IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRIMINAL APPEAL No.395 of 2009 Nagaraj ..Appellant ..vs.. State rep.by The Inspector of Police, Bahour Police Station, Pondicherry. (Crime No.42 of 2003) ..Respondent Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment of the learned III Additional Sessions Judge, Pondicherry, made in S.C.No.40 of 2003, dated 31.07.2003. For Appellant : Mr.N.Chandrasekaran For Respondent : Mr.M.R.Thangavel, G.A.,(Crl.), Pondicherry. JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the III Additional Sessions Division, Pondicherry, made in S.C.No.40 of 2003, whereby the single and sole accused stood charged, tried and found guilty under Section 302 I.P.C.and awarded the life imprisonment along with a fine of Rs.5,000/-, in default to undergo six months simple imprisonment. 2. Short facts, necessary for the disposal of the appeal, can be stated thus: (a) The deceased Govindasamy and his wife Sivakami were living in one part of the hut and the accused Nagaraj and his wife Mahalakshmi, daughter of the deceased, were living in another part of the hut. P.W.1 is the son of Govindasamy. The daughter of Govindasamy and Sivakami, by name, Mahalakshmi, was given in marriage with the accused appellant as second wife. The accused married already, through whom he got three children and thereafter, leaving the first wife, he married Mahalakshmi and they got two children. (b) On 06.04.2003 at about 21.30 Hours, the deceased came to know that the accused beat his wife Mahalakshmi, his daughter. Then, he immediately sent his wife Sivakami to get his son P.W.1. P.W.1 also came over there and after coming to know about the quarrel, he sent his mother Sivakami, his sister Mahalakshmi and her children to the house of P.W.1 for the purpose of safety. Then, he and the deceased slept there. In the early hours of next day morning, the deceased asked P.W.1 to go for his work on the hope that the quarrel was over. When P.W.1 also was just proceeding for his job, he heard a distressing cry of his father and he turned back, where he found the accused attacking the deceased with a wooden long on the different parts of the body. P.W.1 raised a cry and all people gathered there. Then the accused ran away from the place of occurrence with the stick. (c) P.W.1 took his father to the Primary Health Centre, Bahour, where he was declared dead. Then he proceeded to the respondent Police Station and gave a complaint Ex.P-1 to the Sub-Inspector of Police P.W.5 and on the strength of the said complaint, a case came to be registered in Crime No.42 of 2003 under Section 302 IPC against the appellant/accused and the first information report is marked as Ex.P-6 and the same was despatched to the Court. (d) P.W.14, the Inspector of Police took up investigation, proceeded to the spot, made an inspection, prepared an observation mahazar and rough sketch Ex.P-19 and he also caused photographs to be taken through P.W.6 and the photos and negatives are marked as Exs.P-7 to P-16. Then, he conducted inquest on the dead body of Govindasamy in the presence of witnesses and the panchayatdars and the inquest report is marked as Ex.P-22. Thereafter, he sent the dead body to the hospital for the purpose of post-mortem along with his requisition. (e) On receipt of the requisition, P.W.4 doctor attached to the Government General Hospital, Pondicherry, conducted autopsy on the dead body of Govindasamy and gave post-mortem certificate, Ex.P-3, wherein he opined that the deceased would appear to have died within 24 hours prior to autopsy out of shock and haemorrhage due to blunt injury to the abdomen. (f) Pending investigation, on 08.04.2003 at about 6.00 AM, the accused was arrested by P.W.15, Inspector of Police, and he came forward to give a confessional statement, which was recorded and the admissible portion of which was marked as Ex.P-17. Pursuant to which, he produced M.O.1 stick and the same was recovered under a cover of mahazar Ex.P-20. Thereafter, the accused was sent for judicial remand. P.W.15 examined the witnesses and on completion of investigation, he filed the final report under section 302 I.P.C. (g) The case was committed to the Court of III Additional Session, Pondicherry and necessary charge was framed. In order to substantiate the charge, the prosecution examined 15 witnesses and also relied on 27 exhibits and one material object. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant/accused guilty and awarded the punishment of life imprisonment, which is the subject matter of challenge before this Court. 3. Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case; that P.Ws.1 and 2 were marched as eye witnesses, but their evidence was thoroughly discrepant; that even according to P.W.1, he had actually left for his job in the early morning hours and hence, it will be quite clear that he could not have seen the occurrence at all; that according to P.W.2, when he saw the occurrence, none of them was present in that place, which shows that he also could not have seen the occurrence; that when there were contradictions in the evidence of P.Ws.1 and 2, the case of the prosecution should have been rejected, but not done so by the trial court erroneously. Added further the learned counsel that the medical opinion canvassed by the prosecution did not support the case of the prosecution; that according to P.W.1, the deceased was attacked by the accused with M.O.1 indiscriminately on different parts, but it was the opinion of the doctor that the shock and haemorrhage due to blunt injury to the abdomen was the reason for the death, which was not corroborative with the ocular testimony. Added further the claim made by the investigator at the time of his evidence as if the accused was arrested on 08.04.2003 and he gave the confessional statement voluntarily and following which, M.O.1 same was recovered in a cover of mahazar, was all nothing but documents fabricated in order to strengthen the prosecution case and make it appear to be true and genuine case, but not so and that the learned trial Judge should not have passed the order of conviction and hence, the judgment has got to be set aside. 