IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-10-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.410 of 2010 1.Samikannu 2.Ayyappan .. Appellants/Accused 1 & 2 vs State by The Inspector of Police Thiruvennainallur Police Station Villupuram District (Crime No.459/2005) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Villupuram Division at Villupuram, made in S.C.No.155/2009 dated 23.6.2010. For Appellants : Mr.N.R.Elango Senior Counsel for Mr.C.Prasanna Venkatesh For Respondent : Mr.V.R.Balasubramanian 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, Villupuram, made in S.C.No.155/2009 whereby both the appellants/A-1 and A-2 stood charged under Sections 307 and 302 of IPC, tried, found guilty as per the charges and awarded seven years Rigorous Imprisonment along with a fine of Rs.10000/- and default sentence under Sec.307 IPC and life imprisonment along with a fine of Rs.5000/- and default sentence under Sec.302 IPC. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is a native of Emapur Village within the jurisdiction of the respondent police. The deceased Arasan is his younger brother. Both the accused are agnates of P.W.1. They have got lands adjacent to each other. As per the understanding, P.W.1's family should take water from the public channel for 12 hours, and thereafter the other 12 hours, A-1's family should take water. Regarding the taking of the water, there was often quarrel in the https://hcservices.ecourts.gov.in/hcservices/ past. The occurrence has taken place on 20.9.2005. On the night of 19.9.2005, as per the turn, the accused family took water and P.W.1 went to the field to take water at about 6.00 A.M. on 20.9.2005. When he was about to take water, both the accused objected to the same, and P.W.1 made a request that he could be allowed to take water at least for half an hour. At the time when P.W.1 was making attempt to take water, A-2 attacked him with an iron rod on the head. When P.W.1 tried to ward off the attack made by A-1 with a spade on his head, it fell on the little finger, and it was actually severed. On seeing this, the deceased Arasan who was standing nearby, intervened and went to the rescue of his brother. Immediately, A-2 attacked him with the iron road on his left leg, while A-1 attacked him with the spade on his head. The occurrence was witnessed by P.Ws.2, 3 and 4. Immediately, both the accused ran away from the place of occurrence. (b) Both P.W.1 and the severely injured Arasan were taken to the Government Hospital, Villupuram. P.W.8, the Doctor, gave initial treatment to the deceased at about 10.05 A.M., and the accident register copy is marked as Ex.P9. Then he was advised to go to the Government General Hospital at Madras. Accordingly, the deceased was taken. P.W.8, the Doctor, gave treatment to P.W.1 at about 2.00 P.M., and the injuries are noted in the accident register copy which is marked as Ex.P5. (c) On receipt of the intimation from the hospital, P.W.11, the Inspector of Police of that Circle, proceeded to the hospital and recorded the statement of P.W.1 which is marked as Ex.P1. On the strength of Ex.P1, a case came to be registered in Crime No.459/2005 under Sections 294, 323, 324 and 307 IPC. The printed FIR, Ex.P10, was despatched to the Court. (d) P.W.11 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P11. Then both the accused were arrested on 21.9.2005, and A-2 gave a confessional statement voluntarily which was recorded. The admissible part of the said confession is marked as Ex.P3, pursuant to which, he produced M.O.1, iron rod, and M.O.2, spade, which were recovered under a cover of mahazar. Both of them were sent for judicial remand. (e) Pending investigation, an additional statement was given by one of the brothers of the deceased by name Settu, which is marked as Ex.P12, stating that his brother Arasan died in the hospital at 10.15 P.M. on 22.9.2005, pursuant to which the case was altered to Sections 294, 323, 324 and 302 of IPC. The amended FIR, Ex.P13, was despatched to the Court. Then, the Investigator conducted inquest on the dead body of Arasan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14. A requisition was given to the hospital authorities for the purpose of postmortem. (f) P.W.9, the Tutor in Forensic Medicine, Madras Medical College, on receipt of the requisition, has conducted autopsy on the dead body of Arasan and has issued a postmortem certificate, Ex.P8, wherein he has opined that the deceased would appear to have died of effects of head injuries. https://hcservices.ecourts.gov.in/hcservices/ (g) The weapons of crime recovered pursuant to the confessional statement of A-2, were subjected to chemical analysis, and Ex.P15 is the chemical analyst's report. On completion of the investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 11 witnesses and also relied on 15 exhibits and 3 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defece witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded the above punishment. