Chinnappan alias Karuppusamy v. State, by Inspector of Police, Dharapuram Police Station, Erode District

Bail SlipThe Appellant/Accused Viz., Chinnappan alias Karuppusamy, wasdirected to be released on bail in and by order of this Court dated5.7.2007 made in Crl.M.P.No.1/07.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE K.N.BASHACriminal Appeal No.1110 of 2006Chinnappan alias Karuppusamy... Appellant/ Accusedvs.State, by Inspector of Police, Dharapuram Police Station, Erode District. (Cr.No.216/2006).... Respondent/ ComplainantAppeal against the judgment of the learned Principal SessionsJudge, Erode District dated 24.11.2006 made in S.C.No.132 of 2006.For Appellant:Mr.S.Ashok Kumar, S.C.For Mr.A.K.KumaraswamyFor Respondent :Mr.N.R.ElangoAdditional Public ProsecutorJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)Challenging the legality and correctness of the judgment ofconviction and sentence imposed on the appellant/sole accused inSessions Case No.132 of 2006 by the learned Principal SessionsJudge, Erode, the present appeal has been brought forth before thisCourt.On being tried for an offence of murder, the appellantwas convicted and sentenced to imprisonment for life and was also https://hcservices.ecourts.gov.in/hcservices/ directed to pay a fine of Rs.5,000/-, in default to undergo oneyear rigorous imprisonment.2. The prosecution had put in the challan against theappellant/accused before the Court charging that on 9.4.2006 atabout 6.30 p.m., in a wordy quarrel with regard to a dispute inusing a cart track at Pullankattu Kavuru channel situated betweenthe lands of the appellant and the deceased Palanisamy Gounder,the appellant, with an intention to cause death, hit the deceasedPalanisamy Gounder on his right hand with a weeding spade andafter Palanisamy Gounder fell down, with an aruval, inflictedindiscriminate cut injuries on the head and face, due to which,the deceased died and thereby, committed an offence punishableunder Section 302 I.P.C.3. When initially questioned as to the charge, theappellant/accused denied his complicity and hence, the case wascommitted to Court of Sessions, where charge was framed and ondenial of the same by the accused, case was taken up for trial.In order to substantiate the charge, the prosecution marched 15witnesses, produced 24 exhibits and marked 16 material objects.4. The case of the prosecution, as culled out from theevidence of prosecution witnesses, both oral and documentary, isstated thus:(a) P.W.1 is the son, P.W.3 is the brother's son and P.W.4 isthe son-in-law of the deceased Palanisamy Gounder. All the threewitnesses are projected as eye witnesses to the occurrence.According to their evidence, about six months prior to theoccurrence, a dispute arose between the deceased and the accusedwith regard to a cart track situated in the Pullankattu Kavuruchannel, while the deceased used the same to go to his field,which is adjacent to the land of the accused, the accused objectedto the same stating that the said cart track runs through his landand hence, the deceased has no right to trespass into the same.The matter was taken before the Assistant Engineer, Public WorksDepartment, who after inspecting the spot, directed both of themnot to create further problem and informed the accused not toprevent the deceased to use the said cart track, as the same runsonly on the poramboke land and not on the land of the accused. (b) While so, on the date of occurrence, the deceased, inorder to transport his tractor to his field for the purpose ofploughing, was clearing the cart track with the help of a spade.At that time, the accused came in a cycle and on seeing thedeceased clearing the cart track, he shouted at the deceased byusing filthy words and asked him to stop doing; but the deceased https://hcservices.ecourts.gov.in/hcservices/ did not heed to the words of the accused and continued to do thework. Annoyed by that, the accused, with the weeding spade, whichhe was having in his cycle, inflicted a blow on the right hand ofthe deceased, on receipt of which, the deceased fell down and theweeding spade also had fallen into the water channel. Theaccused, thereafter, took out the billhook from the bicycle andinflicted indiscriminate cut injuries on the head and face of thedeceased. On noticing the attack on the deceased, the witnesses,who were standing at the land of the deceased and talking to eachother, rushed to the spot by shouting not to cut the deceased. Onseeing the witnesses, the accused swirled the billhook and ranaway from the place. The witnesses placed the injured in a carand took him to a private hospital, where P.W.2, doctor, onexamining him, found him dead. Thereafter, the body was broughtback to the house of the deceased.