IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 28.07.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.494 OF 2007 Babu .. Appellant/A-1 Vs State by Inspector of Police Pallikonda Police Station. Vellore District. [Crime No.139/2003] .. Respondent Appeal filed under section 374 Cr.P.C., against the Judgment in SC.No.147 of 2004 dated 26.4.2007 on the file of the learned Principal Sessions Judge, Vellore. For Appellant : Mr.V.Gopinath, SC for Mr.L.Mahendran For Respondent : Mr.N.R.Elango, APP JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The challenge in this appeal is to the Judgment dated 26.04.2007 of the Learned Principal Sessions Judge, Vellore, made in SC.No.147/2004 convicting the appellant/A-1 for the offence under section 302 IPC and sentencing him to undergo life imprisonment. 2. There are three accused, viz., A-1 to A-3. Learned Trial Judge disbelieved the prosecution case in respect of A-2 and A-3 and acquitted them for the charges framed against them. 3. The factual scenario as unfolded during the course of trial is as follows:- [a] P.W.1 is the brother of the deceased Balasundraram. A-1 and A-2 are the uncles of P.W.1. A-3 is the daughter of A-2. P.W.1 was https://hcservices.ecourts.gov.in/hcservices/ cultivating the land of his uncle one Lakshmanan. The accused 1 to 3 were having land adjacent to that land and they were cultivating their land. Fifteen days prior to the occurrence, A-2's hen grazed in the field where P.W.1 was cultivating which resulted in dispute and there were strained feelings between the two families. [b] On the fateful day of occurrence, i.e., 27.07.2003, at 7.15 a.m., the deceased was rolling Beedi. P.Ws.2 to 4 were also making Beedis along with the deceased. P.W.1 went there at 7.15 a.m. to bring his brother, the deceased for breakfast. At that time, A-3 instigated A-1 to attack the deceased. A-2 kicked the deceased on his back. The deceased fell down. A-1 beat the deceased on his neck with the causarina stick. P.W.1 chased the accused 1 to 3 and they ran away from the scene with the weapon causarina stick. P.W.1 informed about the occurrence to his uncle, the said Lakshmanan over the phone and he brought a car to the scene of occurrence. Immediately, they took the deceased to CMC Hospital, Vellore where they were directed to take the deceased to the Government Hospital, Vellore. At 11.50 a.m. they went to the Government Hospital, Vellore. [c] The doctor, P.W.8, attached to the Emergency Ward, CMC Hospital, Vellore, examined the deceased at 8.35 a.m. on 27.07.2003 and issued Ex.P.6-Accident Register wherein he found 4cm laceration in the right occipital region and he found no bone fracture or brain matter seen and no long bone injury. He discharged the deceased at the request of his relatives. [d] The doctor, P.W.12, attached to Government Hospital, Vellore, examined the deceased at 11.50 a.m. On examination, he declared that the deceased had already died. Ex.P.15 is the Accident Register given by him in which he has mentioned about the death of the deceased. [e] P.W.1 went to Pallikonda Police Station on 27.07.2003 at 12.30 p.m. and gave a written report, Ex.P.2 to P.W.13, the Inspector of Police. He registered a case in Crime No.139/2003 for the offence under section 302 IPC. Ex.P.16 is the First Information Report. He sent the same to the Court concerned and to the higher officials. [f] P.W.13, the Inspector of Police took up the investigation and went to the scene of occurrence and prepared Ex.P.2-Observation Mahazar and Ex.P.17-Rough sketch in the presence of P.W.6 and another. He also recovered M.O.2-blood-stained earth, M.O.3-sample earth, M.O.4-blood stained towel from the scene under Ex.P.3. He went to the hospital and held inquest on the dead body of the deceased from 2.30 p.m. to 4.30 p.m. Ex.P.18 is the Inquest Report. During inquest he has examined P.Ws.1,2,4,5 and others and recorded their statements. He has sent the body for Post-Mortem. https://hcservices.ecourts.gov.in/hcservices/ [g] Dr.Rajavelu, P.W.9, attached to Government Hospital, Vellore, conducted Post-Mortem on the dead body of the deceased on 27.07.2003 at 4.45 p.m. He found the following injuries:- EXTERNAL EXAMINATIONS:- 1] A lacerated wound about 7 cms in length over the right occipital region of scalp. 2] Contusion about 4cmx3cm over the right parietal region of the scalp. 