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr.N.R.Elango would submit that in the instant case, according to the prosecution, the occurrence has taken place at about 7.30 A.M. on 20.9.2005; that though the prosecution marched five witnesses as eyewitnesses, P.Ws.2 and 5 have turned hostile; that P.Ws.1, 3 and 4 have spoken about the prosecution story; that P.W.1 is shown as an injured witness, and he is also the brother of the deceased; that though he is shown as an injured witness, the discrepancies found in the evidence of P.W.1 and the other witnesses, would clearly indicate that such an occurrence could not have taken place at all; that P.W.4 has categorically admitted that on the date of occurrence, at about 6.00 A.M., there was another occurrence in which P.W.1 and the deceased Arasan were attacked by one Kaliaperumal and that has taken place in the village; and that the same is actually suppressed by the prosecution. 5.Added further the learned Senior Counsel that both of them were taken to the hospital at the same time; that the deceased was first given treatment by P.W.8, the Doctor, at about 10.05 A.M., and the accident register copy is marked as Ex.P9; that he was advised to be taken to the Government General Hospital, Madras, for further treatment; that it is pertinent to point out that P.W.1 was given treatment by P.W.8, the Doctor, only at about 2.00 P.M.; that it is further pertinent to note that he was actually treated as Out- Patient; but on the contrary, he has deposed that he was in the hospital for a day; and that had he really been treated as O.P., Ex.P1, complaint, could not have been recorded from P.W.1 by P.W.11, the Inspector of Police, at about 3.00 P.M. and the case could not have been registered at 8.15 P.M. as put forth by the prosecution. 6.Added further the learned Senior Counsel that even the Investigator P.W.11, claimed that the case was originally registered under Sec.307 IPC on 20.9.2005 at about 8.15 P.M., and the FIR has actually reached the Court on 22.9.2005 at 7.15 P.M. Pointing to the fact put forth by the prosecution that Arasan died at about 10.15 P.M. On 22.9.2005, at the Government General Hospital, Madras, the https://hcservices.ecourts.gov.in/hcservices/ learned Senior Counsel would submit that no documentary evidence is produced in that regard. He would further add that only after the death of Arasan, the case was actually converted to Sec.302 IPC, and the FIR was sent to the Court, and till the time, the FIR was not sent to the Court; that all would clearly indicate the delay in not only giving information to the police, but also the registration of the case and the despatching of the FIR to the Court; and that all would clearly reflect that the prosecution story cannot but be false. 7.The learned Senior Counsel would further submit that the medical opinion did not support the prosecution case; that the recovery of the material objects from the accused following the alleged confessional statement, is nothing but an invention in order to suit the prosecution story; that all put together would clearly indicate that the prosecution did not place all the material facts before the Court or the evidence what is necessary pointing to the guilt of the accused; that under the circumstances, the prosecution has miserably failed to prove the case, but the trial Judge has taken an erroneous view and found them guilty, and hence it has got to be set aside. 8.Added further the learned Senior Counsel in the second line of argument that in the instant case, even if the Court comes to the conclusion that the prosecution has proved the factual matrix, the act of either of the accused cannot be said to be either intentional or there was any common intention to be shared by them. Added further the learned Senior Counsel that in the instant case, even as per the prosecution case, there was a wordy altercation for about 30 to 45 minutes between the accused party on the one side and P.W.1 and the deceased on the other, and following the same, the incident has taken place; and that it would be quite clear that it was neither intentional nor premeditated. 