4. Further, as a second line of arguments, the learned counsel would submit that even as per the case of the prosecution, there was a wordy altercation between the father-in-law and the accused on the previous night and actually it was intervened by others; that the deceased and P.W.1 were sleeping in the house of the deceased and on the next day morning when P.W.1 was just proceeding for his work, there was a wordy altercation between the accused and the deceased and on hearing the distressing cry, he turned back, where the accused was attacking the deceased on his stomach; had it been true, the accused would have annoyed in that quarrel and thus, he had no intention to kill him but it was only a consequence to the quarrel and that the trial court failed to appreciate the legal position and hence, he is entitled for an acquittal in the hands of the Court. 5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that one Govindasamy, the father-in-law of the accused appellant was declared dead by the doctor P.W.4 when he was taken to the hospital by P.W.1 on the morning hours of 07.04.2003. Pursuant to the complaint given by P.W.1, the case was directly registered under section 302 I.P.C. by P.W.5 and following the inquest made by the investigator, the inquest report Ex.P-22 was prepared and the dead body was subjected to post-mortem by P.W.4, who gave a categorical opinion that he died due to the injury on his abdomen. Thus, the cause of death, as put forth by the prosecution, was never challenged before the trial court or before this Court and hence, no impediment is felt in recording that Govindasamy died out of homicidal violence. 7. In order to substantiate that it was the accused, who attacked Govindasamy with a wooden log, the prosecution marched two witnesses. It is true, one is the son and another is the neighbour of the deceased. It is the well settled principle of law that merely because the eye witness happened to be the relative of the deceased, his evidence cannot be discarded but before acceptance, the Court must apply the principles of scrutiny test. In the instant case, P.W.1 had categorically stated that at the time of occurrence, he was just proceeding for his job and he heard the distressing cry and when he turned back, found the appellant attacking the deceased with a wooden log. This part of the evidence was corroborated by the neighbour and apart from that, the evidence of ocular testimony, put forth by these two witnesses, was corroborated with the medical opinion given by P.W.4 doctor that the injuries could have been caused by M.O.1 log and the death would have been occurred within a short point of time. Yet another circumstance, which is strong in favour of the prosecution and against the appellant accused, was that the recovery of M.O.1, weapon of crime, pursuant to the confessional statement given by him, which was recorded by the police investigator. Since there are abundant evidence in favour of the prosecution, in the considered opinion of the court, the evidence recorded by the trial court, as discussed above, would suffice to point out the guilt of the accused. Hence, the contention put forth by the learned counsel for the appellant that the factual position has not been considered by the trial court, cannot be accepted and it has got to be rejected and accordingly, rejected. 8. In so far as the second line of arguments that the act of the deceased would not attract the penal provision of murder is concerned, the Court is of the view that there is some force in the contention. Admittedly, on the previous night i.e.on 06.04.2003, the accused beat his wife Mahalakshmi and thereafter, P.W.1 intervened and sent his mother Sivakami, his sister Mahalakshmi and her children to his house and the deceased and P.W.1 slept in the house of the deceased, which was the another part of the hut. On the next day morning, when P.W.1 was just proceeding to his job, there was wordy altercation and what was passing in the mind of the appellant was that the father-in-law and his family members were unnecessarily intervening in his family affairs. Added circumstance is that at the time of occurrence, the accused attacked the deceased with M.O.1 and that too, not in a vital part of the body and therefore, it cannot be said that he entertained any intention to cause the death of the accused. Taking into consideration the quarrel that had taken place, following the previous night incident, and the weapon of the crime was only a wooden log and the accused attacked him only on the stomach, which is not a vital part, all would indicate that it was solely a culpable homicide not amounting to murder and certainly not murder. In so far as the act of the accused is concerned, he had no intention to kill him, but, at the same time he has acted. In the circumstances, the act of the accused, which was actually done only in the wordy altercation and hit of passion, would not attract the penal provision of murder and instead, it would come under section 304 Part-I of the Indian Penal Code. In the considered opinion of the Court, the punishment of five years rigorous imprisonment, under the stated circumstances, would suffice to meet the ends of justice. 9. Accordingly, the conviction and sentence of life imprisonment under section 302 IPC awarded by the trial court is modified into one of five years rigorous imprisonment under section 304 Part-I IPC and the period already undergone by the accused is ordered to be set off. The fine amount and default sentence awarded by the trial court will hold good. It is reported that the appellant accused is on bail and has served more than six years. Hence, the learned III Additional Sessions Judge, Pondicherry, shall take steps to commit the appellant accused to prison to undergo the remaining period of sentence, if not served already. Criminal appeal is disposed of accordingly. gl To: 1.The III Additional Sessions Judge Pondicherry. 2.The Inspector of Police, Bahour Police Station, Pondicherry. (Crime No.42 of 2003) 3.The Public Prosecutor High Court, Madras