IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.404 OF 2008 Ramar .. Appellant Vs. State represented by Inspector of Police, Kallakurichi Police Station, Villupuram District (Crime No.157 of 2006) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District Sessions Judge, Fast Track Court, Kallakurichi made in S.C.No.191 of 2007, dated 28.05.2008. For Appellant : Mr.R.John Sathyan For Respondent: Mr.P.Kumaresan, APP - - - - JUDGMENT
(The judgment of the court was delivered by
M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court, Kallakurichi made in S.C.No.191 of 2007, whereby the first accused/appellant stood charged along with A-2 under Sections 302 and 506(2) IPC, tried and A-1 was found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.3000/-, in default to undergo 6 months R.I., while A-2 was acquitted of the charges.
2.The short facts necessary for the disposal of this appeal can be stated as follows:
a)P.W.1 is the elder brother of the deceased Subramanian. Their father purchased 39 cents of landed property in the year 1959 and they were enjoying the property. While the matter stood thus, the father of A-1 and A-2, one Kaliamurthy, claimed ownership over the property. There arose a quarrel between the parties. The land was measured by the Surveyor, who found that the property belonged to the father of the deceased and P.W.1. Thus, they were on inimical terms.
b)On 15.4.2006 at about 6.30 a.m., P.W.5 was ploughing the land on the instructions of the father of A-1 and A-2. P.W.1 and the deceased went to the place and made an attempt to restrain him. Despite the same, they continued to plough. At that time, when P.W.1 and the deceased further attempted to restrain P.W.5 from ploughing the land, A-1 took the spade and attacked the deceased on his head with the wooden portion of the spade, while A-2 kicked him on his private part. The deceased fell down. A-1 and A-2 ran away from the place of occurrence along with the spade.
c)P.W.1 took the deceased to the Government Hospital, Kallakurichi, where he was declared dead. P.W.1 proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.14, the Inspector of Police. On the strength of Ex.P.1, a case came to be registered in Crime No.157 of 2006 under Section 302 IPC. Ex.P.18, the F.I.R. was despatched to the Court. P.W.14 took up the investigation, proceeded to the Government Hospital, Kallakurichi and thereafter, he went to the place of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.19, the rough sketch. He also recovered bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. Then, he went to the hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.20, the inquest report. Then, the dead body was sent for the purpose of post-mortem.
d)P.W.12, the Doctor attached to the Government Hospital, Kallakurichi, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.11, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.
e)Pending investigation, P.W.14 arrested both the accused and they have come forward to give confessional statements, which were recorded in the presence of the witnesses. The admissible portion of confessional statements of A-1 and A-2 were marked as Ex.P.5 and Ex.P.6 respectively. Pursuant to the confessional statement, A-1 produced M.O.1 spade, which was recovered under Ex.P.4, the mahazar. The accused were sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.16, the Serologist’s report and Ex.P.17, the Biological report. P.W.17, the Inspector of Police, took up further investigation and on completion of the investigation, he 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 17 witnesses and also relied on 20 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused flatly denied the same as false. No defence witness was examined, but two documents were marked. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt in respect of A-1, found him guilty and awarded punishment as referred to above and it has recorded the judgment of acquittal in respect of A-2. Hence this appeal has arisen at the instance of A-1/appellant herein.
4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution relied on the evidence of P.Ws.1 to 5 and 10 as eyewitnesses; that so far as P.Ws.3 and 4 are concerned, though they have supported the case of the prosecution, they have not stated that P.Ws.2 and 10 have been in the place of occurrence; that the evidences of those witnesses are inconsistent to each other; that the occurrence has taken place, according to the prosecution, at 6.30 a.m. on 15.4.2006; that according to P.W.1, it was he who prepared Ex.P.1, the report and took the same to the police station; that the specific allegation made against A-1 was that it was he who attacked the deceased with the wooden portion of M.O.1 spade, while A-2 kicked him on his private part; that a perusal of Ex.P.1 would indicate that in all four places, in the place of A-1, the name of A-2 was originally written and subsequently, it has been changed; that this fact was also admitted by the Investigator at the time of cross examination, but he has not investigated as to how this has happened; and that if to be so, A-1 has got to be acquitted.