3] Contusion about 3cmx2cm over the back of the neck. 4] Bleeding from the nose and ear seen in the right and left side." Ex.P.8 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died due to head injury about 4 to 10 hours prior to postmortem. [h] P.W.13, the Investigating Officer, in continuation of his investigation, recovered blood stained clothes of the deceased, viz., M.O.5-dhothi and M.O.6-Baniyan under Ex.P.9. He searched for the accused on 28.07.2003 and arrested accused 1 to 3 at 2.00 p.m. on the same day in the presence of P.W.7. In pursuance of the admissible portion of the confession under Ex.P.4, he recovered M.O.1-stick produced by A-2 under Ex.P.5. The accused 1 to 3 were remanded to judicial custody through the Court. He sent the material objects for chemical examination as per requisition Ex.P.10 through Court. He examined P.Ws.6,7 and others. He examined the doctors P.Ws.8,9, and 12 and recorded their statements. He received Ex.P.8-Postmortem certificate, Ex.P.12-Biologist Report and Ex.P.14-Serologist Report and after completion of investigation, filed the charge sheet against the accused on 28.08.2003 for the offence under section 302,323 read with 114 and 34 IPC. 4. The prosecution in order to bring home, the charges against the accused, examined P.Ws.1 to 13, filed Exs.P.1 to 18 beside marking M.Os.1 to 6. 5. When the accused were questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against them, all the accused have come forward with the version of total denial and stated that they have been falsely implicated in the case. They have not chosen to examine any witness or mark any document on their side. 6. Mr.V.Gopinath, learned Senior counsel appearing for the appellant contended that the prosecution has not proved its case by adducing clear and cogent evidence. It is contended that out of https://hcservices.ecourts.gov.in/hcservices/ P.Ws.1 to 5, P.Ws.2 to 4 turned hostile and they have not supported the prosecution case. It is also contended that there are contradictions between the evidence of the eyewitnesses P.Ws.1 and 5 in respect of the manner of occurrence said to have taken place. Learned Senior Counsel would further contend that eyewitnesses P.Ws.1 as well as 5 stated that A-1 beat the deceased on his neck. But the doctor, P.W.9 has opined that only head injury is fatal and as such, the evidence of the eyewitnesses P.Ws.1 and 5 is falsified by the medical evidence. Learned Senior Counsel, without prejudice to his earlier contention, also contended that even assuming that A-1 beat the deceased on his neck or head, he could not have been imputed with the intention to cause the death of the deceased as he used only M.O.1-stick and further as per the version of P.Ws.1 and 5, he is said to have dealt with only a single blow. 7. Per contra Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and consistent evidence. It is submitted that though the eyewitnesses P.Ws.2 to 4 have turned hostile, the evidence of P.Ws.1 and 5 is quite clear and natural and there is no infirmity in their evidence. It is submitted that P.W.5 is an independent witness and she has categorically stated that A-1 beat the deceased with the stick-M.O.1. Learned Additional Public Prosecutor would further submit that there is no inconsistency between the evidence of eyewitnesses P.Ws.1 and 5 and the medical evidence. As per the Postmortem Certificate, Ex.P.8, there were injuries both on the head and the neck and the blow given by A-1 could have caused the injury on the head and on the neck. It is further contended that as per the categorical version of P.Ws.1 and 5 only A-1 is armed with M.O.1 and as such, the deceased could have sustained injuries only at the hands of A-1. 8. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the evidence available on record and perused the impugned Judgment of conviction. 9. The prosecution has chosen to examine P.Ws.1 to 5 to speak about the occurrence proper. But P.Ws.2 to 4 have turned hostile. It is pertinent to be noted that though P.W.3 has been treated hostile, the fact remains that even P.W.3 has implicated A-1 to the effect that A-1 beat the deceased with the stick. Therefore, excluding the evidence of the other hostile witnesses, viz., P.Ws.2 and 4, we are left with the clear and categorical version of the eyewitnesses P.Ws.1 and 5 apart from P.W.3, as stated above. 10. It is seen that P.W.1 is the brother of the deceased. Merely because P.W.1 is related to the deceased, we cannot brush aside his categorical version and we have to scrutinise his evidence with great care and caution. https://hcservices.ecourts.gov.in/hcservices/ 11. At the outset, we are to state that we are not able to see any serious infirmity or inconsistency in the evidence of P.W.1. In Ex.P.1, it is mentioned by P.W.1 that A-1 beat the deceased with M.O.1-stick on his head as well as on his neck. In the evidence, P.W.1 has categorically stated that A-1 beat the deceased on his neck. The omission to mention specifically about A-1 giving a blow on the head is not fatal to the prosecution case. It is significant to note that a perusal of the Postmortem Certificate, Ex.P.8, discloses injury on the head as well as on the neck. Therefore, there is absolutely no inconsistency between the evidence of P.W.1 and the medical evidence. 