B A I L S L I P The accused, viz., Kumar @ Koolaiyan, was directed to be released on bail as per the order of this Court, dated 13.03.2006 made in Crl.M.P.No.1143 of 2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.10.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.160 OF 2006 Kumar @ Koolaiyan ..Appellant/Sole Accused ..Vs.. State rep. by The Inspector of Police, Devala Police Station, The Nilgiris District. (Crime No.82/2003) ..Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned District and Sessions Judge at Ooty, The Nilgiris made in S.C.No.53 of 2005, dated 30.11.2005. For Appellant : Mr.T.P.Manoharan For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Sessions Division, Ooty made in S.C.No.53 of 2005, whereby the sole accused/appellant stood charged under Section 302 IPC, tried, found guilty as per the charge and awarded life imprisonment and to pay a fine of Rs.10,000/-, in default to undergo one year S.I. 2. The short facts necessary for the disposal of this appeal can be stated thus: https://hcservices.ecourts.gov.in/hcservices/ a) The accused/appellant was the resident of Nelliyalam, Vazhavayal village within the jurisdiction of the respondent police. One Manisekar was living with his second wife Chitra and his son through the first wife Gowri. He used to have quarrel with his wife Chitra. During those days, she used to go outside and stayed in the house of the accused. On 6.6.2003, pursuant to the quarrel between the said Manisekar and his wife Chitra, she left the house and stayed in the house of the accused. b) On 7.6.2003 at about 19.00 hours, Manisekar went in search of his wife. At that time, when he was making enquiry, the deceased Dharmaraj informed that Chitra was staying in the house of the accused and further, he has stated that she was being kept by the accused. Aggrieved over the same, there was a quarrel between the deceased and the accused. The deceased attacked the accused with stick. After some time, at about 9.00 p.m., when P.Ws.2 and 3 were in front of the house, the accused stabbed the deceased with Suri knife, M.O.1. The accused immediately fled away from the place of occurrence. The occurrence was witnessed by P.Ws.2 and 3. c) P.W.1, the brother of Dharmaraj, was informed about the same. P.W.1 accompanied by P.Ws.2 and 3, took his brother Dharmaraj to the Government Hospital, Gudalur, where he was declared dead by the medical person. On 8.6.2003 at about 2.00 a.m., P.W.1 went to the respondent police station, where the Head Constable was on duty and gave Ex.P.1, the report, on the strength of which a case came to be registered in Crime No.82 of 2003 under Section 302 IPC. d) Ex.P.9, the F.I.R. was despatched to the Court. P.W.7, the Inspector of the said Circle, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.5, the observation mahazar and Ex.P.10, the rough sketch. Further, the place of occurrence was photographed. Ex.P.11 (series) photos and Ex.P.12 (series) negatives were marked. P.W.7 recovered M.O.2, bloodstained earth and M.O.3, sample earth under Ex.P.6, mahazar. Then, he proceeded to the hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.15, the inquest report. The dead body was sent for the purpose of post-mortem. e) P.W.4, the Doctor attached to the Government Hospital, Gudalur, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has given her opinion in Ex.P.4, the post-mortem certificate that the deceased would appear to have died of extensive bleeding from the left carotid artery (a supplying the brain) with hypo-tension with cardia respiratory arrest. f) Pending investigation, the Investigating Officer arrested the accused, who voluntarily came forward to give confessional statement, which was recorded in the presence of P.W.6 and the other witness. The admissible part of the same was marked as https://hcservices.ecourts.gov.in/hcservices/ Ex.P.7. Pursuant to the same, he produced M.O.1, knife, which was recovered in the presence of the same witnesses under Ex.P.8 mahazar. The accused was sent for medical treatment with medical memo. After treatment, the accused was sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body of the deceased and also M.O.1, knife were subjected to chemical analysis by the Forensic Science Department on request made by the Investigating Officer through the concerned Judicial Magistrate Court, which resulted in three reports, namely Exs.P.19 and P.20, the chemical analyst's reports and Ex.P.21, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report. 3. The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution marched 7 witnesses and also relied on 21 exhibits and 5 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. After hearing the arguments advanced and scrutinizing the materials available, the trial court took the view that the prosecution has proved the case beyond reasonable doubt and found him guilty as per the charge of murder and awarded life imprisonment, which is the subject matter of challenge before this Court. 4. Advancing arguments on behalf of the appellant, the learned counsel has made the following submissions: a) The prosecution rested its case by projecting the evidence through P.Ws.2 and 3 as eyewitnesses. The evidence of P.Ws.2 and 3 could not be believed for the simple reason that their evidence was not only inconsistent to each other, but also self contradictory. P.Ws.2 and 3 have come forward to state that M.O.1 was not the knife with which the accused stabbed the deceased. Apart from that, both have spoken to the fact that when they went to the police station at about 2.00 a.m. on 8.6.2003, the accused was there in the police station. Thus, it would falsify the alleged arrest, confessional statement and the recovery of M.O.1. Hence this part of the prosecution case was nothing, but false. b) In the instant case, the deceased was in a drunken mood and was talking ill of the accused. Further, the medical opinion that was canvassed was also not in favour of the prosecution and it did not corroborate with the ocular testimony. Thus, all would go to show that the prosecution has not proved the case beyond reasonable doubt. c) The learned counsel in his second line of argument would submit that even assuming that the factual position put forth by the prosecution is taken to have been proved, the act of the accused would not attract the penal provision of murder for the https://hcservices.ecourts.gov.in/hcservices/ simple reason that at the time when the occurrence has taken place, just preceding the occurrence, the deceased, when enquired by the husband of Chitra, informed him that she was staying in the house of the accused and the accused was keeping her. On such adumbration in the public place, the accused got provoked and has acted so and under these circumstances, the act of the accused was neither intentional nor pre-meditated, but it was due to sudden quarrel and provocation and hence the legal position has got to be looked into and considered by the court. