Mathiazhagan, Parthasarathi, Palani and Kutti @ Jaisankar vs The State

M. Chockalingam, J.—Challenge is made to the judgment of the Additional Sessions Division, Fast Track Court-II, Kancheepuram made in

S.C. No. 357/2007 whereby the appellants, 4 in number, stood charged, tried and found guilty as follows:

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Accused Findings Award

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A1 to A4 294 IPC 3 months simple

imprisonment each

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A1 to A4 506 (ii) IPC 3 years RI each and

fine of Rs. 1000/- in

default to undergo three

months RI each

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A1 to A4 302 r/w 34 IPC Life imprisonment

each along with fine

of Rs. 5000/- in

default to undergo

1 year RI.

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The sentences are ordered to run concurrently.

The short facts necessary for the disposal of this appeal can be stated as follows:

(a) P.W.1 is the son, P.W.3 is the wife, P.W.4 is the elder brother and P.W.5 is the grand daughter of the deceased. P.W.6 is related of them.

P.W.7 is the husband of P.W.5. On 8.4.2007 at about 2.00 p.m., the accused went to the house of P.W.1 and complained to the deceased that

P.W.1 was making fun of Deepa, the daughter of A1. The deceased replied that P.W.1 was going for tuition for the past 4 months and such things

could not have happened. The accused were not satisfied with the reply given by the deceased and they made a challenge that they would do away

him and went from the place.

(b) On the next day i.e., on 9.4.2007 at 6.00 a.m., P.W.3 went to take water in a public tap located nearby the house. The neighbour one

Seniammal came there and objected for the same. At that time, the deceased/husband of P.W.3 came there and questioned the said Seniammal.

At that time, the first accused armed with M.O.1 chopper and A2 to A4 armed with wooden logs came there and abused him in filthy language

and attacked him. It was the first accused who caused cut injury on the fore head of the deceased, while A2 to A4 attacked him with wooden logs

on different parts of the body. It was witnessed by P.Ws.1 to 6. When P.W.1 attempted to rescue, he was also, the accused threatened by the

accused. When the crowd gathered there they left the place of occurrence.

(c) The severely injured deceased was taken to Sriperampudur Government Hospital. P.W.2 gave initial treatment at about 7.25 a.m and the

Accident Register copy is marked as Ex.P2. Thereafter, he was taken to the Government General Hospital, Madras, where he was given

treatment by P.W.9 doctor at about 9.10 a.m. The accident register copy is marked as Ex.P13. Thereafter, further treatment was given by

P.W.11 doctor. Despite treatment, he died. Then, an intimation was given under Ex.P15 to the respondent Police.

(d) In the meanwhile, P.W.1 proceeded to the respondent Police Station and gave a complaint Ex.P1 on the strength of which P.W.13 Sub

Inspector of Police of the respondent has been registered a case in Crime No. 240/2007 u/s 294(b), 324 and 307 I.P.C. And Ex.P17, F.I.R.

copy was sent to Court.

(e) P.W.16, the Inspector of Police, proceeded to the spot, made an inspection and prepared Ex.P3 observation mahazar and also drew a rough

sketch Ex.P.21 He got information that the deceased died in the Government General Hospital at Madras. The case was altered to Sections

294(2) and 302 I.P.C. and the amended F.I.R. Ex.P22 was despatched to Court.

(f) The investigating officer went to the mortuary and conducted inquest on the dead body of the deceased in the presence of witnesses and

prepared Ex.P23 inquest report. The dead body was subjected to post mortem. P.W.12 doctor conducted autopsy on the dead body of the

deceased Krishnan and gave the post mortem certificate Ex.P16 wherein he has opined that the deceased appear to have died out of shock and

haemorrhage due to the effects of head injuries sustained by him.

(g) Pending investigation on 9.4.2007, A1 was arrested. He gave confessional statement voluntarily and the admissible part of the same was

marked as Ex.P24. He produced M.O.1 chopper which was recovered under a cover of mahazar Ex.P6 in the presence of two witnesses. A2 to

A4 surrendered before the XXIII Judicial Magistrate, Saidapet, Chennai. The investigating officer filed a requisition before the Judicial Magistrate

No. 2, Kancheepuram for police custody and the same was ordered and the accused were interrogated. A2 to A4 gave confessional statement

and the admissible part of the same were marked as Exs.P25, 26 and 27, following which, they produced M.O.2, 3 and 4 wooden logs and they

were recovered under mahazars Exs.P10, 11 & 12 respectively and the accused were sent for judicial remand. All the material objects were sent

for chemical analysis which resulted in Ex.P18 biology report and Exs.P19 and Ex.P20 serologist reports. Further investigation was done by

P.W.17 Inspector of Police, who recorded the statement of the witnesses and on completion of the investigation, he filed a final report.

