B A I L S L I P That the Appellants/Accused Nos.1 and 2 namely 1) Ravi @ Auto Ravi, S/ Karuppaiah Thevar, and (2) Suriya @ Mohanalingam, S/o Karuppaiah Thevar, were released on bail, as per the order of this Court dated 6.2.2004 and made in Crl.MP.No.13196/03 in Crl.A.No.1549/2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.03.2011 C O R A M THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Criminal Appeal No.1549 of 2003 1. Ravi @ Auto Ravi 2. Suriya @ Mohanalingam ... Appellants/Accused Nos. 1&2 Vs State rep. by the Inspector of Police, Tiruppur. ... Respondent/Complainant (Cr.No.547/2002) Criminal Appeal is filed under Section 374(2) of Cr.P.C. to set aside the conviction and sentence passed in S.C.No.150 of 2003 dated 26.8.2003 by the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore. For Appellants : Mr.Siva Ayyappan For respondent : Mr.V.Rajagopal, for Public Prosecutor J U D G M E N T The appellants are the accused in S.C.No.150 of 2003 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore. They stand convicted for offence under Section 307 of IPC and sentenced them to undergo rigourous imprisonment for eight years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for six months. Challenging the said conviction and sentence, the appellants/accused are before this Court with this appeal. 2. The case of the prosecution in brief is as follows: P.W.2, Pappanasa Pandian @ Pandian, is the victim in this case. The accused are brothers. The 1st accused Ravi was running a https://hcservices.ecourts.gov.in/hcservices/ petty shop at Tirupur during the year 2002. The accused have got a sister by name Murugeswari. Murugeswari used to be in the petty shop of the 1st accused. There was a fruit stall by the side of the said petty shop belonging to one Mani. P.W.2 was working for some time in the said fruit stall. During that time, P.W.2 became very friendly towards Murugeswari. At one stage, it turned out to be a love affair. Four months prior to 14.10.2002, P.W.2 and Murugeswari had eloped to Chennai. They lived there for about four months and thereafter, returned to Tirupur. P.W.2 left Murugeswari in the bus stand at Tirupur and went away. Murugeswari came to the house of the accused and told the accused about the same. Both the accused went in search of P.W.2. By about 11.00 a.m. on the same day, the 2nd accused found him and requested him to come to his house to talk about the marriage between P.W.2 and Murugeswari. They went to the petty shop of the 1st accused. Murugeswari and her father were already there. The 1st accused also came there. They wanted the accused to agree to marry Murugeswari. Since he declined, the accused got enraged and as a result, the 2nd accused by means of a rope tied both the legs of P.W.2. The 1st accused suddenly took out an Aruval inserted in the roof of the shop and with that, he cut P.W.2 on his right hand. By cutting so thrice or four times, he severed the right hand of P.W.2. Then, he cut on the left hand as well as on the back of P.W.2. Taking the severed hand of P.W.2 in his left hand and carrying the Aruval in his right hand, the 1st accused fled away from the scene of occurrence. The 2nd accused dragged P.W.2 to the main road and abandoned him there. The owner of the fruit stall Mani raised alarm. People from that locality gathered. The general public snatched the hand of P.W.2 from the 1st accused and then, they took P.W.2 and the severed hand together to Tirupur Government Hospital. P.W.1 Balasubramaniam known as Mani, was running a fruit stall by the side of the petty shop of the 1st accused. He also participated in the talks between the accused and P.W.2 in respect of the marriage between Murugeswari and P.W.2. He would state that since P.W.2 did not agree for marriage with Murugeswari, he went away. Then, after some time, he found the 1st accused going out of the petty shop with the severed hand in one hand and the Aruval in the other hand. He took P.W.2 along with others to Tirupur Government Hospital. P.W.10 was the then Sub-Inspector of Police attached to Tirupur Rural Police Station. On 14.10.2002 at about 7.00 p.m., P.W.1 came to the Police Station and preferred a complaint in respect of the said occurrence. Ex.P.1 is the complaint. Based on the same, he registered a case in Crime No.547/2002 under Sections 342 and 307 of IPC against both the accused under Ex.P.11. He forwarded the First Information Report and the complaint to court. Then he handed over the accused to P.W.11 for