IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 30.10.2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRL.A.No.505/2009 Mohanasundaram .. Appellant/A1 Vs State by the Inspector of Police Gudimangalam Police Station Udumalpet Taluk, Coimbatore District. .. Respondent/ [Cr.No.44/2008] Complainant Appeal filed u/s.374[2] Cr.P.C., to set aside the Judgment of conviction and sentence passed in SC.No.258/2008 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore dated 10.07.2009. For Appellant : Mr.K.Kalyanasundaram For Respondent : Mr.Babu Muthu Meeran, Addl. Public Prosecutor JUDGMENT [Judgment of the court was delivered by M.CHOCKALINGAM, J.] Challenge is made to the Judgment of the learned Additional District and Sessions Judge, FTC-2, Coimbatore, made in SC.No.258/2008 whereby the accused/A1 and A2 stood charged, tried and the appellant/A1 was found guilty for the offence u/s.341 and 302 IPC and was awarded with life imprisonment and to pay a fine of Rs.5,000/- in default to undergo three years simple imprisonment for the offence u/s.302 IPC and was awarded one month simple imprisonment and to pay a fine of Rs.100/- in default to undergo one week simple imprisonment for the offence u/s.341 IPC. The trial Judge ordered the sentences to run concurrently and acquitted the second accused of all the charges leveled against her. The above appeal has been preferred by the first accused. 2.Short facts necessary for the disposal of the appeal can be stated as follows:- [a]P.Ws.1 to 8 are the residents of the village called Kongal. The deceased Lakshmanasamy and A1/appellant were the sons of P.W.4 https://hcservices.ecourts.gov.in/hcservices/ and the other witnesses are closely related to each other inter-se and also related to both the accused and the deceased. A1/appellant is the husband of A2. The family of P.W.4 had 15 acres of land and it was put to family partition in which P.W.4 was having 2 acres of land. But, A1 was retaining the possession of land and thus, there was a civil dispute between the parties and even two months prior to the occurrence, A1's wife was attacked by the deceased and she was taking treatment for some time. [b]On the date of occurrence, i.e., 17.03.2008 at about 9.30 p.m. the deceased went to the house of P.W.1 and at that time, the accused waylaid him and while A2 caught hold of the deceased, A1 attacked him with a bamboo stick and this occurrence was witnessed by P.Ws.1 to 8. When the distressing cry was raised, both the accused fled away from the scene of occurrence. The deceased who sustained injuries fell down and dead on the spot. [c]P.W.1 immediately went to the respondent police at about 00.30 hours on 18.03.2008 and gave a complaint under Ex.P.1 to P.W.21, the Sub-Inspector of Police attached to the Gudimangalam police station, on the strength of which a case came to be registered in Crime No.44/2008 for the offence u/s.341 and 302 IPC and the Express FIR, Ex.P.11 was despatched to the court and to P.W.24, the Inspector of Police. P.W.24, the Inspector of Police attached to the Udumulpet police station and who was in-charge of the respondent police, received the FIR at about 2.00 a.m. on 18.03.2008 took up the investigation, proceeded to the scene of occurrence at about 6.00 a.m. ; prepared Observation Mahazar-Ex.P.2 and a rough sketch- Ex.P.18; held inquest on the dead body of the deceased from 7.45 a.m. to 10.00 a.m. in the presence of witnesses and panchayatdars under Ex.P.19 and also recovered the material objects from the scene of occurrence, viz.,M.O.1-Blood stained earth, M.O.2-sample earth, M.O.3-small stone blood stained, M.O.4-dried leaves with a corn [blood stained], M.O.5-beedies and M.O.6-sigar light under the cover of Mahazar-Ex.P.3. He also examined the witnesses and recorded their statements. He also made arrangements for taking photographs at the scene of occurrence and Ex.P.11 series is the Photographs and negatives. Thereafter, the dead body was sent to the Government Hospital, Udumulpet, for Postmortem along with a requisition, Ex.P.12. [d]P.W.22 the doctor attached to the Government Hospital, Udumulpet, conducted autopsy on 18.03.2008 at about 12.00 noon and issued Postmortem Certificate under Ex.P.13 wherein he found the following injuries:- "EXTERNAL INJURIES 1.A lacerated injury over the right side of the occipital region measuring about 6x0.5cmxbone depth. 2.A lacerated injury behind the right ear measuring https://hcservices.ecourts.gov.in/hcservices/ 3x2x.5cm. 3.A lacerated injury over the center of the occipital bone 4x0.5xbone depth. 