IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.587 of 2008 Dhandapani ..Appellant/Accused vs The State rep by The Inspector of Police Nandambakkam Police Station Chennai (Cr.No.35/2007) ..Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.I, Chengalpattu, made in S.C.No.146 of 2007 dated 4.3.2008. For Appellant : Dr.G.Krishnamoorthy for Mr.G.Anbayachozhan For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.I, Chengalpet, made in S.C.No.146 of 2007 whereby the sole accused/appellant stood charged, tried, found guilty under Sec.302 of IPC and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is a resident of Nandambakkam Anna Nagar. The deceased Vengaiah was the brother of P.W.1's father. On 23.1.2007 at about 3.00 P.M., the deceased was taking bath on the riverbed. At that https://hcservices.ecourts.gov.in/hcservices/ time, P.W.11 was washing her clothes near the riverbed. P.Ws.2 and 3 were also washing their clothes 100 feet away from there. On seeing the accused lying near the riverbed, where the ladies used to take bath, the deceased Vengaiah questioned the accused. There arose a quarrel between them. Immediately, the accused took a stick, M.O.1, and beat the deceased. The occurrence was witnessed by P.Ws.2, 3 and 11. P.W.11 ran shouting, and on information, P.W.1 rushed to the spot and took the deceased to the hospital; but, he died on the way. Then the accused ran away from the place of occurrence. P.W.1 rushed to the respondent police station and gave a complaint, Ex.P1, at about 5.45 P.M. to P.W.10, the Sub Inspector of Police. On the strength of Ex.P1, he registered a case in Crime No.35/2007 under Sec.302 IPC. The printed FIR, Ex.P8, was despatched to the Court. (b) P.W.12, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P9. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P10. A requisition was given to the hospital authorities for the purpose of autopsy. (c) P.W.9, the Assistant Surgeon, attached to the Government Hospital, Tambaram, on receipt of the requisition conducted autopsy on the dead body of Vengaiya and has found 7 external injuries. She has given a postmortem certificate, Ex.P3, with her opinion that the deceased would appear to have died of head injury and shock. (d) Pending investigation, the Investigator arrested the accused at about 12.40 P.M. the next day. He gave a confessional statement voluntarily. The same was recorded. The admissible part is marked as Ex.P5, pursuant to which he produced M.O.1, stick, which was recovered under a cover of mahazar. He was sent for judicial remand. On completion of investigation, the Investigating Officer filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charges the prosecution marched 12 witnesses and also relied on 10 exhibits and 3 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 in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded the punishment referred to above which is the subject matter of challenge before this Court. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instance case, according to the prosecution, the occurrence has taken place near the riverbed at about 3.45 P.M. on 23.1.2007; that P.Ws.2, 3 and 11 were examined as eyewitnesses; that P.W.1 was the close relative of the deceased; that P.W.1 could not have seen the occurrence at all because only on information he rushed to the spot; that the evidence adduced by the prosecution through P.Ws.2, 3 and 11 if thoroughly scrutinized, would clearly indicate lot of discrepancies on material particulars; that the same would suffice to reject the testimony; that it is a case where the medical opinion canvassed by the prosecution did not corroborate the ocular testimony; that the recovery of M.O.1 pursuant to the alleged confession should have been rejected by the trial Court since it was only an after thought; that on the basis of the cooked up document, the trial Court has given findings and thus the prosecution has miserably failed to prove its case. 5.In the second line of his argument, the learned Counsel would submit that even assuming that the factual position that it was the accused who hit the deceased and caused his death is shown to have been proved, the act of the accused would not attract the penal provision of murder; that even according to P.Ws.2, 3 and 11, the accused was lying near the riverbed, and the same was questioned by the deceased stating that it was the place where ladies used to take bath, and there was a sudden quarrel between them, and in that immediately the accused took a stick from aside and beat him; that it would be quite clear that he had no intention or premeditation; that the act of the accused was also pursuant to a sudden quarrel that arose between the deceased and the accused; that it would not attract penal provision of murder, but would fall within one of the exceptions to Sec.300 IPC, and it has got to be considered by this Court. 