{"id":123997,"date":"2007-03-30T00:00:00","date_gmt":"2007-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ganesan-vs-state-rep-by-the-on-30-march-2007"},"modified":"2015-06-07T10:26:42","modified_gmt":"2015-06-07T04:56:42","slug":"ganesan-vs-state-rep-by-the-on-30-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ganesan-vs-state-rep-by-the-on-30-march-2007","title":{"rendered":"Ganesan vs State Rep. By The on 30 March, 2007"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Ganesan vs State Rep. By The on 30 March, 2007<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 30\/03\/2007\n\nCORAM:\nTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAM\nand\nTHE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR\n\nCrl.A.(MD) No.872 of 2004\n\nGanesan\t\t..  Appellant\n\n\t  vs.\n\nState Rep. by the\nInspector of Police,\nVellianai Police Station,\nKarur District.\nCrime No.69 of 2003\t..   Respondent\n\n\tCriminal Appeal filed under Section 374   Cr.P.C against the Judgment of\nconviction and sentence dated 22.6.2004 made in S.C.No.13 of 2004 on the file of\nthe Sessions Judge, Karur.\n\n!For appellant  : Mr. M.Patturajan\n^For respondent : Mr.S.P.Samuel Raj\n \t\t  Addl.Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n<p>(Judgment of the Court was made by M.CHOCKALINGAM, J)<br \/>\n\tChallenging the judgment of the Court of Sessions Division, Karur dated<br \/>\n22.6.2004 made in S.C.No.13 of 2004, whereby the sole accused\/appellant stood<br \/>\ncharged, tried and found guilty of the offence under Section 302 IPC and<br \/>\nsentenced to undergo life imprisonment along with a fine of Rs.1000 and default<br \/>\nsentence.\n<\/p>\n<p>\t2. The short facts necessary for the disposal of the appeal can be stated<br \/>\nthus:\n<\/p>\n<p>\tPW.1 is the son of the deceased.  The deceased was a cattle broker.  He<br \/>\npurchased a buffalo for the father of the accused and handed over the same but<br \/>\nsubsequently, it was not found worthy.  Then, he wanted to sell it back.  It was<br \/>\nalso resold by the deceased but the consideration could not fetch the amount for<br \/>\nwhich it was purchased and hence, the family people were aggrieved over the<br \/>\nsame.  On the date of occurrence that was on 3.5.2003 at about 9.00 a.m., the<br \/>\nmother of the accused one Thangammal and the  mother of the deceased viz.,<br \/>\nNallammal got a quarrel and the deceased interfered and beat Thangammal, the<br \/>\nmother of the accused.  After some time, on the same day of occurrence at about<br \/>\n12.00 noon, when the accused came back to his house, he was informed about the<br \/>\nentire incident by Thangammal.  Immediately, the accused came over with a wooden<br \/>\npart of a spade to the deceased, who was sleeping in a thatched shed, and<br \/>\nattacked the deceased on his head.  Immediately, he ran away from the place of<br \/>\noccurrence.  PW.1 and PW.6 took him to the Government Hospital, Karur and<br \/>\ntherefrom, he was taken to the Government Hospital, Trichy.  When he was on his<br \/>\nway, he died and he was declared died in the Government Hospital, Trichy and the<br \/>\noccurrence was witnessed by PW.1 and PW.3.\n<\/p>\n<p>\t(b) PW.1 went to the respondent police station and gave a report to PW.19,<br \/>\nthe Head Constable at about 12.40 p.m. and on the strength of the same, a case<br \/>\ncame to be registered in Crime No.69\/2003 under Section 307 IPC, originally, and<br \/>\nF.I.R.16 was despatched to the Court.\n<\/p>\n<p>\t(c) PW.20 took up investigation, proceeded to the spot, made an inspection<br \/>\nand prepared an Observation Mahazar Ex.P.6 in the presence of witnesses and<br \/>\nprepared Rough Sketch Ex.P.17 and on the intimation of death of the deceased,<br \/>\nthe case converted into one under Section 302 IPC.  Ex.P.18 Section altered<br \/>\nF.I.R. was despatched to the Court.\n<\/p>\n<p>\t(d) On receipt of copy of the altered F.I.R, PW.22 took up investigation,<br \/>\nproceeded to the scene of occurrence and made an inspection.  He conducted<br \/>\ninquest on the dead body of the deceased in the presence of witnesses and<br \/>\npanchayatdars.  He prepared an Inquest Report Ex.P.20 and forwarded a<br \/>\nrequisition for the purpose of conducting post-mortem.\n<\/p>\n<p>\t(e) On receipt of the requisition, On 4.5.2003, PW.11, the Doctor,<br \/>\nattached to Karur Government Hospital, conducted autopsy on the dead body of the<br \/>\ndeceased and he found injuries as described in the Post-Mortem Certificate,<br \/>\nissued by him.  