IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.16 OF 2008 Elumalai .. Appellant/Single Accused Vs. State by Inspector of Police, Santhavasal Police Station, Thiruvannamalai District. (Crime No.220/2005) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned District and Sessions Judge, Thiruvannamalai District made in S.C.No.71 of 2006, dated 6.11.2007. For Appellant : Mr.N.Manoharan for Mr.S.Doraisamy For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the District and Sessions Division, Thiruvannamalai made in S.C.No.71 of 2006, whereby the sole accused/appellant stood charged under Sections 325 and 302 IPC, tried, found guilty as per the charges and awarded life imprisonment and to pay a fine of Rs.20000/-, in default to undergo 2 years R.I. under Section 302 IPC and 5 years R.I. and to pay a fine of Rs.5000/-, in default to undergo 6 months R.I. under Section 325 IPC. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)P.W.1 is the wife of the deceased Mani alias Narayanan. They had 4 acres of land at Krishnapuram. They raised a small house in the land and they used to stay there during night hours also. The accused/appellant was owning land adjacent to their land. The deceased dug a bore-well in his land, by which the water get drained in the well of the accused. Hence there was often quarrel between them. The accused was adumbrating that he would finish the deceased off. b)On 23.7.2005 at about 10.00 p.m. when P.W.1 and her husband were https://hcservices.ecourts.gov.in/hcservices/ actually sleeping in their house, P.W.1 heard the sound raised by the Bull and she came out and found the accused standing outside. Immediately, she questioned him. The accused attacked her with the wooden log on her head. When she raised distressing cry, the deceased Narayanan came out and the accused also attacked him on his head with the wooden log and throwing the wooden log at the place of occurrence, the accused ran away. P.W.4 found the accused running from the place of occurrence. c)Both P.W.1 and the severely injured Narayanan were taken to the Government Hospital, Vellore, where the deceased was declared dead. P.W.2, the Doctor attached to the Vellore Medical College Hospital, gave treatment to P.W.1 and has issued Ex.P.2, the wound certificate. Thereafter, P.W.1 was taken to CMC Hospital for further treatment. d)On intimation, P.W.7, the Sub Inspector of Police attached to Santhavasal Police Station, went to CMC Hospital and received the statement of P.W.1, which was marked as Ex.P.1. On the strength of the same, he registered the case in Crime No.220 of 2005 under Sections 302 and 324 IPC. Ex.P.12, the FIR was despatched to the Court. e)On receipt of the copy of the FIR, P.W.8, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.6, the observation mahazar and Ex.P.13, the rough sketch. The place of occurrence was also photographed through P.W.6, the photographer. M.O.7 (series) photos and M.O.8 (series) negatives were marked. P.W.8 recovered stick, bloodstained earth and sample earth and the other material objects from the place of occurrence under a cover of mahazar. He went to the Government Medical College Hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.14, the inquest report. Then, the dead body was sent for the purpose of autopsy. f)P.W.3, the Doctor attached to the Vellore Government Medical College Hospital, on receipt of the requisition, has conducted post- mortem on the dead body of the deceased and has issued Ex.P.5, the post- mortem certificate, wherein he has opined that the deceased would appear to have died of intra cranial haemorrhage following the fracture of skull bones. g)The accused appeared before P.W.5, V.A.O. on 25.7.2005 and gave confessional statement, which was recorded and marked as Ex.P.8. The accused was taken to the police station and was produced before the Investigator. He caused the arrest of the accused. The accused came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.10. Pursuant to the same, the accused produced M.O.5, bloodstained shirt and M.O.6, bloodstained lungi, which were recovered under a cover of mahazar. The accused was sent for judicial remand. The material objects recovered were subjected to chemical analysis by the Forensic Science Department. Ex.P.15 (series) is the chemical analyst report and serologist's report. On completion of the investigation, the Investigating Officer has filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 8 witnesses and also relied on 15 exhibits and 9 M.Os. 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 in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutiny of the materials available, took the view that the prosecution has proved the case beyond reasonable doubt, found the accused guilty as per the charges and awarded punishments as referred to above. Hence this appeal has arisen at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned counsel has made the following submissions: a)In the instant case, the occurrence has taken place on 23.7.2005. According to the prosecution, P.W.1 is the only eyewitness to the occurrence. According to her, after the occurrence, she was immediately taken to the Government Hospital, Vellore and thereafter, she was taken to the CMC Hospital. P.W.2, the Doctor has given treatment to P.W.1 and has issued Ex.P.2, the wound certificate, which was the earliest document. A reading of Ex.P.2 would clearly indicate that she was conscious and she has also stated that three unknown persons have attacked her with knife. Thus, it would clearly indicate that when the occurrence has taken place, she did not know as to who were the actual assailants and therefore, Ex.P.1, the report was the developed version, in which they attributed the role to the accused. If Ex.P.2, which has come into existence at the earliest, is taken to be true, the entire case of the prosecution has got to be rejected. b)Further, the assailants were not known. The Investigator would claim that the accused appeared before P.W.5, V.A.O. on 25.7.2005 and before whom, he gave confessional statement and thereafter, he was produced before the police station, where the accused gave another confessional statement and hence it cannot be given any credence or evidentiary value for the simple reason that this was recorded after the Investigation was commenced and hence it is of no use or value. c)Apart from that, it is highly unnatural that when he was produced before the Investigating Officer, he gave another confessional statement. Pursuant to the same, M.Os.5 and 6 were recovered. It is true, M.Os were subjected to chemical analysis, but the blood group did not tally and hence this part of the evidence as to the arrest, confessional