(c) P.W.1 along with P.W.3 proceeded to Dharapuram policestation and lodged a complaint, Ex.P.1, based on which, P.W.13,Sub-Inspector of Police, registered a case in Crime No.216 of 2006against the accused for the offence under Section 302 I.P.C. atabout 11.00 p.m. He prepared printed F.I.R., Ex.P.21 and sent thesame to Court and copies to higher-ups.(d) P.W.5 is the brother's son of the deceased and accordingto him, on the date of occurrence at about 5.00 p.m., he saw thedeceased going in a bicycle towards his field with a crow bar keptat the carrier of the cycle and within half-an-hour, he also sawthe accused going towards the field with a weeding spade andaruval kept in the bicycle.(e) P.W.6 is another son-in-law of the deceased and he is awitness who attested the observation mahazar and seizure mahazarat the scene of occurrence.(f) P.W.7 is a witness, who speaks about the dispute thatexisted between the accused and the deceased. He has stated inhis evidence that the accused complained to him and the AssistantEngineer, P.W.D., that the deceased drove his tractor on the carttrack, due to which, the channel gets damaged, and that he and theAssistant Engineer went to the spot and inspected the same anddirected both of them to resolve the dispute amicably and alsoinformed them that as the cart track runs on the poramboke land,the accused need not prevent the deceased to use the same.(g) P.W.15, the Inspector of Police, on receipt of copy ofprinted F.I.R. at 11.30 p.m., proceeded to the spot and conductedinquest in the presence of panchayatdars and witnesses. Theinquest report is Ex.P.23. At about 6.00 a.m., he examinedwitnesses present at the scene and recorded their statements. He https://hcservices.ecourts.gov.in/hcservices/ observed the spot and prepared observation mahazar, Ex.P.2 andrough sketch, Ex.P.24 attested by witnesses. He recovered M.O.1 -blood-stained weeding spade, M.O.3 - crow bar, M.O.4 - spade withhandle, M.O.5 - blood-stained towel, M.O.6 - pair of chappel,M.Os.7 and 8 - two bicycles and M.Os.11 and 12 - blood-stainedearth and sample earth under a mahazar, Ex.P.3, attested bywitnesses. Thereafter, he sent the dead body to the hospital forpost-mortem.(h) P.W.8 is the photographer who took photographs of the deadbody of the deceased and the scene of occurrence. M.O.13 seriesare the photographs and M.O.14 series are the negatives. P.W.9 isthe Village Administrative Officer and on request, he accompaniedthe police officer, who caused the arrest of the accused andrecoveries at his instance. P.W.9 attested the mahazars preparedby the police officers.(i) P.W.10 is the medical officer, who, on receipt of the deadbody, conducted post-mortem and noticed as many as eight externalinjuries, of which six were incised injuries and he issued Ex.P.8,post-mortem certificate opining as to the cause of death that thedeceased would appear to have died of injury to head and brain dueto shock and haemorrhage about 16 to 24 hours prior to autopsy.(j) P.W.15, continuing with his investigation, arrested theaccused near Dharapuram bus stop and recorded the voluntaryconfession statement given by him. The admissible portion of thesaid statement is marked as Ex.P.4, pursuant to which, M.O.2 -blood-stained billhook and M.Os.15 and 16, blood-stained shirt andlungi were recovered under a mahazar, Ex.P.5, attested bywitnesses. On being produced by P.W.14, the constable who waspresent at the time of post-mortem, under a report, Ex.P.22,M.Os.9 and 10 - dhoti and waist cord, were recovered. Arequisition was issued to Court to forward the material objects tolaboratory for chemical examination. P.W.11 is the magisterialclerk who forwarded the material objects to laboratory on beingrequested by the investigating officer and he received Exs.P.13 toP.16, chemical examiner's reports and serologist's reports.