Balan @ Balakrishnan v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 7-12-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALILNGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRL.A.No.599 of 2009Balan @ Balakrishnan.. Appellant (Accused)vsState: rep. ByInspector of PoliceNeellakottai Police StationNilgiri DistrictCrime No.13/2008.. Respondent (Complainant)Criminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Sessions Judge,Nilgiris at Udagamandalam, made in S.C.No.41 of 2008 dated 27.1.2009.For Appellant: Mr.S.Swamidoss ManokaranFor Respondent: Mr.Babu Muthu Meeran Additional Public ProsecutorJUDGMENT(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 soleaccused/appellant stood charged under Sec.302 IPC, tried, foundguilty as per the charge and awarded life imprisonment.2.Short facts necessary for the disposal of this appeal can bestated as follows:(a) P.W.1 is the mother of the deceased Mani. P.W.2 is herelder 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/- whichhe already gave to the accused as a hand loan. There was a wordyaltercation. P.Ws.1, 2, 6 and 7 intervened and pacified thesituation, and thereafter when the deceased was going out of thehouse, he was attacked by the accused with a spade on his head twice.The deceased fell down unconscious. This occurrence was witnessed byP.Ws.1, 2, 6 and 7. Immediately, the accused ran away from the placeof occurrence.(b) P.Ws.1 and 2 took him to the nearby private clinic whereP.W.12, was the Doctor who gave initial treatment. There was notransport facility during night hours. Hence on the next day atabout 10.15 A.M., they took him to the Government Hospital at https://hcservices.ecourts.gov.in/hcservices/ Gudalur, where P.W.17, the Doctor, found the condition of Maniserious, and on his advice, they took him to the Government Hospital,Udhagamandalam, on the same day. P.W.18, the Doctor, after examininghim at about 2.30 P.M., directed them to take him to the GovernmentHospital, Coimbatore. Accordingly, he was taken to the GovernmentHospital, Coimbatore, where he was declared dead by the Doctor atabout 11.30 P.M. (c) On intimation, P.W.9, the Head Constable of the respondentpolice 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 ofP.W.1 which is marked as Ex.P1. He entrusted the same to P.W.10, theSub 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.P8is the printed FIR, which was despatched to the Court.(d) P.W.15, the Inspector of Police of the circle, on receipt ofthe copy of the FIR, took up investigation, proceeded to the spot,made an inspection and prepared an observation mahazar, Ex.P2, and arough sketch, Ex.P12. Then, he conducted inquest on the dead body inthe presence of witnesses and panchayatdars and prepared an inquestreport, Ex.P14. (e) Pursuant to the requisition made, P.W.13, the Tutor inForensic Medicine, Coimbatore Medical College Hospital, conductedautopsy on the dead body of Mani and has given her opinion in Ex.P10,the postmortem certificate, that the deceased would appear to havedied of head injury sustained by him.(f) Pending investigation, the Investigator arrested the accusedon 13.2.2008, and he came forward to give a confessional statement.In the presence of witnesses, the same was recorded. The admissiblepart 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 forjudicial remand.(g) All the material objects recovered from the place ofoccurrence and from the dead body and M.O.1, spade, were subjected tochemical analysis by the Forensic Sciences Department pursuant to arequisition given. Exs.P15 and P16 are the chemical analyst'sreports, and Ex.P17 is the serologist's report. (h) P.W.14, the Inspector of Police, took up furtherinvestigation. He examined the witnesses and recorded theirstatements. P.W.16, the Inspector of Police, who took up furtherinvestigation, on completion of the same, filed the final report.3.The case was committed to Court of Session, and necessarycharge was framed. In order to substantiate the charge, theprosecution examined 18 witnesses and also relied on 19 exhibits and1 material object. On completion of the evidence on the side of theprosecution, the accused was questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses, which he flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedon either side and took the view that the prosecution has proved thecase beyond reasonable doubt and hence made a judgment of convictionand sentenced him to imprisonment for life, which is the subjectmatter of challenge before this Court. https://hcservices.ecourts.gov.in/hcservices/

4.Advancing arguments on behalf of the appellant, the learnedCounsel would submit that in the instant case, the prosecution hasmiserably failed to prove its case; that it is true that theprosecution has marched P.Ws.1, 2, 6 and 7 as occurrence witnesses;but, it is pertinent to point out that they are all closely relatedto the deceased; that it could be seen from the evidence that thereare lot of discrepancies on the material particulars, and thus theirevidence cannot be said to be worthy which could be relied on by theprosecution; that the medical opinion canvassed by the prosecutionthrough the postmortem Doctor did not corroborate the oculartestimony; that the recovery of M.O.1, spade, following theconfessional statement alleged to have been made, was nothing but asubsequent introduction in order to strengthen the prosecution caseif possible; and that all put together would clearly indicate thatthe prosecution has not proved the case beyond reasonable doubt orbrought home the guilt of the accused. 