Chinna Kalappan @ Kalappan v. State byInspector of PoliceMadandahalli Police StationDharmapuri District(Crime No.371/2005)Panjapalli Out Post Police Station

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANC.A.No.765 of 2008Chinna Kalappan @ Kalappan.. Appellant/A-1vsState byInspector of PoliceMadandahalli Police StationDharmapuri District(Crime No.371/2005)Panjapalli Out Post Police Station.. Respondent/ ComplainantCriminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional SessionsJudge (Fast Track Court), Dharmapuri, made in S.C.No.150 of 2007dated 5.9.2008.For Appellant: Mr.M.G.Sankaran for M/s.S.Shantha KumariFor Respondent: Mr.N.R.Elango Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Additional SessionsDivision, Fast Track Court, Dharmapuri, made in S.C.No.150 of 2007whereby the appellant/A-1 along with A-2 stood charged, tried, andfound guilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-2342 IPC --A-1342 r/w 34 IPCGuilty1 year RIA-1302 IPCGuiltyLifeimprisonmentA-2302 r/w 109 IPC -- https://hcservices.ecourts.gov.in/hcservices/ Pending trial, A-2 died, and hence charges against him stood abated. 2.Short facts necessary for the disposal of this appeal can bestated as follows:(a) P.W.1 is the cousin brother of the deceased Kumar. On21.8.2005 at about 6.00 P.M., P.W.1 was just crossing the shop ofone Vijai. At that time, he found A-1 and the deceased quarrelingwith each other, and A-1 was demanding money which he gave to thedeceased as a loan. At that time, A-2 was also present. P.W.1 andalso Vijai pacified them. At about 8.30 P.M., when P.W.1 wasproceeding along with a torch light to take a basket as per thedirection of his master, he heard the sound near the cattle shed ofone Muniappan. Then he went nearby and heard the words "You did notpay back the money for the past two months despite so many demands.Then you should be finished off". So saying A-1 attacked thedeceased with a billhook on the neck which crime was facilitated byA-2. This was witnessed by P.Ws.1 and 2. When there was adistressing cry, both the accused fled away from the place ofoccurrence. Then P.W.1 proceeded to the respondent police stationwhere P.W.11 was the Sub Inspector of Police. P.W.1 gave a report,Ex.P1, on 21.8.2005 at about 11.00 P.M., on the strength of which acase came to be registered in Crime No.371/2005 under Sections 342and 302 of IPC. The printed FIR, Ex.P14, was despatched to theCourt along with Ex.P1, the report. (b) P.W.12, the Inspector of Police of that Circle, on receiptof the copy of the FIR, took up investigation, proceeded to thespot, made an inspection and prepared an observation mahazar, Ex.P2,and also a rough sketch, Ex.P15. He conducted inquest on the deadbody in the presence of witnesses and panchayatdars and prepared aninquest report, Ex.P16. He examined the witnesses and recorded theirstatements. The dead body was sent to the Government Hospital alongwith a requisition for the purpose of postmortem.(c) P.W.8, the Assistant Surgeon, attached to the GovernmentHospital, Palacode, on receipt of the requisition, conducted autopsyon the dead body of Kumar and has issued a postmortem certificate,Ex.P8, with her opinion that the deceased would appear to have died18 to 24 hours prior to autopsy, and death was due to shock andhaemorrhage due to head injury and fracture to skull bones. (d) Pending investigation, on 23.8.2005, A-1 and A-2 werearrested. A-1 came forward to give a confessional station, whichwas recorded. The admissible part is Ex.P4, pursuant to which heproduced M.O.1, billhook, which was recovered under Ex.P5, themahazar. A-2 gave a confessional statement, which was alsorecorded. Both were sent for judicial remand. All the materialobjects recovered from the place of occurrence and from the deadbody and M.O.1 were subjected to chemical analysis by the ForensicSciences Department on a requisition made by the Investigatorthrough the concerned Court. After analysis, Ex.P11, theserologist's report, and Ex.P12, the chemical analyst's report, werereceived. On completion of investigation, the Investigator filed https://hcservices.ecourts.gov.in/hcservices/ the final report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution marched 12 witnesses and also relied on 16 exhibits and10 material objects. On completion of the evidence on the side ofthe prosecution, the accused were questioned under Sec.313 ofCr.P.C. as to the incriminating circumstances found in the evidenceof the prosecution witnesses which they flatly denied as false. Nodefence witness was examined. The trial Court heard the argumentsadvanced and took the view that the prosecution has proved the casebeyond reasonable doubt in respect of A-1 and hence found himguilty and awarded punishment referred to above, which is thesubject matter of challenge before this Court. Pending trial, A-2died, and hence charges against him stood abated. 4.Advancing arguments on behalf of the appellant, the learnedCounsel Mr.M.G.Sankaran would submit that in the instant case, theprosecution rested its case on the evidence of P.Ws.1 and 2; thatP.W.2 has turned hostile, and thus P.W.1 was the only witness; thathis evidence remained uncorroborated; that according to theprosecution, the occurrence has taken place at 8.30 P.M.; that hewas actually a chance witness; that according to him, he took thetorch light and proceeded near the place of occurrence, and it wasutter darkness; that under the circumstances, he could not have seenthe occurrence at all; that apart from that, P.W.1's evidence wasself contradictory, and it was not consistent with the prosecutioncase; and that the medical opinion canvassed through P.W.8 theDoctor, and the contents in the postmortem certificate did notsupport the ocular testimony. Added further the learned Counselthat the alleged confession and recovery of M.O.1, billhook, are allnothing but a cooked up affair, and thus the prosecution hasmiserably failed to prove its case. 5.Added further the learned Counsel in the second line ofargument that in the instant case, even as per P.W.1's evidence,there was a quarrel, and A-1 has lent money to the deceased a fewmonths before, and he was giving false promise often that he wouldborrow money and pay it back; that even at the time of occurrence,A-1 was demanding money; but, the same answer was given by him; thatin that quarrel, uttering the words he has cut him with the billhookand caused injuries; that even assuming that the factual positionthat it was A-1 who actually cut the deceased and caused his death,the act of A-1 would not attract the penal provisions of murder, butit was only due to the quarrel followed by the provocation onaccount of the non-payment of the money which the deceased owed toA-1 and false promise for a few months; that under thecircumstances, it would fall within one of the exceptions todefinition of murder and this legal aspect has got to be consideredby this Court.6.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/