(k) P.W.12 is the successor of the Assistant Engineer, whoinspected the lands of the accused and deceased and resolved thedispute. Through him, the documents relating to the cart trackdispute, viz., Exs.P.17 to P.19, petitions given by the accused tothe Assistant Engineer and Ex.P.20, the order passed on the saidpetitions, were marked. https://hcservices.ecourts.gov.in/hcservices/ (l) P.W.15, after examining the official witnesses andrecording their statements, completed the investigation and laidthe charge sheet against the accused for the offence under Section302 I.P.C. on 17.5.2006.(m) On completion of the examination of prosecution witnesses,the accused was questioned under Section 313 Cr.P.C. as to theincriminating evidence put forth against him and he denied them asfalse. He neither examined any witness nor marked any document onhis side.(n) The trial Court, on the basis of the evidence adduced,both oral and documentary, and on hearing the arguments advancedby the learned counsel on either side, found the appellant guiltyof the charge of murder and accordingly, convicted and sentencedhim as referred to earlier. Exasperated over the same, theaccused has brought forth this appeal.5. The learned senior counsel appearing for the appellantsubmits that the evidence of eye witnesses, P.Ws.1, 3 and 4 cannotbe believed, since they are related to the deceased and hence,interested witnesses and that even if the entire facts of the caseare taken to be true, the offence committed by the appellant willnot fall within the ambit of Section 302 I.P.C. and he is entitledfor the benefit of Exception 1 to Section 300 I.P.C. 6. On the above contention, we have heard the learnedAdditional Public Prosecutor, who submits that the prosecution hassuccessfully established the guilt of the accused beyondreasonable doubt through eye witnesses and the motive part of theoccurrence has also been established and hence, there is noquestion of bringing down the offence under Exception 1 to Section300 I.P.C. and the judgment of conviction and sentence underSection 302 I.P.C. is well-founded, warranting no intereference atthe hands of this Court.7. We heard the rival submissions of both sides and perusedthe entire recorded evidence.8. The cause of death of Palanisamy Gounder stands establishedthrough the evidence of the doctor, P.W.10, who conducted autopsy.According to the doctor, on account of shock and haemorrhage dueto injuries to neck, head and brain, the death would have occurredand that injuries 1 and 2 could have been caused with a weaponlike M.O.1 and other injuries could have been caused with a weaponlike M.O.2. On the medical evidence, we hold that death was onaccount of homicidal violence, which fact stands unrebutted by thedefence. https://hcservices.ecourts.gov.in/hcservices/

9. The points for consideration are:(i) Whether the prosecution has succeeded inestablishing its case against the accused beyondreasonable doubts ? And(ii) Whether the offence committed by the appellant/accused would attract Exception 1 to Section 300 I.P.C. ?10. P.Ws.1, 3 and 4 were examined to speak about the incident,as they witnessed the same. All of them are not only related tothe deceased but also to the accused. The case of the prosecutionis that the appellant/accused was nurturing a grievance againstthe deceased with regard to a cart track situated near theirrespective lands. According to the witnesses, the accused filedpetitions before the Assistant Engineer, Public Works Department,who, after inspecting the spot, found that the said cart trackruns on the poramboke land and not on the accused land andaccordingly, directed both of them to resolve the disputeamicably. Even thereafter, the accused continued his animosityagainst the deceased and used to pick up quarrel with him. Theevidence of the witnesses with regard to the intervention of theofficials of P.W.D. is also corroborated with the evidence ofP.W.7 and P.W.12. Thus, it is evident that there was a clear-cutmotive behind the crime. 