IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3.1.2008 CORAM: THE HON'BLE MR. JUSTICE D. MURUGESAN AND THE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAH Crl.A.No.1447 of 2004 1. Solaimuthu 2. Kandasamy ...Appellants. vs. State By:- Inspector of Police, Kunnam Police Station, Perambalur ...Respondent. Appeal filed under Section 374(2) of Cr.P.C. against the judgment and conviction made in S.C.No.94 of 2004 dated 6.12.2004 on the file of the District and Sessions Judge, Perambalur. For Appellants : Mr. A. Padmanabhan For Respondent : Mr. V.R. Balasubramanian Addl. Public Prosecutor J U D G M E N T (Judgment delivered by V.PERIYA KARUPPIAH,J.) This appeal is directed against the judgment of conviction and sentence dated 6.12.2004 in S.C.No.94 of 2004 on the file of the District and Sessions Judge, Perambalur, in and by which the appellants were convicted for the offences under Sections 302 and 341 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.1000/-, in default to undergo two months simple imprisonment; and to pay a fine of Rs.500/- in default to undergo one month S.I. respectively. 2. The respondent police had come forward with its case against the accused/appellants alleging that due to prior enmity with regard to land dispute between the 1st accused and the family of one Manivelu and that the first accused executed a settlement deed including the house of the said Manivelu in favour of his wife and as the same was questioned by Manivelu; on 28.10.2003 at 11.30 p.m., when the said Manivelu was returning from his house after locking it, the 1st and 2nd accused wrongfully restrained him in front of the house of one Mariammal at South Street, Periyammapalayam and in continuation of the same on the same date, place and time, the 1st accused uttering "cd;id capnuhL tpl;lhy;jhnd ,g;go vy;yhk; bra;tha;@ stabbed him with a knife on his right neck, left shoulder, chest and ribs and the 2nd accused stabbed him with a knife on his back and caused his murder. 3. The learned Sessions Judge, by perusing the records satisfying himself to frame charges, for proceeding further, framed charges against both the accused under Sections 341 and 302 I.P.C. When the accused were questioned explaining the charges, they did not plead guilty, resulting trial. 4. The prosecution, realising its onerous burden, in order to discharge the same, had examined P.Ws.1 to 12, marked exhibits P.1 to P.22 and also material objects 1 to 7. On behalf of the accused, D.Ws.1 & 2 viz., wife and sister of the 1st accused were examined and no document was marked. 5. After the closure of the examination, the accused were examined as mandated under Section 313 Cr.P.C., in order to give them opportunities, to explain the incriminating circumstances found against them, in the prosecution evidence. Responding to the questions, both the accused denied the evidence given by the prosecution witnesses and exhibited their ignorance regarding some of the questions. 6. The learned District and Sessions Judge, Perambalur, evaluating the above materials, in the touchstone of well settled principle of law, came to the conclusion that the evidence adduced by the eye witnesses viz., P.Ws.1 to 3, though interested, in the sense being the wife and co-brothers of the deceased, is dependable, could be acted upon and convicted and sentenced both the accused as aforementioned, which is impugned in this appeal. 7. Brief facts of the prosecution case: (a) The 1st accused and the deceased Manivelu are brothers and the 2nd accused is their cousin. The deceased was employed in Dubai for 13 years. He also made arrangements for Visa for the 1st accused, who also worked in Dubai for three years. Both the 1st accused and the deceased purchased 30 cents of land from one Manickam-P.W.6 and they constructed two houses separately for each one. The deceased completed the construction work of his new house and his family started residing in that house. The house of the 1st accused was not completed and hence he was living in a separate portion of their ancestral house. There had been a strained relationship between the 1st accused and the deceased family with regard to the land, as a result of which there were frequent quarrels between them. Once when the wife of the deceased viz., P.W.1 put up a cattle shed near her house, the same was objected to by the 1st accused saying that the land in which the shed has been