(Judgment of the Court was delivered by M.CHOCKALILNGAM, J.) Challenge is made to a judgment of the Sessions Division, Udhagamandalam, made in S.C.No.41 of 2008 whereby the sole accused/appellant stood charged under Sec.302 IPC, tried, found guilty as per the charge and awarded life imprisonment.
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the mother of the deceased Mani. P.W.2 is her elder brother. The appellant is the brother-in-law of the deceased. On 9.2.2008 at about 10.00 P.M., the deceased demanded Rs.100/- which he already gave to the accused as a hand loan. There was a wordy altercation. P.Ws.1, 2, 6 and 7 intervened and pacified the situation, and thereafter when the deceased was going out of the house, he was attacked by the accused with a spade on his head twice. The deceased fell down unconscious. This occurrence was witnessed by P.Ws.1, 2, 6 and 7. Immediately, the accused ran away from the place of occurrence.
(b) P.Ws.1 and 2 took him to the nearby private clinic where P.W.12, was the Doctor who gave initial treatment. There was no transport facility during night hours. Hence on the next day at about 10.15 A.M., they took him to the Government Hospital at Gudalur, where P.W.17, the Doctor, found the condition of Mani serious, and on his advice, they took him to the Government Hospital, Udhagamandalam, on the same day. P.W.18, the Doctor, after examining him at about 2.30 P.M., directed them to take him to the Government Hospital, Coimbatore. Accordingly, he was taken to the Government Hospital, Coimbatore, where he was declared dead by the Doctor at about 11.30 P.M.
(c) On intimation, P.W.9, the Head Constable of the respondent police station, proceeded to the Government Hospital, Udhagamandalam, where he came to know that Mani was taken to the Government Hospital, Coimbatore. Then he went over there and recorded the statement of P.W.1 which is marked as Ex.P1. He entrusted the same to P.W.10, the Sub Inspector of Police, who on the strength of Ex.P1, the report, registered a case in Crime No.13 of 2008 under Sec.302 of IPC. Ex.P8 is the printed FIR, which was despatched to the Court.
(d) P.W.15, the Inspector of Police of the circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P12. Then, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14.
(e) Pursuant to the requisition made, P.W.13, the Tutor in Forensic Medicine, Coimbatore Medical College Hospital, conducted autopsy on the dead body of Mani and has given her opinion in Ex.P10, the postmortem certificate, that the deceased would appear to have died of head injury sustained by him.
(f) Pending investigation, the Investigator arrested the accused on 13.2.2008, and he came forward to give a confessional statement. In the presence of witnesses, the same was recorded. The admissible part is marked as Ex.P4, pursuant to which he produced M.O.1, spade, which was recovered under a cover of mahazar. Then he was sent for judicial remand.
(g) All the material objects recovered from the place of occurrence and from the dead body and M.O.1, spade, were subjected to chemical analysis by the Forensic Sciences Department pursuant to a requisition given. Exs.P15 and P16 are the chemical analyst's reports, and Ex.P17 is the serologist's report.
(h) P.W.14, the Inspector of Police, took up further investigation. He examined the witnesses and recorded their statements. P.W.16, the Inspector of Police, who took up further investigation, on completion of the same, filed the final report.
3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 18 witnesses and also relied on 19 exhibits and 1 material object. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence made a judgment of conviction and sentenced him to imprisonment for life, which is the subject matter of challenge before this Court.
4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution has miserably failed to prove its case; that it is true that the prosecution has marched P.Ws.1, 2, 6 and 7 as occurrence witnesses; but, it is pertinent to point out that they are all closely related to the deceased; that it could be seen from the evidence that there are lot of discrepancies on the material particulars, and thus their evidence cannot be said to be worthy which could be relied on by the prosecution; that the medical opinion canvassed by the prosecution through the postmortem Doctor did not corroborate the ocular testimony; that the recovery of M.O.1, spade, following the confessional statement alleged to have been made, was nothing but a subsequent introduction in order to strengthen the prosecution case if possible; and that all put together would clearly indicate that the prosecution has not proved the case beyond reasonable doubt or brought home the guilt of the accused.