5.Added further the learned counsel that the trial court has acquitted A-2, but found A-1 guilty; that what are all the reasons adduced by the trial court for acquitting A-2 are equally applicable to A-1 also and hence, A-1 is entitled for acquittal; that the learned counsel would further submit before this court that P.W.1 has filed Criminal O.P.No.24747 of 2006 with the prayer that along with two accused, who were originally shown in the F.I.R., two more persons, namely the father of A-1 and A-2 and also one Kumar, were to be added; that when the matter was taken up for enquiry, P.W.1 has withdrawn the said criminal O.P.; that this would be clearly indicative of the fact that the prosecution witnesses wanted to add two more persons, attributing overt acts to them along with two others, whose names are actually found in the original F.I.R.; and that this would go to show that it was nothing but false accusations were made against the appellant.
6.The learned counsel would further add that in the instant case, it is an admitted fact that the lands were actually ploughed by P.W.5 at the instance of the father of A-1 and A-2; that it is also the further case of the prosecution that at the time of occurrence, it was P.W.1 and the deceased who went to the place and actually restrained P.W.5 from ploughing the land; that at that time, the occurrence has taken place and thus, the deceased and P.W.1 were the aggressors; that had they not intervened P.W.5 from ploughing the land, which was done at the instance of the father of A-1 and A-2, the occurrence could not have taken place and under these circumstances, there was a quarrel and when the ploughing process was restrained, the appellant got provoked and has attacked the deceased and hence it has got to be considered by this court.
7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
8.It is not in controversy that Subramanian, the younger brother of P.W.1, was actually done to death following the incident that had taken place at 6.30 a.m. on 15.4.2006 in the landed property, which was under dispute. After the inquest was made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.12, the Doctor, who has given his categorical opinion that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. The fact that the deceased died out of homicidal violence was never disputed by the appellant before the trial court and hence it has got to be recorded so.
9.In order to substantiate the factual position and as to the involvement of A-1 and A-2, the prosecution has examined P.Ws.1 to 5 and 10 as occurrence witnesses. The specific charge that was levelled against the accused was that at the time of occurrence, he attacked the deceased with the wooden portion of the spade on the head of the deceased, while A-2 kicked him on his private part. The trial court has acquitted A-2, since no corresponding injury was found in respect of the overt act attributed to A-2. So far as A-1 was concerned, the trial court has agreed with the case of the prosecution. After scrutinizing all the materials available, this court is of the considered opinion that it has to necessarily agree with the trial court.
10.In the instant case, admittedly, there was 39 cents of landed property, over which the father of A-1 and A-2 and also the deceased and P.W.1 were making rival claims. The property was measured by the Surveyor, who found that it belonged to the father of the deceased and P.W.1. However, on the date of occurrence, the landed property was ploughed by P.W.5 on the instructions of A-1 and A-2. The deceased and P.W.1 went there and restrained P.W.5 from ploughing the land. At that time, the occurrence has taken place. The occurrence was witnessed by P.Ws.1 to 5 and 10. The contention put forth by the learned counsel for the appellant that P.Ws.3 and 4 though supported the case of the prosecution, have not stated about the presence of P.Ws.2 and 10 at the place of occurrence and hence their evidence cannot be believed, cannot be countenanced at all. All the witnesses, namely P.Ws.1 to 5 and 10 have given clear narration as to the entire incident. At this juncture, so far as A-1 is concerned, all the witnesses have spoken in one voice that it was the deceased and P.W.1 who attempted to restrain P.W.5 from ploughing the land and in that process, there arose a quarrel and it was A-1 who attacked the deceased with the wooden portion of M.O.1, spade and thus, corresponding injuries are noticed in the post-mortem certificate. The ocular testimony projected by the prosecution through the above witnesses stood fully corroborated by the medical evidence.