9.Added further the learned Senior Counsel that as far as A-2 is concerned, different versions are given by the witnesses; that P.W.1 is the injured person; that according to him, A-2 has attacked the deceased on his leg; that P.W.3 says that he attacked on his head, and P.W.4 says that he attacked on the neck; but the trial Court has taken into consideration the evidence of P.W.1 who was in the closer proximity because he was an injured witness; that he has actually stated that A-2 attacked the deceased on his leg and therefore, there could not have been any intention to cause death; that under the circumstances, the act of A-2 would attract only the minor penal provision, and hence it has got to be considered by this Court. 10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 11.It is not in controversy that one Arasan, the brother of P.W.1, following an incident that had taken place at about 7.30 A.M. on 20.9.2005, was originally taken to the Government Hospital, Villupuram, and after he was given treatment as found in Ex.P9, the accident register copy, on advice, he was taken to the Government General Hospital, Madras, where he succumbed to the injuries sustained, at about 10.15 P.M. on 22.9.2005. The contention put https://hcservices.ecourts.gov.in/hcservices/ forth by the learned Senior Counsel for the appellant that there is no material placed before the Court to prove the fact that Arasan died at about 10.15 P.M. On 22.9.2005, at the Government General Hospital, Madras, cannot be accepted for the simple reason that there was specific evidence given by the Investigating Officer to that fact, and the same was not even denied by way of a suggestion by the appellants. According to the Investigator, one of the brothers of the deceased by name Settu gave a written statement as found in Ex.P12, on the basis of which the case was actually converted to Sec.302 of IPC. Thus it would be quite clear that the prosecution has proved the fact that Arasan died at about 10.15 P.M. On 22.9.2005, at the Government General Hospital, Madras. Originally the case was registered under Sec.307 of IPC and on the death of Arasan, it was converted to Sec.302 IPC. Following the inquest made by P.W.11, the Inspector of Police, and preparation of the inquest report, the dead body was subjected to postmortem by P.W.9, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that the deceased would appear to have died of effects of head injuries sustained by him. Thus the prosecution was successful enough in proving the fact that Arasan died out of the injuries sustained by him at the time of occurrence. 12.In order to establish the charges levelled against the appellants, the prosecution marched five witnesses out of whom P.Ws.2 and 5 have turned hostile. But fortunate to the prosecution, P.W.1 was an injured witness, and P.Ws.3 and 4 have witnessed the occurrence. It is settled principle of law that in a given case like this, when an eyewitness happened to be an injured witness, the Court should not discard the testimony of such witness, unless and until a reason is brought about or a circumstance is noticed by the Court. In the case on hand, both are absent. Under the circumstances, there was no impediment felt by the trial Judge in accepting the evidence of P.W.1. According to P.W.1, on the date of occurrence, he accompanied the deceased Arasan and went to the field, and he (P.W.1) was about to take water, and at that time, it was objected by both the accused, and A-1 and A-2 attacked him with the iron rod and spade respectively, and at that time, Arasan intervened. At that juncture, naturally elder brother would come to the rescue of younger brother. The evidence of P.W.1 would go to show that at that time, Arasan was attacked by both, and A-1 attacked him with the spade on his head, while A-2 attacked him on his leg with the iron rod. This evidence put forth by P.W.1 regarding the occurrence, was clearly spoken to by P.Ws.3 and 4. It is true that there are certain discrepancies noticed by the Court. But they are minor most, and in the considered opinion of the Court, it would not in any way tilt the balance or take away the truth of the prosecution case. That apart, when P.W.1 and the deceased were taken to the hospital, P.W.1 has stated to the Doctor that three known persons attacked him. But, insofar as the deceased, it is mentioned as two persons. It is pertinent to point out that when such a statement was made by the injured witness to the Doctor in anxiety, the same cannot be given much importance. 