IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.723 OF 2009 1. Senthil M 2. Kattaian @ Selvakumar .. Appellants Vs. State rep. by Inspector of Police, Meensurutti Police Station, Ariyalur District Crime No.145 of 2007 .. Respondent This criminal appeal is preferred under Section 374 (2) Cr.P.C against the judgment of the learned Principal District and Sessions Judge, Perambalur in S.C.No.78 of 2007 dated 3.7.2009. For Appellants : Mr.A.Ramesh, Senior Counsel for Mr.G.Pugazhenthi For Respondent : Mr.V.R.Balasubramanian, APP JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges the Judgment of the Principal District and Sessions Judge, Perambalur in S.C.No.178 of 2007, whereby both the appellants stood charged, tried and found guilty under Sections 302 r/w 34 IPC; and also under Section 323 IPC in respect of the first accused and under Section 323 IPC r/w 109 IPC in respect of the second accused; convicted and sentenced to undergo life imprisonment along with a fine of Rs.5,000/- in default to undergo further period of six months simple imprisonment for the offence under Sections 302 r/w 34 IPC and convicted and sentence to undergo RI for three months for the offence under Section 323 IPC in respect of the first accused and under Section 323 IPC r/w 109 IPC.
2. The short facts necessary for the disposal of the Criminal Appeal can be stated thus:
(a) P.W.1 is the wife of the deceased. P.W.2 is the father-in-law of the deceased, while P.Ws.3 and 4 are the sisters of the deceased. Prior to the incident, there was a panchayat election in which one Elankumaran contested for the president post. The deceased worked in his support in which, the said candidate also succeeded. Both the accused/ appellants were supporting the rival side candidate. From that time onwards they were in inmical terms. On the earlier occasion, when the deceased was fishing, he was beaten by both the appellants and since they were all having support of the important persons, no complaint was given to the police.
(b) On the date of occurrence viz., on 05.07.2007 at about 10.00 a.m. P.Ws.1 to 4 were standing near a tea stall. At that time P.W.1’s husband was near a shop which is situated in the opposite direction. Immediately, when they were hearing a cry, they went and looked, where A1 was attacking him on the front and A2 was attacking him on the back with wooden sticks. Immediately, when the deceased fell down, A1 not satisfied with the earlier attack, stabbed him with a stick on his head and on seeing this, P.W.1 rushed nearby, where she was also kicked by A.1. She fell down and sustained simple injury. The occurrence was witnessed by P.Ws.2 to 4 and also by number of persons who were standing nearby. Both the accused fled away from the scene of occurrence.
(c) P.W.1 thereafter went to the respondent Police Station and gave a complaint Ex.P.1. On the strength of Ex.P.1 complaint, P.W.14, Sub Inspector of Police registered a case in Crime No.145 of 2007 under Sections 302 and 308 IPC. A copy of the Express FIR Ex.P.9 was sent to the Court along with Ex.P.1.
(d) Immediately P.W.14 Sub Inspector of Police proceeded to the spot and inspected the place of occurrence and prepared a rough sketch Ex.P.11 and also Ex.P.10 Observation Mahazaar. The material objects were recovered from the place. Thereafter, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared a report Ex.P.12.
(e) P.W.1 was sent to the hospital for giving treatment. P.W.13 attached to the Government Hospital gave her treatment and the injuries are noted in the Accident Register Ex.P.8.
(f) Pending the investigation, both the accused were arrested on 06.07.2007, when A.1 gave confessional statement voluntarily and the same was recorded in the presence of eye witnesses, the admissible part of which is Ex.P.14 and pursuant to the same he produced M.O.1 wooden log. Equally A.2 also came forward to give confessional statement voluntarily and the same was recorded, the admissible part of which is Ex.P.15. He also produced M.O.2 Wooden log. They were recovered under the cover of Mahazars. The accused were sent for judicial remand, witnesses were taken before the Judicial Magistrate, Ariyalur. Section 164 statement of witnesses were recorded by the learned Judicial Magistrate and they were placed before the Court.
