IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.10.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.704 OF 2006 Murugaiyan .. Appellant Vs. State rep. by Inspector of Police, Vickramangalam Police Station Crime No.661/1998 .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Sessions Judge, Perambalur made in S.C.No.127 of 2003, dated 18.02.2004. For Appellant : Mr.V.Rajamohan For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges the judgment of Sessions Division, Perambalur made in S.C.No.127 of 2003, whereby the sole accused/appellant stood charged under Section 302 IPC, tried, found guilty as per the charge and awarded life imprisonment and to pay a fine of Rs.2000/-, in default to undergo 2 months R.I.
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the wife of deceased Muniamuthu. P.Ws.2,3 and 4 are all neighbours. The houses of the accused and the deceased are situated adjacent to each other. Regarding the site in between their houses, they had a long quarrel. On the date of occurrence, that was on 23.10.1998 at about 10.15 p.m., as usual, the accused and the deceased had quarrel, in which the accused assaulted the deceased with the stick on his head, shoulder and leg. When P.W.1 questioned the accused, she was also intimidated. The occurrence was witnessed by P.Ws.2 to 4. The deceased fell down and died. The accused fled away from the place of occurrence.
b)P.W.1 proceeded to the respondent police station, where P.W.9, the Sub Inspector of Police was on duty at that time. P.W.1 gave Ex.P.1, the complaint, on the strength of which, a case came to be registered in Crime No.661 of 1998 under Section 302 IPC. Ex.P.10, the F.I.R. was despatched to the Court.
c)On receipt of the copy of the F.I.R., P.W.10, 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.2, the observation mahazar and Ex.P.11, the rough sketch. He has also conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.12, the inquest report. He recovered the bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. He also recovered M.O.1, stick under a cover of mahazar. The dead body was sent to the Government Hospital, Ariyalur for the purpose of autopsy.
d)P.W.7, the Doctor attached to the Government Hospital, Ariyalur, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has given his opinion in Ex.P.5, the post-mortem certificate, that the deceased died out of extensive head injury and also shock and haemorrhage.
e)Pending investigation, the Investigator came to know that the accused surrendered before the Judicial Magistrate, Papanasam. All the material objects recovered from the place of occurrence were subjected to chemical analysis by the Forensic Science Department, which resulted in two reports, namely Ex.P.8, the Biology Report and Ex.P.9, the Serologist’s report. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 10 witnesses and also relied on 12 exhibits and 3 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, on hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt. Hence this appeal at the instance of the appellant/accused.
4.Advancing arguments on behalf of the appellant, the learned counsel inter-alia would submit that the prosecution though examined P.Ws.1 to 4 as eyewitnesses, they are all interested; that their evidence was inconsistent and per se contradictory; that apart from that, their evidence was not corroborated by the medical evidence; that the accused was not arrested, but he surrendered before the court concerned and that the prosecution has not proved the case beyond reasonable doubt.
5.Added further the learned counsel that even assuming that the factual position as put forth by the prosecution is taken to have been proved, the act of the accused would not attract the penal provision of murder. Admittedly, there was a long pending quarrel between the accused and the deceased in respect of the land situated in between their houses. Even it was spoken to by P.Ws.1 to 4 that on the date of occurrence also, there was a quarrel. In that quarrel, the accused has taken a stick, which was lying aside and attacked the deceased. Thus, it was neither intentional nor pre-meditated, but it was due to sudden quarrel. Under these circumstances, the act of the accused would not be one of murder and hence this legal position has got to be considered by this court.
6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
7.It is not in controversy that in an incident that took place at about 10.15 p.m. on 23.10.1998 at the place of occurrence, the husband of P.W.1, who sustained severe injuries, fell down and died. Following the inquest made by the Investigating Officer and the preparation of the inquest report, the dead body was subjected to post-mortem by P.W.7, the Doctor, who has given his opinion in Ex.P.5, the post-mortem certificate and has also deposed before the court as a witness that the deceased died out of extensive head injury and also shock and haemorrhage. The fact that the deceased died out of homicidal violence was never questioned by the appellant/accused at any stage of proceedings and hence it has got to be recorded so.
8.In order to substantiate the fact that it was the accused who attacked the deceased with stick and caused his death at the place and time of occurrence, the prosecution examined 4 witnesses. It is true, P.W.1 is the wife of the deceased. Merely because she happened to be the wife, her evidence cannot be rejected or looked with suspicion and the court has to exercise the test of careful scrutiny. Even if this test is applied, the court has to accept her evidence, since it inspires the confidence of the court. The evidence of P.W.1 stood fully corroborated by the evidence of P.Ws.2 to 4. No circumstance or reason was brought forth to discard or to look with suspicion the evidence of P.Ws.2 to 4. P.Ws.1 to 4 have narrated the incident in one voice. The evidence of P.Ws.1 to 4 that the accused attacked the deceased with stick on his head, shoulder and leg, was clearly corroborated by the medical evidence. Ex.P.5, the post-mortem certificate and the evidence of P.W.7, the Doctor would clearly indicate that the injuries were sustained by him on different parts of his body by the attack with stick. Thus, the ocular testimony projected through P.Ws.1 to 4 stood corroborated by the medical evidence. On the face of such evidence, the contentions put forth by the learned counsel for the appellant in this regard have got to be rejected. Thus, it can be well stated that the prosecution was successful enough in proving the fact that it was the accused who attacked the deceased with stick and caused his death.
9.So far as the second line of argument advanced by the learned counsel for the appellant is concerned, the court is able to see sufficient force. It is the case of the prosecution through the evidence of P.Ws.1 to 4 that there was a land in between the house of the deceased and accused and there was often quarrel. On the date of occurrence, namely on 23.10.1998, there was quarrel at the time of occurrence and in that quarrel, the accused took the stick, which was lying aside and attacked the deceased. It is pertinent to point out that the accused was not armed with stick already, but in that quarrel, he has taken the stick which was lying aside. Thus, the act of the accused was neither intentional nor pre-meditated, but it was due to quarrel between the parties as to the land. Under these circumstances, the act of the accused could not be termed as murder, but it would be one culpable homicide not amounting to murder. Thus, the act of the accused would attract the provision of Section 304(II) IPC and awarding punishment of five years R.I. would meet the ends of justice.
10.Accordingly, the conviction under Section 302 IPC and the sentence of life imprisonment awarded by the trial court are set aside and instead the appellant is convicted under Section 304(II) IPC and sentenced to undergo five years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. It is reported that the appellant is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. The fine amount imposed by the trial court will hold good. With the above modification in conviction and sentence, this criminal appeal is dismissed.
vvk
To
1.The Sessions Judge,
Perambalur.
2.The Inspector of Police,
Vickramangalam Police Station.
3.The Additional Public Prosecutor,
High Court,
Madras
[ PRV / 15980 ]