B A I L S L I P The Appellant/Accused viz., Arumugham son of Natchimuthu was directed to be released on bail as per order of this Court dated 16.7.2004 and made in Crl.MP.No.6816 of 2004 in Crl.Appeal No.779 of 2004 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17..03..2011 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. Appeal No.779 of 2004 Arumugham ... Appellant -Versus- The State Rep. by The Inspector of Police, Tiruppur Vadakku Police Station, Coimbatore District. [Crime No.355 of 2001] ... Respondent Memorandum of Grounds of Criminal Appeal under Section 374 (2) of the Criminal Procedure Code against the judgement dated 14.11.2003 made in S.C.No.231 of 2003 on the file of the learned Additional District and Sessions Judge, Fast track Court No.V, Coimbatore at Tiruppur. For Appellant : Mr.K.Kalyanasundaram For Respondent : Mr.R.Muniyapparaj, Govt. Advocate, [Criminal Side] JUDGEMENT The appellant is the accused in S.C.No.231 of 2004 on the file of the learned Additional District and Sessions Judge, Fast Track Court-V, Coimbatore at Tiruppur. He stands convicted for offence under Section 307 of IPC and sentenced to undergo R.I. for 5 years and to pay a fine of Rs.1,000/- in default to undergo S.I. for 6 months. Challenging the same, the appellant is , now, before this court with this criminal appeal. 2. The facts of the prosecution case in brief are as follows:- P.W.1 is a resident of Thiruppur Angeripalayam Village. The accused hails from Thirunelveli District. But, he was staying in Tiruppur. P.W.1 was working as a Fitter in a company known as "West Coast Company" in Tiruppur. The accused was working as a helper in the same company. The accused was known to P.W.1 for about 4 years prior to the occurrence. P.W.1 and the accused https://hcservices.ecourts.gov.in/hcservices/ were residing in the same rented house. After P.W.1 was about to marry, the accused rented a different house and started living there. Thereafter, the accused married one Kalaiselvi. P.W.1 also got married. Thereafter, in a friendly manner , P.W.1 and his wife used to mingle with the accused and his wife. But, the accused developed suspicion that P.W.1 had developed illicit intimacy with his wife. Therefore, the accused warned P.W.1 and his wife not to speak to his wife. Accordingly, they stopped. While so, on 29.08.2001, at about 5.00 p.m., the wife of the accused came to the house of P.W.1 seeking a help to repair the stove at her house. Therefore, P.W.1 and his wife went to the house of the accused and helped his wife to repair the stove. At that time, the accused was not at home. The accused came to know of the visit of P.W.1 to his house later on. On 30.08.2001, both P.W.1 and the accused had gone to the factory for work. In the evening , the accused told that they could go together in cycle. Accordingly, P.W.1 rode the cycle and the accused travelled in the carrier. After they had gone some distance, the accused got down from the cycle and prevented P.W.1 from proceeding further. The accused scolded P.W.1 saying that despite his warning how bold P.W.1 was to visit his house and to speak to his wife. Then, in a fit of anger, the accused took out a knife and stabbed P.W.1 on his stomach and other parts of the body. P.W.1 tried to escape. But, the accused did not stop and ran after him and caused yet another stab injury. Because of the injuries on the abdomen, intestine protruded out. P.W.1 fell down with bleeding injuries. P.W.2 and one Raja, who were also returning from the same company after work noticed the same. They took P.W.1 immediately to the hospital. The accused fled away from the scene of occurrence with the weapon. P.W.4 Doctor Bharathi, the then Assistant Surgeon attached to Tiruppur Government Hospital examined P.W.1. He found the following injuries:- (i) incised wound on the right side of the abdomen – intestine came out (ii) incised wound left side to the umbilicus - omentum came out (iii) abrasion over the left side clavicle (iv) cut injury 1m x ½ cm on the left side of the abdomen He gave an intimation to the police. P.W.8 was the then Sub Inspector of Police attached to Anupparpalayam Police Station. On receiving the intimation from the hospital, he proceeded to the hospital and recorded the statement of P.W.1 at 2.15 p.m. Ex.P.1 is the statement. On returning to the police station at 3.30 p.m. he registered a case in Crime NO.355 of 2001 for offence under Section 307 of IPC. Then, he forwarded the FIR [Ex.P.8] and the statement of P.W.1 [Ex.P.1] to the court. He handed over the investigation to P.W.7, the Inspector of Police, Tiruppur North Police Station. 3. P.W.7 on taking up the case for further investigation, rushed to Anupparpalayam Police Station. The accused had already appeared in the said police station. He gave a statement in the https://hcservices.ecourts.gov.in/hcservices/ presence of P.W.6. The said statement was recorded by P.W.7. According to P.W.7, it is a voluntary confession of the accused. In the said statement, he disclosed that he was in possession of a knife. Then, he produced the same and the same was recovered in the presence of witnesses under cover of Ex.P.7 mahazar. Then, P.W.7 examined, P.W.2, one Raja, Vetrivel and Senthil and few others and recorded their statements. In the place of occurrence , he prepared an observation mahazar in the presence of P.W.5 and another witness. Then, he forwarded the accused to the court for remand. Then,he handed over the investigation to P.W.9. After obtaining medical records of both the accused and P.W.1 and after recording the statements of Doctors , P.W.9 laid the final report for offence under Section 307 of IPC against the accused. 