IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRIMINAL APPEAL No.589 of 2009 Muniappan ..Appellant ..vs.. State rep.by Inspector of Police, Denkanikottai Police Station, Krishnagiri District. (Crime No.370 of 2005) ..Respondent Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment of the learned Principal Sessions Judge, Krishnagiri, made in S.C.No.26 of 2007, dated 29.10.2008. For Appellant : Mr.R.Sankarasubbu For Respondent : Mr.Babu Muthu Meeran, Additional Public Prosecutor JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Krishnagiri, made in S.C.No.26 of 2007, whereby the single and sole accused stood charged, tried and found guilty under Sections 302 and 324 I.P.C.and awarded life imprisonment along with a fine of Rs.1,000/-, in default to undergo six months rigorous imprisonment under section 302 IPC and six months rigorous imprisonment under section 324 IPC and the sentences were ordered to run concurrently. 2. Short facts, necessary for the disposal of the appeal, can be stated thus: (a) P.W.1 is the mother of the deceased Munikrishnan. P.W.2 is the brother of the deceased. P.W.3 is the brother of P.W.1. The accused/appellant is the brother of P.W.1's husband. P.W.4 is a https://hcservices.ecourts.gov.in/hcservices/ neighbour. There was a longstanding property dispute between the family of P.W.1 and the accused appellant. There was a panchayat constituted. The accused was demanding the house property, in which P.W.1 and her family members were residing. At the time of Panchayat on 22.12.2005, P.W.1 and her family members were demanding partition of the property of the accused, to which course he was not amenable. Hence, the panchayatdars advised them to divide the ancestral property. In view of the wordy altercation between them, they could not decide the matter and left it open. In the panchayat, P.W.5 was among them. (b) On 23.12.2005, at about 7.00 PM, there was a quarrel between the members of both families in respect of the property as usual. At that time, the son of P.W.1 told the accused that his father had no eye sight and therefore, not to quarrel with him. The accused originally threatened him to stab and thereafter, actually stabbed him by taking a pen knife on his left thigh. When P.W.1 intervened, he also attacked her on her right eyebrow and fled away from the place of occurrence. (c) Immediately, P.W.1 and others took the severely injured Munikrishnan to the Government Hospital, Denkanikottai. Treatment was given to him by P.W.7 doctor and the wound certificate is marked as Ex.P-4. Despite treatment, he died at 10.40 p.m. on the same day. P.W.1 was also medically examined by P.W.7 and was given treatment and her wound certificate is marked as Ex.P-5. An intimation was given to the respondent Police Station about the death of Munikrishnan. (d) On intimation, P.W.13, the Sub-Inspector of the respondent police Station proceeded to the Government Hospital, where he recorded the statement of P.W.1, which is marked as Ex.P-1 and on the strength of the said complaint, a case came to be registered in Crime No.370 of 2005 under Sections 294-B, 302 and 324 I.P.C. against the appellant/accused and the first information report is marked as Ex.P-17 and the copy of the same was despatched to the Court. (e) P.W.14, the Inspector of Police took up investigation, proceeded to the spot, made an inspection, prepared an observation mahazar Ex.P-2 and rough sketch Ex.P-19 and he also caused photographs to be taken through P.W.9 and the photos and negatives are marked as M.O.4 series. Then, he conducted inquest on the dead body of Munikrishnan in the presence of witnesses and the panchayatdars and the inquest report is marked as Ex.P-18. Thereafter, he sent the dead body to the hospital for the purpose of post-mortem along with his requisition. (f) On receipt of the requisition, P.W.8 doctor attached to the Government General Hospital, Denkanikottai, conducted autopsy on the dead body of Munikrishnan and gave post-mortem certificate, Ex.P-7, https://hcservices.ecourts.gov.in/hcservices/ wherein she opined that the deceased would appear to have died out of shock and haemorrhage due to the penetrating injury. (g) Pending investigation, on 24.12.2005 at about 3.00 PM, the accused was arrested by P.W.14, Inspector of Police, and he came forward to give a confessional statement, which was recorded and the admissible portion of which was marked as Ex.P-10. Pursuant to which, he produced M.O.1 knife and the same was recovered under a cover of mahazar Ex.P-11. Thereafter, the accused was sent for judicial remand. Then, all the material objects, namely, blood stained earth M.O.2, sample