BAIL SLIP Appellant in C.A.No.125/03 (Accused in S.C.No.24/2000 dt.31.12.02 on the file of Additional District & Sessions Judge (FTC) Kallakurichi) was released on Bail as per order of this Court dt.05.3.03 in Crl.M.P.No.643/03 in C.A.No.125/03. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2009 Coram: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.125/2003 Ramasamy Appellant/Accused vs. State by The Inspector of Police Chinnasalem Police Station. Respondent/Complainant Prayer: This Criminal Appeal is filed against the Judgment passed by the learned Additional District and Sessions Judge (Fast Track Court) Kallakurichi in SC.No.24/2000 dated 31.12.2002. For Appellant : Mr. A.G.Rajan For Respondent : Mr. A. Saravanan, GA JUDGEMENT This Criminal Appeal has been filed by the appellant against the judgement dated 31.12.2002 passed in SC.No.24/2000 by the learned Additional District & Sessions Judge (Fast Track Court) Kallakurichi, convicting and sentencing the appellant for the offence under Section 307 IPC to undergo rigorous imprisonment for five years. 2. The case of the Prosecution is as follows:- a. The Appellant/Accused and the injured PW.2 Karuppannan are brothers. There is a common channel in the land belonged to them and the said channel was obliterated by PW.2. On 14.9.2001 at 8.00 a.m when the appellant was laying the channel, PW.2 and his son Venkatesan PW.1, who at that time were working in their field, came and told the Appellant not to lay the channel, but the Appellant continued with his work and against, PW.2 prevented the Appellant from laying the channel. In a fit of anger, the appellant attacked on the head of PW.2 with the handle portion of the spade telling him that only if he is alive, https://hcservices.ecourts.gov.in/hcservices/ he would prevent him and PW.2 fell down and sustained head injuries and immediately, Pw.2 and PW.5 Brabhu took the injured to the Government Hospital, Kallakurichi for treatment. b. PW.8 Doctor Ponnusamy attached to the said Hospital examined the injured on 14.9.2000 at 9.45 a.m., gave treatment and found the following injuries on his head:- "1. A lacerated injury at centre of parietal region 3x1x1 cm. 2. A contusion left parietal region 3x5 cms tendon. 3. A contusion of both left eye lid." and issued a wound certificate under Ex.P5. c. On receipt of information, PW.10, the Sub Inspector of Police attached to the Kallakurichi Police Station went to the said Hospital and PW.1 gave the complainant Ex.P1 to PW.10 and PW.10 came to the Police Station and registered a case in Cr.No.727/2001 under Section 307 of IPC and prepared printed FIR Ex.P7 and sent the same to the concerned court and the officials and also to PW.11, the Inspector of Police for further investigation. d. PW.11 took up the case for investigation and went to the place of occurrence and prepared observation mahazar Ex.P2 and a rough plan Ex.P8 in the presence of the witnesses PW.1 and PW.4 Kumar and another Venkatesan and recorded their statements. On the same day at 14.30 hours at Chinnasalem Old Bus Stand arrested the accused and recorded his confession statement in the presence of the witnesses PW.6 Oomaidurai and PW.7 Chinnathambi and on his confession statement, seized MO.1 spade under Ex.P4 in the presence of the same witnesses and sent the accused for judicial custody and on 26.11.2002 examined PW.8 Doctor Ponnusamy who gave treatment to the injured and recorded his statement and after completing investigation, filed a final report against the accused under Section 307 of IPC. 3. The case was taken on file in SC.No.24/2000 on the file of the learned Additional District & Sessions Judge (Fast Track Court) Kallakurichi and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 11 witnesses (PW.1 to PW.11} and also relied on Exs.P1 to P8 and one material object Mo.1 spade. 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available https://hcservices.ecourts.gov.in/hcservices/ on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. According to the prosecution, when the accused/appellant and his son were laying the channel, PW.2 prevented and told them not to lay the channel. But, the accused/appellant continued with his work and again when P.W.2 resisted him, the appellant attacked him with the handle portion of the spade telling him that only if he is alive, he would prevent him. According to PW.1, the accused gave two blows on his head. PW.1 admits that there was frequent quarrel between the two families and for the past 20 years, the water was flowing through the said channel. He would also admit that his father obliterated one portion of the channel, that was restored by the appellant and his son. 8. The evidence of PW.2 is more or less the same. He also admitted that there was a dispute between them in connection with the channel which persisted for so many years and they did not obey the decision of the Panchayathars. 9. PW.3's evidence discloses that he came to the spot only on hearing the noise and saw the appellant attacking PW.2. It is revealed from PW.2's evidence that there is one field in between the channel and the field where PW.3 was working on his tractor. PW.4's field was at a distance of 100 feet from the place of occurrence. According to him, PW.3 is the tractor driver working under PW.2 and it is clear from the evidence that he came to the place of occurrence only after hearing the noise. PW.4 also had gone to the spot only after hearing the noise. 10. Mr.AG..Rajan, the learned counsel for the appellant contended that PW.3 and PW.4 cannot be the eye-witnesses, as they had come to the place of occurrence only after hearing the noise and it is unlikely for them to have seen the attack and it is not the case that even when the quarrel was going on, they reached the spot. He would also point out that PW.5 was closely related to PW.2. 