Bail Slip The Appellant/Accused No.1, viz.Babu,S/o.Chandran,was released on bail vide court order dated 9.4.2003 made in Crl.M.P.No.3256 of 2003 in Crl.Appeal No.353 of 2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.2.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.353 of 2003 Babu .. Appellant/Accused No.1 Vs. State rep. by The Inspector of Police, G-4, Uthiramerur Police Station, Kancheepuram. (Crime No.250/2000). .. Respondent/Complainant Criminal Appeal against the judgment dated 17.2.2003 to call for the entire records in S.C.No.231 of 2002 on the file of the Additional District and Sessions Court (Fast Track Court), Kancheepuram. For appellant : Mr.V.Perarasu For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment of conviction and sentence passed in S.C.No.231 of 2002 on 17.2.2003 by the learned Additional District and Sessions Judge (Fast Track Court), Kancheepuram, convicting the appellant- A.1 for the offence under Section 307 IPC and sentencing him to three years' rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months' rigorous imprisonment. 2. The case of the prosecution is as follows: (a) On 30.5.2000 at about 2.30 p.m. in Karuveppampoondi Colony, when P.W.2 Dhanasekaran has returned to his house, his sister P.W.6 Bhoopathi informed that the appellant/A.1 Babu and https://hcservices.ecourts.gov.in/hcservices/ others were cutting and carrying away the "veli kaathan" bushes in the backyard of his house. P.W.6 questioned A.1 Babu, A.2 Chandran and A.4 Vasantha questioned as to why they were cutting the bushes in their site. (b) The said factum has been intimated to P.W.1, the resident of the said place and immediately, P.W.1 rushed to the place of occurrence. At that time, A.1's sister, A.4 Vasantha was cutting "Veli Kaathan" bushes. Immediately, P.W.2 questioned about A.1's attitude. They abused them in filthy language. Immediately, on the instigation of A.4 Vasantha, A.1 has assaulted P.W.2 on his left side head and since he was unable to prevent him, P.W.2 fell down on the "Veli Kaathan" thorn and A.1 assaulted him on his hand and left thigh, left eye brow. The weapon used was M.O.1 knife ("koduva kathi"). (c) Immediately, P.W.3 Murusegan took P.W.2 to hospital. P.W.7 Dr.(Tmt).Revathi Saravanan, when she was at Chengalpet Government Hospital on 30.5.2000 at 4.20 p.m., examined P.W.2 Dhanasekaran. At that time, P.W.2 deposed that he was assaulted by four known persons with knife. P.W.7 Doctor issued Ex.P-5 accident register, in which he has mentioned the following injuries sustained by P.W.2: "Injuries: 1. Incised wound (anterior) about 5".. left side of scalp, extending the bone .. of parietal bone .. behind left ear upto midline on the back. 2. Incised wound 2" above left ear. 3. Incised wound 2" anterior aspect right forearm. 4. Incised wound of 2" lateral aspect of left thigh muscle deep. 5. Incised wounds 2 in number each 1 cm wound extending left cheek." (d) P.W.1 went to the Police Station and gave Ex.P-1 complaint. P.W.9 Sub-Inspector of Police received Ex.P-1 complaint from P.W.1 and registered a case in Cr.No.250 of 2000 for the offences under Sections 294(b) and 307 IPC. He prepared Ex.P-7 F.I.R. (e) P.W.9 Sub-Inspector of Police went to the place of occurrence and in the presence of Thanigaivelu and P.W.4 Udayakumar, he prepared Ex.P-8 observation mahazar and drew Ex.P-9 rough sketch. He examined the witnesses and recorded their statements. (f) On 31.5.2000 at 10.30 a.m., P.W.9 Sub-Inspector of Police arrested A.1 Babu, A.2 Chandran and A.3 Kanniammal near the Bus Stand and at that time, A.1 gave extra-judicial confession, which https://hcservices.ecourts.gov.in/hcservices/ was recorded in the presence of P.W.5 Senthamarai and Jagannathan. In the extra-judicial confession, A.1 has stated that he was ready to handover the weapon used. The admitted portion of his statement is Ex.P-10. In pursuance of the same, he handed over M.O.1 which was seized under Ex.P-11 mahazar. (g) P.W.9 