Bail Slip The Appellant/Accused namely Thambi @ Selvarj was directed to be released on bail as per the order of the court dated 5/3/2002 and made in Crl.M.P.No.1529/2002 in Crl.Appeal No.180/2002 on the file of this court. BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 14.11.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.180 of 2002 Thambi @ Selvaraj .. Appellant / Accused No.1 Vs. State by The Inspector of Police, Thammampatty Police Station, Salem. .. Respondent / Complainant Prayer :- This appeal has been preferred under 374 of Cr.P.C., against the judgment dated 08.02.2002 in S.C.No.408 of 2000 on the file of the I Additional Sessions Judge (FTC No.1), Salem and convicting the appellant under Section 324 and 326 IPC and sentencing him to 3 year and 5 years imprisonment (both to run concurrently) and also a total fine of Rs.2000/- For Appellant : Mr.V.Sairam, Advocate For Respondent : Mr.J.C.Durai Raj, Govt. Advocate (Crl.Side) JUDGMENT This appeal has been preferred against the judgment in S.C.No.408 of 2000 on the file of the First Additional Sessions Judge (FTC No.1), Salem. 2.The brief facts of the case of the prosecution is that on 16.12.1998 at about 7.30 pm A1 to A4 with an intention to kill the wife of Perumal with deadly weapons like wooden logs and suri-knife gathered in front of the house of the deceased and that there was an altercation between the group of the accused and the group of the Prosecution Witnesses and in the melee the first accused had https://hcservices.ecourts.gov.in/hcservices/ inflicted grievous injuries on the left shoulder of P.W.1-Perumal and also inflicted grievous injuries on the right and left neck of the deceased Kunjan Padaiyachi, which resulted in the instantaneous death and in furtherance of the common intention, A1 had also assaulted other PWs causing simple and grievous injuries. A2 to A4 also assaulted the other PWs and caused simple and grievous injuries, thus the accused 1 to 4 have been charged under Section 324, 324 r/w 34, 302, 302 r/w 34, 304, 323, 341, 323 r/w 34 IPC. 3.The learned committal Magistrate, after furnishing the copied to the accused, had committed the case for trial before the Court of Sessions. Before the learned trial Judge P.W.1 to P.W.14 were examined and Ex.P.1 to Ex.P.29 and M.Os.1 to 9 were marked. 4.P.W.1 is the injured witness, who is also the brother-in-law of Kunjan Padayatchi, the deceased in the occurrence. The motive for the occurrence as spoken to by P.W.1 is that a few days before the occurrence, the first accused had heaped sand in front of the P.W.1's house and when this was questioned by the deceased Kunjan Padayatchi, A1 had attacked P.W.1 with M.O.3-knife on the shoulder and when his brother-in-law Kunjan Padyatchi came to his rescue, he was also attacked by A1 with the same M.O.3-knife on the left forearm and also on the left and right neck causing instantaneous death. After hearing his distress call his wife Poongavanam and his daughter Rani came to the place of occurrence and at that time his wife Poongavan was assaulted on the fingers and head with the same knife by A1 and chilly powder was thrown on the eyes of her daughter by the accused and A2 & A3 also bet her with stick and cause simple injuries and after committing the offence the four accused ran away from the place of occurrence and that he had preferred a complaint Ex.P.1 and he has also identified M.O.1 as the 'Bannian' worn by him at the time of occurrence. 5.P.W.2 has also corroborated the evidence of P.W.1, but she would depose that in the occurrence her daughter has not sustained any injury. But Kunjan Padayatchi was attacked by A1 with M.O.3 on the neck and he died instantaneously due to the injuries he had received at the hands of A1. She has deposed that she is not aware how P.W.1 had sustained injury in the occurrence. 6.P.W.3 is the daughter of P.W.1 & P.W.2, who is also an eye witness to the occurrence. But she would depose that A1 at the time of occurrence had assaulted the deceased Kunjan Padayatchi with M.O.3 on the neck and caused grievous injuries resulting his death. 7.P.W.4 is the daughter-in-law of the deceased. She is also an eye witness to the occurrence. She corroborates the evidence of P.W.1 to P.W.3. 8.P.W.5 even though he is not an eye witness to the occurrence https://hcservices.ecourts.gov.in/hcservices/ had sent A1 with M.O.1-suri Knife at the place of occurrence and after the occurrence, and has also seen the deceased Kunjan Padatchi lying dead in a pool of blood at the place of occurrence. 9.P.W.6 is also an eye witness to the occurrence. She is a neighbour of P.W.1 and on hearing the distress call from P.W.1 she rushed to the place of occurrence and saw A1 assaulting with M.O.3- knife on the shoulder of P.W.1 and also assaulted with M.O.3 the deceased Kunjan Padayatchi on the neck causing instantaneous death. 