IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:- 26.11.2009 CORAM THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH CRL. A. NO.500 OF 2009 Arumugam ... Appellant / Accused ..Vs.. The State of Tamilnadu, rep. by Inspector of Police, Villupuram Taluk Police Station, Villupuram District. ... Respondent / Complainant (Crime No.519/2005 Appeal filed against the judgment dated 17.8.2009 passed in S.C. No.61 of 2008 on the file of the Principal Sessions Judge, Villupuram. For Appellant : Mr. M. Devaraj For Respondent : Mr. Babu Muthu Meeran Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 17.8.2009 passed by the learned Principal Sessions Judge, Villupuram in S.C. No.61 of 2008, whereby the sole accused stood charged and found guilty for the offence under Section 302 of the Indian Penal Code and awarded life imprisonment. 2. The short facts necessary for the disposal of the case can be stated thus:- (i) P.W.2 is the wife of the deceased Mayakannan. The accused/appellant is the brother of the deceased. The father of the appellant has two wives. The accused married the daughter of one Unnamala who is the daughter of the father of the accused through the first wife. The property belonging to the family was in possession of the said Unnamalai. The deceased was demanding to give his share in 80 cents of land, which was in possession of the said Unnamalai, but the accused/appellant did not do the same and thus the https://hcservices.ecourts.gov.in/hcservices/ relationship of the brothers viz. accused/appellant and the deceased was strained. (ii) On 6.5.2005, at about 9.00 p.m., P.W.2, her son P.W.4 and P.W.3 along with her deceased husband were sitting in front of the house of one Anandhayi and chatting. At that time, the accused, who came there, armed with knife, attacked the deceased on different parts of the body and in the said transaction, the accused also sustained some simple injuries. When a disgusting cry was raised, the accused ran away from the place of occurrence. (iii) P.W.2 met the Village Administrative Officer P.W.1, the next day morning and gave a statement, which was recorded by P.W.1 and the same is marked as Ex.P1. Thereafter, P.W.1 proceeded to Villupuram Taluk police station and gave a complaint to P.W.10 Sub Inspector of Police and the same is marked as Ex.P2. On the strength of Exs.P1 and P2, the case was registered in Crime No.519 of 2005 for the offence under Section 302 of the Indian Penal Code. The first information report Ex.P12 was despatched to the Court. (iv) The Inspector of Police took up the investigation, proceeded to the spot and prepared Observation mahazar Ex.P3 and also rough sketch Ex.P13. He conducted inquest on the dead body in the presence of witnesses and the inquest report is marked as Ex.P14. The dead body was sent to the Government Hospital, Villupuram for post-mortem. (v) P.W.7 Doctor attached to Government Hospital conducted autopsy on the dead body and gave Ex.P10 post-mortem Certificate wherein he has opined that the death would have caused due to shock and haemorrhage and death would have caused 36 to 40 hours prior to autopsy. (vi) The accused was arrested on 8.5.2005 at 12.30 p.m. and the accused gave confession statement in the presence of witnesses and the admissible portion of the statement is marked as Ex.P5. Pursuant to the confession statement, he produced M.O.5 knife and the same was recovered under the cover of Mahazar Ex.P6. Thereafter, the accused was sent to the Government Hospital, Villupuram along with a memo since he sustained injuries. (vii) P.W.7 Doctor examined the accused and gave treatment for the injuries sustained by him and the accident register is marked as Ex.P11. The accused was sent for judicial remand. On completion of investigation, final report is filed. 3. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. In order to substantiate its case, the prosecution examined P.Ws.1 to 10 and relied on Exs.P1 to 15 and also relied on M.Os.1 to 6. On https://hcservices.ecourts.gov.in/hcservices/ completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No defence witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and sentenced him as referred above. Hence this appeal filed at the instance of the appellant/accused. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that the prosecution has miserably failed to prove the case. P.Ws.2 to 5 are shown as eye witnesses, out of whom P.Ws.3 and 5 have turned hostile and hence their evidence was not available to the prosecution. Insofar as the evidence of P.W.4 is concerned, he was the child witness, aged about 13 years. Insofar as the evidence of P.W.2 is concerned, she is the wife of the deceased and she was the interested witness. Hence, the evidence of both the witnesses cannot be relied on by the prosecution. 6. Learned counsel added further that the another strong circumstance against the prosecution was the inordinate delay in giving the complaint. Though P.W.2 claimed, immediately after the occurrence, her husband died, she did not go to the police station. She met the Village Administrative Officer 12 hours later, which would clearly indicate the fact that she would not have seen the occurrence. After the occurrence is over, she should have gone to the place and noticed the death of her husband. Hence the reason given for the delay in giving complaint remains unacceptable. 7. Learned counsel added further that the medical opinion was not in favour of the prosecution. Even the Investigators claimed that the accused was arrested on 8.5.2005 and the accused gave confession statement voluntarily, pursuant to which he produced M.O.5 knife, which was recovered under mahazar, all these documents have been created to the strength of the prosecution. In the instant case, the prosecution has actually suppressed the genesis of the occurrence. At that time, the accused also sustained injury as noted in accident register Ex.P11. The accused sustained cut injury on the shoulder and eyebrow. At the time of cross examination, P.W.7 Doctor has categorically admitted that the accused would have sustained injury only when another person had attacked him and the injury sustained by the accused would not have happened when the attack is warded off. Hence the prosecution case that the accused attacked the deceased cannot be said to be true. At the time of occurrence, the deceased also held a weapon and attacked him forcibly only through which the accused sustained injuries. 