4. On the basis of the above materials, the trial court framed charges under Section 307 of IPC against the accused. Since the accused denied the charge, the trial went on. During trial, on the side of the prosecution, 9 witnesses were examined, 8 documents were exhibited and 1 material object was marked. As stated above, P.W.1 is the injured witness and P.W.2 is an eye-witness to the occurrence. When the incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, he offered an explanation saying that P.W.1 developed quarrel with him and as a result, both of them rolled down on the floor, at that time, a knife held by P.w.1 had accidentally fell on P.W.1 resulting in injuries. However, he did not chose to examine any witness on his side nor he did exhibit any document. Having considered the above evidences, the trial court found the appellant guilty under Section 307 of IPC and accordingly, convicted and sentenced him as stated earlier in the first paragraph of this judgement. 5. I have heard the learned counsel for the appellant and the learned Government Advocate [Criminal Side] for the State and also perused the records carefully. 6. The learned counsel for the appellant would submit that the entire case of the prosecution is liable to be rejected for the reason that the prosecution has not come forward with the true version of the occurrence. To substantiate his contention, the learned counsel would take me through the evidence of P.W.2 wherein during cross examination, he has stated that there was a wordy quarrel between P.W.1 and the appellant which went on for about five minutes. He would further point out that P.W.2 has further stated that during such quarrel both the appellant and P.W.1 were using abusive and abrasive language against each other. It is only during the said quarrel, it is stated by P.W.2 that the appellant took out the knife and caused injuries on P.W.1. Pointing out the same, the learned counsel for the appellant would submit that in the same occurrence, the appellant has also sustained injuries as spoken to by the Doctor. But, the said injuries have not been explained away. He would further point out that P.W.1 to a specific question put to him during https://hcservices.ecourts.gov.in/hcservices/ cross examination has stated that the appellant had not sustained any injury at all. This, according to the learned counsel for the appellant, would indicate that P.W.1 has not come forward with clean hands. The learned counsel would further submit that though the appellant had gone to the hospital at the earliest point of time and from the hospital, he had gone to the police station, there was no case registered on his complaint. For these reasons, the learned counsel would pray for acquittal. 7. The learned Government Advocate [Criminal Side] would stoutly oppose this appeal. According to him, it is not all the case of the appellant before the trial court that he made any complaint to the police. He would further point out that the injuries sustained by the appellant are only superficial in nature and therefore, non-explanation of these injuries would not cause any dent in the case of the prosecution. He would further submit that going by the injuries found on P.W.1 on his vital parts, the trial court has rightly come to the conclusion that the appellant has committed an offence under Section 307 of IPC. He would further submit that since the motive is not denied, the intention of the appellant to do away with P.W.1 could be easily inferred. Thus, according to the learned Government Advocate, the offence under Section 307 of IPC has been proved and the trial court was right in convicting the appellant for the said offence. 8. I have considered the above rival submissions carefully. 9. Though it is stated by the prosecution that there was no love lost between P.W.1 and the appellant, the same cannot be countenanced for the simple reason that P.W.1 has, in chief examination, stated that the appellant requested him in the factory that while returning home, they could go together in the cycle. Accordingly, after work, both of them proceeded to their house together. P.W.1 was riding the cycle and the appellant was sitting in the carrier. This shows that there was no previous motive at all for the appellant to commit the murder of P.W.1. But, motive could be hatched at any point of time. As narrated by P.W.1 when they were proceeding at the place of occurrence, the appellant got down from the cycle and questioned him as to why did he come to his house to speak to his wife. That is how, the quarrel started. It is not in dispute that on earlier occasions, when P.W.1 used to come to the house of the appellant, the appellant developed suspicion that P.W.1 had developed illicit intimacy with his wife. He warned him not to come to his house and accordingly, P.W.1 stopped. Despite the same, one day before the occurrence, P.W.1 had come to the house of the appellant. This would have come to the knowledge of the appellant. That is the reason why, he was prompted to warn P.W.1 and question as to what made him to come to his house. After that as spoken to by P.W.2, a quarrel had ensued. This was only a sudden quarrel as it could be inferred from the evidences of P.Ws.1 and 2. In the said quarrel, there were exchange of abusive languages against each other as spoken to by P.W.2. Though P.W.1 has not stated all https://hcservices.ecourts.gov.in/hcservices/ these things and he has projected as though the appellant was an aggressor and had caused injury with motive, the said version cannot be believed in view of the evidence of P.W.2. P.W.2 has vividly narrated about the quarrel which went on for about five minutes. It was only in the said quarrel,the appellant had taken out the knife and caused injuries. It is the admitted case of the appellant that in the scuffle both himself and P.W.1 rolled down. The appellant has sustained abrasions on his hands. Probably, these minor abrasions which were noticed by the Doctor would have been sustained during the said scuffle. P.W.1 would not have noticed these injuries. Therefore, he cannot be expected to explain the injury. Similar is the case of P.W.2. Therefore, insofar as non explanation of the injuries on P.W.1, which are only superficial in nature, is concerned, I am of the view that the prosecution case has not been in any manner affected. 