Ex.P.4 is the Post Mortem Certificate, wherein the Doctor PW.11<br \/>\nhas opined that the deceased would appear to have died of shock and haemorrhage<br \/>\ndue to head injury.\n<\/p>\n<p>\t(f) Pending investigation, the accused was arrested on 3.5.2003 at about<br \/>\n11.15 p.m. and he gave a confessional statement in the presence of witnesses and<br \/>\npursuant to his confessional statement, a wooden part of the spade (MO.1) was<br \/>\nrecovered under cover of Mahazar Ex.P.10.  All the material objects recovered<br \/>\nfrom the scene of occurrence and from the dead body were subjected to chemical<br \/>\nanalysis, which resulted in two reports viz., Chemical Analysis Report, Ex.P.13,<br \/>\nand Serological Report, Ex.P.14.\n<\/p>\n<p>\t(g) On completion of the investigation, the Investigating Officer filed<br \/>\nfinal report against the appellant\/accused.  The case was committed to the Court<br \/>\nof Sessions and necessary charge was framed against the accused.\n<\/p>\n<p>\t3. In order to substantiate the charge levelled against the accused, the<br \/>\nprosecution examined  22 witnesses, marked 20 documents and 6 MOs.  On<br \/>\ncompletion of the evidence on the side of the prosecution, the accused was<br \/>\nquestioned under Section 313 Crl.P.C. as to the incriminating circumstances<br \/>\nfound in the evidence of the prosecution witnesses.    No defence witness was<br \/>\nexamined. However, Ex.D.1 was marked on the  side of the defence. After hearing<br \/>\nthe arguments advanced by both sides, the trial Judge found the<br \/>\nappellant\/accused guilty of the offence under Section 302 IPC and awarded<br \/>\npunishment as stated above.  Hence, the appeal, at the instance of the accused.\n<\/p>\n<p>\t4. Advancing his arguments, learned counsel for the appellant would submit<br \/>\nthat in the instant case, the prosecution examined 9 eye-witnesses, out of whom,<br \/>\n8 and 9 were independent witnesses and they have  turned hostile.  The evidence<br \/>\navailable to the prosecution are the evidence of close relatives to each other<br \/>\nand their evidence if carefully scrutinised, will not stand the scrutiny of test<br \/>\nand hence their evidence cannot be accepted.  Apart from that, there are a lot<br \/>\nof discrepancies as to the material particulars.\n<\/p>\n<p>\t5. Learned counsel would further add that, according to the prosecution,<br \/>\nthe motive attributed is that, two months prior to the occurrence, the deceased<br \/>\npurchased a buffalo for the father of the accused and it was handed over to him<br \/>\nand the accused found it to be not worthy enough and he asked the deceased to<br \/>\nresale it and, accordingly, it was resold it but it fetched lesser<br \/>\nconsideration, for which, the family members of the accused were on inimical<br \/>\nterms with the family members of the deceased.  Thus, it seems the motive, even<br \/>\naccording to the prosecution, is  too remote.\n<\/p>\n<p>\t6. The learned counsel would further add that on the date of occurrence,<br \/>\nat about 9.00 a.m., there was an incident in which the mother of the accused,<br \/>\none Thangammal was beaten by the deceased pursuant to the quarrel between the<br \/>\nwomen folks.  It is pertinent to point out that Thangammal went to the police<br \/>\nstation, and a medical memo was issued to her and she went to the Government<br \/>\nHospital and had treatment but the prosecution has neither produced the<br \/>\ncomplaint given by her nor any document from the Government Hospital.  In the<br \/>\ninstant case, it was the accused, who produced Ex.D.1, medical memo given to the<br \/>\nmother of the accused, Thangammal and she went over for treatment. The earliest<br \/>\nFirst Information Report, as could be seen from the materials available, was<br \/>\nsuppressed by the prosecution.   According to the prosecution case, the<br \/>\noccurrence had taken place at about 12.00 noon and the deceased was taken to the<br \/>\nGovernment Hospital, Karur and thereafter, he was taken to the Government<br \/>\nHospital, Trichy where he was declared dead.  At this juncture, it is pertinent<br \/>\nto point out that, originally, a case came to be registered in Crime No.69\/2003<br \/>\nunder Section 307 IPC but, at about 12.40 p.m, the section of case was altered<br \/>\ninto one of Section 302 IPC.\n<\/p>\n<p>\t7. In the instant case, the evidence of the eye-witnesses are not<br \/>\nbelievable and the evidence of PW.1 could not be believed.  