Sub-Inspector of Police took the accused to Police Station, where he received M.Os.2 and 4 blood stained lungies/shirt, under Ex.P-12 in Form 95. He sent the material objects seized to the concerned Court. The accused were remanded to judicial custody. (h) P.W.9 Sub-Inspector of Police concluded his preliminary enquiry and handed over the case bundle to the Inspector of Police. The Inspector of Police took up the matter for further investigation on 19.6.2000 and examined the witnesses examined by P.W.9 Sub- Inspector of Police. The Inspector of Police also examined P.W.2 and recorded his statement. The investigating officer concluded his investigation and filed charge sheet against the accused for the offences under Sections 294(b) and 307 IPC on 7.4.2001. 3. The trial Court, after following the formalities, framed charges against A.1 to A.4 for the offences under Sections 294(b) read with Section 34 IPC and against A.1 under Section 307 IPC and against A.2 to A.4 for the offence under Section 307 read with 34 IPC. The accused denied the charges. During the course of trial, P.Ws.1 to 9 were examined, Exs.P-1 to Ex.P-12 were marked and M.Os.1 to 4 were produced. The trial Court questioned the accused under Section 313 Cr.P.C., putting forth incriminating materials against the accused, which they denied in toto. Considering the oral and documentary evidence, the trial Court has acquitted A.1 from the offence under Section 294 (b) read with 34 IPC and also acquitted A.2 to A.4 from the offence under Sections 307 read with 34 IPC, but convicted and sentenced the appellant/A.1 for the offence under Section 307 IPC as indicated above. 4. Challenging the said conviction and sentence passed by the trial Court, learned counsel for the appellant/A.1 would contend that P.W.2 is the injured eye witness. P.W.1, the complainant is the eye witness. P.W.3, even though was an eye witness, took steps for taking P.W.2 to hospital, but turned hostile. P.W.6 is none other than the sister of P.W.2. The evidence of P.Ws.1, 2 and 6 clearly proved that there was a dispute in respect of cutting and carrying away of "Veli Kaathan" bushes/thorn situated on the backyard of P.W.2's house. So even though P.W.2 was admitted in hospital, he has sustained only simple injury and so, the ingredient of Section 324 IPC alone has been made out. 5. Learned counsel for the appellant/A.1 further submitted that at the time of occurrence, the appellant/A.1 was only 19 years and https://hcservices.ecourts.gov.in/hcservices/ now, he got married and is having children and so, he wanted modification of the offence under Section 307 IPC into one under Section 324 IPC. He prayed for leniency in the sentence imposed by the trial Court. 6. Per contra, learned Government Advocate (Criminal Side) has vehemently opposed that the evidence of P.Ws.1, 2 and 6 clearly proved the ingredients of Section 307 IPC. The weapon used was a lethal weapon. Hence, he prayed for dismissal of the appeal and confirmation of the conviction and sentence imposed on the appellant/A.1 by the trial Court. 7. Considering the evidence of P.Ws.1, 2 and 6, it is seen that Ex.P-1 complaint has been given by P.W.1 and she is the eye witness. The evidence of P.Ws.1, 2 and 6 are corroborating with each other. Even though P.W.3 has taken P.W.2 to hospital, he has turned hostile during the course of trial. 8. P.W.1 is the independent eye witness. She is the neighbour of P.W.2. So, while perusing the evidence of P.Ws.1, 2 and 6, it is natural, cogent, convincing and hence, it is trustworthy and reliable. Considering the evidence of P.Ws.1, 2 and 6, the trial Court is right in coming to the conclusion that the appellant/A.1 has committed the offence and he assaulted P.W.2 with M.O.1 knife ('Koduva Kathi'). 9. At this juncture, it is appropriate to consider the argument advanced by learned counsel for the appellant-A.1 that whether the appellant-A.1 is guilty of the offence under Section 307 IPC or under Section 324 IPC. 10. It is appropriate to consider the evidence of P.W.8 Dr.Lalithkumar who initially admitted P.W.2 Dhanasekaran and P.W.7 Dr.