investigation. P.W.2 was admitted in the Government Hospital, Tirupur at 12.10 p.m. on 14.10.2002. He found the following injuries: 1. The right hand was amputated below the shoulder joint; 2. The severed right hand of P.W.2 brought to him was https://hcservices.ecourts.gov.in/hcservices/ examined; 3. A cut injury measuring 6 x 3 x 1 c.m. found on the left fore hand; 4. A cut injury measuring 2 x ½ x ½ c.m. found on the left upper hand; 5. A cut injury measuring 4 x 3 x bone depth found on the left fore hand; 6. A cut injury measuring 8 x 5 x bone depth on the lower one third; and 7. A cut injury measuring 1 x 2 m.m. on the middle of the back of chest. He gave first aid to P.W.2 and referred him to the Government Medical College Hospital at Coimbatore. He sent the severed hand along with him to the hospital. Despite the efforts of the Doctors, the severed hand could not be refixed. According to him, the injuries 1 and 5 are grievous in nature and others are simple in nature. He has opined that the said injuries would have been caused by a weapon like M.O.1 Aruval. 3. P.W.11, the then Inspector of Police took up the investigation at 2.00 p.m. on 14.10.2002. He proceeded to the place of occurrence and prepared an Observation Mahazar in the presence of P.W.7 and another witness. He also prepared a Rough Sketch, showing the place of occurrence. He recovered blood stained earth as well as the sample earth from the place of occurrence under the cover of Mahazar. He recovered a rope from the place of occurrence under Ex.P.13 Mahazar. M.O.4 is the blood stained earth and M.O.5 is the sample earth seized from the place of occurrence and M.O.2 is the rope recovered from the place of occurrence. At 5.30 p.m. on the same day, he arrested the accused at Tirupur Bus stand in the presence of P.W.8 and another witness. On such arrest, he gave a voluntary confession. He disclosed that he had hidden the Aruval in a bush near Mahalakshi Ginning Factory. He took the police as well as the witness to the said place and produced M.O.1 Aruval. The same was recovered under Mahazar in the presence of witnesses. The Aruval was found stained with blood. Then, he proceeded to the Government Hospital at Coimbatore and recorded the statement of P.W.2. The said statement has been marked as Ex.P.2 (Though it is inadmissible in evidence as hit by Section 162 of Cr.P.C., the trial court has admitted the same). Then, he examined few more witnesses. He forwarded the accused to court for remand. He recovered the pant worn by the 1st accused under Mahazar and the same is M.O.6. He arrested the 2nd accused on 18.10.2002. He also examined P.W.4 and recovered the photographs taken from him. On completing the investigation, he laid charge sheet against both the accused under Sections 307 and 342 read with 307 of IPC. https://hcservices.ecourts.gov.in/hcservices/ 4. Based on the above materials, the trial court framed charge under Section 307 of IPC against the first accused and as against the second accused under Section 342 read with 307 of IPC. Since both the accused denied the charges, they were put on trial. 5. During the course of trial, on the side of the prosecution, as many as 11 witnesses were examined and 15 documents were exhibited and M.O.1 to M.O.6 were marked. As I have already narrated, P.W.2 is the injured and P.W.1 is the one who had seen the first accused proceeding from the shop with the severed hand and the blood stained Aruval. P.W.4 is an independent person. He is a Social Worker. He had his office at Sangilipallam on Tirupur to Tarapuram Road. According to him, on 14.10.2002 at about 12.15 p.m. when he was at his office, he found the 1st accused moving from south to north on the said road wearing a pant and shirt. At that time, he was carrying an Aruval on his right hand and a severed hand in his left hand. Sensing that some untoward incident had happened, P.W.4 states, he took photographs of the 1st accused, while he was walking as above stated. Two such photographs taken were produced by him to the police and they are M.Os.3 Series. P.W.5 has not supported the case of the prosecution in any manner and he has been treated as hostile. P.W.6 has stated that he found the 1st accused moving with Aruval and severed hand. P.W.7 has spoken to about the Observation Mahazar and P.W.8 has spoken to about the arrest of the 1st accused. When the incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same. However, they did not choose to examine any witness on their side. 6. Having considered the above materials, the trial court convicted both the accused under Section 307 of IPC. and accordingly sentenced them to imprisonment and fine. Aggrieved over the same, the appellants are before this Court with this appeal. 