put up belongs to him and hence P.W.1 filed a suit in O.S.No.153/2003 and obtained an order of injunction-Ex.P.1. Because of this enmity, the 1st accused cut and removed a Drumstick tree standing in the land, which was questioned by P.W.1 and there was a quarrel with regard to this, which went to the extent of lodging a police complaint-Ex.P.2. The police compromised them after getting a statement from P.W.1, which is marked as Ex.P.3. Thus, there was a continuous misunderstanding between the 1st accused and the family of the deceased prior to the occurrence of this case with regard to money also, which the 1st accused owes to the deceased. (b) One month prior to the date of occurrence i.e. 28.10.2003 the deceased visited his home town. On 27.10.2003, when the deceased went to hospital, the 1st accused executed a settlement deed- Ex.P.4 in favour of his wife  D.W.1, including the house of the deceased also in the settlement deed. On the next day, after ascertaining the details from the Registrar's Office, Vepur, the deceased quarreled with the 1st accused. Thereafter, on the same day at 11.00 p.m., the deceased went to the ancestral house to lock his portion. Sensing some untoward incident, P.W.1 and her brother Palanisamy-P.W.2, who is also residing in that house followed the deceased. By that time, P.W.1 and P.W.2 saw the deceased returning near Mariammal's House after locking his portion of the house, where a street light was also burning. At that time, the 1st and 2nd accused restrained him and the 1st accused stabbed him with a knife on his right neck. When again the 1st accused attacked him, the deceased warded off the same and sustained injuries on his fingers. Thereafter, the 1st accused stabbed him on his ribs, chest and left shoulder and the 2nd accused also stabbed the deceased with a knife on his back, as a result of which the deceased fell down in a pool of blood, which was also witnessed by P.W.7 and others. Immediately, P.W.1 provided him with water after which he died on the spot. Thereafter, P.W.1 and her brother Palanisamy P.W.2 went to Kunnam Police Station and preferred a complaint-Ex.P5, which was registered by P.W.11 in Cr.No.324 of 2003 and the printed F.I.R. is Ex.P.19, which was sent to Court along with the complaint and a copy of the same was forwarded to P.W.12, the Inspector of Police. (c) P.W.2, who was studying in a school at Ariyalur staying with P.W.1, and P.W.3, who came to see the deceased from his work place at Chennai, as the deceased had come to their home town, would depose almost on the same lines as that of P.W.1, having witnessed the incident. P.W.4 who belongs to the same village also witnessed the incident and deposed to that effect. (d) P.W.5-Village Administrative Officer on 28.10.2003, on hearing that Manivelu had been murdered went to the police station to give complaint where he was told, already a compliant has been received. On the next day, he came to the place of occurrence along with his assistant. (e) P.W.6 has been examined only to say that the deceased and the 1st accused purchased 30 cents of land from him. PW.7, in front of whose house the alleged occurrence is said to have taken place exhibited her ignorance with regard to the incident and she was treated as hostile witness. (f) P.W.12 on receipt of the information about the incident, went to Kunnam Police Station and after receiving the F.I.R. and the complaint, took up the case for investigation and left to the place of occurrence at 3.30 a.m. on 29.10.2003 along with P.W.11 and other Head Constables. At 6.00 a.m., in the presence of P.W.5, his Assistant and others, he prepared observation mahazar and rough sketch Exs.P.6 and P.20. He had also made arrangements to take photographs and held inquest at 8.00 a.m. in the presence of panchayatdars and the inquest report is Ex.P.21. Thereafter, he sent the body for post mortem along with a requisition-Ex.P.11 through P.W.10 to Ariyalur Government Hospital. (g) P.W.8, Dr. Balasubramanian on receipt of the requisition, conducted postmortem on 29.10.2003 at 2.30 p.m. and found the following injuries: 1. 3 cm x 2 cm laceration on right lower jaw on neck (stab wound) 2. Left biceps stabbed wound 4 cm x 2.5 cm x 7 cm. Bone deep. 3. On left chest stabbed wound 2.5 cm x 1.5 cm x 8 cm (Pierced 5th space) Lateral to left nipple. 4. On left Chest 2.5 cm x 2 cm x punctured wound on left Axilla. (Pierced 6th space in front Rib injuries into Lungs. 