Arivazhagan v. State bythe Inspector of Police,Gudalore Police Station,Nilgiris District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.707 of 2008Arivazhagan.. Appellant/AccusedVs.State bythe Inspector of Police,Gudalore Police Station,Nilgiris District,Crime No.427/2004.. Respondent/Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned District Sessions Judge,Nilgris at Udhagamandalam made in S.C.No.72 of 2006, dated22.02.2007. For Appellant : Mr.S.N.ArunkumarFor Respondent : Mr.P.Kumaresan, APP. - - - - JUDGMENT(The judgment of the Court was made by M.VENUGOPAL, J.)This appeal challenges the Judgment of the Sessions Division,Udhagamandalam made in S.C.No.72 of 2006 whereby theappellant/accused stood charged under Section 302 I.P.C. for causingthe death of his younger brother Rajagopal by stabbing him withchisel on his stomach, left side of the chest and on the right fore-arm on 29.08.2004 at 09.30 p.m. at the family house of theappellant/accused at Vedan Vayal village and later resulting in hisdeath in the hospital on 30.8.2004 at 01.05 hours and further in thecourse of the same transaction, the appellant/accused voluntarilycaused hurt to Sangupillai, Ramachandran and Vanitha and therebycommitted an offence under Section 324 (3 counts) of I.P.C.2. On trial, the appellant/accused was found guilty under Section302 and 324 (3 counts) of I.P.C. and was sentenced to undergoimprisonment for life for the offence under Section 302 I.P.C. andfor an offence under Section 324(3 counts) I.P.C., was sentenced toundergo Rigourous Imprisonment for 6 months each and it was mergedwith the sentence of imprisonment for life. https://hcservices.ecourts.gov.in/hcservices/

3. The short facts of the prosecution case are as follows:-The appellant's younger brother is P.W.2 Shanthanakumar. Theappellant's elder brother is P.W.3 Ramachandran. The deceasedRajagopal is the brother of the appellant/accused. P.W.4 Vanitha isthe sister of the appellant. P.W.1 Chinnaiah is the younger brotherof the appellant's father. The appellant's father-in-law is P.W.13Sangupillai. The appellant, P.W.2, the deceased Rajagopal and theirmother have been residing at Vedan Vayal on 29.08.2004. Inconnection with the first death anniversary of the appellant'sfather, P.Ws.1 to 4, P.W.13 and their relatives have gathered in thehouse of the deceased Rajagopal. While family members including thedeceased and the appellant have engaged themselves in trivialconversation around 08.00 p.m. after their supper, the appellantclaimed a share of land in his father's land but the appellant hasbeen informed by the deceased brother Rajagopal that their father hassecured a loan of Rs.40,000/- by mortgaging the land. Further, he hassuggested that all the brothers shall contribute Rs.5,000/- andredeem the property and to divide the same. For that, theappellant/accused has stabbed his deceased younger brother Rajagopalwith M.O.1 Chisel by uttering ' who are you to say' and the deceasedbrother by screaming has fallen down. At this juncture, P.W.13,P.Ws.3 and 4 have intervened and when they made an endeavour tosnatch the chisel from the appellant, they have sustained injuries.The injured have been taken to the Government Hospital, Gudalore inP.W.6 Hakim's auto. P.W.8 the doctor attached to the GovernmentHospital, Gudalore (who has been on duty on 29.08.2004) at 10.10p.m.) has examined Rajagopal the younger brother of the appellant andafter noting down the injuries in Ex.P7 the Accident Register hasreferred in to the Government Head Quarters Hospital, Ooty forfurther management.4. Further, P.W.8 the doctor on the same day at 10.55 p.m. hasexamined P.W.3 Ramachandran (the injured) and has noted down twoinjuries in Ex.P8 the Wound Certificate and has opined that theinjuries are simple in nature. Added further, P.W.8 the doctor hasexamined the injured P.W.13 Sangupillai on 29.08.2004 at 10.45 p.m.and after noting down two injuries in Ex.P9 the Wound Certificate isof the opinion that the injuries are simple in nature. Also P.W.8 thedoctor has examined the injured P.W.4 Vanitha at 10.25 p.m. On29.08.2004 and after noting down one injury in