BAIL SLIP The Apellants/Accused 1 and 2 viz., Munusamy (A1), Velumani (A2), were directed to be released on bail in and by order of this Court dated 15.03.2002 and made in Crl.M.P.No.2024 of 2002 in Crl.A.No.260 of 2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.260 of 2002 1. Munusamy 2. Velumani ..Appellants/Accused 1 and 2 Vs. State by Inspector of Police, Gummidipoondi Police Station, Tiruvellore District. ..Respondent/Complainant Criminal Appeal against the judgment dated 19.2.2002 in S.C.No.65 of 2000 on the file of the Additional District and Sessions Court (Fast Track Court No.1), Chengalpattu. For Appellants : Mr.R.Rajasekaran For Respondent : Mr.I.Paul Noble Devakumar, Govt. Advocate (Criminal Side) JUDGMENT The Criminal Appeal arises out of the judgment of conviction and sentence passed by the learned Additional District and Sessions Judge (Fast Track Court NO.1), Chengalpattu, on 19.2.2002 in S.C.No.65 of 200, convicting the first appellant-A.1 for the offence under Section 341 IPC and sentencing him to undergo three months' rigorous imprisonment and also convicting him for the offence under Section 304 (Part 2) IPC read with Section 109 IPC and sentencing him to undergo five years' rigorous imprisonment and also convicting the second appellant/A.2 for the offence under Section 304 (Part 2) IPC https://hcservices.ecourts.gov.in/hcservices/ and sentencing him to undergo five years' rigorous imprisonment and acquitting A.3 and A.4 of the charges. 2. The case of the prosecution is as follows: (a) A.1 is the father and A.2 to A.4 are the sons of A.1. The deceased is one Marimuthu. His wife is P.W.2 Lalitha. P.Ws.1 and 3 are the sons of the deceased and his daughter is P.W.4. They are residing at Gummidipoondi. Accused are residing on the northern side of their house. (b) The deceased Marimuthu was having 10 cock/hen in his house. On 1.8.1999 at about 4 p.m., A.1, A.2 and A.1's wife caught hold of the cock/hen of P.W.1's house and that has been questioned by the deceased Marimuthu. On 2.8.1999 only, nine cock/hen returned to the deceased Marimuthu and one cock/hen was missing. Hence, P.W.2 and the deceased Marimuthu were searching for the same. (c) At that time, one Venkatesan intimated the fact that one cock/hen fell down on the Well and that has been taken by A.2. Immediately, P.W.2 and the deceased went to the house of the accused and demanded for return of the hen/cock. They have not given the same. Hence, at 7 p.m. on the same day, P.W.1 and the deceased Marimuthu went to the Police Station. On the way, A.1 to A.4 wrongfully restrained them and A.1 uttered the words that he will murder the deceased. Immediately, A.2 stabbed the deceased Marimuthu on his left side ribs and A.3 and A.4 assaulted P.W.1, but he has not sustained any injury. (d) Immediately, P.W.1 raised an alarm and the accused escaped from the place of occurrence. Then, P.W.1 took the deceased to the hospital where P.W.6 Dr.Amaravathy declared him dead and issued Ex.P- 3 accident register, in which, it is stated as follows: "The victim is alleged to have been stabbed to death having of some petty quarrel i.e. cock theft by four persons the name 1. Velumani 2. Munusamy and other three persons. 1. A lacerated injury in the abdomen injury's depth 7 mm. Brought dead". (e) P.W.1 went to the Police Station at 9 p.m. and gave Ex.P-1 complaint. P.W.9 Sub-Inspector of Police received Ex.P-1 complaint and registered a case in Cr.No.282 of 1999 for the offence under Section 302 IPC and he prepared Ex.P-7 F.I.R. and despatched the same to Court and to higher officials. https://hcservices.ecourts.gov.in/hcservices/ (f) On 2.8.1999, P.W.10, the then Inspector of Police, after receipt of the wireless message, went to Gummidipoondi Police Station and received the copy of the F.I.R. at about 10.30 p.m. and he went to Ponneri Government Hospital and conducted inquest between 11 p.m. and 1.30 a.m. and he prepared Ex.P-8 inquest report. He examined the witnesses and recorded their statements. (g) After inquest was over, P.W.10 sent the dead body of the deceased for autopsy through P.W.8 Head Constable along with a requisition. P.W.7 Dr.Andal conducted post-mortem on the body of