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6. It is not in controversy that one Dharmaraj, the brother of P.W.1, was done to death in an incident that has taken place at about 9.00 p.m. on 7.6.2003 in the place of occurrence as put forth by the prosecution. Following the inquest made by P.W.7, the Inspector of Police, and the preparation of inquest report, the dead body was subjected to post-mortem by P.W.4, the Doctor, who has given her categorical opinion that the deceased would appear to have died of extensive bleeding from the left carotid artery (a supplying the brain) with hypo-tension with cardia respiratory arrest. Thus, it would be quite indicative of the fact that the deceased died out of the injuries sustained by him. Further, the fact that the deceased died out of homicidal violence was never disputed by the appellant/accused at any stage of proceedings. Under these circumstances, no impediment is felt by the court in recording so. 7. In order to substantiate the factual position that it was the accused, who stabbed the deceased to death, the prosecution rested its case on the evidence of P.Ws.2 and 3. P.Ws.2 and 3 have categorically spoken to the fact that when the husband of Chitra came forward to enquire about her, it was the deceased who informed him that she was staying in the house of the accused. Further, at that time, the deceased was also uttering that she has been kept by the accused. Immediately, the accused took the knife and stabbed him. Despite cross examination in full, the evidence of P.Ws.2 and 3 to this factual position remained unshaky. Further, the appellant is unable to show any reason or circumstance to discard or disbelieve the evidence of P.Ws.2 and 3. Apart from that, P.Ws.2 and 3, at no stretch of imagination, could be stated as interested or partisan. Under these circumstances, as rightly pointed out by the trial court, their evidence inspired the confidence of Court and hence it has got to be accepted. 8. The evidence as projected by the prosecution through P.Ws.2 and 3 stood fully corroborated by the medical evidence. P.W.4, the Doctor has been examined to that effect and Ex.P.4, the post-mortem certificate has been marked through her and when it was scrutinized, it was fully corroborated by the ocular testimony. https://hcservices.ecourts.gov.in/hcservices/ 9. So far as the arrest, confessional statement and the recovery of M.O.1 was concerned, the prosecution claimed that at the time of arrest, the accused voluntarily came forward to give confessional statement, pursuant to which he produced M.O.1, knife, which was recovered in the presence of P.W.6 and the other witness. This court is able to see force in the contention put forth by the learned counsel for the appellant for two reasons. Firstly, P.Ws.2 and 3 have categorically given evidence that M.O.1 knife was not the knife with which the accused attacked the deceased. Secondly, P.W.3 has spoken to the fact that when he went to the police station with P.W.1, he saw the accused in the custody of police. All would go to show that the claim of the investigating Agency that there was arrest and at that time, he came forward to give confessional statement and pursuant to the same, he produced M.O.1 knife, has got to be rejected as baseless. Hence the court is of the considered opinion that in a given case like this, even that part of the evidence as to the arrest, confessional statement and the recovery of M.O.1, is not believed, if the other evidence available inspired the confidence of the court, the court can sustain conviction, which is a trite law. Under these circumstances, the prosecution has brought home the guilt of the accused on the evidence of P.Ws.2 and 3 coupled with the medical evidence. The court is of the considered opinion that the prosecution has proved that it was the accused who stabbed the deceased Dharmaraj and caused his death. 10. So far as the second line of argument is concerned, the court is able to see force in the contention put forth by the learned counsel for the appellant. Admittedly, the husband of Chitra was in search of her and when he made enquiry, it was the deceased who informed him that Chitra was staying in the house of accused and apart from that, he has stated that the accused was also keeping her. This statement has been made in the presence of P.Ws.2 and 3 in a public place. Naturally, the accused got provoked. Immediately, he took the knife and stabbed the deceased. Under these circumstances, the act of the accused was neither intentional nor pre-meditated, as rightly pointed out by the learned counsel for the appellant. But, it was due to sudden provocation made by the deceased. Under these circumstances, the court is of the considered opinion that the act of the accused cannot be termed as murder, but it would attract the penal provision of Section 304(II) IPC and awarding punishment of 5 years R.I. would meet the ends of justice. 11. Accordingly, the conviction under Section 302 IPC and the sentence of life imprisonment awarded by the trial court are set aside and instead, the appellant is convicted under Section 304(II) IPC and sentenced to undergo five years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. It is reported that the appellant is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. The fine amount imposed by the trial court will hold https://hcservices.ecourts.gov.in/hcservices/ good. With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1. The District and Sessions Judge at Ooty, The Nilgiris. 2. The Inspector of Police, Devala Police Station, The Nilgiris District. 3. The Additional Public Prosecutor, High Court, Madras. 4. The Superintendent, Central Prison, Coimbatore. + 1 c.c. to Mr. T.P. Manoharan, Advocate. S.R.No.58338. CRL.A.NO.160 OF 2006 JSV (CO) GSK 29.10.2008. https://hcservices.ecourts.gov.in/hcservices/