Ex.P10 the WoundCertificate has referred the patient to the Government Head QuartersHospital, Ooty to rule out any intra cranial damage and for furthermanagement and later on, he is of the opinion (based on the opinionof doctor who treated the injured at the Government Head QuartersHospital, Ooty) that the injury is simple one. P.W.8 the doctor hassent Ex.P11 intimation to the Sub Inspector of Police, Gudaloreinforming about the assault and injury of the history of the caserelating to Rajagopal, Ramachandran, Vanitha and Sangupillai.5. P.W.15 the Sub Inspector of Police, Gudalore Police Stationafter receiving information over phone at about 01.15 a.m. on30.08.2004 has gone to the Government hospital on the same day at02.00 a.m. and has gone to the Government hospital, Udhagamandalam at https://hcservices.ecourts.gov.in/hcservices/ about 04.00 a.m. since the deceased Rajagopal and P.W.4 Vanitha havebeen referred to the Government hospital, Udhagamandalam and he hasbeen informed that Rajagopal has expired on 01.05 hours and Ex.P20is the death intimation and that he has recorded the statement ofP.W.1 Chinnaiah and registered the case in Cr.No.427 of 2004 ofGudalore Police Station under Section 302, 324 I.P.C. on 30.08.2004at 08.00 hrs and Ex.P21 is the First Information Report and that thecopies of the First Information Report have been sent to the learnedJudicial Magistrate and other higher authorities concerned.6. P.W.16 the Inspector of Police after taking up theinvestigation of the case on 30.08.2004 has conducted an inquest overthe body of the deceased Rajagopal and prepared Ex.P22 InquestReport. He has also given a requisition Ex.P12 addressed to theChief Medical Officer, Government Head Quarters of Udagamandalamthrough P.W.14 the Head Constable attached to Gudalore Police Stationpraying for the conduct of the post mortem examination over the bodyof the deceased. P.W.14 the Head Constable has recovered M.O.7Jatti, M.O.8 Lungi and later has handed over the body of the deceasedRajagopal to his relatives. He has handed over M.O.7 and M.O.8 tothe Sub Inspector of police along with the Special Report Ex.P19.P.W.9 the doctor attached to the Government hospital, Udhagamandalamhas conducted the Post Mortem on the body of the deceased Rajagopaland after noting down four injuries has sent the viscera for chemicalexamination and Ex.P14 is the Viscera Report and that P.W.9 thedoctor has given an opinion that the deceased Rajagopal would appearto have died due to injury No.3 causing shock due to excessive bloodloss and hypovolumia and the Post Mortem Certificate issued by him isEx.P13.7. P.W.16 the Investigating Officer has visited the scene ofoccurrence and prepared the observation mahazar Ex.P2 and roughsketch Ex.P23 in the presence of witnesses P.W.5 Ramesh andPalaniyandi. Further, with the assistance of Photographer P.W.7, hehas taken 10 photographs viz., Ex.P5 and the negatives Ex.P6.Continuing further, the Investigating Officer P.W.16 has seized M.O.2blood stained earth and M.O.3 earth with blood stained as per Ex.P3mahazar in front of the witnesses P.W.5 Ramesh and Palaniyandi andalso seized M.O.4 black striped green full hand shirt, M.O.5 lightblue stained full hand shirt and M.O.6 blood stained white dothi withgreen border as per Ex.P4 in the presence of witnesses referred toearlier. He has also examined the statement of witnesses Chinnaiyah,Paramasivam, Sandhanakumar, etc., and duly recorded their statements.He has arrested the appellant in the presence of P.W.12 the VillageAdministrative Officer at Vedan Vayal SeliKadi road and that theappellant has given a confessional statement and the admissibleportion is marked as Ex.P17 and the appellant has produced M.O.1Chisel from a bush and the same has been recovered under Ex.P18 inthe presence of witnesses. The appellant has been sent for remand byP.W.16 the Investigating Officer and further the seized articles havebeen sent for remand. Apart from this, P.W.16 the InvestigatingOfficer has given a requisition Ex.P24 and Ex.P26 to the JudicialMagistrate Court, Gudalore requesting for causing the seized articlesfor the purpose of