13.Apart from the above, it would be quite clear that the ocular testimony stood fully corroborated by the medical evidence. It is pertinent to point out that P.W.1 was treated by P.W.8, the Doctor, https://hcservices.ecourts.gov.in/hcservices/ at the Government Hospital, Villupuram. It is also found in Ex.P5, the accident register copy, that P.W.1 was treated as an Out-Patient. But P.W.1 has stated that he was in the hospital for a day. It remains to be stated that P.W.11 has stated that he went to the hospital on intimation, recorded the statement of P.W.1 at 3.00 P.M., came back to the police station and registered the case. It is to be noted that P.W.1 was treated in the Government Hospital, Villupuram, at about 2.00 P.M. Thus it would be quite clear that P.W.11 as stated by him, went to the hospital and recorded the statement of P.W.1 which is marked as Ex.P1, and on the strength of the same, a case came to be registered. Therefore, it leaves no doubt in the mind of the Court. 14.The other discrepancies brought to the notice of the Court by the learned Senior Counsel for the appellants, in the considered opinion of the Court, need not be given much importance since this Court is convinced with the evidence put forth by P.W.1 which is fully supported by the other evidence. Thus from the evidence available, it would be quite clear that at the time of the occurrence, A-1 has attacked the deceased with the spade on his head, and A-2 has attacked him with the iron rod on his leg, and both have attacked P.W.1 and caused injuries. As a result of the same, the deceased Arasan died. Now, the contentions put forth by the learned Senior Counsel for the appellants contra to the above, have got to be rejected. 15.Coming to the second line of argument as to the nature of the act committed by the appellants, this Court is of the considered opinion that the prosecution has not brought forth any evidence indicating that they had got any common intention to share with at the time of occurrence. Even according to the prosecution, when P.W.1 was making attempt to take water, it was objected to by the accused, and there was a wordy altercation, and in that process, A-1 and A-2 have attacked P.W.1 and caused injury. Apart from that, when the deceased Arasan intervened, he was attacked by A-1 and A-2. As far as A-1 is concerned, he has attacked him on the head and caused fatal injury. But, due to the quarrel, A-1 has acted so. Under the circumstances, the act of A-1 would attract the penal provision of Sec.304 (Part I) of IPC, and awarding a punishment of 7 years Rigorous Imprisonment would meet the ends of justice. 16.Insofar as A-2, he has no common intention to share with. However, he has attacked the deceased on his leg and caused simple injury. Under the circumstances, A-2 should be found guilty under Sec.324 of IPC, and awarding a punishment of two years Rigorous Imprisonment would meet the ends of justice. 17.As far as the attack on P.W.1 is concerned, the injury inflicted by A-1 on P.W.1, was found to be grievous, and hence he has got to be found guilty under Sec.326 of IPC, and awarding a punishment of three years Rigorous Imprisonment would meet the ends of justice. As regards A-2, he has caused simple injuries to P.W.1 as found in the medical report. Under the circumstances, A-2 has got to be found guilty under Sec.324 of IPC, and awarding a punishment of two years Rigorous Imprisonment would meet the ends of justice. https://hcservices.ecourts.gov.in/hcservices/ 18.Accordingly, the conviction and sentence imposed by the trial Court on the appellants/A-1 and A-2 under Sec.302 of IPC are set aside, and instead, A-1 is convicted under Sec.304 (Part I) IPC and is directed to suffer seven years Rigorous Imprisonment. A-2 is convicted under Sec.324 IPC and is directed to suffer two years Rigorous Imprisonment. 19.The conviction and sentence imposed by the trial Court on A-1 and A-2, under Sec.307 of IPC are set aside, and instead, A-1 is convicted under Sec.326 IPC and is directed to undergo three years Rigorous Imprisonment. A-2 is convicted under Sec.324 IPC and is directed to suffer two years Rigorous Imprisonment. 20.The above sentences imposed on A-1 and A-2, are ordered to run concurrently. The sentence already undergone by A-1 and A-2, shall be given set off. The fine amounts imposed by the trial Court, will hold good. 21.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Principal Sessions Judge, Villupuram 2.The Judicial Magistrate No.2, Ulundurpet 3.Do Through the Chief Judicial Magistrate, Villupuram 4. The Superintendent, Central Prison, Cuddalore 5.The Inspector of Police Thiruvennainallur Police Station Villupuram District (Crime No.459/2005) 6.The Public Prosecutor, High Court, Madras. 7. The Section Officer, Criminal Section, High Court, Chennai104 1 cc To Mr.C.Prasanna Venkatesh, Advocate, SR.74143 CRL.A.No.410 of 2010 GV (CO) RH (8.11.10) https://hcservices.ecourts.gov.in/hcservices/