Sindy v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-10-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRIMINAL APPEAL No.355 of 2009Sindy..Appellant ..vs..State byInspector of Police,Kothagiri Police Station,Nilgiris District.(Crime No.419 of 2007)..RespondentCriminal Appeal filed under Section 374(2) of CriminalProcedure Code, against the judgment of the learned Sessions Judge,Nilgiris at Udhagamandalam, made in S.C.No.36 of 2007, dated21.09.2007.For Appellant : Mr.S.Swamidoss ManokaranFor Respondent : Mr.Babu Muthu Meeran, A.P.P.,JUDGMENT(Judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Principal SessionsDivision, Nilgiris at Udhagamandalam, made in S.C.No.36 of 2007,whereby the sole accused stood charged, tried and found guilty underSection 302 I.P.C.and awarded the life imprisonment.2. Short facts necessary for the disposal of the appeal canbe stated thus:(a) P.W.1 is the son of the deceased. The accused and P.W.3 arethe brothers of the deceased Ayyasami. They all belonged to Irulacommunity and are the residents of Sundapatti. They partitionedtheir garden land. The Electricity Board erected three poles in theland on the land of the accused and one pole in the land of theaccused. Hence, the deceased gave a petition to the authorities ofthe Electricity Board for compensation. At that time, the accused andthe deceased were quarreling as to the claim of compensation. On https://hcservices.ecourts.gov.in/hcservices/

07.08.2006 at about 3.30 PM., when P.W.1 and his mother P.W.2 alongwith others were sitting at the pial of the house, the accusedquarreled with the deceased and cut him with a knife on his mastoidregion. It was witnessed by P.Ws.1 and 2 and others also came onhearing the distressing cry of the deceased and the accused ran awayfrom the place of crime. Immediately P.W.s.1, 3 and 4 took him to theNilgiris Adivasi Welfare Association Hospital, Kozhikkarai, whereP.W.8, the doctor on duty, immediately attended him at 4.15 PM and henoted the injuries in the case sheet given by him marked as Ex.P-9.(b) On receipt of the information, P.W.10, the Sub Inspector ofPolice, Kotagiri, rushed to the hospital and recorded the statementof P.W.1, which is marked as Ex.P-1, since the deceased wasunconscious. P.W.10 returned to the police station and registered acase in Crime No.419 of 2006 under Sections 324 and 506(ii) IPC andthe first information report, which is marked as Ex.P-12, was sent tothe Court. The Sub-Inspector examined all the witnesses and recordedtheir statements. Despite the treatment, Ayyasami died on 08.08.2006and an intimation was given to the police and the amended firstinformation report was despatched to the Court.(c) P.W.11, the Inspector of Police, proceeded to the spot, madean inspection, prepared an observation mahazar Ex.P-3 and also sketchEx.P-14 and has also caused photographs to be taken through P.W.7 andthe photographs are marked as Ex.P-8 series. He also recovered M.Os.2and 3, blood stained earth and sample earth under the cover ofmahazar Ex.P-4 and M.O.4 under the cover of Ex.P-5 mahazar. Thenthe investigator conducted inquest on the dead body of Ayyasami inthe presence of witnesses and panchayatdars and Ex.P-15 is theinquest report. Thereafter, he sent the dead body to the hospitalfor the purpose of post-mortem along with his requisition.(d) On receipt of the said requisition, P.W.9, doctor attachedto the Kotagiri Government Hospital, conducted autopsy on the deadbody of Ayyasamy and gave a post-mortem certificate, Ex.P-11 whereinshe opined that the deceased would appear to have died due to vitalorgan injury (brain) and severe haemorrhage and shock. (e) Pending investigation, the accused was arrested on09.08.2006 in the presence of P.W.6 and other witnesses and he gave aconfessional statement and the admissible portion is marked as Ex.P-6. Pursuant to which, he produced M.O.1 which was recovered under thecover mahazar Ex.P-7 and he was sent for judicial remand. P.W.11sent the material objects for chemical analysis and pursuant towhich, the analysis report Ex.P-18 and the serology report Ex.P-19were actually received by the Court and on completion ofinvestigation, P.W.11 filed the final report against the accusedunder section 302 I.P.C. https://hcservices.ecourts.gov.in/hcservices/ (f) The case was committed to the Court of Session, Nilgiris atUdhagamandalam and necessary charge was framed. In order tosubstantiate the charge, the prosecution examined 11 witnesses andalso relied on 19 exhibits and 4 material objects. On completion ofthe evidence on the side of the prosecution, the accused wasquestioned under Sec.313 of Cr.P.C. as to the incriminatingcircumstances found against him in the evidence of prosecutionwitnesses, which he flatly denied as false. No defence witness wasexamined. The trial Court heard the arguments advanced andscrutinized the materials. On doing so, the trial Judge took theview that the prosecution has proved the case beyond reasonable doubtand found the appellant/accused guilty and awarded the punishment oflife imprisonment, which is the subject matter of challenge beforethis Court.3. Advancing arguments on behalf of the appellant, the learnedCounsel would submit that P.W.1 is the son and P.W.2 is the neighbourof the deceased and thus, they are the interested witnesses; that itis admitted that the deceased and the accused had actually beenquarreling all along; that so far as P.W.2 was concerned, he has alsotaken a partisan attitude and in so far as the other witnesses, afterhearing the noise only, they came to the place and thus, they couldnot speak about the occurrence; that originally when he was taken tothe hospital, it was not mentioned to the private doctor P.W.8 as towho attacked him and in the instant case, the medical opinioncanvassed was not in favour of the prosecution; that the doctor whogave the initial treatment has categorically admitted in the crossexamination that the injuries found on the skull