IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.998 of 2007 Paramasivam .. Appellant/ Accused vs State by: Sub Inspector of Police Kelambakkam Police Station Kancheepuram District (Crime No.124 of 2005) .. Respondent/ Complainant Criminal appeal preferred under Sec.374(2) of Cr.P.C. against the judgment of the Principal Sessions Judge, Chengalpattu, in S.C.No.605 of 2005 dated 21.4.2007. For Appellant : Mr.Sankarasubbu For Respondent : Mr.P.Kumaresan 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 in S.C.No.605 of 2005 whereby the sole accused/appellant stood charged under Sections 302 and 325 of IPC and on trial, found guilty under Sections 302 and 324 of IPC and awarded life imprisonment along with a fine of Rs.1000/- and default sentence and one year Rigorous Imprisonment respectively. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 Rajammal has got three daughters and two sons. The accused is the elder son and the deceased Dilli @ Dilli Babu was the younger son. The husband of P.W.1 owned 1 acre of land. On his death, the family got only 0.35 cents. Regarding the possession of the land, there were often quarrels. Thus, the accused and the deceased were not in talking terms. On the https://hcservices.ecourts.gov.in/hcservices/ previous night of the date of occurrence i.e., 10.4.2005, both the accused and the deceased were in drunken mood quarrelling with each other. On the date of occurrence at Noon hours, the deceased came over there and informed his mother that he did not sleep in the previous night, and he wanted to take rest and hence got inside the house. When P.W.1 was sitting in the verandah, the accused came with a wooden log, M.O.1, and pushed the door and got inside. When the deceased was sleeping, he attacked him with the wooden log. On seeing this, P.W.1 shouted. At that time, the accused attacked her as a result of which she got bleeding injuries. Immediately he came with an iron rod, closed the door and left the place. P.W.1 with great struggle opened the door and came out, and she immediately proceeded to the other daughter's house namely P.W.3. She informed her, and the injured Dilli actually died. Then P.W.1 proceeded to the respondent police station and gave a complaint to P.W.10, the Sub Inspector of Police. A case was registered on the strength of the same in Crime No.125 of 2005 under Sections 324 and 302 of IPC. The printed FIR, Ex.P14, was despatched to the Court. M.O.2, bloodstained saree, was recovered under Form 95. (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.P4, and a rough sketch, Ex.P16. Further, the dead body was photographed through P.W.7, the Photographer. The photos are marked as M.O.4 series, and its negatives are M.O.5 series. Then, the Investigating Officer also recovered bloodstained earth and sample earth under a cover of mahazar. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P17. Then, the dead body was sent to the Government Hospital along with a requisition for the purpose of postmortem. (c) P.W.11, the Professor of Forensic Medicine, Chengalpattu Medical College, Chengalpattu, on receipt of the requisition, conducted autopsy on the dead body of Delhi @ Delhi Babu and has issued a postmortem certificate, Ex.P15, with his opinion that the deceased would appear to have died of head and brain injuries and the corresponding internal injuries caused to the brain matter. (d) P.W.1 was also sent to the hospital, and she was also given treatment by P.W.2, the Doctor. The accident register copy is also marked as Ex.P2. Pending the investigation, the accused was arrested on 11.4.2005 when he came forward to give a confessional statement. The admissible part is marked as Ex.P6. Pursuant to the same, he produced M.O.1, wooden log, which was recovered under a cover of mahazar. P.Ws.1 and 3 were produced before the Judicial Magistrate, Chengalpattu, to record their statements under Sec.164 of Cr.P.C. Accordingly, on 12.4.2005, their statements were recorded. All the material objects were subjected to chemical analysis which resulted in Ex.P10, the biology report, and P11, the serology report. On completion of the investigation, the Investigating Officer filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and also relied on 19 exhibits and 6 material objects. On completion of 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 lower 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 as referred to above. Hence this appeal at the instance of the appellant/accused. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, there was only one witness as eyewitness examined by the prosecution; that during the relevant time, P.W.1 was living with the deceased; that the appellant was living with his wife separately; that as far as 0.35 cents of land was concerned, they were not in talking terms, and hence actually she had got more interest in the deceased than the appellant; and that under the circumstances, she has come forward to give false evidence. 5.Added further the learned Counsel that number of persons were all residing around; but, no independent witness was examined or has come forward to support the prosecution case; that in the case on hand, the alleged confession and the pursuant recovery were all nothing but cooked up affair; that the medical opinion was also not in support of the prosecution; and that the prosecution has miserably failed to bring home the guilt of the accused. 6.Added further the learned Counsel in the second line of his argument that even if the Court accepts the factual position that it was the accused who attacked his brother deceased with a weapon like M.O.1, and caused his death, the act of the accused would not attract the penal provision of murder; that on the previous night, both the accused and the deceased were in drunken mood; that they were also quarrelling; that at that time, the deceased had actually spoken in filthy language against the wife of the accused; that he got provoked; that at the time of the occurrence, when the accused came to the place, there was a quarrel among both the accused and the deceased; that though not denied by P.W.1, the Investigator has categorically admitted that at the time of the investigation, it came to light that the neighbours have spoken that there was a quarrel between the deceased and the accused; that when the accused came there along with his wife to question the conduct of the deceased as to the filthy language used against his wife, they had a quarrel; that in that being provoked, the accused has attacked the deceased only with a small stick; that under the circumstances, it was neither intentional nor premeditated; that it is only a culpable homicide not amounting to murder, and hence it has got to be considered by this Court. https://hcservices.ecourts.gov.in/hcservices/ 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious attention over the same. 8.It is not in controversy that one Dilli @ Dilli Babu, the son of P.W.1, was done to death in an incident that