inquest report is marked as Ex.P12. Thereafter, the dead body was sent with a requisition Ex.P5 to the Government Hospital, Villupuram for conducting autopsy. (iv) P.W.6 Doctor conducted autopsy on the dead body and issued Ex.P8 post-mortem Certificate, where he has opined that the deceased died 14 to 16 hours prior to autopsy due to the shock and hemorrhage due to head injury. In the said Certificate, the following injuries are noted:- "1. A lacerated wound over the right occipital region of scalp 5 x 1 cm x bone depth. 2. A lacerated wound over the occipital region of scalp centre about 5 x 1 cm x bone depth. 3. A lacerated wound over the nose 0.5 x 0.25 x 0.25 cm. 4. Abrasion over the left side nose 1 x 1 cm." (v) Pending investigation, the accused was arrested on 26.7.2008. He gave confession statement voluntarily in the presence of witnesses. The admissible portion of the same is marked as Ex.P3. Pursuant to the confession statement, he produced M.O.1 wooden log and the same was recovered under the cover of mahazar Ex.P4. All the material objects were sent for chemical analysis and the chemical analysis report and Serological reports are marked as Ex.P15 and 16 respectively. Thereafter, he examined all the witnesses and recorded their statements. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 9 witnesses and relied on 16 documents and also relied on M.Os.1 to 3. On completion of examination of witnesses on the side https://hcservices.ecourts.gov.in/hcservices/ of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, Mr.V.Gopinath, learned Senior Counsel would submit that the prosecution relied on the witnesses viz. P.Ws.1 to 3 as eye witnesses. Out of whom, P.W.3 has turned hostile. P.W.1 is the elder brother and P.W.2 is the cousin brother of the deceased. On careful scrutiny, it would be clear that the evidence was actually not worthy enough to accept. The alleged recovery pursuant to the confession statement is nothing but cooked up affair. Learned senior counsel added further that except the evidence of P.Ws.1 to 3, the prosecution has no evidence to offer. The Trial Court should have acquitted the appellant, but has taken an erroneous view. Hence, this Court has to consider the case of the appellant and render justice. 6. Learned senior counsel added further in his second line of argument that in the instant case, even P.Ws.1 and 2 have categorically admitted that there was a wordy altercation between the accused and the deceased and in the course of which he took the stick which was lying by the side and attacked him on the back of the head and due to this, he died, which would clearly indicative of the fact that the accused was not armed with any weapon and there was wordy altercation, as a result of which, due to sudden provocation, he took the wooden log and attacked him and thus death has been caused. It was neither intentional nor premeditated. Hence, the act of the accused would not attract the penal provision of murder, but would only culpable homicide not amounting to murder. This has to be considered by this Court. 7. Heard the learned Additional Public Prosecutor on the above contentions. 8. This Court has paid its anxious consideration on the rival submissions made. It is not in controversy that one Siva, brother of P.W.1 and cousin brother of P.W.2 was done to death in an incident that had taken place at about 4.30 p.m. on 25.07.2008 as putforth by the prosecution. Following the inquest made by the Investigation Officer P.W.9, the dead body was subjected to post mortem by P.W.6 Doctor, who has given the post mortem certificate Ex.P.8, where he opined that the deceased would appear to have died out of shock and hemorrhage due to the injuries sustained by him. https://hcservices.ecourts.gov.in/hcservices/ The evidence putforth by the prosecution in this regard was not questioned by the appellant before the trial Court. Under such circumstances, the trial Court is perfectly correct in recording so. 9. In order to substantiate the case of the prosecution that it was the accused who attacked the deceased with a wooden log and caused his death, the prosecution has marched over three witnesses, out of whom P.W.3 has turned hostile. P.W.1 is the elder brother and P.W.2 is the cousin brother of the deceased. Merely because of their relationship, the Court cannot reject their testimony. But before accepting their evidence, the Court must apply the test of careful scrutiny. Even after applying the test, the Court is satisfied that their evidence was natural, cogent and acceptable. 10. Both the witnesses have spoken in one voice that they saw both the accused and the deceased at about 4.30 p.m. on 25.07.2008 and there was a wordy altercation and in that process the accused suddenly took the wooden log which was lying by the side and attacked him. Despite cross examination, their evidence remained unshaken. Hence, the ocular testimony putforth by the prosecution stood fully corroborated by the medical opinion canvassed through P.W.6 in his certificate Ex.P.8. 11. Added further, the recovery of the wooden log, with which the accused attacked the deceased and caused his death, in the face of the abundant materials as narrated above, stands proved. The contention putforth by the learned Senior Counsel that it was not the accused also cannot be accepted since they do not carry any merit. Hence the case of the prosecution is successful enough to prove the fact that it was the accused who attacked the deceased with the wooden log and caused his death. 12. Insofar as the second contention that the the act of the accused would not attract the penal provisions of murder is concerned, the Court has to necessarily agree with the learned Senior Counsel. The occurrence had taken place at about 04.30 p.m. on 25.07.2008. According to P.Ws.1 and 2, they were present at that time and actually there was a wordy altercation between the accused and the deceased and at that time the accused took the wooden log, which was lying by the side and that would clearly indicate the fact that the accused was not armed with any weapon or wooden log. Added further, the wooden log was actually taken by him, when there was a wordy altercation between them and thus it is quite clear that the act of the accused is neither premeditated nor intentional. Under such circumstances, the act of the accused would not attract the penal provision of murder but attract the penal provisions of Section 304 Part II of the Indian Penal Code and awarding the punishment of 5 years of Rigorous imprisonment would meet the ends of justice. https://hcservices.ecourts.gov.in/hcservices/ 13.Hence, the judgment of conviction and sentence imposed by the Trial court on the appellant is modified and instead, the appellant is found guilty and convicted under Section 304 (Part II) of the Indian Penal Code, for which he was awarded with the punishment to undergo 5 years Rigorous Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. With this modification, the criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Principal Sessions Judge, Villupuram. 2. The Superintendent, Central Prison, Cuddalore. 3. The District Collector, Villupuram. 4. The Director General of Police, Madras – 4. 5. The Public Prosecutor, High Court, Madras. 6. The Inspector of Police, Villupuram West Police Station, Villupuram. Copy to The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.M.Devaraj, Advocate, SR.15414. Crl.A.No.816 of 2009 PA(CO) RVL 22.03.2010 https://hcservices.ecourts.gov.in/hcservices/