7.It is not in controversy that one Kumar, the cousin brotherof P.W.1, was done to death following an incident that had takenplace at 8.30 P.M. on 21.8.2005. Following the inquest made byP.W.12, the Investigator, the dead body was subjected to postmortemby P.W.8, the Doctor, who has given his opinion as a witness beforethe trial Court and also through postmortem certificate, Ex.P8, thathe died out of shock and haemorrhage due to the head injurysustained by him. This fact was never disputed by the appellantbefore the trial Court. Hence no impediment was felt by the trialCourt in recording so and rightly too. 8.In order to establish the charges levelled against theappellant, the prosecution marched before the trial Court twowitnesses as eyewitnesses; but, P.W.2 has turned hostile. P.W.1 hasgiven a categorical evidence. It is true that P.W.1 is the cousinbrother of the deceased. But from the narration of the incidentwhat he has spoken to, it would be quite clear that he has spokenthe truth, and it inspires the confidence of the Court. Accordingto P.W.1, the deceased actually borrowed money a few months before;but, he did not pay it back, and on the date of occurrence, A-1 wasdemanding money, and there was evasive answer, and in that quarrel,he being provoked by the non-payment, attacked him with thebillhook. This ocular testimony projected through P.W.1 stood fullycorroborated by the medical evidence. According to P.W.1, there wasone cut made by A-1 with the billhook on the neck of the deceased.His evidence is consistent with the medical opinion canvassedthrough P.W.8. 9.Apart from the above, in the case on hand, on arrest on23.8.2005, A-1 has given a confessional statement in the presence ofwitnesses, and M.O.1, weapon of crime, has been recovered from him.Thus the recovery of M.O.1 from A-1 pursuant to the confessionalstatement would be pointing to the nexus of the crime with theaccused. Under the circumstances, the prosecution has brought homethe guilt of A-1 as one expected in law. The contention put forthby the learned Counsel for the appellant that it was darkness, andtherefore, he could not have seen the occurrence at all cannot beaccepted in view of the evidence of P.W.1 that he took a torchlight, went near the place of occurrence and heard the noise, and atthat time, the occurrence has taken place. At this juncture, it ispertinent to point out that it was P.W.1 who actually took him tothe hospital, went to the respondent police station and then gavethe complaint with a narration of the entire incident. Under thecircumstances, the trial Court was perfectly correct in coming tothe conclusion that it was A-1 who has actually cut the deceased onhis neck and caused instantaneous death. Thus the contentions putforth by the appellant's Counsel do not carry merit as to thefactual position, and they are liable to be rejected, andaccordingly rejected.10.As far as the second line of argument is concerned, thisCourt is able to see force in the contention put forth. Even as perthe prosecution case, the deceased borrowed money from A-1, a fewmonths before; but he did not pay it back and was giving false https://hcservices.ecourts.gov.in/hcservices/ promise. Even on the date of occurrence, he was giving evasivereply, and being irritated and provoked by the answers given, A-1has acted so. That apart, it was also pursuant to a quarrel andprovocation, A-1 has acted so. It remains to be stated that he hadintention to cause such bodily injury as is likely to cause death.Under the circumstances, the act of A-1 would attract the penalprovision of Sec.304 (Part I) of IPC and awarding punishment ofseven years Rigorous Imprisonment would meet the ends of justice. 11.Accordingly, the conviction and sentence imposed on A-1 bythe trial Court under Sec.302 IPC are set aside, and instead, he isconvicted under Sec.304 (Part I) of IPC and directed to undergoseven years Rigorous Imprisonment. The sentence already undergone byhim shall be given set off. The conviction and sentence imposed bythe trial Court on A-1 under Sec.342 read with 34 IPC areconfirmed.12.In the result, with the above modification in conviction andsentence, this criminal appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnsvTo:1.The Additional Sessions Judge Fast Track Court, Dharmapuri.2.-do- thro'The Prl. SessionsJudge, Dharmapuri.3.The Judicial Magistrate, Palacode.4.-do- thro' The Chief Judicial Magistrate,Dharmapuri.5.The Superintendent,Central Prison, Vellore.6.The District Collector, Dharmapuri.7.The Director General of Police,Mylapore, Chennai-4. https://hcservices.ecourts.gov.in/hcservices/

8.The Inspector of Police Madandahalli Police Station Dharmapuri District Panjapalli Out Post Police Station9.The Public Prosecutor High Court, Madras.+1cc to Mrs. Santhakumari, Advocate Sr 34665GV(CO)km/6.8.CRL.A.No.765 of 2008