earth M.O.3, blood stained dresses of the deceased M.Os.5 to 9 were sent to Forensic Science Laboratory for chemical analysis. After getting Ex.P-14 biological report, Ex.P-15 chemical report and Ex.P-16 serological report and after examining the witnesses and on completion of investigation, he filed the final report under sections 302 and 324 I.P.C. (h) The case was committed to the Court of Principal Sessions Division, Krishnagiri and necessary charges were framed. In order to substantiate the charge, the prosecution examined 14 witnesses and also relied on 19 exhibits and 9 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant/accused guilty and awarded the punishment of life imprisonment as referred to above, which is the subject matter of challenge before this Court. 3. Advancing arguments on behalf of the appellant/ accused, the learned counsel would submit that the prosecution though marched P.Ws.1 to 4 as eye witnesses, has miserably failed to prove its case; that P.W.1 is the mother and P.W.2 is the brother of the deceased and others were also the close relatives and their evidence has to be discarded in view of the major discrepancies on the material particulars. Added further that the opinion canvassed through P.W.7 doctor clearly indicates that it did not corroborate the ocular testimony; that it is true that P.W.1 has been examined not only an eye witness but also an injured witness; but her evidence if scrutinized carefully, was not worth mentioning and hence, no credence could be attached to the evidence of P.W.1 though claimed to be an injured witness; that in the instant case, the subsequent recovery of M.O.1 knife as if pursuant to the alleged confessional statement was nothing but cooked up one in order to strengthen the case of the prosecution case and make it appear to be true and genuine case, but not so and that the learned trial Judge should not https://hcservices.ecourts.gov.in/hcservices/ have passed the order of conviction and hence, the judgment has got to be set aside. 4. Further, on the second line of arguments, the learned counsel would submit that even assuming that the prosecution has proved the factual position that it was the accused who caused his death, in the instant case, the act of the accused would not attract the penal provision of murder; that according to the case of the prosecution, preceding the occurrence, there was a panchayat, in which P.W.1 and her family members and the deceased were demanding partition of the self acquired property of the accused; that even on the date of occurrence, namely, on 23.12,2005 at about 7.00 PM, there was a quarrel among the family members and in a heated exchange of words, the accused could have committed the act; that it is pertinent to point out that he has not attacked the deceased on his vital organ but only on his thigh; that had it been the intention to cause the death of the deceased, he would have attacked on his vital organ, but he did not do so and thus, it would not attract the penal provision of murder and that without considering the above aspects of the matter, the trial court has taken an erroneous view and hence, he is entitled for acquittal in the hands of the Court. 5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that one Munikrishnan, son of P.W.1 was taken to the Government Hospital, Denkanikottai following the incident that took place at about 7.00 PM on 23.12.2005, where he was given treatment by P.W.7 doctor and the wound certificate is marked as Ex.P-4 and despite treatment, he died in that night hours. Pursuant to the complaint given by P.W.1, the case was directly registered under section 302 I.P.C. by P.W.13 and following the inquest made by the investigator P.W.14, the inquest report Ex.P-18 was prepared and the dead body was subjected to post-mortem by P.W.8, who gave a categorical opinion that he died out of shock and haemorrhage due to the penetrating injury found on his left thigh. Thus, the cause of death, as put forth by the prosecution, was never challenged before the trial court or before this Court and hence, no impediment is felt in recording that Munikrishnan died out of homicidal violence. 