IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.248 of 2009 1. Udayakumar 2. Selvi .. Appellants Vs. State of Tamil Nadu, represented by Inspector of Police, Pennagaram, Dharmapuri District (Crime No.560/2003) .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional Sessions Judge and Fast Track Court, Dharmapuri, made in S.CNo.116 of 2004 dated 22.1.2009. For Appellants : Mr.R.Sankarasubbu For Respondent : Mr.Babu Muthu Meeran, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional Sessions Division, Dharmapuri made in S.C.No.116 of 2004 whereby the first appellant herein stood charged under section 302 IPC and 307 IPC(2 counts) and the second appellant herein stood charged under sections 302 and 307 I.P.C. and on trial, the learned trial Judge found them guilty as per the charges and awarded life imprisonment for the offence under section 302 I.P.C. and three years rigorous imprisonment for the offence under section 307 I.P.C along with fine and default sentences. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.4 is the wife of the deceased Prakasam. P.W.1 is the wife of P.W.2. P.W.2 is the brother of the deceased. A1 is the https://hcservices.ecourts.gov.in/hcservices/ husband of A2. All were living in the same place. There was often quarrel among the women folks while taking water from the public pipe. On 9.9.2003 at about 4.00 p.m., P.W.4 went to take water in the public pipe . At that time, A2 snatched the pot from P.W.4 and threw it away. Therefore, there was a quarrel between them. P.W.1 intervened and pacified the situation. At that time, the first accused was not there. When P.W.4 informed it to the first accused, the first accused went to the house of P.W.4 and shouted at P.W.4 and deceased Prakasam. The deceased Prakash questioned A1 as to how he and his family members could used filthy language against them. At that time, A1 suddenly caught hold of the shirt of the deceased, took an aruval and cut him on his head. A2 who was having an axe attacked the deceased. Both A1 and A2 attacked P.Ws. 1 and 2 and the same was witnessed by P.Ws. 3 and 4 and other witnesses. The deceased fell down dead. P.W.1 and P.W.2 took the deceased to the Government Hospital, Pennagaram. P.W.8, Nurse who was on duty at 8.15 p.m. gave first aid to both P.Ws.1 and 2 and an intimation was given to the respondent Police Station. P.W.15, the Sub- Inspector of Police, on receipt of the information, proceeded to the hospital and recorded the statement of P.W.1 and prepared Ex.P1 report and at 9.30 p.m., a case came to be registered in Crime No.560 of 2003 under section 302 and 307 I.P.C. The express F.I.R was dispatched to Court. (b) P.W.16 the Inspector of Police, took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P3 and also drew a rough sketch Ex.P23. He recovered the material objects from the place of occurrence and conducted inquest in the presence of witnesses and panchayatdars and prepared the inquest report Ex.P25 and the dead body was sent for autopsy. (c) On receipt of the requisition, P.W.11, doctor attached to the Government Hospital, Dharmapuri conducted autopsy on the dead body of the deceased and gave his opinion in the post mortem certificate Ex.P14 that the deceased would appear to have died of shock and haemorrhage due to injuries sustained 12-24 hours prior to post mortem. P.W.10 doctor attached to the Government Dharmapuri gave treatment to P.Ws.1 and 2 and issued the wound certificates which were marked as Exs.P12 and P.11 respectively. (d) Pending investigation, the investigating officer arrested A1 on 10.9.2003. A1 came forward to give confessional statement and the same was recorded in the presence of two witnesses. The admissible part of the same was marked as Ex.P5, pursuant to which, he produced aruval, marked as M.O.1. On the very day, A2 was arrested and she came forward to give confessional statement and the admissible part of the same was marked as Ex.P7. Pursuant to confessional statement, she produced Koduval which was recovered under a cover of mahazar and the accused were sent for judicial remand. (e) All the material objects recovered from the place of occurrence, from the dead body and also from the accused, pursuant https://hcservices.ecourts.gov.in/hcservices/ to the confessional statement were sent for chemical analysis through the concerned Judicial Magistrate Court and the reports were received viz., chemical report marked as Ex.P17 and the serologist reports marked as Exs.P20 & 21. On completion of the investigation, the investigating officer filed a final report. (f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 16 witnesses and relied on 26 exhibits and 17 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. They gave written statement stating it was the deceased who took aruval and was about to attack them, therefore, in exercise of private defence, they have acted so. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and rendered the judgment of conviction and sentence as stated above. Under such circumstances, this appeal has arisen at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants, the learned counsel would submit, in the instant case, the prosecution relied on the evidence of P.Ws.1, 2, 4 and 6 as eye witnesses. P.Ws.1 and 2 could not have seen the occurrence at all. A very reading of the evidence of P.W.1 would clearly indicate that both of them came to the spot after the deceased fell down. Thus, P.Ws.1 and 2 could not have seen the occurrence at all. So far as P.W.4 is concerned, she has given a different story and her statement is inconsistent to the evidence of P.W.1 and 2. Therefore, insofar as this witness is concerned, she could not have seen the occurrence at all. The defence plea was that at the time of occurrence, there was a quarrel between the deceased and the accused and at that time, it was the deceased who took the aruval and was about to attack the accused and in that process, he got injuries and when P.Ws. 1 and 2 intervened, they also sustained injuries. A careful scrutiny of the evidence of the witnesses who are close relatives of the deceased would clearly reveal that the defence story was probable but not the prosecution story. 