chemical examination and a requisition Ex.P25 and https://hcservices.ecourts.gov.in/hcservices/ Ex.p27 have been duly signed for chemical examination and the reportsof the chemical examiner and Serologist are Exs.P28 and P29.8. Besides the above, P.W.16 the Investigating Officer hasexamined P.W.11 the A.E. Of Tamilnadu Electricity Board, Sandynallaand has received a Certificate Ex.P16 from him to the effect thatthere has been no power failure on 29.08.2004 and 30.08.2004 in theplace of occurrence (viz., the house). He has also examined P.W.10,the Tahsildar and has received Ex.P15 Adangal extract to say that theland survey No.26/1 stands in the name of Chellamma(the mother of thedeceased Rajagopal). P.W.16 the Investigating Officer aftercompleting the investigation of the case has laid a charge sheetagainst the appellant/accused.9. The appellant/accused on examination under Section 313 of theCriminal Procedure Code has denied the incriminating circumstancesappearing against him and informed that a false case has beenfoisted. On the side of the appellant/accused, no witness has beenexamined.10. After contest, the trial Court heard the arguments advancedon both sides and after appreciation of the oral and documentaryevidence has come to the conclusion that the prosecution has provedthe guilty of the appellant/accused beyond all reasonable doubt andfound him guilty under Section 302 and 324 (3 counts) of I.P.C. andawarded the life imprisonment under section 302 I.P.C. and awardedthe Rigorous imprisonment for six months each under Section 324 (3counts) I.P.C. and the said sentence of imprisonment ordered underSection 324 (3 counts) of I.P.C. is to run concurrently and the samehas been merged with the sentence of life imprisonment. Thus, theappellant has projected this appeal.11.Admittedly, the appellant/accused and the deceased Rajagopalare the sons of Chellammal. P.W.2, P.W.3 and P.W.4 are theappellant's brothers and sister. One year before the occurrence, theappellant's father has expired. The complainant Chinnaiah viz.,P.W.1 has given Ex.P1 the complaint. He is the paternal uncle of theappellant (appellant's father's brother). The appellant's father-in-law is P.W.13 Sangupillai.12. It is not in dispute that the deceased Rajagopal died on30.08.2004 at 01.05 hrs due to homicidal violence in an incident thathas taken place on 29.08.2004 at 09.30 p.m. P.W.9 the doctor who hasconducted the post mortem on the body of the deceased Rajagopal hasissued Ex.P13 the post mortem Certificate and has received Ex.P14Chemical Examiner report in regard to the parts of the body sent forexamination. It is significant to point out that P.W.9 the doctor inEx.P13 Post Mortem Certificate has noted down the four injuries onthe body of the deceased which runs as follows:-'(a) A cut injury of 8 cm X 1.5 cm about 5 cm above umblicus onleft side of abdomen placed superiorlaterally with 8 loops of smallintestine protruding out. https://hcservices.ecourts.gov.in/hcservices/ b)A cut injury of 4.5 cm X 0.5 cm over right forearm mediallyplaced 8 cm below the medial epicondyle.c) A penetrating injury of 4.5 cm in length, 2.5 cm width, 5 cmdepth, extending under the skin exposing muscles placed in the medialaspect of right elbow just above the elbow just probing of woundrevealed cut injury of Basalic vein, median nerve and Brachial Artery.d) Cut injury of 1.5cmX0.5 cm dimension over left chest 5 cmabove nipple. EG normal.'He has opined that the deceased would appear to have died due toinjury No.3 (three) causing shock due to excessive blood loss andhypovolumia and added further, P.W.9 is of the opinion that withM.O.1 Chisel the injury would have been caused on the deceased andbecause of that injury, there is a possibility that the deceasedwould have died. P.W.8 the doctor has given Ex.P7 the AccidentRegister (in respect of the deceased) and he has noted down theinjuries. The injuries/wounds as seen in Ex.P7 are as follows:-'a) A stab wound about the size of the 8 cm X 1.5 cm on theabdomen above the umbilicus through which the loops of intestine areprotruding out.b) An incised wound about the size of 1.5 cm X 1/2 