Even as per the<br \/>\nprosecution, there was an incident at about 9.00 a.m. on the date of occurrence<br \/>\nin which Thangammal, the mother of  the accused was beaten and at the moment,<br \/>\nwhen the accused came by 12.00 noon, he was informed of the incident, being<br \/>\nprovoked by the incident in which the mother of the accused was attacked, he<br \/>\nattacked the deceased with a wooden part of a spade and that is also an<br \/>\nindicative of the fact that there was no intention to kill him or to cause him<br \/>\nsuch injuries, which are in the ordinary course, would cause death.  Hence, the<br \/>\nact of the accused would not attract the penal provisions of murder but it would<br \/>\nattract the provisions of Section 325 IPC, which has also got to be considered<br \/>\nby this Court.\n<\/p>\n<p>\t8. The Court paid its anxious consideration on the submissions made by<br \/>\neither side and also perused the recorded evidence, both oral and documentary.\n<\/p>\n<p>\t9. It is not a fact in controversy that one Arumugam, father of PW.1<br \/>\nfollowing the incident on the date of occurrence died as put-forth by the<br \/>\nprosecution and the case case registered, originally, under Section 307 IPC and<br \/>\non his death, it was converted into one of Section 302 IPC and after getting a<br \/>\ncopy of the F.I.R., the Investigating Officer, proceeded to the scene of<br \/>\noccurrence, made an inspection and also conducted inquest on the dead body of<br \/>\nthe deceased in the presence of witnesses and panchayatdars and prepared an<br \/>\nInquest Report and the dead body was also subjected to Post-Mortem by the Doctor<br \/>\nPW.11 and he issued Post-Mortem Certificate Ex.P.4 wherein he has opined that<br \/>\nthe deceased would appear to have died of shock and haemorrhage due to injury on<br \/>\nthe head.  Apart from that, the accused had never questioned the fact that the<br \/>\ndeceased died out of homicidal violence at any stage of the proceedings before<br \/>\nthe lower Court.  Thus, without any difficulty, the Court can record that the<br \/>\ndeceased died out of homicidal violence and recorded so.\n<\/p>\n<p>\t10. In order to substantiate the case of the  prosecution that it was the<br \/>\naccused who attacked the deceased with a wooden part of a spade on the head of<br \/>\nthe deceased and gave such injuries, which were direct consequence of the death,<br \/>\nthe prosecution examined 9 eye-witnesses, out of whom, as rightly pointed out,<br \/>\nPW.8 and PW.9 turned hostile.  The eye-witnesses are inter se related to the<br \/>\ndeceased.   Merely, because the eye-witnesses are relatives, their evidence<br \/>\ncannot be discarded but their evidence has got to be looked into with a great<br \/>\ncare and caution and the Court is mindful of the said principle of law.  After<br \/>\nsuch test, the Court is satisfied that the evidence of these witnesses has got<br \/>\nto be accepted.  All the         eye-witnesses, according to them, at the time<br \/>\nof occurrence, were nearby sitting and chatting with each other and the deceased<br \/>\nwas sleeping in a thatched shed. At that time, the accused attacked the deceased<br \/>\nwith a wooden part of a spade.  Immediately, all of them chased the accused but<br \/>\ncould not catch him.  The accused sped away from the place of occurrence.  The<br \/>\nevidence of all the eye-witnesses remain unshaken despite of cross-examination<br \/>\nby the defence.\n<\/p>\n<p>\t11. It is pertinent to point out that the evidence of these eye-witnesses<br \/>\nstood fully corroborated by the medical evidence and further, it has to be<br \/>\npointed out that the accused has also given a confessional statement and the<br \/>\nadmissible portion of the same was marked as Ex.P.8.  Insofar as extra-judicial<br \/>\nconfessional statement given to PW. 13, V.A.O., before accepting the same, the<br \/>\nCourt has to apply the following tests:\n<\/p>\n<p>\t(a) firstly to whom, it is made.\n<\/p>\n<p>\t(b) secondly, whether such confession inspires \tthe confidence of the<br \/>\nCourt.\n<\/p>\n<p>\t(c) thirdly, whether the narration of the    \tincident is what the case<br \/>\nof the prosecution.\n<\/p>\n<p>If these three tests are applied, the Court is satisfied, the extra-judicial<br \/>\nconfessional statement given to the V.A.O. PW.13 is believable and has to be<br \/>\nacted upon.\n<\/p>\n<p>\t12. Yet another circumstance against the accused is the recovery of M.O.1<br \/>\nweapon pursuant to the confession in the presence of the witnesses and the<br \/>\nevidence in that regard also remain unshaken.  