(Tmt.) Revathi Saravanan who treated P.W.2 and they issued Exs.P- 6 and P-5 accident registers respectively. In Ex.P-5 accident register, the Doctor has mentioned five incised wounds. While perusing Ex.P-5 accident register, there is no evidence to show as to what is the nature of injuries P.W.2 has sustained. Since Ex.P-5 accident register does not mention the nature of injuries, the Court ought to have considered that the injuries are only simple in nature. 11. At this juncture, it is appropriate to consider the evidence of P.W.2 as to whether the appellant/A.1 has any intention to murder P.W.2. P.W.2, while he was in the witness box, in his chief examination, has stated that A.4 Vasantha directed A.1 Babu to not to keep them alive. @/////// ,th;fis ,J khjphp tplf; TlhJ/ ahuhtJ xUtiu btl;lntz;Lk; vd;W brhd;dhs; /////@ So, there are uttering words of https://hcservices.ecourts.gov.in/hcservices/ intention to assault, not for murder. 12. In such circumstances, it is appropriate to consider Section 307 IPC, which reads as follows: "Section 307 IPC: Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty or murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and is hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts: When any person offending under this section is under sentence of imprisonment for life he may, if hurt is caused, be punished with death." 13. In the present case, there is no iota of evidence before Court to show that with intention, appellant/A.1 has assaulted P.W.2 and even though A.1 has assaulted him on his head, P.W.2 has sustained only simple injuries. In such circumstances, the trial Court has committed error in convicting the accused under Section 307 IPC. However, the appellant/A.1 is guilty of offence under Section 324 IPC, which reads as follows: "Section 324 IPC: Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 14. The appellant/A.1 assaulted P.W.2 with the deadly weapon M.O.1 knife ('Koduva kathi') and caused simple injuries to P.W.2. Hence, the ingredients of Section 324 IPC are made out. So, the appellant/A.1 is hereby convicted for the offence under Section 324 IPC instead of Section 307 IPC. https://hcservices.ecourts.gov.in/hcservices/ 15. Since the appellant/A.1 is not guilty of the offence under Section 307 IPC, but he is only guilty of the offence under Section 324 IPC, learned counsel for the appellant-A.1 would contend that at the time of occurrence, he was only 19 years old and now he got married and is having children and considering the fact that he has already been in the prison for some time, he prayed for modification of sentence into one he has already undergone. 16. While considering the above argument and considering the age/family status of the appellant/A.1, and that he is now found guilty of the offence under Section 324 IPC, the fine imposed by the trial court is hereby confirmed. The sentence of imprisonment imposed on the appellant/A.1 is modified to one he has already undergone. 17. In fine, (a) the Criminal Appeal is dismissed. (b) The conviction imposed on the appellant/A.1 by the trial Court is hereby modified from Section 307 IPC to Section 324 IPC. (c) The sentence imposed by the trial Court is modified to one he has already undergone. (d) The fine imposed by the trial Court is confirmed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Additional District and Sessions Court (Fast Track Court), Kancheepuram. 2.-do- Thro The Principal Sessions Judge, Chengalpattu. 3.The Superintendent, Central Prison,Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 4. The Inspector of Police, G-4, Uthiramerur Police Station, Kancheepuram. (Crime No.250/2000). 5. The Public Prosecutor, High Court, Madras. +1cc to M/s.J.Shiva Ganesh, Advocate Sr 5910 KSK(CO) km/16.2. Crl.A.No.353 of 2003 https://hcservices.ecourts.gov.in/hcservices/