IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.12.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.686 of 2009 Muruganantham .. Appellant/Accused Vs. State by The Inspector of Police, Vikramangalam Police Station, Cr.No.109 of 2007 .. Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal district and Sessions Judge, Perambalur. For Appellant : Mr.M.V.Balakrishnan For Respondent : Mr.Babu Muthu Meeran, APP J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal District and Sessions Division, Perambalur, made in S.C.No.141 of 2007 whereby the sole accused/appellant stood charged under sections 307 and 302 I.P.C. and on trial he was found guilty of the said charges and awarded seven years rigorous imprisonment along with fine of Rs.5000/-, in default, to undergo six months simple imprisonment and life imprisonment along with fine of Rs.5000/-, in default, to undergo six months simple imprisonment respectively. 2. The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.2 is the husband of the deceased. P.W.1 is the brother of P.W.2. The accused/appellant belonged to the same village Koilseemai. P.W.2 was cultivating the land of one Mahalingam on lease basis which was objected to by the accused. https://hcservices.ecourts.gov.in/hcservices/ (b) On the date of occurrence, that was on 3.7.2007 at about 4.30 p.m., the deceased found the accused/appellant scolding her husband. Immediately, she intervened and questioned the conducted of the accused. Suddenly, the accused got into the house and took an aruval, M.O.1 and attacked her on the right palm and on the left side of her head. P.Ws.1, 2, 4 and 5 witnessed the occurrence. He also attacked P.W.2 and he sustained injuries. The accused ran away from the place of occurrence. (c) P.W.2 was taken to the Government Hospital in the vehicle (Tata Sumo car) of P.W.15. At about 7.50 p.m., P.W.14, doctor medically examined P.W.2 and found the injuries sustained by him. The accident register copy in that regard was marked as Ex.P8. (d) P.W.1 went to the Police Station and gave a complaint, Ex.P1 to P.W.16, Sub-Inspector of Police Vikramangalam who was on duty at that time. On the strength of Ex.P1 complaint, a case came to be registered in Crime No.109/2007 under sections 307 and 302 IPC at 19.00 hours. The express F.I.R., Ex.P10 was dispatched to Court (e) P.W.17, Inspector of Police, on receipt of the F.I.R., took up investigation. He proceeded to the spot made and inspection and prepared the observation mahazar Ex.P.2 and drew a rough sketch Ex.P11. He recovered the blood stained earth and the sample earth M.O.3 and M.O.4 respectively in the presence of witnesses under a cover of mahazar . He went to the mortuary and conducted autopsy on the dead body of the deceased in the presence of witnesses and prepared Ex.P12, inquest report. Thereafter, the dead body was subjected to post mortem. (f) On receipt of the requisition made by the Investigating Officer, P.W.12 conducted autopsy on the deceased Pushpavalli and gave his opinion in the post mortem certificate that the deceased would appear to have died of injury to vital organ, shock and haemorrhage 12-24 hrs prior to autopsy. (g) The accused was arrested on 4.7.2007 at 11.45 a.m and he came forward to give confessional statement. The admissible part of the confessional statement was marked as Ex.P13 Pursuant to the confessional statement made, the accused produced aruval M.O.1, weapon of crime, which was recovered under a cover of mahazar. Thereafter, he was sent for judicial remand. The material objects recovered from the place of occurrence, from the dead body of the deceased and from the accused, pursuant to the confession made were subjected to analysis and the Biology report- Ex.P15, Chemical report- Ex.P16 and serologist report- Ex.P17 were received and sent to Court. On completion of the investigation, the investigating officer filed a final report. (h) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 17 witnesses and relied on 17 exhibits and 9 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C as to the incriminating circumstances found https://hcservices.ecourts.gov.in/hcservices/ in the prosecution witnesses and the accused denied them as false. No defence witness was examined. On hearing the arguments advanced on either side, the trial Court found the accused guilty under sections 307 and 302 I.P.C and awarded 7 years rigorous imprisonment and life imprisonment along with fine and default sentence. Hence, this appeal at the instance of the appellant. 