10. Now, coming to the occurrence, according to P.W.1, after causing 1 or 2 injuries on him, the appellant ran after him and again caused injury. This would also cannot be true because, according to P.W.2, the entire occurrence was at the spur of the moment and it was in the same transaction at the same place. After the injury, the appellant had run away. P.W.2 has taken P.W.1 to the hospital. To this extent, I am of the view that the prosecution has established the case beyond reasonable doubt. 11. Nextly, coming to the contention of the learned counsel for the appellant, it is true that initially the appellant had gone to the Doctor and thereafter to the police station. There was no case registered in respect of the injuries sustained by him. But , a close scrutiny of the cross examination of the police officials would go to show that it was never the case of the appellant that he did give a complaint but the same was not registered as a case and not investigated into. Similarly, it was not his case that he sustained injuries at the hands of P.W.1. There was not even any suggestion so made to P.W.1 or to the police indicating the stand of the appellant that the injuries on him were caused by P.W.1 Therefore, it is too late in the day for the appellant to plead before this court that these injuries were caused by P.W.1. 12. The next contention of the learned counsel for the appellant is that even in the statement under Section 313 of the Code of Criminal Procedure, the appellant told the court that there was a scuffle in which the knife held by P.W.1 accidentally caused injury on P.W.1. Going by the depth of the injury in which even the intestine had protruded, the story propounded by the appellant is too hard to believe. Therefore, the same has to be rejected. 13. Now, coming to the recovery of weapon also there is a clear evidence of P.W.6 and that of P.W.7 the investigating officer who initially conducted the investigation. M.O.1 the weapon has been identified by P.W.1 in court. Thus, the https://hcservices.ecourts.gov.in/hcservices/ possession of the weapon at the hands of the appellant also further strengthens the case of the prosecution as yet another piece of evidence. 14. In view of the foregoing discussions, I hold that it was this appellant who caused injuries on P.W.1 in the occurrence. The next question is as to what is the offence committed by the appellant and what would be the appropriate punishment. 15. As I have already stated, there was no previous motive so as to hold that the appellant caused these injuries in an attempt to commit the murder of P.W.1. As I have already narrated, the occurrence had taken place in a spur of moment. The knife used is also a pen-knife which normally, the villagers used to carry for other purposes. Therefore, the appellant would not even have prepared for the occurrence. As I have already held, in the quarrel, where abusive language was used by P.W.1, the appellant would have been provoked suddenly. Therefore, the act of the appellant would come within the exception (i) to Section 300 of IPC. Thus, if the death had ensued, the appellant would have been liable for punishment under Section 304 of IPC for culpable homicide not amounting to murder. Here, it remains to be an attempt. The said attempt, in my considered opinion, was an attempt only to cause culpable homicide not amounting to murder and not an attempt to commit culpable homicide. Thus, the offence committed by the appellant would squarely fall within the ambit of Section 308 of IPC. 16. Now, coming to the quantum of punishment, the learned counsel would submit that the appellant has been in jail for more than 3 years. He would further submit that as the appellant is in jail, his wife and the other family members have been put to lot of sufferings. Admittedly, the appellant hails from Tirunelveli and he came to Tiruppur only for employment. It is also not brought to the notice of this court that the appellant has got any bad antecedent. Having regard to all the above, I am of the view that reducing the sentence of imprisonment imposed by the trial court to three years would meet the ends of justice. 17. In the result, the criminal appeal is allowed partly in the following terms:- (i) The conviction of the appellant for offence under Section 307 of IPC and sentence imposed on him directing to undergo R.I. for 5 years and to pay a fine of Rs.1,000/- by judgement dated 14.11.2003 in S.C.No.231 of 2003 on the file of the learned Additional Sessions Judge, Fast Track Court No.V, Coimbatore are set aside and instead the appellant is convicted for offence under Section 308 of IPC and sentenced to undergo R.I. for a period of three years. (ii) Fine, if any , paid by the appellant shall be refunded to him. https://hcservices.ecourts.gov.in/hcservices/ (iii) The period of detention already undergone by the appellant is ordered to be set off under Section 428 of the Code of Criminal Procedure. (iv) The appellant shall be set at liberty forthwith if his detention is not required in connection with any other case. kmk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Additional District and Sessions Judge, Fast track Court No.V, Coimbatore at Tiruppur. 2.Do Through the Prl Sessions Judge, Coimbatore. 3.The Judicial Magistrate No.I, Tiruppur. 4.Do Through the Chief Judicial Magistrate, Coimbatore. 5.The Superintendent, Central Prison, Coimbatore. 6.The Inspector of Police, Tiruppur Vadakku Police Station, Coimbatore District. 7.The Public Prosecutor, High Court, Madras. RSM(CO) SR/2.5.2011 Crl. Appeal No.779 of 2004 https://hcservices.ecourts.gov.in/hcservices/