7. I have heard Mr.Siva Ayyappan, learned Counsel for the appellants and Mr.V.Rajagopal, learned Government Advocate (Criminal side) and also perused the records carefully. 8. The learned Counsel for the appellants would submit that P.W.1 is not an eye-witness and therefore, no importance could be attached to his evidence. Secondly, he would submit that there are certain contradictions between the evidences of P.Ws.1, 2 and 4 and therefore, the case of the prosecution should be disbelieved as the contradictions impeach the credibility of these witnesses. Thirdly, he would submit that the photographs said to have been taken by P.W.4 are not admissible in evidence, because the negatives of the photographs have not been placed in evidence Nextly, he would submit that the clothe belonging to the injured were not recovered and they were not sent for chemical examination. https://hcservices.ecourts.gov.in/hcservices/ He would further submit that the case sheet and the treatment records at Government Hospital, Coimbatore have not been produced in evidence and the Doctor who treated P.W.2 also has not been examined. This, according to the learned Counsel for the appellants, creates doubt in the case of the prosecution. The learned Counsel would conclude his argument saying that the prosecution has not established the guilt of the accused beyond all reasonable doubts and therefore, the appellants are entitled for acquittal. 9. Lastly, the learned Counsel for the appellants would submit that assuming that the evidence of P.W.2 and other witnesses are believed, even then, in so far as the 2nd appellant is concerned, there has been no evidence at all on record to convict him under Section 307 of IPC and therefore he is entitled for acquittal. In so far as the 1st appellant is concerned, the learned Counsel would submit that the evidence available on record would indicate that he is liable for punishment under Section 326 of IPC and not under Section 307 of IPC since there would have been no intention on the part of the 1st accused to commit the murder of P.W.2. 10. The learned Government Advocate would however oppose this appeal stoutly. According to him, P.W.2, who lost his hand, has come to the court and deposed narrating the entire occurrence in a vivid fashion. Therefore, there can be no reason to reject the evidence of P.W.2. He would further state that the other contradictions pointed out by the learned Counsel for the appellants are not material and therefore, they would not be in any manner cause any dent in the case of the prosecution. He would also contend that though it is true that P.Ws.1 and 4 are not eye witnesses, they have spoken to the effect that the 1st accused was then moving out from the place of occurrence with the severed hand of P.W.2 and the blood stained Aruval. This according to the learned Government Advocate lends assurance to the case of the prosecution. The learned Government Advocate would further submit that though it is true that the blood stained clothe was not produced in evidence, the case sheet and the other medical records from the Government Hospital, Coimbatore have not been produced in evidence and that the Doctor who treated him also has not been examined, that by itself would not go in any manner to create doubt in the evidence of P.W.2. Lastly, he would contend that the intention of the 1st appellant to do away with P.W.2 is so obvious from the evidence of P.W.2 and therefore, the conviction of the 1st appellant under Section 307 of IPC cannot be found fault with in any manner. In so far as the 2nd accused is concerned, the learned Government Advocate would submit that the offence under Section 342 alone will be made out. Therefore, he would pray for dismissal of this appeal in respect of the 2nd accused also. https://hcservices.ecourts.gov.in/hcservices/ 11. I have considered the above submissions and also perused the records carefully. 