RamanS/o.Kulandai v. State rep. by Inspector of PoliceJamunamarathur Police StationVaniyambadi, Tirupattur TalukVellore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.3.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHICriminal Appeal No.380 of 2007RamanS/o.Kulandai.. Appellant / Accused Vs.State rep. by Inspector of PoliceJamunamarathur Police StationVaniyambadi, Tirupattur TalukVellore District.(Cr.No.182/04).. Respondent / ComplainantAppeal against the judgment dated 29.11.2006 made in S.C.No.114 of2006 on the file of learned Additional District & Sessions Judge, FastTrack Court, Tirupattur Vellore District & to Setaside the Conviction &sentence imposed against him & acquit the appellant.For Appellant: Mr.M.N.BalakrishnanFor Respondent : Mr.N.R.Elango Addl. Public ProsecutorJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)The sole accused, younger brother of the deceased, on conclusion ofthe trial, suffered the judgment of conviction and sentence dated29.11.2006 made in S.C.No.114 of 2006 on the file of learned AdditionalDistrict & Sessions Judge, Fast Track Court, Tirupattur, to undergolife imprisonment and to pay a fine of Rs.10,000/-, in default, toundergo simple imprisonment for six months for the offence under Section302, IPC. Hence, the accused has preferred the above appeal.2. The allegation in the charges framed against the accused is thaton 18.7.2004 at about 6.30 am, at Melnellimarathur Village, the accused,on noticing the deceased cutting a tree in the common pathway belongingto himself and the deceased and due to the land dispute, armed withKoduval alleged to have caused injury on the neck, left cheek and left https://hcservices.ecourts.gov.in/hcservices/ shoulder with an intention to kill him and the deceased was succumbed tothe injuries on 20.7.2004 at 12.30 pm in the hospital and therebyalleged to have committed an offence punishable under Section 302, IPC.3. The prosecution case in nutshell is as follows:(a) It is the evidence of P.W.1, son of the deceased, that therewas a land dispute between his father and the accused, who is theyounger brother of the deceased. The previous enmity was with regard tothe claim of the accused for one cent of land and there was continuousquarrel between the accused and the deceased. On 18.7.2004, both thedeceased and P.W.1 went to the land and the deceased was cutting thetrees, which is in the common pathway, since there was difficulty inproceeding to the land, due to which they were made to proceed throughthe land of the accused. At that time, the accused suddenly came to thescene of occurrence and delivered cut on the backside of the deceased bysaying that the land would come to his possession only after finishingthe deceased. Thereafter, the accused delivered further two cuts on thedeceased and the deceased fell down. The deceased was taken with thehelp of P.W.3 to the Government Hospital at Vaniyambadi. First aid wasgiven to the deceased and thereafter, the deceased was sent to theGovernment Hospital at Vellore. The deceased has given a complaint,Ex.P1 to the Police and attested his thumb impression. (b) P.W.2 is the wife of the deceased who speaks about the motivefor the case of the prosecution, viz. the land dispute between theaccused and the deceased. The occurrence was informed to her by herson, P.W.1 and she accompanied the deceased to the hospital.(c) P.W.3 is an independent witness who knows about the accused andthe deceased. He took the deceased to the Government Hospital, byengaging a van, accompanied by P.W.1. He has also spoken about themotive, viz. the land dispute between the accused and the deceased.(d) P.W.11, Sub Inspector of Police, on 18.7.2004, coming to knowabout the admission of the deceased as an inpatient at VelloreGovernment Hospital, received the complaint, Ex.P1 given by him. On thenext day, reached the Police Station and registered a case in CrimeNo.182 of 2004 for an offence under Section 307, IPC. Ex.P8 is the FIR.He despatched the FIR to the Court, reached the scene of occurrence at 8am and prepared observation mahazar, Ex.P2. He examined the witnesses,prepared rough sketch Ex.P9 and again visited the Government Hospitaland examined the witnesses present over there. On 20.7.2004 at 12.30pm, he arrested the accused. Pursuant to the voluntary statement givenby the accused, M.O.3, knife was recovered under recovery mahazar,Ex.P11. The admissible portion of the statement is Ex.P10. Thereafter,the accused was remanded to judicial custody. At 3.45 pm, he receivedan intimation about the death of the deceased and thereafter, alteredthe offence into one under Section 302, IPC and prepared Special ReportEx.P12, reached the Police Station at 5.15 pm and handed over the https://hcservices.ecourts.gov.in/hcservices/ investigation to the Inspector of Police. Exs.P13 and P14 are recoverymahazars.