took place at 2.45 P.M. in the house of P.W.1. The dead body was subjected to postmortem following the inquest made by the Investigator. The postmortem Doctor was examined as a witness before the Court. He has also deposed as per the contents found in the postmortem certificate that the deceased died due to the injuries sustained on the skull and also corresponding internal injury to the brain matter. The fact that Dilli Babu died out of homicidal violence was not a subject matter of controversy before the Court. Hence, it has got to be recorded so. 9.In order to substantiate the fact that it was the accused who came to the house of the deceased and attacked him with M.O.1, wooden log, and caused his death, the prosecution rested its case on the sole testimony of P.W.1. At this juncture, it is pertinent to point out that P.W.1 is the mother of both the accused and the deceased, and hence, a mother could not be expected to take a partisan attitude between the two sons. That apart, there is nothing to indicate that the accused and P.W.1 were on strained relationship at that time. Further, according to P.W.1, on the day, when she was in her house in noon hours, the deceased came over there and telling that he did not have sleep proper in the previous night and went inside to take rest, and at that time, the accused came over there along with M.O.1 wooden log, pushed the door, got inside and attacked him. On seeing this, she shouted, and immediately the accused turned and attacked her on the left hand and also caused bleeding injuries. At this juncture, it remains to be stated that P.W.1 was not only the mother, but also an inured witness. It is trite law that in a given case like this when the occurrence witness happened to be an injured witness, the evidence of the said witness should not be discarded unless and until strong circumstance is noticed. In the case on hand, the evidence of P.W.1, the mother of both the deceased and the accused, has inspired the confidence of the Court. The lower Court has correctly accepted the evidence. Apart from that, the evidence of P.W.1 stood fully corroborated by the medical evidence projected through P.W.2, the Doctor, who treated her and also the accident register copy marked as Ex.P2 insofar as the injuries sustained by her. 10.Added circumstance is the postmortem certificate marked by the prosecution. According to P.W.1, he actually attacked him on the head. The postmortem Doctor has also given his opinion that he died out of the external injuries sustained on the head and also the corresponding internal injury which has affected the brain matter. Yet another circumstance against the accused was the recovery of M.O.1 wooden log, pursuant to his confessional statement recorded, under a cover of mahazar, and a witness has https://hcservices.ecourts.gov.in/hcservices/ also been examined to the factum of arrest, confession and recovery. The evidence of that witness remained unshaken. Under the circumstances, the above pieces of evidence, in the considered opinion of the Court, would suffice pointing to the guilt of the accused. Hence it has got to be recorded that it was the appellant/accused who attacked his brother Dilli Babu with the wooden log on his head and caused his death and also caused injury to P.W.1, the mother. 11.The second line of argument put forth by the learned Counsel for the appellant, in the considered opinion of the Court, cannot be accepted for the following reasons. According to the Counsel, there was a quarrel at the time of the occurrence, and he was actually provoked, and in that sudden quarrel and provocation, the accused has acted so. Though the contention is attractive at the first instance, the Court is unable to see material to support his contention. It is true that there was a quarrel between the accused and the deceased on the previous night i.e., just 12 hours prior to the occurrence when they were in drunken mood. On the date of occurrence, when P.W.1 was actually in the verandah, the accused came over there with the weapon like M.O.1, wooden log, pushed the door, got inside and attacked his brother on the head. It remains to be stated that at the time when the accused came to the place of occurrence, he came with a wooden log, M.O.1, measuring about 3 feet length, which would be indicative of the fact that he came with an intention to attack him. Further, at the time when the deceased was actually sleeping, he attacked him on the head and caused his death within a short span of time. When P.W.1 questioned naturally, he has also attacked her and went outside the house. That apart, at the time of the cross- examination of P.W.1, all questions have been asked in the line of the contentions now put forth by the appellant's Counsel, but she has categorically denied. 12.Above all, the learned Counsel took the Court to the evidence of P.W.12, the Investigator, that at the time of investigation, the neighbours told that there was a quarrel inside the house. Pointing to this, the learned Counsel would submit that actually there was a quarrel between the accused and the deceased. This contention cannot be accepted for the simple reason that P.W.1 was the only eyewitness. She has categorically denied the same. Apart from that, when the neighbours were actually in their respective houses while the occurrence was going on, it was she who on seeing the accused attacking the deceased, shouted at him, and at that time, the deceased also raised the distressing cry. Apart from that, the accused has attacked P.W.1 also. Naturally, they would have been shouting, and this shouting should have been heard by the villagers as if there was a quarrel inside the house of the deceased, but this cannot be taken as a quarrel as contemplated under the exception to Sec.300 of IPC. In the absence of any material to support the contention put forth by the learned Counsel, this Court is unable to agree with him. The available materials would be pointing to the guilt of the accused that he came with the wooden log, attacked him forcibly and caused his https://hcservices.ecourts.gov.in/hcservices/ death instantaneously. Hence, it can be only termed as murder. That apart, he has caused injury to P.W.1. The lower Court was perfectly correct in finding him guilty under Sections 302 and 324 of IPC and in awarding the sentence as stated above. The judgment of the lower Court has got to be sustained. 13.Accordingly, this criminal appeal fails, and the same is dismissed confirming the judgment of the lower Court. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv/ To: 1.The Principal Sessions Judge Chengalpattu. 2. The Judicial Magistrate No.1, Chengalpattu. 3. The Chief Judicial Magistrate Chengalpattu. 4. The Superintendent Central Prison, Puzhal, Chennai 5.The Sub Inspector of Police Kelambakkam Police Station Kancheepuram District (Crime No.124 of 2005) 6.The Public Prosecutor High Court, Madras. CRL.A.No.998 of 2007 SSN (CO) kk 3/12 https://hcservices.ecourts.gov.in/hcservices/