12. The evidence of P.W.1 is also corroborated by the evidence of the other eyewitnesses,viz., P.Ws.3 and 5. As already pointed out that though P.W.3 has turned hostile, he has categorically stated in his chief examination to the effect that A-1 beat the deceased with the stick. It is well settled that the evidence of a hostile witness cannot be rejected in toto and any portion, either in favour of the prosecution or in favour of the defence could be very well taken into consideration. It is also seen that even in Ex.P.1, the name of P.W.3 is mentioned. As far as yet another eyewitness, P.W.5 is concerned, she has also categorically implicated A-1 about beating the deceased with the stick, M.O.1 on his neck. The categorical version of P.Ws.1,3 and 5 is to the effect that among A-1 to A-3, A-1 is said to have attacked the deceased with the stick and other two accused have not been armed with any weapon at all. It is pertinent to be noted that both P.Ws.3 and 5 are independent witnesses and they have no reason to implicate A-1 falsely in this case. Therefore, we have no hesitation to hold that the deceased died due to homicidal violence due to the blow given by A-1 with the stick M.O.1 on his head and neck. 13. Now, we are left with the crucial question of considering whether on the materials on record, can it be said that the appellant [A-1] gave the blow on the deceased with the intention to cause the death of the deceased so as to convict him under section 302 IPC. 14. It is seen that the motive put forward by the prosecution itself is too flimsy and far fetched. The immediate motive was alleged only against A-2 as A-2's hen grazed in the field of P.W.1 which resulted in the strained feelings between the families. There is absolutely no strong motive for A-1 to cause the death of the deceased as seen from the evidence of P.W.1. It is pertinent to be noted that A-1 used only a causarina stick. There is no clear evidence to the effect that A-1 came to the scene armed with M.O.1- stick. It is not stated by P.W.1 that A-1 came to the scene along with A-2 and A-3 armed with M.O.1, stick and the possibility of taking the stick from the scene cannot be ruled out. https://hcservices.ecourts.gov.in/hcservices/ 15. Added to these material factors, the categorical version of P.Ws.1 and 5 is to the effect that A-1 has dealt only with a single blow. Therefore, it is crystal clear that A-1 has absolutely no intention to cause the death of the deceased. The scenario in which A-1 has been stated by the eyewitnesses P.Ws.1,3 and 5 to the effect that A-1 has given a solitary blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be an inevitable result. In such a situation, even on accepting the prosecution case, we hold that the accused did not commit the offence under section 302 IPC, but only under section 304[ii] IPC as he has caused the injury on the deceased with a stick as was likely to cause death. 16. Accordingly, the appeal is allowed in part and the conviction and sentence imposed on the appellant for the offence under section 302 IPC by the learned Principal Sessions Judge, Vellore, in S.C.No.147/2004 are hereby set aside and instead, the appellant is convicted under section 304[II] IPC and sentenced to undergo 4 years rigorous imprisonment. Any sentence already undergone by the appellant pursuant to his original conviction would be set off against him. 17. The appellant [A-1] is also directed to pay compensation of Rs.2,00,000/- [Rupees Two lakhs only] out of which, Rs.1,00,000/- shall be paid, by way of Demand Draft, to the wife of the deceased and Rs.50,000/- to each of the minor children of the deceased and the same shall be deposited in any one of the Nationalised Bank for a period of five years or till they attain majority, whichever is earlier. The said compensation shall be paid within a period of eight weeks from the date of receipt of a copy of this order failing which the appellant is sentenced to undergo three years rigorous imprisonment. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ap To 1. The Principal Sessions Judge,Vellore. 2. The Inspector of Police Pallikonda Police Station, Vellore. https://hcservices.ecourts.gov.in/hcservices/ 3. The Public Prosecutor High Court, Chennai. 4. The Director General of Police, Mylapore, Chennai -4 5. The District Collect, Vellore. Crl.A.No.494/2007 RB(CO) SRA(07/08/2008) https://hcservices.ecourts.gov.in/hcservices/