(h) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the

accused, the prosecution examined 17 witnesses and relied on 28 exhibits and 8 material objects. On completion of the evidence on the side of the

prosecution, the accused were questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution and they

denied them as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the

prosecution has proved its case beyond doubt and found the accused guilty and rendered the judgement of conviction and sentence as referred to

above. Hence, this appeal at the instance of the appellants.

Advancing the argument on behalf of the appellant, Mr. R.C.Paul Kanagaraj, the learned Counsel for the appellants would submit, in the instant

case, the occurrence has taken place on 9.4.2007 at 6.00 a.m. P.Ws.1, 3, 4 and 5 were examined as eye witnesses. It is pertinent to point out that

all of them were close relatives of the deceased. If their evidence are carefully scrutinised, it would reveal that there are lot of the discrepancies in

material particulars and the trial court should have rejected their evidence but not done so. It is needless to say that on earlier occasion, even as per

the prosecution case, A1''s daughter was teased by P.W.1. The accused went over to the house of the deceased and questioned the conduct of

P.W.1 but P.W.1 did not take any steps and gave evasive reply. This provoked them. Thus, it would be clear that already they had grudge against

the accused and hence, they have given false evidence.

The learned Counsel would further add that the medical opinion canvassed by the prosecution did not corroborate with the ocular testimony.

The alleged arrest of A1,the confessional statement, the recovery of M.O.1 chopper and A2 to A4 were taken to police custody and they gave

confessional statements, pursuant to which, M.Os. 2 to 4 wooden logs were recovered, were all nothing but cooked up up story in order to

strengthen the prosecution case. The evidence adduced in that regard would clearly indicate that such arrest and recording of confessional

statement could not have take place at all.

Added further learned Counsel, in the instant case, the prosecution miserably failed to proved the case. Even assuming the factual position that

the accused have attacked the deceased at the time of occurrence, as per the prosecution, there was wordy altercation when P.W.3, wife of the

deceased took water from the public tap. The same was questioned by Seniammal. At that time, the deceased intervened. Thus, there wordy

altercation and due to sudden quarrel A1 has attacked him on his head while A2 to A4 even as per the prosecution have attacked only on the legs

and they did not have any common intention to commit the crime. Even as per the post mortem doctors opinion, the injury that was found on the

skull was actually fatal, which according to the prosecution, was caused by A1. In the absence of anything to indicate that they had common

intention, it cannot be stated as one of murder. This factual position and the legal aspects have not been considered by the trial Court and this

Court have to consider all these aspects and render justice.

The Court heard the learned Additional Public Prosecutor and paid its anxious consideration on all the submissions made.

It is not in controversy that at the incident that had taken place at 6.00 a.m. on 9.4.2007 the deceased was attacked and he was immediately

taken to Government Hospital, Sriperambudur where he was given initial treatment by P.W.2 and the accident register copy was marked as

Ex.P.2 and thereafter, he was taken to Government Hospital Madras, and he was given treatment there. Despite treatment, he died. Though,

originally the case was registered under Sections 294(b), 324 and 307 IPC, subsequently, on the death of the deceased, it was altered to Section

294(b) and 302 I.P.C. Following the inquest made by the investigating Officer P.W.16, the dead body was subjected to post mortem. The doctor

who conducted post mortem has given his categoric opinion as a witness before the Court and also through the post mortem certificate Ex.P16

that the deceased died out of shock and haemorrhage due to the injury sustained on his head. Apart from that, the appellants never disputed that

the deceased died out of homicidal violence before the trial Court or before this Court. Under such circumstances, no impediment is felt by this

Court in recording so.

In order to substantiate that the accused have attacked the deceased at the time of occurrence and as a result of which death has caused as a

direct consequence, the prosecution rested its case on the evidence of P.Ws. 1, 3 4 and 5. True it is, they were all close relatives to the deceased.