11. Further, according to the eye witnesses, on the date ofincident at about 6.30 p.m., when the deceased was clearing thecart track in order to take his tractor to his field for thepurpose of ploughing, the accused came there in a bicycle andshouted at the deceased as to his conduct by uttering filthy wordsand when the deceased did not respond and continued with his work,the accused took out the weeding spade and attacked on his righthand. Again, he inflicted cut injuries with a billhook which hehad in his bicycle and on seeing the witnesses raising alarm, hefled from the scene. The evidence of the witnesses, P.Ws.1, 3 and4 stands unshaken by the lengthy cross-examination. Theirevidence is also supported by the medical evidence. That apart,the presence of the accused at the scene is also fortified by theevidence of P.W.5 who saw the accused going in a bicycle towardshis field immediately after the deceased went there around 5.30p.m. on the date of incident. On going through the evidence of theprosecution witnesses, we find no infirmity to reject theirevidence. In fact, the eye witnesses, P.Ws.1, 3 and 4, as alreadystated, are related not only to the deceased but also to theappellant and they had no reason to give false evidence againstthe appellant. We, on going through their evidence, are satisfiedthat their evidence is cogent, convincing and trustworthy andaccordingly, we hold that it was the appellant who inflicted theinjuries on the deceased, which resulted in his death. https://hcservices.ecourts.gov.in/hcservices/

12. The only question that is to be decided is whether theoffence committed by the accused will fall within the ambit ofSection 302 I.P.C. or will only attract Exception 1 to Section 300I.P.C. As already observed, the accused was harboring a grudgeagainst the deceased with regard to the cart track dispute. Theevidence of P.Ws.1, 3, 4, 7 and 12 clearly establishes the motivepart of the occurrence. On the date of occurrence also, as perthe evidence of P.Ws.1, 3 and 4, eye witnesses, when the deceasedwas cleaning the cart track in order to take his tractor to hisfield for ploughing, the accused came in a bicycle having weedingspade and billhook in the carrier and on seeing the deceasedcleaning the cart track, got annoyed and shouted at him by usingunparliamentary words. He questioned the deceased as to why he istilling his field, for which there was no response from thedeceased. Enraged by the action of the deceased, the accused, inthe momentary face of insanity, attacked the deceased on his righthand with the weeding spade which he had in his hand, pursuant towhich, the weeding spade fell into the water and the accused,thereafter, took the billhook from the cycle and inflictedindiscriminate cut injuries on the deceased, which resulted in hisdeath. It is not the case of the prosecution that the accused,only in order to commit the murder of the deceased, had broughtthe weapons; on the contrary, he being an agriculturist, billhookand weeding spade are his tools and there is nothing unnatural inhis carrying them. 13. It is to be noted that even though the witnesses had notclearly spoken to the exact manner in which the wordy quarrel tookplace at the spot, as they were at a distance of 250 feet away,the confession statement given by the accused to the policeofficer after his arrest, discloses that the accused asked thedeceased as to why he was tilling in his land, but the deceased,without responding to the same, continued to do the work and thus,piqued at the act of the deceased, the accused committed thecrime. We are aware that only such portion of the confessionstatement given by the accused to the police which led to therecovery of a material object is admissible in evidence as perSection 27 of the Indian Evidence Act. But, the Apex Court by acatena of decisions held that in the interest of justice it ispermissible to look into the confession recorded under Section 27of the Indian Evidence Act from the accused in order to decide thenature of offence committed by the accused.14.1. In Aghnoo Nagesia V. State of Bihar (AIR 1966 SC 119) ithas been observed :-“Now, a confession may consist of several parts and mayreveal not only the actual commission of the crime butalso the motive, the preparation, the opportunity, theprovocation, the weapons used, the intention, the https://hcservices.ecourts.gov.in/hcservices/ concealment of the weapon and the subsequent conduct ofthe accused. If the confession is tainted, the taintattaches to each part of it. It is not permissible inlaw to separate one part and to admit it in evidence asa non-confessional statement. Each part discloses someincriminating fact, i.e., some fact which by itself oralong with other admitted or proved facts suggests theinference that the accused committed the crime, andthough each part taken singly may not amount to aconfession, each of them being part of a confessionalstatement, partakes of the character of a confession. If a statement contains an admission of an offence, notonly that admission but also every other admission ofan incriminating fact contained in the statement ispart of the confession”.