5. 5 cm x 3 cm x 8 cm stab wound on back of Thorax, at left hypochondrial level lateral to Spine. 6. Laceration 5 cm x 2.5 cm on left loin. 7. Cut wound 7 cm x 3 cm x bone deep on left palm at base of Thumb. 8. 2 cm x 1 cm laceration over palmar at left ring finger. 9. 2 cm x 1 cm x.5 cm laceration on left little finger. After analysing the effect of the injuries, he gave postmortem certificate-Ex.P.12, wherein he had opined that the deceased would appear to have died of injuries to vital organs like liver, Left lung and left brachial arteries causing excessive bleeding and shock. (h) In continuation of the investigation, P.W.12 sent the inquest report through one Manohar to the Judicial Magistrate, Ariyalur. He recovered blood stained earth-M.O.6 and corresponding sample earth-M.O.7 under the cover of mahazar Ex.P.7. He received under Form-95 the personal apparels of the deceased viz., M.Os.1 to 3, which were handed over by P.W.10, after postmortem, under a Special Report Ex.P.18. He also examined witnesses P.Ws.1 to 7 & others and recorded their statements. (i) On 2.11.2003 at 3.30 p.m., on receipt of the information about the availability of the 1st accused, P.W.12 accompanied by Head Constables went to Tahsildar Office and on the way, he collected P.Ws.5 & 6 to Odhiyam Bus Stand where the accused was sitting and arrested him in their presence. P.W.12 also recorded in their presence the confession statement-Ex.P.22 given by the 1st accused, pursuant to which he recovered from the 1st accused a knife-M.O.4, blood stained lungi and blood stained full sleeve shirt under Ex.P.8. On 3.11.2003 at about 6.00 a.m. he arrested the 2nd accused near Melamathur Bus Stand and recorded his confession-Ex.P.9 in the presence of P.W.5 and one Ayyakannu, pursuant to which the 2nd accused handed over a knife concealed under a bridge near Chinnavenmani Road, which was recovered under the cover of Mahazar Ex.P.10. Since the 1st accused also sustained injury, he sent the 1st accused and also the 2nd accused for medical examination to Perambalur Government Hospital. He also requested the court for remand of the accused. He sent the recovered objects to the Court. On the same day i.e. on 3.11.2003, he examined P.W.5 and one Ayyakannu and recorded their statements. He examined other witnesses and recorded their statements then and there. On 10.11.2003, he sent requisition-Ex.P.13 to Court through one Manoharan, Head Constable to send the case properties for chemical examination, which was carried out under Ex.P.14, which culled out Chemical Examination Report-Ex.P.15, Serologist's Report Ex.P.16 and Biology Report Ex.P.17. To this effect, P.W.9, Head Clerk of the Judicial Magistrate, Perambalur also gave evidence. He also examined the doctor, who conducted postmortem and recorded his statement. He also collected the sale deed for purchase of 30 cents land by the deceased and the 1st accused, copy of the plaint in O.S.No.153/2003, settlement deed executed in favour of the wife of the 1st accused and the statement-Ex.P.22 recorded from P.W.1 with respect to the complaint given by her earlier against the 1st accused. After completing the investigation by examining the witnesses and collecting all the relevant materials, he filed a final report against both the accused for the offences under Sections 341 and 302 I.P.C. 7. Heard Mr. A. Padmanabhan the learned counsel for the appellants and the learned Additional Public Prosecutor, V.R. Balasubramanian. 8. The learned counsel for the appellants would submit in his argument that the learned Sessions Judge did not appraise the evidence adduced on the side of the prosecution and the plea of the accused for the questionnaire under Section 313 Cr.P.C., but had convicted the appellants/accused 1 & 2, which is not in accordance with law. He would submit in his argument that the eye witnesses said to have been examined by the prosecution viz., P.W.1-wife, P.W.2 and P.W.3, who are brothers of P.W.1, are relative witnesses and the only independent eye witness examined as P.W.7 also turned hostile and therefore, the evidence of P.Ws.1 to 3 should have been deemed as interested witnesses and the evidence of the remaining witnesses produced on the side of the prosecution is not sufficient to hold conviction against accused 1 & 2. It is argued further that the place of occurrence said to have been described in