IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.12 of 2008 Govindarajan .. Appellant/Accused vs State of Tamil Nadu rep. By Inspector of Police B-2 Vishnukanchi Police Station Kancheepuram (Crime No.320 of 2005) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Fast Track Court No.II, Kancheepuram, made in S.C.No.663 of 2005 dated 20.12.2007. For Appellant : Mr.P.N.Dinakaran for Mr.N.S.Sivakumar For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT (Judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.II, Kancheepuram, made in S.C.No.663 of 2005 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty as per the charge and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.The short facts necessary for the disposal of this appeal could be stated thus: (a) P.W.13 is the father of the accused and also the deceased Loganathan. P.W.1 is the wife of the deceased. P.W.1 and her husband, the deceased, were living in the front part of the house, while P.W.13 along with his wife and the younger son, the accused, was living in the back portion. The deceased was all along demanding for partition of the family properties, and thus, there was a misunderstanding between him on the one side and P.W.13 his https://hcservices.ecourts.gov.in/hcservices/ father, on the other. On 6.7.2005 at about 11.00 A.M., when the deceased was sitting in the pial located in the front portion of the house, the accused came over there with a iron pipe and uttered "So long you are alive, you would be asking for share in the properties. Therefore, you should be finished." So saying, he attacked him with M.O.1, iron pipe. The deceased fell down. Not satisfied, he took M.O.2 granite stone, and attacked him with the same on the left shoulder and again took the same and threw it on the head of the deceased. The occurrence was witnessed by P.Ws.1 and 2. She shouted. Then, all others gathered. The accused ran away from the place of occurrence. P.W.2 informed to P.Ws.3 and 4 the brother and father of P.W.1 respectively. Then, P.W.1 proceeded to the respondent police station where P.W.14, the Sub Inspector of Police, was present. She gave Ex.P1, the report, at 12.00 Noon. On the basis of Ex.P1, a case came to be registered in Crime No.320 of 2005 under Sec.302 of IPC. The printed FIR, Ex.P12, was despatched to the Court along with Ex.P1. (b) P.W.15, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P7, and also a rough sketch, Ex.P13. Then, he recovered bloodstained earth, sample earth and a granite stone under a cover of mahazar. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14. Then, the dead body was sent to the Government Hospital, Kancheepuram, for the purpose of autopsy along with a requisition. (c) P.W.5, the Assistant Surgeon, attached to the Government Head Quarters Hospital, Kancheepuram, on receipt of the said requisition conducted autopsy on the dead body of Loganathan and has noticed six external injuries. He issued a postmortem certificate, Ex.P3, with his opinion that the deceased would appear to have died of shock due to fatal injury to vital organ – brain. (d) Pending the investigation, the accused was arrested on 7.7.2005 at 8.00 A.M. in the presence of witnesses. He came forward to give a confessional statement which was recorded in the presence of P.W.9 and another. The admissible part is marked as Ex.P15, pursuant to which he produced M.O.1 iron pipe, which was recovered under a cover of Ex.P10, mahazar. He was sent for judicial remand. All the material objects were subjected to chemical analysis which resulted in Ex.P5, the chemical analyst's report, and Ex.P6, the serologist's report. They were placed before the Court. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 15 witnesses and also relied on 17 exhibits and 10 material objects. On completion of evidence on the side of the prosecution the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined; but, two documents were marked. The trial Court heard the arguments advanced and took the view that the https://hcservices.ecourts.gov.in/hcservices/ prosecution has proved the case beyond reasonable doubt and hence, found him guilty of charge of murder and awarded life imprisonment. Hence this appeal at the instance of the appellant/accused. 4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.P.N.Dinakaran would submit that in the instant case, the occurrence has taken place at 11.00 A.M. in the pial which is situated in front of the house of P.W.1, a solitary witness; that P.W.1 was the wife of the deceased; that even the case of the prosecution was that there has been a long pending enmity and strained relationship between the family of the deceased and that of his father with whom the accused was living, and thus, in view of the grudge, she has come forward to give a false case against the accused who is the brother and who was siding his father. 