the deceased and issued Ex.P-6 post-mortem certificate, in which the following injures are indicated: "External injury: 1. Stab wound of size 3.1/2 cm length and 2 to 3 cm breadth on the left side of abdomen 5 cm below left costal margin, on protruding into the wound the direction of wound went in a slanting manner to right side to a depth of 8 cm. 2. A stab wound of 3 cm length x 5 breadth on the left back over the medical margin of scapula 10 cm below the nape of neck, on protruding depth of the wound is 9 cm. On opening the skull: No fracture of skull bone, meninges pale, brain pale. Hyoid bone: intactk On opening the chest: 1. A stab wound of 2 cm length x 4 cm depth on the left lung. Blood collected in the left side pleural cavity. Heart empty, valves normal. On opening the abdomen: Blood collected in peritoneal cavity, stab wound of 3 cm x 2 cm x 3 cm depth on the right lobe of liver. Stomach contains undigested food particles, intestine contains faecal matter, distended with gas. Bladder empty. Sample of stomach with contains intestine & contents, live and kidneys sent for chemical analysis, report pending. Died of stab wound with injury to major organs (liver and lung) with haemorrhage and shock." After autopsy, P.W.7 Dr.Andal handed over the clothes-M.Os.3 to 6 for chemical examination and Exs.P-18 and P-19 are the reports of the Forensic Sciences Laboratory. https://hcservices.ecourts.gov.in/hcservices/ (h) P.W.10 the then Inspector of Police inspected the place of occurrence in the presence of Ramamurthy and Venkatesan and prepared Ex.P-2 observation mahazar and drew Ex.P-9 rough sketch and examined the witnesses and recorded their statements. (i) P.W.11 Sivakumar, Inspector of Police took up the matter for further investigation. He arrested A.3 on 3.8.1999 at 4 p.m. near Samireddi Kandigai Bye-pass Road. At the time, A.3 has given confession in the presence of the witnesses Kandan and Kumar and the admitted portion of his confession is Ex.P-10 and in pursuance of the same, on that day at 5.15 p.m,, A.3 handed over M.O.2 series wooden stick, which was seized under Ex.P-11 seizure mahazar. (j) On the same day at 11 p.m., P.W.11 Inspector of Police, arrested A.2 and A.4 near Kaveripettai Mango Grove in the presence of the witnesses Ellappan and Dasarathan and at that time, A.2 has given confession and the admitted portion of the same is Ex.P-12. A.4 has also given confession and the admitted portion is marked as Ex.P-13 and in pursuance of the confession, A.2 handed over M.O.1 knife, which was seized under Ex.P-14 seizure mahazar and A.4 handed over M.O.2 series wooden stick, which was seized under Ex.P-15 seizure mahazar. P.W.11 Inspector of Police examined the witnesses and recorded their statements. A.1 surrendered before Court. He sent the accused for judicial custody. (k) After completing the investigation, P.W.11 Inspector of Police, filed the charge sheet against the accused. 3. The trial Court framed necessary charges and the accused pleaded not guilty. During the course of trial, P.Ws.1 to 11 were examined, Exs.P-1 to P-19 were marked and M.Os.1 to 6 were produced. When the accused were questioned under Section 313 Cr.P.C. about the incriminating evidence against them, they denied the same. Upon considering the oral and documentary evidence, the trial Court acquitted A.3 and A.4 and exonerated them of the charges and A.1 and A.2 were convicted and sentenced as stated above. Against the same, the present Criminal Appeal has been preferred by A.1 and A.2. 4. Learned counsel for the appellants/A.1 and A.2 would contend that there was no pre-plan and the accused are agricultural coolies. He further submitted that A.1 is aged person and A.2 got married and having children. Learned counsel for the appellants relied on the decision of Gauhathi High Court reported in 2007 Cri.L.J. (NOC) 863 (Manir Ali Vs. State of Assam) and argued that the sentence already undergone by the accused may be treated as quantum of sentence. Learned counsel also relied upon the decisions of the Supreme Court reported in 1999 SCC (Cri) 1046 (State of Karnataka Vs. Muddappa) and 1976 Cri.L.J. 1987(1) (Musakhan and others Vs. State of Maharashtra) and