7. In order to substantiate the act of the accused that it was he who attacked the deceased on his left thigh and as a direct consequence, he died, the prosecution has examined P.Ws.1 to 4. True, P.Ws.1 and 3 are the close relatives but that cannot be the reason to discard their testimony. It is well settled proposition of law that in a given case where an eye witness happened to be an injured witness, unless and until a strong circumstance is noticed or reason is brought about, the evidence of that witness in a given transaction https://hcservices.ecourts.gov.in/hcservices/ should not be discarded since his evidence is on the higher pedal. In the given case, P.W.1, the mother of the deceased has given a clear evidence that at the time when the accused was attacking him with a pen knife, she intervened and went to the rescue and at that time he also attacked her on her eyebrow and the corresponding injury was found in the wound certificate of P.W.1 which is marked as Ex.P- 5. Thus, no reason is noticed by the Court casting doubt on the testimony of P.W.1 and the evidence of P.W.1 stood fully corroborated by P.Ws.2 to 4, who are the eye witnesses and also the medical opinion given by P.W.8. Yet another circumstance which is stood in favour of the prosecution was the recovery of M.O.1 pursuant to the confessional statement of the appellant accused. In view of the abundant evidence, as narrated above, the contentions put forth by the learned counsel for the appellant do not merit acceptance and are liable to be rejected and, accordingly, they are rejected. Thus, the prosecution is successful enough in proving the case that it was the accused who not only attacked Munikrishnan, which resulted his death but also attacked P.W.1 at the time of occurrence. 8. Coming to the second line of arguments advanced by the learned counsel for the appellant, the Court is able to see some force in the contention. It is not in controversy that the death was caused due to the injury caused by the appellant on the left thigh of the deceased. The medical opinion canvassed would clearly indicate that the injury was found on the left thigh of the deceased. The shock and haemorrhage due to the penetrating injury was the cause of death according to the medical opinion canvassed by the prosecution and the findings recorded by the trial court. Further it remains to be pointed out that even as per the prosecution case, there was a wordy altercation between the family members of P.W.1 and the accused in respect of partition of the family properties. At that juncture, the accused has taken the pen knife and attacked the deceased on his left thigh. It remains to be stated that had it been the intention of the accused to cause the death of the deceased, he would not have attacked him on the non-vital part and therefore, it cannot be said that he entertained any intention to cause the death of the deceased. The Court is able to see two points in favour of the accused. Firstly, he has attacked him on the left thigh which is a non-vital part and, secondly, it was made in a hit of passion when the quarrel was going on between the family members. The contention put forth by the learned counsel for the appellant that the act of the appellant would not attract the definition of murder cannot be countenanced. From the materials available, it will be quite clear that it was he who caused the death of the deceased by attacking him on the left thigh with the pen knife. Further, in view of the above factors, the Court is of the opinion that the act of the accused would not attract the penal provision of murder and instead, it would come under section 304 (Part-II) of the Indian Penal Code. In the considered opinion of the Court, the punishment of five years https://hcservices.ecourts.gov.in/hcservices/ rigorous imprisonment, under the stated circumstances, would suffice to meet the ends of justice. 9. In so far as the punishment awarded under section 324 IPC is concerned, the trial court has awarded six months rigorous imprisonment, which, in the considered opinion of the court, is perfectly correct and there is no reason to interfere with the same. Accordingly, the conviction and sentence of life imprisonment under section 302 IPC awarded by the trial court are modified into one of conviction under Section 304 (Part-II) IPC and five years rigorous imprisonment is awarded to him. The sentences shall run concurrently and the period already undergone by the accused is ordered to be set off. The fine amount and default sentence awarded by the trial court will hold good. Criminal appeal is disposed of accordingly. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To 1. The Principal Sessions Judge, Krishnagiri. 2. The Judicial Magistrate, Denkanikottai. 3. The District Collector, Krishnagiri. 4. The Director General of Police, Chennai. 5. The Inspector of Police, Denkanikottai Police Station, Krishnagiri District. 6. The Superintendent, Central Prison, Vellore. 7. The Public Prosecutor, High Court, Madras. Crl. Appeal No.589 of 2009 RB (CO) GSK 17.12.2009. https://hcservices.ecourts.gov.in/hcservices/