5.Added further the learned Counsel that in the instant case, the delay is also noticed in giving the information; that had it been true that P.W.1 was actually an eyewitness to the occurrence and the deceased also died instantaneously, one would expect her to go to the police station immediately; but, there is a delay noticed; that apart from that, the medical opinion canvassed did not corroborate the ocular testimony; that the arrest, confession and recovery of M.O.1 iron pipe, were nothing but a cooked up affair; that according to P.W.1, he actually had an iron pipe in hand, and with that he attacked him, and only after leaving the pipe, he took the stone, M.O.2, and attacked him; that if to be so, there was no reason for him to take M.O.1 from the place of occurrence, and thus, the arrest, confession and recovery were nothing but developments in order to suit the prosecution case; that though P.W.1 happened to be a relation, her evidence if tested with careful scrutiny, cannot be accepted; and that under the circumstances, the prosecution has not proved the case beyond reasonable doubt in any manner known to law. 6.Added further the learned Counsel in the second line of argument that even if the Court comes to the conclusion that it was the accused who attacked the deceased with the iron pipe and also the stone and caused her death instantaneously, the act of the accused would not attract the penal provision of murder; that admittedly, there was a long pending quarrel between P.W.13 and the accused on one side and the deceased on the other; that P.W.13 is the father; that he has come forward to give evidence that all along, the deceased was creating trouble, and he has also subjected him to cruelty; that even preceding the occurrence, he took a pipe and stone to attack him, and then he called the accused for rescue; that under the circumstances, the occurrence has taken place; that while the father was about to be attacked, the second son, the accused could not tolerate the same and got provoked, and hence he has acted so; that under the circumstances, the act of the accused would not attract the penal provision of murder, and this factual position has got to be considered by the Court. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 8.It is not in controversy that one Loganathan the husband of P.W.1 and the son of P.W.13, was done to death in an incident that has taken place on 6.7.2005 at 11.00 A.M. in front of his house. Following the inquest made by the Investigator, P.W.15, the dead body was subjected to postmortem by P.W.5, the Doctor, who has given his categorical opinion as a witness before the Court and also by issuing a postmortem certificate, Ex.P3, that the deceased died of shock due to fatal injury to vital organ namely brain. The fact that Loganathan died out of homicidal violence was not disputed by the appellant before the trial Court, and under the circumstances, no impediment is felt by the Court in recording that Loganathan died out of homicidal violence. 9.In order to substantiate the charge levelled against the appellant/accused that it was he who attacked his brother Loganathan at the time of the occurrence with the iron pipe, and when he fell down, he took a stone and attacked him on the shoulder and head, and thus caused the instantaneous death, the prosecution examined P.Ws.1 and 2. P.W.1, it is true, is the wife of the deceased. It is trite law that merely because of the close relationship of a witness to the deceased, his evidence cannot be discarded; but, before acceptance, it must be subjected to careful scrutiny. In the instant case, the evidence of P.W.1 if scrutinized carefully, this Court is thoroughly satisfied that it has inspired the confidence of the Court. According to P.W.1, she along with her husband was living in the front portion of the house, and her father in law, P.W.13, and his second son, the appellant herein, were living in the back portion, and her husband was demanding partition to which the father-in-law was not amenable, and on the date of occurrence i.e., 6.7.2005, at about 11.00 A.M., when her husband was sitting in the pial, the accused came with the iron pipe and attacked him uttering "You are demanding partition. If you are alive, you would ask for the same, and you should be finished off." She would further add that when her husband fell down, he took a stone and attacked him on the shoulder and head and fled away from the place of occurrence. Despite cross-examination in full, the evidence of P.W.1 remained intact, and thus, it stood the test. Now, at this juncture, it is pertinent to point out that P.W.2's evidence stood in full corroboration of P.W.1's ocular testimony. Further, this evidence of P.W.1 who has seen the incident, obtained full corroboration from the evidence adduced through P.W.5, the Doctor, who conducted autopsy. According to the Doctor, the injuries found on the deceased could have been caused by M.O.1, iron pipe, and also M.O.2, stone. Thus, it would be quite clear that the prosecution has brought home the guilt of the accused as to the factual position that it was he who attacked him with the iron pipe and also with the stone. 