12. Admittedly, P.W.2 is the injured eye-witness who has lost his hand in the occurrence. There is no reason to reject his evidence that it was the 1st accused who cut his hand and took it away. P.W.2 is a natural witness who happens to be the owner of the fruit stall situated by the side of the petty shop of the 1st accused where the occurrent had taken place. His presence cannot be doubted. Earlier, he had seen the accused and P.W.2 having some talks about the proposed marriage between P.W.2 and Murugeswari. After that, he left the petty shop of the 1st accused and came to his shop. When he was in the fruit stall, he noticed the 1st accused moving out of his shop with the severed hand and blood stained Aruval. Absolutely, there is nothing on record to disbelieve the evidence of this witness. The evidence of this witness clearly corroborates the evidence of P.W.2. 13. Now coming to the evidence of P.W.4, he is a Social Worker and an independent witness. No motive has been suggested to him by the accused. He had found the 1st accused moving with Aruval in one hand and the severed hand in the other hand. Sensing that some untoward had taken place, being a social worker, he had taken two photographs. The photographs have been exhibited as material objects before the trial court. A look into the photographs would go to show that a male is carrying a long size Aruval in one hand and the severed hand in the other hand. Though this witness has been cross-examined by the accused at length, it has not been disputed that the person who is found in the photographs is the accused. Thus, there is no dispute at all to the effect that the person who is found in the photographs is none other than the accused. These photographs were taken immediately after the occurrence before the hand was snatched by P.W.1 and others from the 1st accused. It has been suggested to him by the accused during cross-examination that the hand was given to him by the police and then the photographs were taken. It is too hard to believe. There is no other material even to doubt the evidence of P.W.4. The evidence of P.W.4 would clinchingly go to support the evidence of P.W.2 to the effect that it was the 1st accused who cut P.W.2. 14. The evidence of P.W.6 who had also seen the 1st accused moving with Aruval on Tirupur-Tharapuram Road also supports the case of the prosecution. Though, the learned Counsel for the appellants has taken me through the evidences to show that here and there, there are contradictions, in my considered opinion, the contradictions pointed out by the learned Counsel for the appellants are highly immaterial and they do not create any doubt in the case of the prosecution. More particularly, regarding the place of occurrence, the learned Counsel would try to point out contradiction between the evidences of prosecution witnesses. In https://hcservices.ecourts.gov.in/hcservices/ my considered opinion, it is highly immaterial when one weighs the evidences of P.Ws.1, 2, 4 and 6. 15. Though it is contended by the learned Counsel for the appellants that the case sheet relating to the treatment given to P.W.2 at Government Hospital, Coimbatore and the Doctor who treated P.W.2 were not placed before the court, in my considered opinion, it is not a serious flaw in the case of the prosecution so as to reject the entire case of the prosecution. The non-recovery of the blood stained clothe from the witnesses also does not create any doubt in the case of the prosecution. Therefore, I do not find any reason even to suspect that the case of the prosecution is false. I have no hesitation to hold that it was the 1st accused who cut P.W.2 with Aruval repeatedly and severed the hand. 16. Now coming to the offence committed by the 1st accused, it is contended by the learned Counsel for the appellants that there would not have been no intention at all for causing the death of P.W.2 and therefore, the offence committed by the 1st accused would not fall under Section 307 of IPC. In my considered opinion, the intention is a matter to be only inferred from various circumstances and materials placed before the court. In this case, though initially, the intention of the accused in bringing P.W.2 to the petty shop was only to persuade him to marry the sister of the 1st accused. Thus the first accused had no previous intention to cause the death of P.W.2. The purpose of bringing P.W.2 to the petty shop was only to persuade, as I have already stated. The talk was going on for some time in order to persuade him to marry Murugeswari. P.W.1 also participated in the same. Because, P.W.2, having taken the girl and kept her for four months had declined to marry her, the 1st accused got provoked and due to the said sudden provocation, he had cut P.W.2 indiscriminately. The first accused had cut P.W.2 indiscriminately even after severing the hand of P.W.2. Thus, the first accused had definite knowledge that his act would immediately result in the death of P.W.2 and hence, the act of the first accused squarely would have fallen within the fourth limb of Section 300 I.P.C, had P.W.2 succumbed to the injuries. Fortunately, P.W.2 has survived. But at the same time, the act of the first accused would squarely fall within the first exception to Section 300 I.P.C as he had acted in sudden provocation. Therefore, the offence committed by the 1st accused will fall under Section 308 of IPC and not under Section 307 of IPC. To that extent, the judgment of the trial court requires modification. 