5.Added further the learned Counsel in the second line ofargument that even according to the eyewitnesses, there was a wordyaltercation between the accused and the deceased when the deceaseddemanded the hand loan of Rs.100/- following which within a shortspan of time the accused attacked him with the spade, and thus it wasdue to the sudden quarrel and also in a heat of passion; that underthe circumstances, the act of the accused would not attract the penalprovision of murder, and it was only culpable homicide not amountingto murder; and that if the Court comes to the conclusion that thefactual position put forth by the prosecution has been proved, thishas got to be considered by the Court.6.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions 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 9.2.2008was taken to the private clinic, and thereafter to the GovernmentHospital, Gudalur. On advice, he was taken to the GovernmentHospital, Udhagamandalam, and then to the Government Hospital,Coimbatore, where he was declared dead. Following the registrationof the case under Sec.302 IPC and also the preparation of the inquestreport, the dead body was subjected to postmortem by P.W.13, theDoctor, who has given her categorical opinion as a witness before theCourt and also through the contents of the postmortem certificatethat Mani died out of the head injury sustained by him. The cause ofdeath as put forth by the prosecution was never disputed by theappellant before the trial Court, and hence no impediment is felt inrecording so.8.In order to substantiate that it was the accused who attackedthe 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. Itis true that all these witnesses are closely related to the deceased.At this juncture, a comment was made that their evidence should notbe accepted. This Court is of the considered opinion that thiscontention put forth by the appellant's side has got to be rejectedfor two reasons. Firstly, as they are related to the deceased, they https://hcservices.ecourts.gov.in/hcservices/ are all equally related to the accused also. Secondly, law does notimpede anywhere not to accept the evidence of the related persons.But, before accepting the same, the Court must exercise the test ofcareful scrutiny. Even if this test is applied, this Court isthoroughly satisfied that all these eyewitnesses have spoken in onevoice that there was a wordy altercation between the accused and thedeceased; that the deceased was demanding the hand loan of Rs.100/-from the accused; that it was pacified, but shortly thereafter, theaccused took a spade and attacked him on the head, and as a directconsequence the death has ensued. It remains to be stated that themedical opinion canvassed by the prosecution would corroborate theocular testimony. 9.Yet another circumstance which was against theappellant/accused was the recovery of M.O.1, the weapon of crime,pursuant to the confessional statement given by him following thearrest. A witness has also been examined to these facts. Hence allwould clearly indicate the nexus of the crime with the accused.Thus, the contentions put forth by the learned Counsel for theappellant are liable to be rejected and accordingly rejected. 10.Insofar as the second line of argument, this Court is able tosee force in the contention put forth. All the eyewitnesses haveclearly deposed that at the time just before the occurrence, therewas a wordy altercation between the accused and the deceased, and thedeceased was demanding the hand loan. It is true that it waspacified. But within a short span of time, due to the quarrel and ina heat of passion, the accused has attacked him with the spade.Under the circumstances, it would be quite clear that it was not anintentional act to cause murder, but it was only due to the suddenquarrel and also in a heat of passion. However, it should have beenhis intention to cause injuries that would be sufficient in theordinary course of nature to cause death. Hence, the act of theaccused would not attract the penal provision of murder; but, thesame in the considered opinion of the Court would attract the penalprovision of Sec.304 (Part I) of IPC and awarding punishment of sevenyears Rigorous Imprisonment would meet the ends of justice. 11.Accordingly, the judgment of the trial Court finding theappellant guilty under Sec.302 IPC and sentencing him to lifeimprisonment is modified, and instead, he is convicted under Sec.304(Part I) of IPC and is directed to suffer seven years RigorousImprisonment. The sentence already undergone by him shall be givenset off. 12.In the result, with the above modification in conviction andsentence, this criminal appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ nsvTo:1.The Sessions Judge Nilgiris at Udhagamandalam2.The Inspector of Police Neellakottai Police Station Nilgiri District Crime No.13/20083.The Public Prosecutor High Court, Madras.4.The Superintendent of Central Prison, Coimbatore.5.The District Collector, Uthagamandalam,6.The Director General of Police, Mylapore, Chennai - 4.Copy toThe Section Officer,Criminal Section, High Court, Madras.1 cc To Mr.S.Swamidoss Manokaran, Advocate, SR.66420.CRL.A.No.599 of 2009MBS(CO)RVL 17.12.2009