(g) All the Material objects were sent for chemical analysis and reports were received. Exs.P.16 and P.17 are the Chemical Analysis and Serologist reports.
(h) On completion of investigation, the Sub Inspector of Police filed a final report.
(i) 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 15 witnesses and also relied on 18 documents and 8 material objects.
(j) On completion of 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 the prosecution witnesses and they denied them as false.
(k) On the side of the defence, D.W.1 was examined and 6 documents were marked.
(l) After hearing the submissions made on either side and also on scrutiny of the materials available, the trial Court took a view that the prosecution has proved the case beyond reasonable doubt and found them guilty and awarded punishment as referred to above. Thus, the appeal is filed at the instance of the appellants.
3. Advancing the arguments on behalf of the appellants Mr.A.Ramesh, learned Senior Counsel would submit that in the instant case, according to the prosecution, the occurrence had taken place at about 10.00 a.m. on 05.07.2007 and the gist of the prosecution case was that at that time A.1 attacked the deceased on the front side and A.2 on the back side and when he fell down, not satisfied with the earlier attacked, A.2 stabbed him on his head, as a result of which he died. In the same transaction, P.W.1 was kicked by A.1 and she sustained simple injury. The learned counsel would further point out the evidence of Post Mortem Doctor. As could be seen from the contents of the post mortem certificate Ex.P.7, there are only two injuries found on the head and no more injuries are noticed and hence P.Ws.1 to 4 could not have seen the occurrence at all. The other witnesses who are independent witnesses have not supported the prosecution case. All the witnesses who have spoken about the prosecution case invariably have stated only the prosecution case referred to above. But there are only two injuries noticed on the head by the Doctor and hence they could not have seen the occurrence at all. Insofar as P.W.1 was concerned, she did not sustain any severe injury and she complaint of only pain to the Doctor who had given treatment to her, which is noted in Ex.P.8, Accident Register. Hence, it would be quite clear that the only evidence of P.W.1 that he was attacked again is false.
4. Added further the learned senior counsel in the instant case the occurrence had taken place at about 10.00 a.m. on 05.07.2007, but in all the documents Ex.P.1 complaint, Ex.P.9, FIR and other corresponding documents viz., Observation Mahazaar, inquest report and documents relating to registration of the case, the time of occurrence has been corrected as 12.00’o clock.
5. Added further, the learned senior counsel pointing out the statement recorded by the Judicial Magistrate, Ariyalur that the documents were corrected and all would clearly indicate that the documents have been created to the advantage of the prosecution and the occurrence could not have taken place at the time as putforth by the prosecution, but at a different time. While there were so many independent witnesses available and also examined before the Court, no one had supported the prosecution case. The evidence of all the four witnesses P.Ws.1 to 4 viz., Wife, father-i- law and the sisters of the deceased respectively, would clearly indicate that they came with versions in order to implicate the appellants/accused who were innocents and in view of previous enmity which prevailed and under such circumstances, they are entitled for acquittal.
6. Added further, learned senior counsel, in the second line of argument that P.Ws.1 to 4 were actually sitting on the other side of the road, when according to P.W.1, she noticed A.1 and A.2 actually attacking him, as that of happened earlier, and she had no occasion to notice such an occurrence. It is the own case of the prosecution that both the accused armed with sticks when they came to the spot which would clearly indicative that they should have picked up sticks which were lying near by, and it should have been preceded by a quarrel and there was no need for them to pick up the sticks to attack him.
7. Added further, the motive which is attributed to the accused was actually as to the incident which took place six months prior to the occurrence. Hence, it cannot be stated to be a reason which would have provoked the accused appellants and thus all these would clearly be indicative of the fact that there should have been quarrel at the place where all of them were standing, as a result of which they picked up sticks at the spur of the moment and attacked and hence, the act of the accused would not attract the penal provision of murder. Therefore, the learned Senior Counsel would submit that the Judgment of the trial Court has got to be set aside and prayed for acquittal of the accused.
8.Heard the learned Additional Public Prosecutor on the above contentions.