5.Added further the learned Counsel in the second line of argument that even according to the eyewitnesses, there was a wordy altercation between the accused and the deceased when the deceased demanded the hand loan of Rs.100/- following which within a short span of time the accused attacked him with the spade, and thus it was due to the sudden quarrel and also in a heat of passion; that under the circumstances, the act of the accused would not attract the penal provision of murder, and it was only culpable homicide not amounting to murder; and that if the Court comes to the conclusion that the factual position put forth by the prosecution has been proved, this has got to be considered by the Court.
6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7.It is not in controversy that one Mani, the son of P.W.1, following an incident that took place at about 10.00 P.M. on 9.2.2008 was taken to the private clinic, and thereafter to the Government Hospital, Gudalur. On advice, he was taken to the Government Hospital, Udhagamandalam, and then to the Government Hospital, Coimbatore, where he was declared dead. Following the registration of the case under Sec.302 IPC and also the preparation of the inquest report, the dead body was subjected to postmortem by P.W.13, the Doctor, who has given her categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that Mani died out of the head injury sustained by him. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court, and hence no impediment is felt in recording so.
8.In order to substantiate that it was the accused who attacked the deceased Mani with the spade at the time and place of occurrence, the prosecution has examined P.Ws.1, 2, 6 and 7 as eyewitnesses. It is true that all these witnesses are closely related to the deceased. At this juncture, a comment was made that their evidence should not be accepted. This Court is of the considered opinion that this contention put forth by the appellant's side has got to be rejected for two reasons. Firstly, as they are related to the deceased, they are all equally related to the accused also. Secondly, law does not impede anywhere not to accept the evidence of the related persons. But, before accepting the same, the Court must exercise the test of careful scrutiny. Even if this test is applied, this Court is thoroughly satisfied that all these eyewitnesses have spoken in one voice that there was a wordy altercation between the accused and the deceased; that the deceased was demanding the hand loan of Rs.100/- from the accused; that it was pacified, but shortly thereafter, the accused took a spade and attacked him on the head, and as a direct consequence the death has ensued. It remains to be stated that the medical opinion canvassed by the prosecution would corroborate the ocular testimony.
9.Yet another circumstance which was against the appellant/accused was the recovery of M.O.1, the weapon of crime, pursuant to the confessional statement given by him following the arrest. A witness has also been examined to these facts. Hence all would clearly indicate the nexus of the crime with the accused. Thus, the contentions put forth by the learned Counsel for the appellant are liable to be rejected and accordingly rejected.
10.Insofar as the second line of argument, this Court is able to see force in the contention put forth. All the eyewitnesses have clearly deposed that at the time just before the occurrence, there was a wordy altercation between the accused and the deceased, and the deceased was demanding the hand loan. It is true that it was pacified. But within a short span of time, due to the quarrel and in a heat of passion, the accused has attacked him with the spade. Under the circumstances, it would be quite clear that it was not an intentional act to cause murder, but it was only due to the sudden quarrel and also in a heat of passion. However, it should have been his intention to cause injuries that would be sufficient in the ordinary course of nature to cause death. Hence, the act of the accused would not attract the penal provision of murder; but, the same in the considered opinion of the Court would attract the penal provision of Sec.304 (Part I) of IPC and awarding punishment of seven years Rigorous Imprisonment would meet the ends of justice.
11.Accordingly, the judgment of the trial Court finding the appellant guilty under Sec.302 IPC and sentencing him to life imprisonment is modified, and instead, he is convicted under Sec.304 (Part I) of IPC and is directed to suffer seven years Rigorous Imprisonment. The sentence already undergone by him shall be given set off.
12.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed.
(M.C.,J.) (V.P.K.,J.) 7-12-2009 Index: yes Internet: yes nsv To:
1.The Sessions Judge Nilgiris at Udhagamandalam
2.The Inspector of Police Neellakottai Police Station Nilgiri District Crime No.13/2008
3.The Public Prosecutor High Court, Madras.
M.CHOCKALILNGAM, J.
AND V.PERIYA KARUPPIAH, J.
nsv CRL.A.No.599 of 2009 Dt: 7-12-2009