cm on the leftside of the chest just above left nipple.c) An incised wound about the size of 4 cm X 1cm X 0.5cm on thefront of the right forearm below the elbow on the medial aspect.d) An irregular lacerated wound about the size of 5 cm X 2 cm X3/4 on the front of the medial aspect of right exposing the vesselsand nerves.'In fact, P.W.8 the doctor has stated that the fourth injury found onthe body of the deceased Rajagopal is a grievous injury.13. P.W.8 the doctor has furnished the Wound Certificate Ex.P8 toP.W.3 Ramachandran and has found the following injuries:-'a) An incised wound about the size of 4 cm X 1.5 cm X 1 cm onthe upper part of outer aspect of left thigh.b) An abrasion on the left side of the face about the size of 1cm X ½ cm just below the eye.'14.P.W.8 the doctor has given the Wound Certificate Ex.P10 toP.W.4 Vanitha and has found the following injury:-'a) An irregularly lacerated wound about the size of 2 cm X 3 /4cm X bone depth on the left side of the upper part of the forehead.'15.As far as the present case is concerned, P.Ws.1, 3, 4 and 13are the eyewitnesses to the occurrence. The evidence of P.Ws.1 to 4is to the effect that when the death anniversary of the appellant'sfather has fallen on 29.08.2004 at about 08.00 p.m., when the familymembers have engaged themselves in trivial conversation, theappellant has demanded a share in his father's property and thedeceased younger brother of the appellant viz., Rajagopal has given asuggestion that each one can contribute Rs.5,000/- so as to redeemthe property (which has an outstanding loan of Rs.40,000/-) and laterthe same can be partitioned at that time, the appellant/accused has https://hcservices.ecourts.gov.in/hcservices/ uttered 'who are you to say' and by taking the chisel rushed towardsthe deceased and stabbed him on the stomach, left side of the chestand in the right forearm and witnesses P.Ws.3, 4 and 13 intervened tosnatch M.O.1 the chisel from the appellant, in the process they havereceived injuries.16.The appellant's father-in-law P.W.13 has deposed that he hassustained an injury at the time of occurrence. Strangely, in hiscross-examination, he has stated that he has received injury whileclimbing a tree.17.It is not out of place to point out that in the WoundCertificate Ex.P9 in respect of P.W.13 it is mentioned by P.W.8 thedoctor that the injured has suffered the injury, said to have beencaused on 29.08.2004 at 09.30 p.m. due to assault made by a knownmale person at his son-in-law house at Vedan Vayal. In short, theevidence of P.W.1, P.W.3, P.W.4 and P.W.8 the doctor will clinchinglygo to show that P.W.13 father-in-law of the appellant has sustainedthe injury found in Ex.P9, the Wound Certificate on the date ofoccurrence. One cannot ignore an important fact that P.Ws.3 and 4are the brother and sister of the appellant. The evidence ofeyewitnesses viz., P.Ws.1, 3 and 4 have been corroborated in materialparticulars in the present case on hand through medical evidence andalso by the evidence on other witnesses. In the present case, theappellant has been arrested by P.W.6 in the presence of the VillageAdministrative Officer, P.W.12 and the appellant has given Ex.P17confession (admitted portion) in pursuance of which M.O.1 chisel hasbeen seized and as a matter of fact, P.W.5 the mahazar witness andP.W.12 the Village Administrative Officer have clearly rendered thecogent evidence supporting the deposition of P.W.16 the InvestigatingOfficer really speaking observation mahazar Ex.P2, rough sketchEx.P23, Photos Ex.P5, negatives Ex.P6 have been prepared and taken byP.W.16 the Investigating Officer and he has also seized blood stainedearth, earth without blood stained M.Os.2 and 3 as per Ex.P3 mahazarin the presence of witnesses and also prepared Ex.P4 mahazar forseizing M.Os.4 to 6 viz., black stripped green full hand shirt, lightblue blood stained full hand shirt and white dothi with bloodstained. P.W.12 the Village Administrative Officer in his evidencehas stated that P.W.16 the Investigating Officer has arrested thehiding appellant/accused on the road side of Vedan Vayal and that theappellant/accused has