(e) P.W.4 has attested the observation mahazar, Ex.P2 prepared byP.W.11. (f) P.Ws.5 and 6 are the Assistants working in the office of theVillage Administrative Officer, who attested the recovery mahazar.However, both these witnesses have been treated as hostile since theyhave stated that they have only signed the mahazar.(g) P.W.7 is the Head Constable, who, on receipt of the alteredFIR, delivered the same to the learned Magistrate and superior officers.(h) P.W.9 is the Doctor attached to the Government Hospital,Vaniyambadi, who examined the deceased and issued wound certificate,Ex.P6. (i) P.W.10 is the medical officer attached to the GovernmentHospital, Vellore, who stated that the deceased was shifted to from theGovernment Hospital, Vaniyambadi to the Government Hospital, Vellore andthe deceased was found unconscious. After giving treatment, thedeceased was advised to be taken to the Government Hospital at Madras.The report given is Ex.P7.(j) P.W.13, Investigating Officer, on receipt of the FIR handedover by P.W.12, took up further investigation on 20.7.2004 and reachedthe scene of occurrence at 5.45 pm. Since the observation mahazar andrough sketch had already been prepared by P.W.11, he conducted inquestover the body of the deceased and examined the witnesses present overthere. Ex.P16 is the inquest report. The dead body of the deceased wasdespatched for post mortem through P.W.8. After completion of the postmortem, blood stained clothing of the deceased were recovered.(k) P.W.12, the medical Officer, on receipt of the requisition,conducted autopsy over the dead body of the deceased on 21.7.2004 at11.30 am and opined that the death of the deceased was due to cervicalspine injury and its complications. Ex.P15 is the post mortem report. (l) In continuation of the investigation, the investigating officerexamined the witnesses, received reports from the Chemical analyst andopinion from medical officers and on conclusion of the investigation,filed the final report before the Court against the accused for offenceunder Section 302, IPC.(k) The case was committed to Court of Sessions and charge wasframed and since the accused denied his complicity in the offence, thecase was taken up for trial. In order to substantiate the chargeslevelled against the accused, the prosecution examined P.Ws.1 to 13, https://hcservices.ecourts.gov.in/hcservices/ filed exhibits P1 to P16 and marked material objects M.Os.1 to 3.(m) On completion of the examination of the prosecution witnesses,the accused was questioned under Section 313, Cr.P.C. on theincriminating materials for which the accused denied any complicity ofthe offence committed and claimed innocence. Neither oral nordocumentary evidence was adduced on the side of the defence. Thelearned trial judge, on perusal of the materials, oral and documentaryand after hearing both sides, convicted and sentenced the appellantaforementioned.(n) Aggrieved against the conviction and sentence, the accused haspreferred the present appeal.4. The learned counsel for the appellant assails the conviction andsentence on the following grounds: (i) The only eye witness in the case of the prosecution is P.W.1,who is none other than the son of the deceased. In view of the longstanding property dispute, the family members are highly inimical andtherefore, the interested testimony of P.W.1 cannot be relied upon. (ii) P.W.2, wife of the deceased, also speaks about the motive forthe case of the prosecution. However, she is also an interestedwitness. Apart from P.Ws.1 and 2, other witnesses are formal witnesses. (iii) Even accepting the case of the prosecution that the accusedwas already present in his land and only at that time, the deceased andP.W.1 proceeded to the land and while so proceeding, since the deceasedstarted cutting the trees leading to his land, which is situated in thecommon land in dispute between the land of the accused and the deceased,the accused, on noticing the same, in view of the long standing disputeand enmity for five years for the possession of one cent of land,deprived of his self control, took out the weapon and reached the sceneof occurrence, which is nearby and caused injury on the deceased. It isthe deceased who started removing the bushes and trees over there whichhas created an impression in the mind of the accused that the disputedone cent of land is going to be cultivated by the deceased. At anyrate, the occurrence commenced only on the act of the deceased and theaccused, only after seeing the deceased removing the tree, has committedthe offence. Under such circumstances, the offence under Section 302,IPC has not been made about since there is no intention on the part ofthe accused to commit the murder of the deceased.5. Per contra, learned Additional Public Prosecutor contends that (i) the occurrence was witnessed only by P.W.1, who is the son ofthe deceased. He is the natural witness who accompanied the deceased tothe land, where the occurrence had taken place. Merely because he https://hcservices.ecourts.gov.in/hcservices/ happened to be closely related to the deceased, his evidence cannot bebrushed aside. (ii) Similarly, since P.W.2 also speaks about the motive for theoccurrence, her witness also cannot be rejected on the ground that sheis wife of the deceased and therefore, she is an interested witness.