4.Contusion below the right ear 10x6cm. 5.Contusion over the center of the chest 11x2 cm. 6.An abrasion over the left middle finger 3cm x0.1cm 7.An abrasion over the left ring finger 0.5cmx0.1 cm 8.An contusion over the left parietal region 7cm x 5 cm." The doctor had given his opinion that the deceased would appear to have died of injury to the brain, haemorrhage and shock 12 to 18 hours prior to autopsy. [e]Pending investigation, P.W.24, on 18.03.2008 at about 16.30 hours, arrested A2/Rajamani in the presence of witnesses and she came forward to give a voluntary confessional statement, the admissible part of which is marked as Ex.P.4 pursuant to which M.O.5-blood stained saree was recovered under cover a Mahazar-Ex.P.5. He also arrested A1 on 19.03.2008 at about 6.00 a.m. and he voluntarily came forward to give a confessional statement, the admissible part of which is marked as Ex.P.6 pursuant to which M.O.8-bamboo stick, M.O.9-lungi and M.O.10-shirt were recovered under the cover of Mahazars Exs.P.7 and 8 respectively. All the material objects recovered from the scene of occurrence, accused and from the dead body were all subjected to chemical analysis which resulted in 3 reports, viz., Exs.P.15 to 17-Chemical Analyst Report and Serologist Reports respectively. [f]On completion of investigation and filing of the final report, the case was committed to sessions; necessary charges framed and in order to substantiate the charges, the prosecution examined 24 witnesses [P.Ws.1 to 24], marked 19 exhibits [Exs.P.1 to 19] and produced 15 material objects [M.Os.1 to 15]. 3.When the accused were questioned u/s.313 Cr.P.C., as to the incriminating circumstances against them, they denied them as false and no defence witness was examined on the side of the accused. Hearing the arguments advanced on either side and also considering the incriminating materials against the accused, the trial court took a view that the prosecution has proved its case beyond reasonable doubt against the first accused and thus, rendered the judgment of conviction as stated above. As against the said conviction and sentence, the first accused has preferred the above appeal. 4.Advancing the arguments on behalf of the appellant, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case and though the prosecution examined 8 witnesses as eyewitnesses, all of them are actually interested in the deceased. P.W.4, the mother of the deceased and others are inter-se related to each other and also related to the deceased and the first accused/appellant. It is also an admitted position that P.W.4 and the deceased were on the one side and the appellant and his wife on the other side and they got a civil dispute between them and thus, their relationship was strained. In the instant case, P.W.4 and other witnesses have come forward to give a false evidence and apart from that, when the evidence of the so called eyewitnesses is scrutinised carefully, it would clearly indicate that their evidence are discrepant and thoroughly unreliable. The learned counsel for the appellant added further that the medical opinion did not corroborate the ocular testimony. Apart from that, the so called confessional statements are alleged to have been recorded from A2 first and thereafter from A1 and such confessional statements are nothing but introduction of falsehood and a fabricated and concocted one. Added further, the learned counsel for the appellant contended that on the basis of the very same evidence, the trial court was not ready to believe the case of the prosecution insofar as A2 and acquitted her and that the same parameters are applicable to A1/appellant also and hence, he is entitled to for acquittal at the hands of this court. 5.The learned counsel for the appellant in the second line of argument, would submit that even assuming that the prosecution has proved the factual position that the appellant/A1 had attacked the deceased with bamboo stick and caused the deceased and all the eyewitnesses examined by the prosecution have spoken in one voice that there was a long standing strained relationship between the parties and on the day of the occurrence, it was the deceased who went to the house of the appellant and apart from that, there was a preceding quarrel between A1 and the deceased and in that sudden quarrel the appellant/A1 has attacked him with bamboo stick. It is also pertinent to point out that it was only a bamboo stick and not any lethal weapon. Under such circumstances, it would be quite clear that he had no intention to cause the death of the deceased and hence, the act of the appellant would not attract the penal provision of murder and submitted that this court should consider the same. 6.Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made on either side. 7.It is not in controversy that one Lakshmanasamy, the son of P.W.4, in an incident that took place on 17.03.2008 at about 9.30 p.m. died on the spot and on the strength of Ex.P.1, the complaint, the case was taken on file and P.W.24, the Inspector of Police who was in-charge of the respondent police, after conducting procedural https://hcservices.ecourts.gov.in/hcservices/ formalities, sent the dead body for Postmortem and the dead body was subjected to postmortem by P.W.22, the doctor attached to Government Hospital, Udumulpet who has given a categorical opinion that the deceased died out of shock and haemorrhage due to the injuries sustained on the brain and now, the fact that the deceased died out of homicidal violence was not disputed by the appellant before the trial court and accordingly, the trial court did not feel any impediment in recording so and it has got to be affirmed. 8.In order to substantiate that it was the appellant/A1 who caused the death of the deceased, the prosecution, to its advantage, had 8 witnesses and it is true that P.Ws.1 to 8 are inter-se related to each other and P.W.4 is the mother of the deceased. But, at the same time, merely because on the ground of close relationship of the witnesses to the deceased, their evidence cannot be rejected or looked with doubt. But, before acceptance, this court must exercise the test of careful scrutiny. Even after the exercise of the test, this court is satisfied that the evidence of those witnesses had inspired this court since it is cogent and acceptable. Apart from that, all the witnesses are equally related to the accused also. But, the accused is unable to show any reason on why their evidence should not be believed. Also, all the eyewitnesses have spoken to the fact that at the time when the occurrence has taken place, there was a preceding quarrel and in which, in the heat of passion A1 attacked the deceased with the bamboo stick and as a result, Lakshmanasamy died on the spot and hence, as rightly pointed out by the trial Judge, this court has to accept the evidence of P.Ws.1 to 8 who are the eyewitnesses to the occurrence. The ocular testimony projected through the evidence of P.Ws.1 to 8 stood fully corroborated by the medical opinion given by P.W.22, the doctor who conducted the postmortem through Ex.P.13. Added further, the blood stained material objects which were recovered pursuant to the confessional statements of the accused and the material objects which were recovered from the scene of occurrence were subjected to chemical analysis and the chemical analyst report and the serologist reports also tallies the blood group. Thus, the scientific evidence is also in favour of the prosecution. In the face of the above, the evidence noticed by this court, all the contentions put forward by the learned counsel for the appellant could not be accepted. Hence, they are liable to be rejected and accordingly, rejected and the trial court is perfectly correct in recording the finding that it was the accused who attacked the deceased with bamboo stick and caused the death instantaneously. 9.Insofar as the second line of argument of the learned counsel for the appellant, this court is able to see some force in the contention put forward. All the eyewitnesses have spoken in one voice that there was a land dispute and the accused/appellant are on one side and P.W.4 and the deceased were on the other side and on the date of occurrence also, it was the deceased who went to the house of https://hcservices.ecourts.gov.in/hcservices/ the accused to question the conduct and at that time, the occurrence had taken place just in front of the accused and there was a wordy altercation too and in the heat of passion and sudden quarrel, A1 had attacked him with bamboo stick and caused the death. Thus, it would be quite indicative of the fact that the appellant did not have any intention to cause death. Thus, the act of the accused would be only culpable homicide not amounting to murder and it would attract 304 [Part I] IPC and not 302 IPC. Hence, awarding punishment of seven years rigorous imprisonment, in the considered opinion of the court, would meet the ends of justice. 10.Accordingly, the appeal is partly allowed and the Judgment of conviction and sentence imposed on the appellant/A1 by the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore dated 10.07.2009 in SC.No.258/2008 insofar conviction u/s.302 IPC, is set aside and instead, the appellant/A1 is convicted u/s.304 [Part I] IPC and sentenced to undergo seven years rigorous imprisonment. The Judgment of the trial court insofar as conviction u/s.341 IPC, the same is affirmed. Both the sentences are ordered to run concurrently. The period of sentence already undergone, shall be given set off. ap Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Additional District and Sessions Judge Fast Track Court NO.II, Coimbatore. 2.-do-through The Principal Sessiosn Judge, Coimbatore. 3.The Inspector of Police Gudimangalam Police Station Udumalpet Taluk, Coimbatore District. 4.The Public Prosecutor High Court, Chennai. 5.The Superintendent, Central Prison, Coimbatore. 1CC to Mr.K.Kalyanasundaram, Advocate (SR.58002) Judgment in Crl.A.No.505/2009 NG (CO) SS (10.11.2009) https://hcservices.ecourts.gov.in/hcservices/