17. Coming to the case of the 2nd appellant, there was no charge under Section 307 read with 34 of IPC. The charge framed against him was under Section 342 read with 307 of IPC. I do not understand, how such a charge could have been framed by the trial court. But the trial court has convicted him under Section 307 of https://hcservices.ecourts.gov.in/hcservices/ IPC for which there was no charge. In my considered opinion, such a conviction cannot be sustained. Though there was no charge under Section 34 of IPC., let me examine as to whether any common intention under Section 34 of IPC could be attributed to A.2. As I have already stated, the intention of bringing P.W.2 to the petty shop was not for the purpose of killing him and it was only for the purpose of persuading him to marry Murugeswari. When he was tied by the 2nd accused, the 1st accused was not armed with any weapon. From the evidences available on record, it can be safely concluded that there would have been no pre-meeting of mind to cause the death of P.W.2 between A.1 and A.2.. Provoked by the reply of P.W.2, the 1st accused had suddenly taken out the Aruval which was inserted in the roof of the petty shop and with which he had attacked. Thus, the 2nd accused would not have expected that the 1st accused would behave in such a way . Therefore, from the evidence on record, I do not find any material to prove that there was a common intention between the accused 1 and 2 to commit the murder of P.W.2. Therefore, the conviction of the 2nd accused under Section 307 is not at all sustainable and the same is liable to be set aside. 18. The learned Government Advocate would submit that the 2nd accused can be punished under Section 342 of IPC for having tied P.W.2. But, unfortunately, there has been no conviction recorded by the trial court for the offence under Section 342 of IPC and there is no appeal also filed by the State against the same. Therefore, this Court cannot now convict the 2nd accused under Section 342 of IPC. Hence, the 2nd accused/2nd appellant is entitled for acquittal. 19. Now coming to the question of sentence to be imposed on the 1st accused/1st appellant for the offence under Section 308 of IPC, having regard to the age, more particularly, the circumstances under which he got provoked to attack P.W.2 and all other attending circumstances, I am of the view that imposing a sentence of rigourous imprisonment for a period of 5 years would meet the ends of justice besides , a fine of Rs.10,000/- as imposed by the trial court. 20. In the result, the Criminal Appeal is partly allowed in the following terms : 1. The conviction and sentence imposed on the 1st appellant/1st accused by the trial court under Section 307 I.P.C is set aside, instead, he is convicted under Section 308 of IPC and sentenced to undergo rigourous imprisonment for five years and to pay a fine of Rs.10,000/-, in default, to undergo rigourous imprisonment for three months; and 2. The conviction and sentence imposed on the 2nd accused/2nd appellant is set aside and he is acquitted. https://hcservices.ecourts.gov.in/hcservices/ 21. In all other aspects, the appeal stands dismissed. 22. The trial court is directed to secure the 1st accused/1st appellant and commit him to prison to undergo the remaining portion of the sentence, if any. tsi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore. 2. Do Through the Prl Sessions Judge, Coimbatore. 3. The Judicial Magistrate, No.I, Thiruppur. 4. Do Through the Chief Judicial Magistrate, Coimbatore. 5. The Inspector of Police, Tiruppur. 6. The Officier in charge, Sub Jail, Tiruppur. 7. The District Collector, Coimbatore. 8. The Inspector General of Police, Mylapore, Madras. 9. The Public Prosecutor, High Court, Madras + 2 ccs to M/s. Siva Ayyappan, Advocate SR No. 23483 Crl.A.No.1549 of 2003 KSK(CO) SR/2.5.2011 https://hcservices.ecourts.gov.in/hcservices/