(iii) It is true that the deceased started cutting trees, whichwere found in the common land. It is the case of the prosecution thatthe deceased had cut the trees, only for the purpose of facilitating hiseasy entry to the land. But this was mistaken by the accused as if thedisputed one cent of land is being taken possession by the accused andtherefore, the occurrence has taken place. The dispute, which was inexistence for five years and the assault by the accused with deadlyweapon would substantiate the offence under Section 302, IPC.6. We have perused the entire materials on record and heard thesubmission of both sides.7. The question that arises for our consideration is as to whetherthe prosecution has established its case beyond all reasonable doubts.8. Before we proceed to consider the issue in question, let usfirst analyse whether the death of the deceased was due to homicidalviolence. The doctor, P.W.12, was examined on this aspect and he hasstated in his evidence that the deceased died due to cervical spineinjury and its complications. He has issued Ex.P15, post mortemcertificate describing the injuries found on the dead body. He hasfurther stated that the injuries would have been caused with a sharp-edged weapon. Hence, we do not have any difficulty in holding that thedeath of the deceased was due to homicidal violence.9.1. It is the case of the prosecution that there was a quarrelfor one cent of land which lies in between the land of the accused andthe deceased and the same was in existence for five years. Althoughthere was a panchayat to resolve the dispute, as per Ex.P1, complaintgiven by the deceased, the accused refused to accept the advise of thePanchayatdars and relatives and therefore, the villagers haveexcommunicated the accused. In such circumstances, the occurrence hadtaken place. 9.2. It is alleged in Ex.P1, complaint given by P.W.1, son of thedeceased that the occurrence took place only at the time when he wasremoving the tree. The accused looking from a distance rushed to thescene of occurrence with Koduval and questioned the deceased as to howcan he cut those trees which were found on the common pathway.Subsequently, he delivered other cuts. On perusal of the evidence ofP.W.1, this overt act of the accused, who is none other than the youngerbrother of the deceased, is corroborated. https://hcservices.ecourts.gov.in/hcservices/

9.3. Of course, the learned counsel for the appellant contends thatthe evidence of P.Ws.1 and 2 are not trustworthy since they areinterested witnesses. But the law on the point is well settled.Relationship is not a factor to affect credibility of a witness. It ismore often than not that a relation would not conceal actual culprit andmake allegations against an innocent person. 9.4. In Dalip Singh v. State of Punjab, (AIR 1953 SC 364), theApex Court laid down as hereunder:-"26. A witness is normally to be considered independent unlesshe or she springs from sources which are likely to be taintedand that usually means unless the witness has cause, such asenmity against the accused, to wich to implicate him falsely.Ordinarily a close relation would be the last to screen thereal culprit and falsely implicate an innocent person. It istrue, when feelings run high and there is personal cause forenmity, that there is a tendency to drag in an innocent personagainst whom a witness has a grudge along with the guilty, butfoundation must be laid for such a criticism and the mere factof relationship far from being a foundation is often a sureguarantee of truth. However, we are not attempting anysweeping generalisation. Each case must be judged on its ownfacts. Our observations are only made to combat what is sooften put forward in cases before us a general rule ofprudence. There is no such general rule. Each case must belimited to and be governed by its own facts."9.5. Again in Masalti v. State of U.P., AIR 1965 SC 202, the ApexCourt observed that:"But it would, we think, be unreaonsable to contend thatevidence given by witnesses should be discarded only on theground that it is evidence