statement and the recovery of M.Os.5 and 6 could not be relied upon. In the instant case, if the evidence of P.W.1 is viewed from Ex.P.2, the document, it could be rejected and the prosecution has miserably failed to prove its case. d)In the second line of argument, the learned counsel would add that there was often quarrel between the accused and the deceased in respect of the bore well, which was actually dug by the deceased. Even three days prior to the occurrence, there was a quarrel. The occurrence has taken place at about 10.00 p.m. According to the prosecution, the accused was having only a stick and also gave only one attack on the head. Thus, it would be quite clear that it would not be the intention https://hcservices.ecourts.gov.in/hcservices/ of the accused to cause death and hence these circumstances also have got to be considered by this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that the husband of P.W.1, following the incident that took place at about 10.00 p.m. on 23.7.2005, died when he was taken to the hospital. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.3, the Doctor, who has given his categorical opinion as a witness before the court and also in the post-mortem certificate that the deceased would appear to have died of intra cranial haemorrhage following the fracture of skull bones. Thus, this would go to show that Mani alias Narayanan, the husband of P.W.1 died out of homicidal violence. The said fact was never be the subject matter of controversy before the trial court and hence it has got to be factually recorded so. 7.In order to substantiate the fact that it was the accused/appellant who attacked the deceased with M.O.1, stick, the prosecution has marched the evidence of P.W.1 and also P.W.4. It is trite law that in a given case like this when the eyewitness happened to be the injured witness, unless and until a strong circumstance is noticed or any reason is brought about, the court should not discard such testimony. A reading of the evidence of P.W.1 would clearly indicate that she has narrated the entire incident as it was. According to P.W.1, she was sleeping along with her husband and she heard the sound of the Bull at 10.00 p.m. and she came out of the house and found the accused standing in front of the house. Immediately, she questioned him. When she questioned, the accused attacked her with stick on her head. When she raised cry, her husband came out and the accused also attacked him with stick on his head and fled away from the place of occurrence. At this juncture, it is pertinent to point out that P.W.4 has also seen the accused running from the place of occurrence. Thus, the evidence of P.W.1, an injured witness, coupled with the evidence of P.W.4, who has seen the accused running from the place of occurrence, would be sufficient in the considered opinion of the court, pointing to the guilt of the accused. The ocular testimony of P.W.1 stood fully corroborated by the evidence of P.W.3, the post-mortem Doctor. 8.Yet another circumstance was the recovery of M.O.5, bloodstained shirt and M.O.6, bloodstained lungi. They were subjected to chemical analysis along with the bloodstained sand recovered from the place of occurrence. The report would indicate that they were found with human blood. Thus, the scientific evidence was in favour of the prosecution. The learned counsel levelled criticism on the case of the prosecution that the evidence of P.W.1 should be viewed from Ex.P.2, the wound certificate, which according to the learned counsel was the earliest document that came into existence. It remains to be stated that at the time when she was taken to the hospital, she was severely injured and she has also witnessed the incident in which her husband was attacked with the stick and when he was taken to the hospital, he was declared dead and she was under treatment. Therefore, the court must see the frame of mind under which P.W.1 was put under the situation and with that anxiety, she has made the statement to the Doctor. It is also the https://hcservices.ecourts.gov.in/hcservices/ settled law that when a statement was made by the witness to the Doctor with such an anxiety, it need not be given much weight while any direct evidence is available in a given case. In the instant case, P.W.1 was not only the occurrence witness, but also an injured witness. Hence the evidence of P.W.1 coupled with the other circumstances, in the considered opinion of the court, would be sufficient pointing to the guilt of the accused. Thus, the accused has attacked the deceased and has caused the death and has also attacked P.W.1 and caused injury. Therefore, it has got to be found so. 9.The court is able to see force in the second line of argument made by the learned counsel for the appellant. It is true, the occurrence has taken place at about 10.00 p.m. and the accused attacked both P.W.1 and the deceased with the stick. Hence it would be indicative of the fact that it would not be the intention of the accused to cause death, but at the same time, when he attacked the deceased with stick, he should have got the knowledge that by doing so, it is likely to cause death. Under these circumstances, though no intention could be inferred from the act of the accused, it would be one culpable homicide not amounting to murder and the act of the accused would attract the penal provision of Section 304(I) IPC and awarding punishment of 7 years R.I. would meet the ends of justice. Insofar as the attack on P.W.1, there was direct evidence coupled with the medical evidence and hence the judgment of the lower court in this regard has got to be sustained. 10.Accordingly, the conviction and sentence imposed on the appellant by the trial court under Section 302 IPC are set aside and instead the appellant is convicted under Section 304(I) IPC and sentenced to undergo 7 years R.I. The conviction and sentence imposed on the appellant under Section 325 IPC are sustained. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and default sentence imposed by the trial court under Section 302 IPC will hold good. Both the sentences are ordered to run concurrently. Accordingly, this criminal appeal is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1.The District and Sessions Judge, Thiruvannamalai. 2.The Inspector of Police, Santhavasal Police Station, Thiruvannamalai District. 3.The Additional Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 4.The Superintendent, Central Prison, Vellore. 5.The District Collector, Thiruvannamalai. 6.The Director General of Police, Mylapore, Madras - 4. + 1 cc to Mr.S.Doraisamy,Advocate, SR.68198 CRL.A.NO.16 OF 2008 RSI(CO) EM/15.12.08 https://hcservices.ecourts.gov.in/hcservices/