Thus, the recovery of the<br \/>\nmaterial object viz., weapon of the crime pursuant to the confession would be<br \/>\npointing to the nexus of the accused with the crime.  Thus, the direct evidence<br \/>\nis fully corroborated with the medical evidence.  Apart from that, there is<br \/>\nextra judicial confessional statement pointing to the complicity of the accused<br \/>\nwith the crime.\n<\/p>\n<p>\t13. The contention put-forth by the learned counsel for the appellant that<br \/>\nit is highly doubtful whether Ex.P.1 is the First Information, the Court is<br \/>\nunable to agree with the same.  In the instant case, originally, the First<br \/>\nInformation was given by PW.1 and on the strength of which, a case was<br \/>\nregistered, originally, for the offence under Section 307 IPC and thereafter,<br \/>\nthe case was altered to one under Section 302 IPC on receipt of the death<br \/>\nintimation and amended F.I.R was also sent to the Court.  It is pertinent to<br \/>\npoint out that, had the contention of the learned counsel true, there was no<br \/>\nimpediment for the police to directly register the case under Section 302 IPC<br \/>\nand there was no necessity for the police to register a case under Section 307<br \/>\nIPC and subsequently altering to Section 302 IPC.  As could be seen, available<br \/>\nmaterials are indicative of the fact that Ex.P.1 is the earliest document, which<br \/>\nwas, originally, registered under Section 307 IPC and only on the death of the<br \/>\ndeceased, the case was altered to Section 302 IPC.  Hence, the Court is unable<br \/>\nto notice any fault or any infirmity in the prosecution case in this regard.<br \/>\nThus, the contention put-forth by the learned counsel for the appellant has got<br \/>\nto be rejected.\n<\/p>\n<p>\t14. Insofar as the second line of argument that the even if the<br \/>\nprosecution has proved the case against the accused, the act of the accused<br \/>\nwould not attract the penal provisions of murder, the Court is able to see<br \/>\nsufficient force in the contention of the learned counsel.  On the date of<br \/>\noccurrence, at about 9.00 a.m., one Thangammal, the mother of the accused was<br \/>\nbeaten by the deceased when other persons were also present and in this regard,<br \/>\nshe was also issued a medical memo by the police station and the accused has<br \/>\nproduced the same, which was marked as Ex.D.1.  Apart from that reading of the<br \/>\nF.I.R reveals that that there was an incident in which Thangammal, the mother of<br \/>\nthe accused was beaten by the deceased and at about 12.00 noon on the same day,<br \/>\nwhen the accused came to his house, he was informed about the incident.<br \/>\nNaturally, he got provoked and he went to the spot with a wooden spade and<br \/>\nattacked the deceased.  Had it been his intention to cause death, he would have<br \/>\nattacked with the spade but he had not done so.  It is also well within the<br \/>\nknowledge of the accused that weapon of the crime could cause death.  Under the<br \/>\ncircumstances, the act of the accused would not attract the penal provisions of<br \/>\nmurder but would attract the provisions of 304 (Part II) of IPC.\n<\/p>\n<p>\t15. For the reasons stated above, the finding of the lower Court terming<br \/>\nthe act of the accused as murder under Section 302 of IPC is modified to one of<br \/>\nSection 304 (Part II) of IPC and the accused\/appellant is sentenced to undergo<br \/>\nfive years Rigorous Imprisonment.  The fine amount paid under Section 302 IPC is<br \/>\nto be treated as fine under Section 304 (Part II) of IPC.  The period of<br \/>\nsentence already undergone by the accused\/appellant is ordered to be given set<br \/>\noff.\n<\/p>\n<p>\t16. In the result, with the above modification, the appeal is dismissed.\n<\/p>\n<p>asvm<\/p>\n<p>To<\/p>\n<p>1.The Sessions Judge,<br \/>\n  Karur.\n<\/p>\n<p>2.Inspector of Police,<br \/>\nVellianai Police Station,<br \/>\nKarur District.\n<\/p>\n<p>3.The Additional Public Prosecutor,<br \/>\n  Madurai Bench of<br \/>\n  the Madras High Court,<br \/>\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Ganesan vs State Rep. By The on 30 March, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30\/03\/2007 CORAM: THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Crl.A.(MD) No.872 of 2004 Ganesan .. Appellant vs. State Rep. by the Inspector of Police, Vellianai Police Station, Karur District. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-123997","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Ganesan vs State Rep. 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