given a confession and admissible part ismarked as Ex.P17 and that the appellant has produced the chisel M.O.from the bush of the back side of his house for which the mahazar hasbeen prepared in which he and his assistant Velayutham has signed.18.It is pertinent to point out that the evidence of P.W.2 is tothe effect that he has taken the deceased Rajagopal to the GovernmentHospital, Udagamandalam for further treatment. Suffice it to pointout that in the present case, the evidence of P.Ws.1, 3 and 4 havebeen corroborated by other witnesses and medical witnesses and thepresence of the witnesses at the place of occurrence has been mostnatural and real and cannot be rejected merely on the basis that theyare closely related to the deceased. Moreover, the evidence ofeyewitnesses in this case are natural, cogent, convincing and the https://hcservices.ecourts.gov.in/hcservices/ same are worthy of acceptance by this Court. On an overallassessment of the eyewitnesses evidence which have been corroboratedby other witnesses and medical witnesses, etc., in material aspects,this Court unhesitatingly concludes that the appellant/accused hascaused the death of the deceased Rajagopal by stabbing him with M.O.1chisel on the day of occurrence on 29.08.2004 at about 09.30 p.m. inthe family house of the appellant at Vedan Village and resulting inhis death on 30.08.2004 at about 01.05 hrs and further that theappellant has also caused injuries to P.W.3, P.W.4 and P.W.13 andthese have been proved beyond all reasonable doubt in the instantcase by the prosecution to the satisfaction of this Court and rightlyhe has been awarded with a sentence of imprisonment for 6 months eachunder Section 324 (3 counts) I.P.C. 19. The learned counsel for the appellant contends that theappellant/accused has entered into an oral verbal sudden quarrel bymeans of provocation with his deceased younger brother Rajagopal onthe date of occurrence on 29.08.2004 at about 09.30 p.m. in which hestabbed the victim with M.O.1 Chisel and the victim has expired on30.08.2004 at about 01.05 hrs and that the act of theappellant/accused cannot be termed as murder and instead the act ofthe accused will come under Section 304 Part I of I.P.C. In thisconnection, this Court quite aptly points out that Section 304 Part Iof I.P.C. applies to a case where the act by which death is caused isdone with the intention to causing death or causing such bodilyinjury as is likely to cause death. For conviction of the offence ofculpable homicide not amounting to murder as per Section 304 Part Iof I.P.C. the following circumstances ought to be proved:The act by which the death is caused is done. i) with theintention of causing death or ii)of causing such bodily injury as islikely to cause death.On a careful consideration of entire material on record, this Courtfinds the appellant/accused guilty under Section 304 I.P.C. (inregard to the offence of culpable homicide not amounting to murder)and not under Section 302 of I.P.C. and therefore this Court setsaside the conviction of the appellant/accused under Section 302I.P.C. but convicts him under Section 304 Part I of I.P.C. and awardssentence of rigourous imprisonment of 7 years and to this extent, theJudgment of the trial Court passed in S.C.No.72 of 2006 on the fileof the learned District Sessions Judge, Nilgris at Udhagamandalam ismodified and in other aspects, the Judgment of the trial Court isconfirmed. The sentence of 6 months Rigourous imprisonment eachawarded for the offence under Section 324 (3 counts) I.P.C. shall runconcurrently with the sentence of 7 years Rigourous imprisonmentawarded by this Court for the offence under Section 304 Part I ofI.P.C.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vriTo1.The District and Sessions Judge, Nilgris, Udhagamandalam.2.The District Collector, Nilgiris District.3.The Additional Superintendent Central Prison, Coimbatore4.The Director General of Police, Mylapore, Chennai.5.The Inspector of Police, Gudalore Police Station, Nilgiris District, Crime No.427/20046.The Additional Public Prosecutor, High Court, Madras. CRL.A.NO.707 of 2008NTK(CO)SRA(06/02/2009)