9.The Court has paid its anxious consideration on the rival submissions made.
10. It is not in controversy that one Siva @ Sivakumar husband of P.W.1 pursuant to the incident that took place at about 10.00 a.m. on 05.07.2007 met his end. Following the registration of the case, P.W.14 took up the investigation and after preparation of the inquest report the dead body was subjected to Post Mortem by P.W.12 Doctor, who gave his categorical opinion that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained by him, and hence without any impediment, it could be factually recorded so.
11. In order to substantiate the charges levelled against the appellants accused, the prosecution examined four eye witnesses out of whom P.W.1 was an injured witness. It is well settled principle of law that in a case where one of the witnesses happened to be the injured witness, the Court should not discard that evidence unless a strong circumstance is noticed or reason is brought about. In the instant case, P.W.1 herself went to the police station and gave a complaint Ex.P.1, following which the case came to be registered directly and as she sustained injury, she was sent for medical treatment to the Government hospital where she was given treatment by P.W.13 Doctor. He has also prepared Accident Register Ex.P.8.
12. Now the contention putforth by the learned counsel for the appellants that no external injury was noticed and hence the complaint made by her that she was also attacked at the time of occurrence cannot be accepted as the Court is unable to see the merit. On scrutiny the Court is satisfied that she is actually a witness to the occurrence. Further, the ocular testimony projected tnrough P.Ws.1 to 4 stood corroborated by medical evidence. In the instant case both the accused were arrested and on giving voluntary confessional statements from both of them material objects were recovered which would indicate the involvement of the accused with the crime and thus the prosecution had sufficient evidence to indicate that the accused under such circumstances had caused the death.
13. Insofar as the second line of the argument is concerned, the Court is able to see force in the contention of the learned counsel for the appellants. In the instant case, the Court could see the motive attributed to the accused which was just prior to six months of the occurrence. It is not the case of the prosecution or the evidence of P.W.1 that during this period of six months there was any incident that had taken place, But on the date of occurrence, according to P.W.1, P.Ws.1 to 4 were standing on the other side of the road, when the attack was going on and P.W.1 had noticed the same and rushed there, where she was kicked by A.1. Now at this juncture, it is pertinent to point out that according to prosecution at the time of occurrence A.1 and A.2 attacked the deceased both from the front and back and when he fell down A.2 stabbed him on his head. If it is to be so, there should have been injuries on the front and back. But the post mortem certificate reveals that only two injuries were noticed and they were on the head. Thus both on the front and back of the deceased there were no injuries noticed. Thus it is clear that this first part of occurrence P.Ws.1 to 4 have not witnessed at all and under such circumstances it would clearly be indicative that there should have been a quarrel between them because the accused were in the circumstances one side and the deceased on the other side, which should have been culminated in the attack by both the accused.
14. It is not the case of the prosecution that both the accused have come with sticks to the place of occurrence. P.Ws.1 to 3 witnessed that they picked up sticks from the place of occurrence and all would clearly be indicative that there should have been quarrel between them as a result of which accused have picked up sticks and attacked him. Under such circumstances in the considered opinion of the Court, the act of the accused cannot be intentional and cannot be termed as Murder, but culpable homicide not amounting to murder, attracting the penal provision of 304 Part I r/w 34 IPC and awarding punishment of 7 years RI would meet the ends of justice.
15.Hence, the judgment of conviction and sentence imposed by the lower court on the appellants is modified and instead, the appellants are found guilty and convicted under Section 304 (Part I) r/w 34 IPC and they are sentenced to undergo 7 years RI. The period of sentence already undergone by the appellants is ordered to be given set off. The fine imposed by the trial Court will hold good. The conviction and sentence imposed by the trial Court in respect of other charges are confirmed.
16. With the above modification, the criminal appeal is disposed of.
rg
To
1. Principal District and Sessions Judge, Perambalur
2. Inspector of Police,
Meensurutti Police Station,
Ariyalur District
3. The Public Prosecutor,
High Court,
Madras