…………… Little substance and content would be left inSs.24, 25 and 26, if proof of admissions ofincriminating facts in a confessional statement ispermitted.“Some of the decided cases took the view that if a partof the report is properly severable from the strictconfessional part, then the severable part could betendered in evidence. We think that the separabilitytest is misleading, and the entire confessionalstatement is hit by S.25, and save and except asprovided by S.27, and save and except the formal partidentifying the accused as the maker of the report, nopart of it could be tendered in evidence.”The above decision has been reiterated by the Apex Court inKhatri Hemraj Amulkah V. State of Gujarat (AIR 1972 SC 929).14.2. This Court also by placing reliance on the decisionscited supra, has taken a similar view in the following decisions:-1.Ganesan, In re (1973 L.W.(Cri.) 42);2.CHANDRAN, IN RE reported in 1988 L.W.[Crl.] 113;3.MUTHUSWAMY V. STATE reported in 1994 (1) L.W.(Crl.) 44 ; and4.VAIRAMUTHU V. STATE reported in 1996 (1) L.W.(Crl.) 9.14.3. According to the above decisions (of this Court and theHon'ble Apex Court), the only portion of the statement, whichcould be admitted is the initial portion that the accused was https://hcservices.ecourts.gov.in/hcservices/ making, which would not be of any use to the prosecution; butthere is no bar to the accused using the statement in his favour –see also Mottai Theva, In re [(1951) 2 M.L.J. 605].14.4. It is also apt to refer the decision in SANKARLAL ALIASSANKARAYEE V. STATE reported in 1989 L.W. (Crl.) 468, wherein aDivision Bench of this Court has held that the term 'self-control'in Section 300 I.P.C. is a subjective phenomenon and it can beinferred from the surrounding circumstances of a given case. Inorder to find out whether the last act of provocation upon whichthe offender caused the death was sufficiently grave as to deprivehim of the power of self-control, we have to take intoconsideration the previous act of provocation caused by thedeceased person.15. As already stated, from the above evidence of P.Ws.1, 3and 4, eye witnesses, it can be inferred that only on gettingannoyed by the non-response of the deceased when the accusedshouted at him, the accused, in the momentary face of insanity,lost his self-control and in a fit of anger, committed the crime.But, at the same time, we find that the accused had an intentionto commit the murder of the deceased, as he was having a grudgeagainst him with respect to the using of cart track by thedeceased. Therefore, we have no hesitation to hold that in view ofthe above said admitted facts, the accused is liable to beconvicted only for the offence under section 304 Part-I I.P.C. andaccordingly, he is convicted and for the said conviction, weimpose a sentence of seven years rigorous imprisonment.In the result, (i)the conviction of the appellant/accused underSection 302 I.P.C. is set aside and instead, he isconvicted under Section 304 Part-I I.P.C.;(ii) for the said conviction, he is sentenced to seven years rigorous imprisonment; and(iii)the appeal is, accordingly, allowed in part.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sra https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sessions Judge, Erode District.2. The District Collector, Erode.3. The Director General of Police, Chennai.4. The Inspector of Police, Dharapuram Police Station, Erode District. 5. The Superintendent, Central Prison, Coimbatore.6. The Public Prosecutor, High Court, Madras.7. The Judicial Magistrate, Dharapuram8. Do Through the Chief Judicial MagistrateErode.1 cc to Mr.A.K. Kumarasamy, Advocate, Sr. 33339Crl.A.No.1110 of 2006VSV (CO)kk 21/7