3. Advancing the arguments on behalf of the appellant, Mr.M.V.Balakrishnan, the learned counsel would submit that the prosecution has miserably failed to prove its case beyond reasonable doubt. It is true, the prosecution has marked P.Ws. 1, 2, 4, 5 and 6 as eye witnesses and also P.W.2 as injured witness. P.W.1 is the brother of P.W.2. The deceased is the wife of P.W.2. P.Ws. 1 and 2 are interested witnesses. If their evidence is put to carefully scrutinised test, their evidence does not stand the test. Hence, their evidence should have been rejected by the trial Court. Insofar as P.Ws.4, 5 and 6 are concerned, they could not have seen the occurrence at all. Their evidence are not only inconsistent but also contradictory to each other. Hence, their evidence could not be given any evidentiary value. 4. Added further learned counsel, the accused also sustained injury. He was also examined by P.W.13 doctor and the accident register copy was marked as Ex.P8 for the injuries sustained by him but the prosecution failed to give any explanation as to the injuries sustained by the accused. This would go to show that the prosecution has suppressed the genesis and also the true facts before the Court and the evidence produced by the prosecution did not speak about the injuries sustained by the accused. 5. Added further learned counsel , the ocular testimony projected by the prosecution through the above so called eye- witnesses was not supported by the medical opinion canvassed through the post mortem doctor. Further, though all the 5 witnesses have deposed that they were eye-witnesses, they could not account for the external injuries sustained by the deceased. This would cast doubt whether they would have been present at the place of occurrence. The learned counsel would further submit that so far as the recovery of M.O.1, aruval, pursuant to the alleged confessional statement is concerned, this is a cooked up document in order to strengthen the prosecution case. All would go to show that the prosecution has miserably failed to prove its case but the trial Court has taken an erroneous view as if the prosecution has proved both the charges leveled against the accused. 6. On the second line of argument, the learned counsel would submit, even if the Court comes to a conclusion that the prosecution has proved the factual position that it was the accused who attacked P.W.2's wife and also caused her death, the act of the accused would not attract the penal provision of murder. Even as https://hcservices.ecourts.gov.in/hcservices/ per the prosecution case, the occurrence has taken place in front of the thatched shed of the accused which is not nearby the house of the deceased. P.W.2 has gone to the house of the accused and quarrelled with the accused. When there was wordy altercation between the accused and P.W.2, it was the deceased who intervened between them. Under such circumstances, being provoked, the accused has attacked her. Hence, the act of the accused is neither intentional nor pre-planned but due to sudden provocation. This legal aspect has got to be considered by this Curt. 7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 8. It is not in controversy that one Pushpavalli, wife of P.W.2 was done to death in an incident that had taken place at about 5.00 p.m. on 4.7.2007 at the place and time as put forth by the prosecution. Following the registration of the case by P.W.16 Sub Inspector of Police of Vikkaramangalam Police Station, investigation was taken by P.W.17 Inspector of Police and after preparation of the Inquest report,ExP.12 the dead body was subjected to post mortem . P.W.12 doctor conducted autopsy and gave his opinion as a witness before the Court and also through the contents of the post mortem certificate,Ex.P7 that the deceased died out of shock and haemorrhage due to the injuries sustained by her. The cause of death as putforth by the prosecution was never disputed by the appellant before the trial Court or this Court. Hence, the trial Court is perfectly correct in recording that the deceased Pushapavalli died out of homicidal violence. 