could be possibleby a fall on a sharp edged object; that the alleged confession andalso the recovery of M.O.1 were all cooked up for the prosecution andthat they are the fabricated documents and thus, the prosecution hasmiserably failed to prove the case. 4. Further, on the second line of arguments, the learned counselwould submit that even assuming that the prosecution has proved thefactual position that it was the accused who caused his death, in theinstant case, the act of the accused would not attract the penalprovision of murder; that according to P.Ws.1 to 3, there was aquarrel at the time of incident and in a hit of passion, the accusedcould have committed the act and though it was done with theknowledge, he had no intention to cause the death and thus, it wouldnot attract the penal provision of murder and that withoutconsidering the above aspects of the matter, the trial court hastaken an erroneous view and hence he is entitled for acquittal.5. The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. https://hcservices.ecourts.gov.in/hcservices/

6. It is not in controversy that one Ayyasamy, the father ofP.W.1, following an incident that had taken place at Sundapatti on07.08.2006 at about 3.30 PM, was taken to the Nilgiris AdivasiWelfare Association Hospital, Kotagiri and thereafter, he was takento the Government Headquarters Hospital, Nilgiris, where he died on08.08.2006. Originally the case was registered by P.W.10, the SubInspector of Police, in Crime No.419 of 2006 under sections 324 and506(ii) I.P.C. and on his death, the case was converted into section302 I.P.C. The Inspector of Police had taken up the furtherinvestigation of the case and after conducting the inquest, the deadbody was subjected to post-mortem by P.W.9, who has given acategorical opinion, as a witness before the Court and through thecontents of the post-mortem certificate, Ex.P-11 that he had died ofvital organ injuries sustained by him. The learned counsel, byinviting the attention of this Court to the fact that while P.W.8,who gave the initial treatment, was cross examined by the appellantbefore the trial Court, he had given an opinion that the injuriescould have been caused by falling on a sharp edged stone, hadcontended that the said medical opinion, which was not in favour ofthe prosecution, cannot be countenanced even for a moment, for thesimple reason that the injuries found on the head of the deceased, ascould be evident from the post-mortem certificate Ex.P-11, wereincised wounds. Therefore, in the above stated circumstances, suchwounds could have been caused only by a 'vettu kathi', as put forthby the prosecution. It is true that P.W.1 is the son of the deceased,but merely on the ground of relationship, his evidence cannot bediscarded, rather it has to be scrutinized carefully. P.W.2 is hisneighbour and there is no reason or circumstance to disbelieve theevidence of P.W.2. The evidence of P.W.1 that when he was chattingwith P.W.2 and his mother, the accused came there and attacked hisfather with a vettu kathi was fully corroborated by the evidence ofP.W.2 in one voice. The medical evidence canvassed through the postmortem certificate also stood as a corroborative piece of evidence.Yet another circumstance against the accused is the evidence ofP.W.6, which is about the recovery of M.O.1. According to him, on09.08.2006, the accused came forward to give a confession statementvoluntarily, which was recorded and on the basis of which, M.O.1 wasrecovered under a cover of mahazar Ex.P-7, would be pointing to thenexus of the crime of occurrence. All these things, in the consideredopinion of the court, would be suffice to hold that it was theaccused who had cut him on the skull and head, as a consequence ofwhich, death was caused and hence, the contentions put forward by thelearned counsel for the appellant have to be rejected and,accordingly, they are rejected. 7. In so far as the second line of arguments is concerned, theCourt is of the view that there is some force in the contention. Thedeceased Ayyasamy and the accused are brothers. They divided theirgarden land. Electricity Board erected three poles in the land of thedeceased and one pole in the land of the accused. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, the deceased made a petition to the Electricity Boardfor compensation and on that ground, there were frequent quarrelsbetween the brothers. This is spoken to by all the witnesses and onthe date of occurrence, i.e., on 07.08.2006, when P.Ws.1 and 2 werechatting, the accused came there and both the brothers had quarreledwith each other as usual and P.W.3 had also heard the noise of thequarrel. In a hit of passion, the accused cut him with vettu kathiand caused the injuries. All these things would go to show that theaccused had no intention to cause death and actually, he has acted inthe exchange of words and hit of passion. Under such circumstances,it would not attract the penal provision of murder and instead, itwould come under section 304 Part-I of the Indian Penal Code. In theconsidered opinion of the Court, the punishment of 7 years rigorousimprisonment under the stated circumstances would suffice to meet theends of justice.Accordingly, the conviction and sentence of life imprisonmentunder section 302 IPC awarded by the trial court is modified into oneof 7 years rigorous imprisonment under section 304 Part-I IPC and theperiod already undergone by the accused is ordered to be set off.Criminal appeal is disposed of accordingly.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarglTo1.The Sessions Judge, Nilgiris at Udhagamandalam. 2.-do- Thro' The Principal Sessions Judge, Nilgiris.3.The Inspector of Police, Kothagiri Police Station, Nilgiris District. (Crime No.419 of 2007)4.The Public Prosecutor, High Court, Madras.Copy to : The Section Officer, Criminal Section,High Court, Madras.+ 1 CC to Mr.S.Swamidoss Manokaran,Advocate,SR.55789Crl.A.No.355 of 2009AKR(CO)EM/2.11.09