8. The second line of argument is that even the Court comes https://hcservices.ecourts.gov.in/hcservices/ to the conclusion that the prosecution has proved its case, the act of the accused would not attract the penal provisions of murder. The accused also sustained injury only due to the attack by the deceased. There was exchange of words. which is also spoken to by the witnesses. All would go to show that the act of the accused cannot be said to be a murder and this legal position can also be looked into by this Court. 9. This Court heard the learned Additional Public Prosecutor on the above contentions. 10. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Mayakannan was done to death in the occurrence that had taken place at about 9.30 p.m. on 6.5.2005. Following the complaint given by P.W.1, the case was registered under Section 302 of the Indian Penal Code and after registration of the case, the Investigating Officer conducted inquest. It is also not in dispute that following the inquest made by P.W.8, the body was sent to the Government Hospital for post- mortem and the Doctor, who has conducted the post-mortem, has given his categorical opinion that the deceased would appear to have died due to shock and haemorrhage and the injuries sustained by him. Apart from this, the cause of death as put forth by the prosecution was never questioned by the accused and hence, there is no impediment for this Court to accept the case as put forth by the prosecution about the cause of death at the time and place of occurrence. 11. In order to substantiate the case that the accused attacked the deceased and caused his death instantaneously, the prosecution relied on the evidence of P.Ws.2 to 5 as eye witnesses, out of whom, P.Ws.3 and 5 have turned hostile and hence, the evidence of P.Ws.2 and 4 is available to the prosecution to prove the case. It is true that P.W.2 is the wife and P.W.5 is the son of the deceased. But they have spoken in one voice that at the time of occurrence, when they were chatting along with the deceased in front of the house of Anandhayee, at that time, the accused came with a knife and attacked the deceased indiscriminately and caused his death. 12. Apart from this, the ocular testimony projected by the prosecution tallies with the medical evidence given by the Doctor, who conducted post-motem and the injuries found in the post-mortem Certificate corroborates the evidence of P.Ws.2 and 4, which would clearly indicate that the evidence given by P.Ws.2 and 4 is genuine and it has got to be accepted. Thus, the evidence put forth by the prosecution would suffice to hold that it was the accused, who attacked the deceased and caused his death. 13. Insofar as the contention put forth by the learned counsel appearing for the accused/appellant that the act of the accused would not attract penal provisions of murder is concerned, https://hcservices.ecourts.gov.in/hcservices/ the Court is able to see some force in the said contention. The occurrence had taken place at 9.30 p.m. in front of the house of one Anandayee. According to P.Ws.2 and 4, they were sitting in front of the house. At that time, the accused came over there and attacked the deceased and the deceased succumbed to injuries sustained by him. Both the witnesses have given evidence that there was a wordy altercation between the deceased and the accused. 14. It is an admitted position that the accused has married the daughter of Unnamalai. Unnamalai is the sister of the accused and she was in possession of 80 cents of land. The deceased was demanding his share, but the accused was not ready to get his share from his mother-in-law, which is the warfare between the deceased and the accused. On the date of occurrence, they had wordy altercation and in that process, the accused also sustained injuries and the injuries sustained by the accused is found in Accident Register Ex.P11. P.W.4 has categorically stated that when the accused attacked the deceased, the deceased has made his attempt to ward off the same, in which the accused also sustained injuries. Apart from this, the injuries sustained by him is simple in nature. 15. In the instant case, the prosecution had no explanation to offer. In every criminal case, when the accused sustained injury , it is not necessary that the prosecution had explanation about the injuries sustained by the accused. The accused got some injuries in the course of same transaction. There was also a wordy altercation. Both together would clearly indicate that the accused had no intention to cause the death of the deceased. Thus, the act of the accused was neither intentional nor premeditated, but it was due to sudden quarrel and provocation and hence the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder and therefore, the act of the accused would attract the penal provision of section 304(2) I.P.C. and awarding punishment of 5 years Rigorous Imprisonment would meet the ends of justice. 16. Accordingly, the conviction and the sentence imposed on the appellant under section 302 I.P.C. alone are modified and instead the appellant is convicted under section 304(2) I.P.C and sentenced to undergo 5 years Rigorous Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. With the above modification in conviction and sentence, this criminal appeal is disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssa. To 1. The Judicial Magistrate No.I, Villupuram. 2. The Judicial Magistrate No.I, through the Chief Judicial Magistrate Villupuram. 3. The Principal Sessions Judge, Villupuram. 4. The Director General of Police, Madras – 4. 5. The Public Prosecutor, High Court, Madras. 6. The Superintendent, Central Prison, Cuddalore. 7. The District Collector, Villupuram. 1 cc To Mr.M.Devaraj, Advocate, SR.63995 The Section Officer, Criminal Section, High Court, Madras Crl.A. No.500 of 2009 NG (CO) SS (16.12.2009) https://hcservices.ecourts.gov.in/hcservices/