4. Added further learned counsel, in the instant case, it is the case of the prosecution that A2 actually attacked the deceased with axe and the injuries found in the post mortem certificate was incised wounds. Hence, the injuries could not have been caused by A2 at all. The medical opinion canvassed, despite cross examination of the medical person examined as P.W.11 will prove the same. Added further, P.W.1 has categorically deposed that she was attacked by one person. A2 had nothing to do with that. From the inception till the end not even one of the witnesses have spoken about the involvement of A2 with the crime. Thus, A2 has been falsely implicated in the case. The learned counsel would further submit https://hcservices.ecourts.gov.in/hcservices/ that insofar as A1 is concerned, the evidence of the witnesses were thoroughly unbelievable and insofar as A2 is concerned, there is nothing to show about his involvement in the offence. But the trial Judge has taken an erroneous view. The defence story was actually probable and the trial court has miserably failed to consider the above factual position. Under such circumstances, it is a fit case where the appellants are entitled for acquittal. 5. The Court learned the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that on the date of occurrence that was on 9.9.2003 one Prakasam was done to death in the incident that had taken place at 7.30 p.m. Following the inquest made by the investigating officer, the dead body was subjected to post mortem and P.W.11 doctor who has conducted autopsy, gave his opinion in the post mortem certificate Ex.P.14 that the deceased died out of shock and haemorrhage due to the injuries sustained. The cause of death as put forth by the prosecution was never disputed by the appellants before the trial Court. Hence, it could be safely recorded that the deceased died out of homicidal violence. 7. In order to substantiate that it was the act of the accused, the prosecution has examined P.Ws.1 to 6 as eye witnesses, out of whom, P.W.1 is the wife of P.W.2, P.W.2 is the brother of the deceased and P.W.4 is the wife of the deceased. It is true that they are relatives of the deceased, but merely because of their relationship with the deceased, their evidence cannot be discarded, it has to be subjected to careful scrutiny. In the instant case, as rightly pointed out by the learned counsel for the appellants, P.W.1 came out of the house after the deceased fell down. Therefore, she could not know the origin of the occurrence, but at the same time, it is quite clear from the evidence of P.W.2 that when the incident was going on, she came out and saw A1 attacking the deceased. This evidence of P.W.2 fully corroborates with the evidence of P.W.4. P.W.4 had stated that when she accompanied the deceased, A1 was having aruval and A2 was having an axe and it was A1 who attacked the deceased and the deceased fell down. The evidence of P.Ws.1, 2 and 4, in the considered opinion of the Court, is in one voice, cogent and acceptable. Hence, it was rightly accepted by the trial Court. The medical opinion canvassed by the doctor is also to the extent that the injuries are found to be incised injuries and those injuries were fatal. Thus, it would be quite clear that it was A1 who attacked the deceased with aruval and caused the incised wounds and caused his death. 8. It is pertinent to point out that all the injuries found in the post mortem certificate were all incised wounds. Had it been true that A2 was having an axe and had attacked the deceased, it https://hcservices.ecourts.gov.in/hcservices/ should not have been the incised wounds. As rightly pointed out by the learned counsel, A2 has no role to play in attacking the deceased. Apart from this, insofar as A1 is concerned, the recovery of the weapon pursuant to the confessional statement and the evidence recorded by the trial Court remains unshaky. All would go to show that A1 has attacked the deceased with aruval and caused instantaneously death. It was A1 along with his wife went to the house of the deceased and questioned them. At that time, the occurrence has taken place. A1 has acted intentionally since he was holding aruval at the time and had cut the deceased. Therefore, the act of A1 has to be termed only as murder. 9. As far as A2 is concerned, the Court is unable to notice any material to implicate her insofar as the attack that was made on the deceased. Therefore, A2 cannot be fastened with the liability either under section 302 IPC or under any other provisions of law, inasfar as the deceased is concerned. Insofar as the injuries caused to P.Ws.1 and 2 are concerned, the accident registers were marked as Exs.P12 and P.11 respectively. P.W.1 has categorically deposed that she was attacked by one person and it was caused by aruval and it was A1 who cut her. In such circumstances, the injuries noticed are grievous in nature. The trial Court is perfectly correct in finding A1 guilty under section 307 I.P.C. and awarding 3 years rigorous imprisonment and this Court is of the considered opinion that there is nothing to interfere with the same. So far as A2 is concerned, she has not caused any injury to P.W.1 and the injuries sustained by P.W.2 were found to be simple in nature. Therefore, A2 is liable to be punished only under section 324 I.P.C. 10. Therefore, insofar as A1/1st appellant is concerned, the judgment of conviction and sentence imposed on him by the learned Additional Sessions Judge,FTC, Dharmapuri, is confirmed. Insofar as A2/2nd appellant is concerned, the conviction and sentenced imposed under Section 302 I.P.C. are set aside and A2 is acquitted of the said charge. The conviction and sentence imposed on A2 under Section 307 I.P.C. are modified, instead A2/2nd appellant is found guilty under section 324 I.P.C. and sentenced to undergo two years rigorous imprisonment. The sentence already undergone by A2 is ordered to be given set off. The fine amount imposed under section 307 IPC shall be treated as the fine amount for the offence under section 324 IPC. 11. Now, it is brought to the notice of the Court by the learned counsel for the appellants that A2 is in jail for the past two years, which statement is recorded. Under these circumstances, the Superintendent of Central Prison concerned, is directed to act accordingly. https://hcservices.ecourts.gov.in/hcservices/ 12. With the above modification in conviction and sentence, the criminal appeal is disposed of. Vsi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Additional Sessions Judge and Fast Track Court, Dharmapuri 2. The Inspector of Police, Pennagaram, Dharmapuri District 3. The Public Prosecutor, High Court, Chennai. 4. The Superintendent, Central Prison, Vellore. 5. The District Collector, Dharmapuri. 6. The Director General of Police, Mylapore, Chennai 4. + 1 cc to Mr.R.Sankarasubbu, Advocate SR No.55609 LA(CO) SR/29.10.2009 CRL. APPEAL No.248 of 2009 https://hcservices.ecourts.gov.in/hcservices/