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.It is not in controversy that one Vengaiah was done to death in an incident that took place at 3.45 P.M. On 23.1.2007. Following the inquest made by P.W.12, the Investigator, the dead body was subjected to postmortem by P.W.9, the Doctor, who gave opinion as a witness before the Court and also through the contents of the postmortem certificate, Ex.P3, that he died out of head injury and shock. The fact that he died out of homicidal violence was never controverted by the appellant before the trial Court. Hence no impediment was felt by the trial Court to record that Vengaiah died out of homicidal violence and rightly too. 8.In order to substantiate the charge that it was the accused who beat the deceased Vengaiah with the stick, M.O.1, and caused his https://hcservices.ecourts.gov.in/hcservices/ death, the prosecution rested its case on the direct evidence by examining P.Ws.2, 3 and 11. The evidence of these witnesses stood in one voice that the accused was lying nearby the riverbed, and Vengaiah questioned him stating that it was the place where ladies used to take bath, and there was a quarrel between them, and suddenly the accused took the stick lying outside and beat the deceased, and immediately, he was taken to the hospital, and on the way he died. Despite cross-examination in full, the evidence of these witnesses was unshaken. That apart, the evidence adduced by the prosecution through these witnesses stood fully corroborated by the medical opinion canvassed through P.W.9, the Doctor, and the certificate issued by him under Ex.P3. Yet another circumstance which stood in favour of the prosecution was the recovery of M.O.1, stick, pursuant to the confessional statement recorded by the Investigator in the presence of witnesses. The recovery of the weapon of crime which was used by the accused at the time of occurrence, pursuant to the confessional statement would be pointing to the nexus of the accused to the crime. In the face of the evidence available and noticed by the Court, the contentions put forth by the appellant's Counsel do not carry merit whatsoever. They are liable to be rejected, and accordingly rejected. Thus the prosecution has proved the factual position that it was the accused who beat the deceased with the stick and caused his death. 9.Insofar as the second line of argument, this Court is able to see force in the contentions put forth by the learned Counsel for the appellant. As could be seen from the evidence, P.W.11 was actually washing her clothes near the riverbed, and at that time, the deceased Vengaiah found the accused lying near the riverbed, and he questioned the accused and further added that the accused should not lie in the place where ladies used to take bath. Even P.Ws.2 and 3 who were also eyewitnesses, have spoken to the fact that there was a sudden quarrel that arose between the deceased and the appellant/accused, and in that, the accused took the stick which was lying by the side, and beat him. It is pertinent to note that he was not armed. He took M.O.1, stick, which was nearby and beat him. It would be quite clear that he has acted in the heat of passion and also due to sudden quarrel. Therefore, the act of the accused would not attract the penal provision of murder, but he had intention to cause such bodily injury as is likely to cause death. In such circumstances, the act of the accused would attract penal provision of Sec.304 (Part I) IPC and awarding a punishment of 7 years Rigorous Imprisonment would meet the ends of justice. 10.Accordingly, the conviction and sentence imposed on the appellant by the trial Court under Sec.302 IPC are set aside, and instead, he is convicted under Sec.304 (Part I) IPC and is directed to suffer seven years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. https://hcservices.ecourts.gov.in/hcservices/ 11.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv To 1. The Additional District and Sessions Judge Fast Track Court No.I Chengalpattu. 2. -do- Through The Principal Sessions Judge, Chengalpattu. 3. The Judicial Magistrate, Alandur. 4. -do- Through The Chief Judicial Magistrate, Chengalpattu. 5. The District Collector, Chengalpet. 6. The Director General of Police, Chennai. 7. The Superintendent, Central Prison, Puzhal, Chennai. 8. The Inspector of Police, Nandambakkam Police Station, Chennai. 9. The Public Prosecutor High Court, Madras. C.A.No.587 of 2008 GV (CO) GSK 10.08.2009. https://hcservices.ecourts.gov.in/hcservices/