of partisan or interested witnesses..... The mechanical rejection of such evidence on the soleground that it is partisan would invariably lead to failure ofjustice. No hard and fast rule can be laid down as to how muchevidence should be appreciated. Judicial approach has to becautious in dealing with such evidence; but the plea that suchevidence should be rejected because it is partisan cannot beaccepted as correct."9.6. Further, in Pulicheria Nagaraju v. State of A.P. (2006) 11SCC 444, it has been observed:".. that evidence of a witness cannot be discarded merely onthe ground that he is either partisan or interested or closelyrelated to the deceased, if it is otherwise found to betrustworthy and credible. It only requires scrutiny with morecare and caution, so that neither the guilty escape nor theinnocent wrongly convicted. If on such careful scrutiny, the https://hcservices.ecourts.gov.in/hcservices/ evidence is found to be reliable and probable, it can be actedupon. If it is found to be improbable or suspicious, it oughtto be rejected. Where the witness has a motive to falselyimplicate the accused, his testimony should havecorroboration in regard to material particulars before it isaccepted."9.7. In the instant case, the evidence of P.W.1 is that theaccused had inflicted cuts on the deceased due to the fact that thedeceased started cutting the tree in the common pathway, as there was anenmity between the deceased and the accused due to the land dispute.The overt act of the accused is corroborated by the medical evidence,P.W.12, who had deposed that the deceased died due to cervical spineinjury and its complications. Further, he has opined in Ex.P15, post-mortem certificate that the injuries would have been caused with asharp-edged weapon. More over, the evidence of P.Ws.1 and 2 about themotive is corroborated by the evidence of P.W.3, who took the deceasedto the hospital. Therefore, the evidence of P.Ws.1 and 2 cannot berejected on the ground of interested witnesses.9.8. While accepting the case of the prosecution insofar as theovert act attributed by the accused is concerned, the fact remains thatthe deceased started cutting the trees which were found in the commonpathway. On perusal of the admissible portion of the voluntarystatement given by the accused at the time of arrest, we find that theaccused entertained a doubt that the deceased was cutting the trees tocultivate the common disputed land which lies between the land of theaccused and the deceased. Therefore, it appears that the accused haslost his self control. However, since the accused and the deceased areagriculturists, the possession of koduval at the time of occurrencecannot be taken as a weapon which was carried by the accused only forthe purpose of committing the offence. As a matter of fact, thedeceased was also in possession of a koduval similar to that of M.O.3. 10.1. In view of the facts and circumstances of the case, we findthat the occurrence took place extemporaneous and we find that there isno pre-meditation on the part of the accused in committing the offence.The occurrence has taken place due to the impression formed by theaccused that the common land is going to be occupied and cultivated bythe deceased. In view of the long standing enmity and dispute, thedeceased could have desisted from doing anything on the disputed landand prevented the occurrence. It is only on account of the conduct ofthe deceased, the unfortunate occurrence had taken place.10.2. We are, therefore, of the considered opinion that theoffence under Section 302, IPC has not been made out, since the actcommitted by the accused would amount to culpable homicide, but notmurder. Accordingly, in view of the weapon used for the commission ofthe offence, the appellant is convicted under Section 304 Part I, IPC, https://hcservices.ecourts.gov.in/hcservices/ and the sentence of life imprisonment is modified to rigorousimprisonment for seven years with compensation of Rs.20,000/-, of which,Rs.5,000/- shall be paid to the wife of the deceased and Rs.5,000/-shall be paid to each sons of the deceased, which shall be deposited infixed for a minimum period of three years, renewable thereafter, tillthe children of the deceased attain majority.The appeal is partly allowed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarkplTo 1. The Additional District & Sessions Judge Fast Track Court Tirupattur.2. Do Thro The Principal Sessions Judge, Vellore.3. The Public Prosecutor, High Court, Madras.4. The Inspector of Police, Jamunamarathur Police Station Vaniyambadi, tirupattur Taluk, Vellore District.5. The Superintendent, Central Prison, Vellore.6. The District Collector, Vellore.7. The Director General of Police.Bv (Co)krd / 2.5.08Crl.A.No.380 of 2007.