front of the house of one Mariammal is not correctly spoken. But actually, the deceased, husband of P.W.1, who was accompanied by three or more persons aggressed to the house of A1 where he was living with his wife and was locking the house and at that time, the deceased and other persons attacked A1 and the wife of A1 who was pregnant at that time was pushed down and in that attack, the 1st accused had to defend for his life since he was attacked by the deceased with the knife in his hands and in that process, he had also caused injuries over the body of the deceased and it was not A2, who had stabbed at the back of the deceased, but it was A1, who did it and in the process, the deceased person died. He would further submit in his argument that the evidence of P.Ws.1,2 & 3 in support of the prosecution case had shifted the place of occurrence and the allegation that the aggression is only on the part of A1 and A2 is not correct. He would further submit that the prosecution having admitted the injuries on the body of A1, did not come forward to explain the injuries and prove the prosecution case. On the other hand, the injuries sustained by A1 were not explained by examining any witnesses nor by the investigating officer. Therefore, he had submitted before the Court to give benefit of doubt to accused 1 & 2 and they may be acquitted from the charges. He had also alternatively submitted in his argument that if for any reason, this Court comes to the conclusion that A1 had exceeded the limit of private defence, even in that circumstance also, it cannot be termed as a 'murder', but it would amount to culpable homicide not amounting to murder, squarely attracted by Section 304-I I.P.C. and the 1st accused had repented for the unfortunate incident in which the deceased Manivelu, his own brother died and to compensate the victim viz., P.W.1 who is none other than the sister's daughter of the deceased Manivelu and A1, he is willing to execute a settlement deed in her favour in respect of the landed property worth more than Rs.3 lakhs. Therefore he would further submit that suitable orders may be passed in the circumstance of the case. 9. The learned Additional Public Prosecutor would submit in his argument that the previous enmity between A1 and the deceased Manivelu was spoken to by P.W.1 and it is also shown to Court through the evidence of prosecution that there were disputes in between the first accused and the deceased Manivelu in respect of sharing of property and civil disputes are also pending and A1 had admitted in his questioning under Section 313 Cr.P.C. that he had attacked the deceased Manivelu for the purpose of safeguarding his person by exercising private defence and therefore, the question of disowning the overt acts, is not possible and the overt act of A2 stabbing the deceased Manivelu on his back should have been considered to be true on the basis of the evidence of the prosecution witnesses, who were present at the scene of occurrence, as eye witnesses. He would further reply that there is no separate evidence regarding the stab injury caused on the back of the deceased Manivelu that it was caused by A1 himself and therefore, the alleged non participation of A2 in the occurrence cannot be true and the prosecution case that accused 1 & 2 had restrained the deceased Manivelu in front of the house of Mariammal and they have stabbed the deceased with knife in order to cause his death should have been held to be true occurrence and the conviction and sentence may not be modified or altered or set aside on the basis of the injuries found on the body of A1. Moreover, he had also submitted in his argument that the compensation payable to the victim is purely in the discretion of the Court and it depends upon the conviction of the Court against A1 & A2 either under Section 302 IPC or under Section 304-I I.P.C. and prayed for confirmation of the conviction and sentence against accused 1 & 2. 