9. In order to substantiate that it was the accused who attacked the deceased and caused her death instantaneously, the prosecution marched five eye witnesses who are P.Ws. 1, 2, 4, 5 & 6. Out of these five witnesses, P.W.2 was not only eye witness but also injured witness. It is well settled proposition of law that in a given case like this when an eye witness happens to be the injured witness, the evidence of such witness cannot be discarded unless and until strong reason or circumstances are noticed by this Court. In the instant case, the evidence of P.Ws. 1 and 2 would clearly indicate the fact that at the time of occurrence there was wordy altercation between P.W.2 and the accused and at that time, the wife of P.W.2 intervened. Immediately, he went inside the house and took an aruval and attacked her. In that process, P.W.2 also sustained injuries. When his wife was being attacked by the accused, he intervened to block the aruval and immediately was also attacked by the accused. Insofar as this occurrence is concerned, the evidence of P.ws.1, 2, 4, 5 and 6 are natural, cogent and convincing. Therefore, the Court is unable to notice any reason which would cast doubt muchless reasonable doubt on the testimony of these witnesses. Apart from this, the ocular testimony of these witnesses https://hcservices.ecourts.gov.in/hcservices/ corroborates with the medical evidence canvassed through the post mortem doctor P.W.12, the post mortem certificate, Ex.P.7 and the accident register copy, Ex.P.8 in respect of P.W.2. 10. Yet another circumstance which was against the appellant was the recovery of M.O.1 aruval, weapon of crime from the accused pursuant to the confessional statement voluntarily given by him. This piece of evidence would be pointing to the nexus between the accused and the crime. Under such circumstances, the contention putforth by the learned counsel for the appellant narrated above, do not carry any merits whatsoever and they are liable to be rejected, accordingly rejected. The prosecution was successful enough to prove that it was the accused who attacked the deceased Pushpavalli at the time and caused her death of the deceased and also caused injuries to P.W.2. 11. Insofar as the second line of argument putforth by the learned counsel for the appellant is concerned, the Court is able to see force in the contention. Admittedly, the occurrence has taken place at 5.00 p.m. on 3.7.2007 As could be seen from the Observation Mahazar, Ex.P2 and also the sketch marked as Ex.P.11, it would be quite clear that the occurrence has taken place just in front of the thatched shed of the accused. The occurrence has not taken place in a public place or field. It is quite clear that at the time, P.W.2 and the deceased have gone to the house of the accused. There was wordy altercation between P.W.2 and the accused. When wordy altercation was going on, it was the deceased who intervened. Immediately, the accused got provoked. He took an aruval and attacked her. Thus, the act done by the accused cannot be said to be either intentional or premeditated or pre-planned. But at the same time, he has got the knowledge that by attacking her with aruval on her head, the death would likely to be ensued. Under these circumstances, the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder. Therefore, the Court is of the opinion that the act of the accused would attract the penal provision of section 304 (I) I.P.C and awarding punishment of 7 years R.I. would meet the ends of justice. In sofar as section 307 IPC is concerned, from the medical opinion canvassed through Ex.P.8, accident register, it is seen that P.W.2 has sustained only simple injuries and therefore, the Court is of the opinion that the accused should be punished under section 324 IPC in this regard and awarding two years rigorous imprisonment would meet the ends of justice. 12. Accordingly, the conviction and sentence imposed on the appellant under sections 302 and 307 I.P.C are modified and instead, the appellant is convicted under sections 304(I) and 324 I.P.C. respectively and sentenced to undergo 7 years R.I. and 2 years R.I. respectively. The period of sentence already undergone by the https://hcservices.ecourts.gov.in/hcservices/ appellant is ordered to be given set off. The fine amount and default sentence imposed by the trial Court will hold good. 13. With the above modification in conviction and sentence, this criminal appeal is dismissed. vsi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Principal district and Sessions Judge, Perambalur. 2. The Inspector of Police, Vikramangalam Police Station, 3. The Public Prosecutor, High Court, Chennai. 4. The Superintendent, Central Prison, Trichy. Copy to: The Section Officer, Crl Section, High Court, Madras. + 1 cc to Mr.M.V.Balakrishnan, Advocate SR No.69927 CRL. APPEAL No.686 of 2009 PA(CO) SR/5.1.2010 https://hcservices.ecourts.gov.in/hcservices/