10.Yet another circumstance which stood against the appellant/accused was the recovery of M.O.1, iron pipe, pursuant to the confessional statement given by him on his arrest on 7.7.2005. A witness has been examined as P.W.9 to that effect. From the evidence it would be quite clear that M.O.1, iron pipe, has been recovered pursuant to the confessional statement, and that is the weapon of crime, according to the prosecution. This, in the https://hcservices.ecourts.gov.in/hcservices/ considered opinion of the Court, would be pointing to the guilt of the accused. Under the circumstances, the contentions put forth by the learned Counsel for the appellant contra have got to be rejected as devoid of merits. 11.Coming to the second line of argument advanced by the learned Counsel for the appellant, this Court is able to see sufficient force in the same. The occurrence has taken place on 6.7.2005 at about 11.00 A.M. when the deceased was sitting in the pial. It is an admitted position that the deceased was the elder son and the accused is the younger son of P.W.13. P.W.13 along with the other family members was residing in the back portion, while P.W.1 and the deceased were residing in the front portion. All along in the past, the deceased was demanding for division of the properties to which course P.W.13 was not amenable. P.W.13 is the father. His evidence would clearly indicate that in the past, he was not only asking for division, but also torturing him all along, and that too on the date of occurrence, he was about to attack him with the iron rod and also with the stone. The evidence would further go to show that at that time, he shouted for help, and then the accused came to the rescue. The evidence of P.W.13 has got to be accepted for two reasons. Firstly, he is the father of both the deceased and the accused. Secondly, his evidence remained intact, and he was not treated hostile. While the deceased was going on demanding for partition to which P.W.13 was not amenable and thereafter he was all along torturing him, and on the date of occurrence also, he has done so, and when the father was about to be attacked, it is quite natural for the younger son, the appellant, to get provoked, and then he attacked the deceased. This Court is of the considered opinion that the act of the accused would not attract the penal provision of murder since it is not intentional or premeditated. But, at the same time, he should have got knowledge that if he did so, it would end in the death of the deceased. Hence the act of the accused would attract the penal provision of Sec.304 (Part I) of IPC, This Court is of the view that awarding punishment of seven years Rigorous Imprisonment would meet the ends of justice. 12.Accordingly, the conviction and sentence of life imprisonment imposed on the appellant by the trial Court under Sec.302 of IPC are set aside, and instead, he is convicted under Sec.304 (Part I) of IPC and is directed to undergo seven years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. The fine and default sentence imposed by the trial Court will hold good. 13.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/ https://hcservices.ecourts.gov.in/hcservices/ To 1. The Judicial Magistrate No.I, Kancheepuram. 2. -do- Thro' The Chief Judicial Magistrate, Kancheepuram (For information) 3. The Additional Sessions Judge, Fast Track Court No.II, Kancheepuram. 4. -do- Thro' The Principal Sessions Judge, Kancheepuram (For information) 5. The Superintendent, Central Prison, Puzhal, Chennai. 6. The Director General of Police, Mylapore, Chennai-5. 7. The District Collector, Kancheepuram. 8. The Inspector of Police, B-2 Vishnukanchi Police Station, Kancheepuram. (Crime No.320 of 2005) 9. The Public Prosecutor High Court, Madras. Copy to: The Section Officer, Criminal Section, High Court, Madras-104. + 1 c.c. to Mr. N.S. Sivakumar, Advocate. S.R.No.68500. CRL.A.No.12 of 2008 MSM (CO) GSK 10.12.2008. https://hcservices.ecourts.gov.in/hcservices/