11.Insofar as the claim of the prosecution that M.O.1, spade was recovered from A-1 pursuant to his confessional statement cannot be believed for the simple reason that P.W.1 has categorically admitted that on the date of occurrence itself, A-1 and A-2 were very well available in the police station, which would be indicative of the fact that the claim made by the prosecution that A-1 was arrested thereafter and he gave confessional statement and M.O.1, spade was recovered cannot be believed at all. Even if this part of the evidence was liable to be rejected, the prosecution, in the considered opinion of the court, has brought home the guilt of A-1, in view of the evidence as already narrated above. Hence the prosecution is successful enough in proving the factual position that it was A-1 who attacked the deceased with the wooden portion of the spade and as a direct consequence, he died.
12.The contentions put forth by the learned counsel for the appellant that certain alterations were made in Ex.P.1, the report and A-2 has been acquitted and hence it is equally applicable to A-1 also, cannot be countenanced. It is true, when Ex.P.1 is scrutinized carefully, this court is able to see that in two or three places, in the place of A-1, the name of A-2 was written and in the place of A-2, the name of A-1 was written. It has to be pointed out that before it reached the police station, these corrections have been made. It is pertinent to point out that Ex.P.1 was not written by P.W.1, but it was written by one of his friends on instructions and thus, these mistakes have crept in, since it was the writer, who committed the mistake. Now, it has to be pointed out that the occurrence has taken place at 6.30 a.m. and Ex.P.1, the report was received by P.W.14 at about 9.00 a.m. and a case came to be registered under Section 302 IPC immediately and the F.I.R. has reached the concerned Judicial Magistrate along with Ex.P.1 at about 10.30 a.m. The mistake that has crept in was originally rectified even before Ex.P.1 reached the police station. When Ex.P.18, the printed F.I.R. is perused, no alteration or interlineation was made. Thus, it would be quite clear that originally, when a mistake has crept in, it was rectified even before Ex.P.1 reached the police station and hence that contention cannot be countenanced. Thus, the contentions put forth by the learned counsel for the appellant do not carry any merit and they are liable to be rejected and accordingly, they are rejected.
13.Insofar as the second line of argument, this court is able to see force in the contention put forth by the learned counsel for the appellant. In the instant case, as pointed out earlier, both the parties have got rival claims over 39 cents of land. On the date of occurrence, it was P.W.5, who was ploughing the land on instructions of Kaliamurthy, the father of A-1 and A-2. The deceased and P.W.1 went to the spot and questioned the conduct of A-1 and A-2 and also attempted to restrain P.W.5 from ploughing the land. At this juncture, it has to be pointed out that they could not be considered to be the aggressors for the reason that the land was actually measured by the Surveyor and it was found that the property belonged to the father of the deceased and P.W.1. It is quite natural that they questioned the conduct of P.W.5, who ploughed the land at the instance of A-1 and A-2. It could be seen from the evidence that at that time, A-1 and A-2 were very well available in the land and when the deceased and P.W.1 attempted to stop the ploughing process, A-1, who got provoked, took the spade and attacked him with the wooden portion of the spade on his head and has caused injury and as a direct consequence, the deceased died. In view of the circumstances attendant, the court is of the considered opinion that the act of the accused cannot be said to be one premeditated or pre-planned or intentional, but it was due to sudden quarrel and provocation. Hence 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.
14.Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are set aside and instead, the appellant is convicted under Section 304(I) IPC and is directed to undergo 7 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and default sentence imposed on the appellant by the trial court will hold good. With the above modification in conviction and sentence, this criminal appeal is dismissed.
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To
1.The Additional District
Sessions Judge,
Fast Track Court,
Kallakurichi.
2.The Inspector of Police,
Kallakurichi Police Station,
Villupuram District.
3.The Additional Public Prosecutor,
High Court,
Madras