It is the settled principles of law that merely because the witnesses happen to be the relatives of the deceased, their evidence could not be rejected

but it must be subjected to careful scrutiny test. Even after application of the test, the Court is satisfied that the evidence of P.Ws. 1, 3, 4 and 5

was in one voice, cogent and convincing. Hence, the trial Court has accepted the same. All the witnesses have spoken to the fact that P.W.3 went

to take water in a public tap and Seniammal intervened and at that juncture, it was the deceased who questioned Seniammal. Following the same,

the incident had taken place and thus, it is quite clear that, in that process, A1 attacked him with chopper on the head while A2 to A4 attacked him

on his leg . All the four witnesses have given clear narration of the same without any discrepancy. The ocular testimony projected through P.Ws. 1,

3, 4 and 5 fruitfully corroborated with the medical evidence.

Further, A1, at the time of arrest came forward to give confessional statement, in respect of which, the witnesses were examined, pursuant to

which, the material object were produced by him and along with the other materials, they were sent for chemical analysis and all the evidence

putforth by the prosecution would clearly indicate that the accused at the time of occurrence have attacked the deceased and caused his death.

The contentions putforth by the learned Counsel for the appellant, in the considered opinion of the Court, do not merit acceptance. The occurrence

has taken place at 6.00 a.m. and the deceased was taken to Government Hospital Sriperambudur. P.W.2 doctor examined the deceased and in

the accident register copy, the manner in which the injuries caused were also mentioned. Thereafter, the deceased Krishnan was taken to the

Government General Hospital at Chennai and was given treatment and within few hours, the deceased died. The case which was originally

registered u/s 307 I.P.C. was altered to Section 302 I.P.C. All would clearly indicate that the prosecution case, as narrated by the witnesses,

before the trial Court was true and genuine, which was rightly accepted and recorded by the trial Court and there is nothing to interfere, insofar as

the factual position is concerned.

So far as the second line of contention is concerned, the Court is able to see force in the said contention. The occurrence has taken place on

9.4.2007 at 6.00 a.m. when P.W.3 was taking water and when Seniammal intervened, it was the deceased who came over there and questioned

the lady, at that time, the occurrence has taken place. As per the available materials, it could be seen that there was wordy altercation which would

be indicative of the fact that they were neither intentional nor pre-meditation. It is true A1 has attacked the deceased with chopper and A2 to A4

have attacked with wooden log. It is not the case of the prosecution that they were waylaid the deceased armed with weapons but it was due to

sudden quarrel. Under such circumstances, there is nothing to indicate there is no common intention and hence, the accused have to be dealt with

for their independent act.

According to the post mortem doctor, the injury that was found on the head of the deceased was fatal which has caused the death and

according to the prosecution, it was caused by A1 who attacked him with chopper on the head. Insofar as A2 to A4 are concerned, they have

attacked him with wooden logs on the other part of the body. It could be seen that the accused had no intention to cause death. Under such

circumstances, the Court is of the opinion A2 to A4 could be found guilty u/s 324 I.P.C. instead of 302 r/w 34 IPC and the award of two years

rigorous imprisonment would meet the end of justice and the act of A1 would attract the penal provision u/s 304(1) I.P.C. instead of 302 r/w 34

IPC and the award of 7 years rigorous imprisonment would meet the ends of justice.

Accordingly, the judgment of conviction and sentence imposed on A1 by the trial court, u/s 302 r/w 34 IPC is modified, instead, he is found

guilty u/s 304(1) IPC and awarded 7 years rigorous imprisonment. The judgment of conviction and sentence imposed on A2 to A4 by the trial

court, u/s 302 r/w 34 IPC is modified, instead, they are found guilty u/s 324 IPC and awarded 2 years rigorous imprisonment. The conviction and

sentence imposed on A1 to A4 by the trial Court u/s 294(b) IPC is confirmed. A1 to A4 are acquitted of the charge u/s 506(ii) IPC. The

sentences imposed on the accused are ordered to run currently. The period of sentence already undergone by the accused is ordered to be given

set off. The fine amount imposed on A1 u/s 302 r/w 34 IPC shall be treated as fine amount imposed u/s 304(I) IPC. The fine amount imposed on

A2 to A4 u/s 302 r/w 34 IPC shall be treated as fine amount imposed u/s 324 IPC.

With the above modification in conviction and sentence, the criminal appeal is disposed of.