10. On a careful consideration of the arguments advanced on either side and on perusal of the evidence adduced by the prosecution and the defence evidence coupled with the reply statement given by A1 in answer to the questionnaire under Section 313 Cr.P.C., we could understand that the incident had happened on the fateful day at the stated time in between the deceased Manivelu and A1 and his men. The previous enmity and other grudge over each other have been admitted and according to the reply statement of A1, the aggressor is the deceased and his men who had come to lock the house where A1 and his wife were living and in the process, A1 had attempted to prevent the deceased Manivelu from locking his house. The deceased Manivelu had started attacking on A1 and thereafter A1 had attacked on the deceased Manivelu. It is an admitted fact that the first accused had sustained injuries on his body. The evidence of the Investigating Officer as PW.12 had categorically admitted that the 1st accused had sustained injuries and he had also been examined by Dr. Prem Sakunthala. We could not see in the evidence of the prosecution that the injuries were sustained by A1 at the time of attacking the deceased Manivelu while retaliating the attack from the deceased Manivelu. Such an explanation is absent from the prosecution. P.W.12 had also admitted in his cross examination that the deceased Manivelu locked the house where the deceased and his wife were living as per the statement in the charge sheet. Therefore, we could see that the deceased Manivelu and the 1st accused, his wife and the 2nd accused had indulged in wordy quarrel and after the locking of the house and subsequently when Manivelu was about to attack the 1st accused, A1 and A2 had attacked on the deceased, Manivelu and the deceased Manivelu had already caused injuries on the body of the 1st accused. The injuries sustained by the 1st accused were not serious and the retaliation of A1 against the deceased Manivelu and the overt act of A2 against the deceased Manivelu as spoken by P.Ws.1 to 3 would go a long way to show that those injuries caused through the overt acts are excessive and caused the death of the deceased Manivelu. In that circumstances, both A1 & A2 had exceeded the right of private defence out of heat of passion, which would utmost attract penal Section 304-I IPC. Even though A1 alone had pleaded private defence, the circumstances of the case on the basis of evidence of P.Ws.1 to 3 and the injuries caused on the body of the deceased Manivelu would go a long way to show that the principle applied to A1 is also applicable for A2 towards the injury caused by him on the back of the deceased Manivelu. 11. The submission of A1 that A2 did not available in the occurrence but he only stabbed at the back of the deceased Manivelu is not acceptable in view of the evidence of P.Ws.1 to 3 in respect of the participation of A2. Therefore, we are of the considered view that accused 1 & 2 who were convicted under Sections 341 and 302 I.P.C. are liable to be convicted only under Section 304-I I.P.C. The conviction and sentence under Sections 341 and 302 I.P.C. are set aside and we deem it fit to impose sentence of R.I for 7 years under Section 304-I I.P.C. against A1 and A2. 12. This leads us to the next contention of the learned counsel for the appellants that the 1st accused had repented for the unfortunate incident in which the deceased Manivelu, his own brother died and to compensate the victim viz., P.W.,1 who is none other than the sister's daughter of the deceased Manivelu and A1, he is willing to execute a settlement deed in her favour in respect of the landed property worth more than Rs.3 lakhs and therefore, the imprisonment already undergone may be considered for and accused 1 and 2 may be released. In support of the above contention, the learned counsel had produced an authority of our High Court reported in 1997(1)CTC 524 (Arjunan v. State. In the said judgment, a judgment of the Apex Court reported in AIR 1988 SC 2127 (Hari Kishan & State of Harayana v. Sukhbir Singh) was referred. The relevant passage, dealing with Section 357 Cr.P.C. towards the grant of compensation and the decision held by the Supreme Court is as follows: "Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-Section (1). We are concerned only with sub-Section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of the accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way." On the basis of the guideline given by the Hon'ble Apex Court in the aforesaid decision, the bench has come to the conclusion to adopt the modification of sentence from 302 I.P.C. to 304-I I.P.C. and to reduce the sentence as that one of the imprisonment already undergone, after awarding a compensation of Rs.3 lakhs to be deposited on two installments. The Bench has also observed that in event of non remittance of the