10.P.W.7 is also an eye witness to the occurrence, who would corroborate the evidence of P.W.1 to P.W.6. 11.P.W.8 is not an eye witness to the occurrence, but she is the wife of the deceased Kunjan Padayatchi. 12.The Sub-Inspector of Police, Thiru.Dhanapaul, who had registered the FIR died pending trial as seen from the evidence of P.W.14-Inspector of Police, who has conducted the investigation. According to P.W.14, he took the investigation in respect of the case in Cr.No.1097 of 1998 under Section 323, 324 & 302 IPC registered by the deceased Sub-Inspector of Police Thiru.Dhanapal. Ex.P.15 is the FIR. He has also identified the signature of the deceased Sub- Inspector of Police Thiru.Dhanapal in Ex.P.27-FIR. According to him, the Sub-Inspector of Police has also recovered blood stained 'Bannian' from P.W.1 at the time of his preferring the FIR. On the basis of the FIR, he had took up the investigation and visited the place of occurrence at 10.30 am on the date of occurrence and in the presence of P.W.9, he had drawn a rough-sketch Ex.P.28 and has prepared Ex.P.2-mahazar in the presence of P.W.9. From the place of occurrence in the presence of P.W.1, P.W.14 had also seized blood stained sand M.O.2 under Ex.P.3. 13.P.W.14, thereafter, had conducted inquest in the presence of panchayatars. He has enquired the witness and recorded their statements. Ex.P.29 is the inquest report. After the inquest, the corpse of the deceased was sent for postmortem through Police Constable No.407 to the government hospital, Athur. On 7.12.1998 at about 10.00 pm P.W.14 has arrested A1 to A4 as identified by the witnesses. He has also recorded the voluntary confession statement of A1 in the presence of P.W.9 and another witness. On the basis of Ex.P.6-admissible portion of the confession statement, M.O.3-knife used by A1 at the time of occurrence to assault the deceased Kunjan Padayatchi was recovered under Ex.P.7-mahazar in the presence of P.W.9 by P.W.14. P.W.14 had also recorded the confession statement of A2. On the basis of Ex.P.8-admissible portion of confession statement of A2, P.W.14 had recovered M.O.4-stick under Ex.P.9- mahazar in the presence of P.W.9. P.W.14 has also examined A3 & A4 and recorded their statements. He has also took the accused to the primary health centre, Thammampatty, and they were also found to be https://hcservices.ecourts.gov.in/hcservices/ sustained injury on the body. He has also recovered M.O.5-shirt, M.O.6-Dothi, M.O.7-underwear, M.O.8-towel and M.O.9-waist rope belonging to the deceased produced by Postmortem constable No.409 after postmortem. He has also sent material objects to the Judicial Magistrate's Court with a requisition to send the same for chemical analysis. 14.P.W.10 is the photographer, who had taken Exs.P.10 & 12 photos at the place of occurrence. Ex.P.11 are the negatives. 15.P.W.11 is the doctor who has treated P.W.1 and issued Ex.P.13- copy of the accident register and has also treated P.W.2 and issued Ex.P.14-copy of the accident register and also treated P.W.3 and issued Ex.P.5-copy of the accident register. He has also treated A1 for the injuries he had sustained and issued Ex.P.16-copy of the accident register and also treated A2 and issued Ex.P.17- copy of the accident register and treated A4 and issued Ex.P.19- copy of the accident register. 16.P.W.12 is the doctor, who had conducted postmortem on the corpse of the deceased Kunjan Padayatchi and Ex.P.21 is the postmortem report. P.W.12 has seen one punctured wound on the left neck measuring 5 cm x 5 cm X 2 cm bone deep and all the veins were found cut and another stab wound on the right forearm measuring 3 x 2 cm x bone deep and abrasion measuring 3 x 2 cm on the right side of the head. The doctor has opined that the deceased died due to the cut of veins in injury No.1, some 24 to 30 hours prior to postmortem. Further, the doctor has opined that the said injuries would have been caused by M.O.3. 17.Through P.W.13, Exs.P.24 to 26, chemical analysis reports were marked. After completing the investigation P.W.14 has filed the charge sheet on 29.12.1998. 