11. On the other hand, Mr.A.Saravanan, the learned Government Advocate supported the judgment of the trial Court, placing reliance on the evidence of the Prosecution. 12. It is no doubt true that the evidence of PW.3 and PW.4 would indicate that they had reached the spot only on hearing the noise of quarreling, and their evidence is not clear as to when they reached the place of occurrence. It is also true that PW.3 is a tractor driver working under PW.2 and PW.4 is the owner of the neighbouring field and PW.5 is a close relation of https://hcservices.ecourts.gov.in/hcservices/ PW.2. 13. As regards the evidence of PW.1 & PW.2, it cannot be said that their evidence is unreliable. It is seen that the entire incident had occurred when the appellant and his son were trying to restore the channel, which was obliterated by PW.2 few days before the occurrence. It is not that on the date of occurrence, the channel was obliterated by PW.2. But, however, the evidence shows that when the appellant was laying the channel, PW.2 prevented him, which resulted in the attack of him by the appellant. So, it is evident that the appellant had attacked PW.2 with the spade's handle and gave him two blows. The medical evidence is consistent with the evidence of PW.1 and PW.2, though the injury on the eye-lid is not spoken to by the said witnesses. It is possible for him to sustain the said injury on the eye-lid during the attack with the spade. 14. It is to be borne in mind that when the testimony of the eye-witnesses is corroborated by the medical evidence, unnecessary and undue importance should not be given to the minor discrepancies, which neither goes to the root of the matter nor in any way affect the credibility of the version of the eye- witnesses. That apart, the testimony of the eye-witnesses is of great value, unless their evidence suffers from serious infirmities. PW.2's presence in the place of occurrence and sustaining injury in the hands of the appellant has been established in this case. The accused/appellant had attacked PW.2, when he was laying the channel and there is evidence that there was consistent and persistent dispute regarding the channel. The testimony of PW.1 and PW.2 cannot be discarded, merely because they are enimical witnesses. 15. In this case, the complaint is given almost immediately after the occurrence and the version in the FIR is consistent with the evidence adduced by PW.1 and PW.2, though Chinnasalem Police station was situated on the way to Kallakurichi Government Hospital. But it is to be borne in mind that PW.2 was injured on his head and the witnesses would tend to take him to hospital to give immediate medical treatment in the hospital. PW.1 was admitted in the Kallakurichi Government Hospital at 10.15 a.m. and on the same day i.e. within two hours from the occurrence, the statement of PW.1 has been recorded i.e. at 10.45 hours. Therefore, in my opinion, there is no delay in lodging the complaint. 16. It is pertinent to point out that PW.2 has categorically denied that the accused/appellant sustained injury at the hands of PW.2. There is absolutely no evidence to indicate that the appellant also sustained injury in the incident. Hence, it cannot be said that the prosecution witness has suppressed about the injury sustained by the accused. The genesis of the occurrence is spoken to by PW.1 and PW.2 and there is nothing to discredit their testimony. https://hcservices.ecourts.gov.in/hcservices/ 17. Though the prosecution established their case that the appellant attacked PW.2, however the evidence disclosed that PW.2 was the aggressor i.e., the entire incident had occurred only, when he attempted to prevent the appellant from laying the channel. 18. To justify the conviction under Section 307 IPC, though nature of injury actually caused to him is material in coming to a finding as to the intention of the accused, but such intention could be inferred from other circumstances also. It is seen that the act of the appellant in attacking PW.2 resulted, when he was prevented by PW.2 and therefore, it cannot be said that he had any intention to cause the death of PW.2. When the appellant was provoked, he had started attacking the aggressor and therefore, at the said situation and state of mind, he cannot be expected to choose the non vital part on the body of the victim. May be the attack in this case landed on the vital part, but it cannot be said that the appellant had any intention to cause the death of the injured. 19. At this juncture, the learned counsel for the appellant prayed leniency in imposing the sentence taking into account that the appellant is the own brother of PW.2. He submitted that the appellant was in prison for 96 days. 20. Considering the facts and circumstances of the case and also considering the age of the appellant and the genesis of occurrence, I am of the considered view that the appellant is not liable to be convicted under Section 307 of IPC, instead, he is convicted under Section 324 of IPC and to meet the ends of justice, the sentence is reduced to one period already undergone. 21. Therefore, the Criminal Appeal is partly allowed and the appellant is convicted under Section 324 of IPC instead of 307 IPC and sentence is modified to the above extent. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar Srcm To 1.Additional District and Sessions Judge, FTC, Kallakurichi 2.-do- Through The Principal Sessions Judge, Villupuram. 3. The Superintendent, Central Prison, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 4. The Inspector of Police, Chinnasalem Police Station. 5. The Public Prosecutor, High Court, Madras + 1 cc to Mr.A.G.Rajan,Advocate,SR.66918 Crl.A.No.125/2003 TEJ(CO) EM/30.1.10 https://hcservices.ecourts.gov.in/hcservices/