submitted that the benefit of Section 4 of the Probation of Offenders Act shall be extended to the appellants-accused. https://hcservices.ecourts.gov.in/hcservices/ 5. Learned Government Advocate (Criminal Side) appearing for the respondent-Police vehemently opposed the submissions made by the learned counsel for the appellants and submitted that since the offence is one under Section 304 (Part 2) IPC, the provisions of the Probation of Offenders Act cannot be invoked and the period already undergone by the accused is not sufficient to meet out the ends of justice. He prayed for confirmation of conviction and sentence and dismissal of the Criminal Appeal. 6. It is true that there is no independent witness. The deceased family and the accused are neighbours. There was a dispute in respect of cock/hen. P.Ws.1 to 4 are the wife and children of the deceased Marimuthu. A.1 is the father and A.2 to A.4 are the sons of A.1. The trial Court acquitted A.3 and A.4. 7. This Court has to decide as to whether A.1 is guilty of the offence under Section 341 IPC. While considering the oral and documentary evidence, P.W.1 in his Ex.P-1 complaint, has stated that A.1 has wrongfully restrained the deceased. In Ex.P-1 complaint, P.W.1 has mentioned as follows: @ ///// KDrhkp vd;gth; vdJ mg;ghit tHpkwpj;J nghyPrpy; ngha; g[fhh; bra;J vd; kapiu g[L';fp tpLtPh;fsh c';fis capUld; tpl;lhy; jhnd nghyPrpy; g[fhh; bra;tPh;fs; vd;W brhy;yp /////@ P.W.1 in his oral evidence corroborated the same. In his evidence, P.W.1 has stated that A.1 to A.4 have wrongfully restrained the deceased. P.W.1 has stated in chief examination as follows: @ ///// bjUtpy; rpwpJ J}uk; te;jnghJ M$h; 1 Kjy; 4 vjphpfs; te;J v';fis tHpkwpj;J Kjy; vjphp ,t';fis tpl;lh jhd; nghyP!; !;nl&Df;F nghth';f. tplhjP;';flh gpoj;J bfhiy bra;a[';flh Vd; Rk;kh ghh;j;J bfhz;oUf;fpwPh;fs; vd;W brhd;dhh; //////@ P.W.2, the wife of the deceased, P.W.3, the son of the deceased and P.W.4, the daughter of the deceased, have also deposed about the wrongful restrainment of the deceased. 8. Moreover, while considering the evidence of P.W.1 and the averments in Ex.P-1, the same are contradictory to each other. In Ex.P-1 complaint, P.W.1 has stated that Munusamy wrongfully restrained, but in his evidence, P.W.1 has stated that all the accused wrongfully restrained them. So, it is only further improvement and no relevance can be placed on the evidence of P.W.1 or the contents of Ex.P-1. Hence, I am of the opinion that the trial Court has committed error in coming to the conclusion that A.1 is guilty of the offence under Section 341 IPC, as there is contradiction between the evidence of P.W.1 and his Ex.P-1 complaint. Therefore, "benefit of doubt" has to be given in favour of A.1. He is entitled to be acquitted of the charge under Section 341 IPC. Hence, https://hcservices.ecourts.gov.in/hcservices/ the conviction and sentence imposed on the first appellant/A.1 for the offence under Section 341 IPC are liable to be set aside. 9. Next, this Court has to decide whether the second appellant/A.2 is guilty of the offence under Section 304 (Part 2) IPC. Admittedly, A.2 stabbed the deceased, which led to the death of the deceased. The occurrence took place out of sudden provocation in respect of theft of cock/hen. So, there is no pre-plan. Hence, the trial Court came to the conclusion that A.2 is guilty of the offence under Section 304 (Part 2) IPC. Moreover, Ex.P-6 post-mortem certificate also shows stab injuries, which led to the instantaneous death of the deceased. The trial Court is correct in holding the second appellant/A.2 guilty of the offence under Section 304 (Part 2) IPC. 10. Next, this Court has to decide as to whether the first appellant/A.1 is guilty of the offence under Section 304 (Part 2) IPC read with Section 109 IPC. Section 109 IPC reads as follows: "Section 109 IPC: Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.--Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation:- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment." 11. At this juncture, it is appropriate to consider Ex.P-1 complaint, in which P.W.1 has stated that A.1 instigated his sons, A.2 to A.4 to murder the deceased. It is stated in Ex.P-1 as follows: @ ////// nkw;go KDrhkp vd;gth; jd; kfd;fis ghh;j;J Vd;lh ghh;j;J bfhz;L ,Uf;fpwPh;fs;/ moj;J Fj;jp bfhy;Y';fs; vd;W brhy;yt[k; ntYkzp jd;Dila ifapy; itj;J ,Ue;j fj;jpahy; vdJ mg;ghtpd; ,lJ tpyhtpy; Fj;jpdhh; /////@ P.W.1 in his chief examination, has stated as follows: @ ///// bjUtpy; rpwpJ J}uk; te;jnghJ M$h; 1 Kjy; 4 vjphpfs; te;J v';fis tHpkwpj;J Kjy; vjphp ,t';fis tpl;lh jhd; nghyP!; !;nl&Df;F nghth';f. tplhjP;';flh gpoj;J bfhiy bra;a[';flh Vd; Rk;kh ghh;j;J bfhz;oUf;fpwPh;fs; vd;W brhd;dhh;/ //////@ https://hcservices.ecourts.gov.in/hcservices/ P.W.2, the wife of the deceased, in her chief examination, has stated as follows: @ ///// Kjy; vjphp 2 Kjy; 4 vjphpfis ghh;j;J mt';fis btl;L';flh Fj;J';flh vd;W brhd;dhh;/ 2tJ vjphp fj;jpahy; vdJ fzthpd; ,lJ gf;f tpyhtpy; Fj;jpdhh; /////@ P.W.3, the son of the deceased, has stated in his chief examination, as follows: @ //// mo';flh. Fj;J';flh vd;W Kjy; vjphp brhd;dhh;/ ////@ P.W.4, the daughter of the deceased, has stated in her chief examination as follows: @ ///// mg;nghJ 1 Kjy; 4 vjphpfs; te;J mg;ghit ghh;j;J nghyP;!;nl&Df;F ngha; kapuhit g[L';f nghfpwPh;fs;/ eP';fs; nghdhjhdlh nghyP!; !;nl&Df;F Fj;J';flh. btl;L';flh vd;W brhd;dhh;/ /////@ 12. While considering the above evidence of the witnesses, it is seen that there is a contradiction between the evidence of P.W.4's evidence and the evidence of other witnesses. So, the evidence of P.W.4 is not reliable and hence the same is discarded. 13. From the evidence of P.Ws.1 to 3, it is proved that A.1 instigated his sons A.2 to A.4 to commit the murder of the deceased. So, the trial Court is correct in holding the first appellant/A.1 guilty of the offence under Section 304 (Part 2) IPC read with Section 109 IPC. 14. Hence, the first appellant/A.1 is guilty of the offence under Section 304 (Part 2) IPC read with Section 109 IPC and therefore, the conviction of the first appellant/A.1 for the offence under Section 304 (Part 2) IPC read with Section 109 IPC is liable to be confirmed. The second appellant/A.2 is guilty of the offence under Section 304 (Part 2) IPC and hence, the conviction of the second appellant/A.2 for the offence under Section 304 (Part 2) IPC is liable to be confirmed. 15. Regarding the sentence imposed on the appellants-accused, learned counsel for the appellants-accused would focus mainly upon the fact that A.1 is 65 years old and A.2 is married and having children and since there was no pre-plan and the occurrence has taken place out of sudden provocation in respect of a petty quarrel with regard to theft of cock/hen, the period of sentence already undergone by the appellants-A.1 and A.2 is sufficient. He relied on the decision of a Gauhathi High Court reported in 2007 Cri.L.J. (NOC) 863 (GAU.) (Manir Ali Vs. State of Assam), wherein, it was held as follows: https://hcservices.ecourts.gov.in/hcservices/ " ..... Accused found guilty of offence under S.304, Part II--Accused an young person of 35 years at time of commission of offence and he is the only earning member of his poor family--Accused has already served his sentence more than 2-1/2 years and was also in confinement as under- trial prisoner for more than six months--On facts and circumstances, sentence of 5 years imposed upon him commuted to period already undergone." 16. In the said case (2007 Cri.L.J. (NOC) 863 (GAU.) ), the Court has awarded five years' imprisonment and the accused has already undergone 2-1/2 years and considering the age of the accused, the High Court of Gauhathi, came to the conclusion that the period of imprisonment already undergone by the accused is sufficient. It is seen that on the date when the judgment of conviction was passed, initially A.1 was arrested and remanded on 27.9.1999 and enlarged on bail on 2.11.1999. Likewise, A.2 was arrested on 4.8.1999 and enlarged on bail on 26.10.1999. So, A.1 and A.2 have not even completed six months' imprisonment. In the circumstances, the above decision is not applicable to the facts of the present case. 17. Learned counsel for the appellants-accused also relied upon the decision of the Supreme Court reported in 1999 S.C.C. (Cri) 1046 (State of Karnataka Vs. Muddappa), in which it was held as follows: "2. The learned counsel for the appellant is not in a position to assail the acquittal of the accused under Section 302 IPC, but he vehemently contends that the Court did not bear in mind germane considerations for releasing the accused on probation after convicting him under Section 304 Part II IPC. Whether the benefit of the Probation of Offenders Act could be extended in any particular case depends upon the circumstances of that case. Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed out as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation." 18. Relying on the said decision (1999 S.C.C. (Cri) 1046), learned counsel for the appellants-accused submitted that the benefit of Section 4 of the Probation of Offenders Act could be https://hcservices.ecourts.gov.in/hcservices/ extended in any particular case depending upon the facts and circumstances of that case. 19. Learned counsel for the appellants-accused also relied upon the decision of the Supreme Court reported in 1976 Cri.L.J. 1987(1) (Musakhan and others Vs. State of Maharashtra), wherein, it was held as follows: "7. ..... The Probation of Offenders Act is a social legislation which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the Government. Unfortunately, though the provisions of Section 6 of the Probation of Offenders Act are mandatory, the Courts do not appear to make wise use of these provisions which is necessary to protect our younger generation from becoming professional criminals, and, therefore, a menace to the society. ...." 20. Relying on the said decision (1976 Cri.L.J. 1987(1)), learned counsel for the appellants-accused submits that the Probation of Offenders Act is a social legislation which is meant to reform the offenders so as to prevent them from becoming hardened criminals by providing reformative treatment to them by the Government. 21. While considering the circumstances of the present case, due to petty quarrel in respect of theft of cock/hen, out of sudden provocation, the occurrence has taken place. There is no bad antecedent against the appellants-accused and even after they have been convicted for the offences and enlarged on bail, there is no complaint of any offence. In such circumstances, I am of the opinion that the appellants/A.1 and A.2 are entitled to be given the benefit of Section 4 of the Probation of Offenders Act. 22. In fine, (a) the Criminal Appeal is partly allowed. (b) The conviction and sentence imposed on the first appellant/A.1 for the offence under Section 341 IPC are set aside. (c) The conviction of the first appellant/A.1 for the offence under Section 304 (Part 2) IPC read with Section 109 IPC is confirmed. (d) The conviction of the second appellant/A.2 for the offence under Section 304 (Part 2) IPC is confirmed. 23. As the appellants/A.1 and A.2 are entitled to be given the benefit of Section 4 of the Probation of Offenders Act, the sentence imposed on the first appellant/A.1 for the offence under Section 304 https://hcservices.ecourts.gov.in/hcservices/ (Part 2) IPC read with Section 109 IPC and the sentence imposed on the second appellant/A.2 for the offence under Section 304 (Part 2) IPC are set aside. 24. The appellants/A.1 and A.2 are released on probation of good conduct for a period of three years and in the meantime, they shall maintain peace, be of good behaviour and shall appear and receive sentence when called upon during such period. The appellants/A.1 and A.2 shall each execute a bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) with two sureties each for a likesum to the satisfaction of the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Additional District and Sessions Judge, (FTC No.I), Chengalpattu. 2. -do- Through The Principal Sessions Judge, Chengalpattu. 3. The Judicial Magistrate No.I, Ponneri. 4. -do- Through The Chief Judicial Magistrate, Chengalpattu. 5. The Superintendent, Central Prison, Vellore. 6. The Inspector of Police, Gummidipoondi Police Station, Tiruvellore District. 7. The Public Prosecutor, High Court, Madras. + 2 c.cs. to Mr. R. Rajasekar, Advocate. S.R.No.7706. Crl.A.No.260 of 2002 PUR (CO) GSK 16.02.2010. https://hcservices.ecourts.gov.in/hcservices/