18.When incriminating circumstances were put to the accused they said that the prosecution witnesses have deposed falsehood and they have not committed any offence. A1 has filed written submissions during 313 question. According to A1, the deceased as well as P.W.1 and other witnesses Poovayee, Manimegalai, Chinnammal, Mariyayee and Pichai due to previous enmity had assaulted A1 and other accused with logs and broom sticks all over their body causing injuries and that the accused had preferred a complaint, but police without taking cognizance of it, brought the doctor to the police station and treated them and that the accused were kept in the police station illegally for two days i.e, on 6.12.1998 and 7.12.1998 and that during their detention the police have obtained their signatures in the blank papers and that he has not given any confession statement before the Inspector of Police and no recovery was made on the basis of his confession statement. https://hcservices.ecourts.gov.in/hcservices/ 19.On the basis of oral and documentary evidence, the learned Sessions Judge has convicted A1 under Section 324 & 326 IPC and sentenced to undergo 3 years RI under Section 324 IPC and 5 years RI under section 326 IPC and also slapped with a fine with default sentence and has acquitted other accused - A2 to A4. Aggrieved by the findings of the learned Sessions Judge / trial Judge A1 has preferred this appeal. 20.Now the point for determination in this appeal is whether the offences under Sections 324 & 326 IPC have been made out against the accused to warrant conviction under the above provisions of law 21.When the appeal was taken up for hearing the learned counsel for the appellant Mr.Sairam would state that in the same occurrence the accused have also sustained injuries and the prosecution has failed to explain the injuries found on the accused. Even before the trial Court at the time of questioning under Section 313 Cr.P.C., A1 has filed a statement stating that due to previous enmity on the date and time of occurrence PWs and deceased Kunjan Padayatchi have assaulted the accused with stick and broom stick causing injuries. P.W.11 is the doctor, who had treated the accused and issued Ex.P.16 (for A1), Ex.P.17 (for A2), Ex.P.18 (for A3), Ex.P.19 (for A4). But there is no evidence on record on the side of the accused to show that PWs and deceased Kunjan Padayatchi were the aggressors for the occurrence. But the fact remains that before the occurrence, there was an altercation between the accused and the PWs including the deceased and that both PWs and accused have sustained injuries. The unassailable evidences of P.W.1 to P.W.4 will go to show that at the time of occurrence A1 with M.O.1 had caused grievous injuries on the neck of the deceased Kunjan Padayatchi, which resulted in his death. The postmortem doctor P.W.12 has also opined that the deceased would have died due to the injuries sustained on his neck and that those injuries would have been caused with M.O.3, which was recovered by P.W.14 in the presence of P.W.9 under mahazar-Ex.P.7 on his cnfession. It is in evidence that A1 had attacked P.W.1 at first and when the deceased Kunjan Padayatchi, relative of P.W.1, came to the rescue of P.W.1 intervined the stab made at P.W.1 fell on the deceased Kunjan Padayatchi on the neck, which was fatal. Under such circumstances, A1 had no intention to cause the death of the deceased Kunjan Padayatchi at the time of occurrence. Hence, the accused is liable to be convicted and sentenced under Section 304 (ii) IPC and not under Section 326 IPC. 22.At this juncture the learned counsel for the appellant would represent that while sentencing A1 under Section 304(ii) IPC some leniency may be shown since the victim's wife P.W.8 and A1 have compromised the matter and the victim's wife P.W.8, who is present today in the Court is willing to receive a compensation of Rs.1 lakh from A1. P.W.8-Annammal, wife of the deceased Kunjan Padayatchi, was called inside the Court and when the Court asked her whether she is https://hcservices.ecourts.gov.in/hcservices/ willing to receive Rs.1 lakh towards compensation, she agreed for the same without any reservation. 23.Under such circumstances, the accused is convicted under Section 304(ii) and sentenced to pay a fine of Rs.1 lakh, beside the period already undergone, on or before 15.05.2009, failing which the accused has to undergo five years RI. As far as the conviction and sentence passed by the learned trial Judge under Section 324 IPC is concerned, the conviction of the learned trial Judge is confirmed and the sentence alone is modified to that of a fine of Rs.2,000/- instead of three years RI and a fine of Rs.1,000/-. Out of the total fine amount of Rs.1,02,000/-, a sum of Rs.1 lakh is to be given to P.W.8, wife of the deceased, under section 357(1) of Cr.P.C. The appeal is allowed and the conviction and sentence is modified as above. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssv To, 1.The I Additional Sessions Judge,(FTC-I), Salem, 2.The District & Sessions Judge, Salem. 3.The Judicial Magistrate No.II, Salem. 4.-do-The Chief Judicial Magistrate, Salem 5.The Superintendent, Central Jail, Salem. 6.The Director General of Police, Madras. 7.The Inspector of Police,Thammampatty Police Station,Salem. 8.The District Collector, Salem. 9.The Public Prosecutor, Madras. 2 CC To Mr.V.Sairam, Advocate, SR NO.63581 Crl.A.No.180 of 2002 kji(co) pmk/21.11.2008. https://hcservices.ecourts.gov.in/hcservices/