1. This appeal challenges a judgment of the Principal Sessions Division, Villupuram, made in S.C.No.253 of 2007 whereby these appellants, who were shown as A-1 and A-2 respectively, along with A-3 and A-4 stood charged, tried, found guilty and awarded punishment as follows: ACCUSED
CHARGE FINDING PUNISHMENT
A-1 & A-2
302 IPC
Guilty
Life imprisonment with a fine of Rs.5000/- and default sentence
A-1 to A-3
324 IPC
Guilty
2 years RI with a fine of Rs.5000/- and default sentence
A-1 & A-4
294(b) IPC
Not guilty Acquitted
A-4
323 IPC (2 counts)
Guilty
6 months SI with a fine of Rs.2000/- and default sentence
A-3 and A-4
302 r/w 34 IPC
Guilty
Life imprisonment with a fine of Rs.5000/- and default sentence
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is a native of Mettupalayam Village. P.W.2 is his mother, while P.W.3 is his sister. The deceased Chinnathambi was the father of P.Ws.1 and 3 and the husband of P.W.2. There were landed properties, motor pump set and coconut thope, and all belonged to two families consisting of the deceased and the prosecution witnesses on the one side and of A-1 and A-2 on the other side. The properties were actually not divided, and civil proceedings were pending before the Court. Just before the occurrence, some coconuts were taken by the deceased and were given to the Mariamman Temple in the village at the time of the festive occasion. Aggrieved over the same, on the date of occurrence that was on 15.6.2007, the accused climbed over the trees and did some mischief by damaging the coconuts. It was questioned by the deceased, and immediately, A-1 attacked him with a knife on his head, and A-2 also joined him in attacking the deceased with another knife. P.W.1 intervened, and he was attacked by A-1 and A-2 respectively, one after another. P.W.3 also intervened, and she was also attacked by A-3 with a knife and A-4 with a wooden-log. Both the deceased and P.Ws.1 to 3 were all injured. P.W.4 has witnessed the entire occurrence.
(b) P.W.4 along with others took both the deceased Chinnathambi and also P.Ws.1 to 3 to the Government Hospital, Villupuram, where all of them were given treatment by P.W.11, the Doctor. He gave initial treatment to the deceased, and the accident register copy in his regard is marked as Ex.P13. Insofar as P.W.2, the accident register copy is Ex.P14. Ex.P15 is the accident register copy pertaining to P.W.3. The accident register copy in respect of P.W.1 is marked as Ex.P16. In these accident register copies, the injuries sustained by them were noted by P.W.11, the Doctor, and thereafter, the deceased was taken to the Government General Hospital, Pondicherry, on the advice given by P.W.11.
(c) On receipt of the intimation, P.W.14, the Sub Inspector of Police of the respondent police station, proceeded to the Government Hospital, Villupuram, and recorded the statement of P.W.1, marked as Ex.P1, on the strength of which a case in Crime No.476 of 2007 was registered under Sections 294(b), 324, 323 and 307 of IPC. The printed FIR, Ex.P20, was despatched to the Court.
(d) The investigation was taken up by P.W.15, the Inspector of Police of the Circle, who proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P22. A-1 was arrested on 16.6.2007. He came forward to give a confessional statement voluntarily which was recorded in the presence of witnesses. Ex.P23 is the admissible part of that confession. He produced a koduval which was recovered under a cover of mahazar. A-3 was arrested on the very day. He gave a confessional statement. They were sent for judicial remand.
(e) On 23.6.2007, an intimation was received from the hospital that Chinnathambi died. Then the case was converted to Sec.302 of IPC. The amended FIR, Ex.P25, was despatched to the Court. Then the Investigator conducted inquest on the dead body of Chinnathambi in the presence of witnesses and panchayatdars and prepared Ex.P26, the inquest report. A requisition was given to the hospital authorities for the purpose of postmortem.
(f) P.W.13, the Senior Resident Forensic Medicine, Indira Gandhi Government G.H. & Post Graduate Institute, Pondicherry, on receipt of the requisition, has conducted autopsy on the dead body of Chinnathambi and has issued a postmortem certificate, Ex.P19, with his opinion that the deceased died of head injuries.
(g) The Investigator came to know that A-2 and A-4 have surrendered before the Judicial Magistrate No.II, Villupuram. He made a request for police custody, and the same was ordered. At the time of interrogation, they voluntarily gave confessional statements, and the same were recorded independently. The admissible part of the confessional statement of A-2 is Ex.P9 and that of A-4 is marked as Ex.P11. They produced knife and wooden-log respectively, which were recovered under a cover of mahazar. All the material objects were subjected to chemical analysis by the Forensic Sciences Department which resulted in Ex.P29, the chemical analyst's report, and Exs.P30 and P31, the serologist's reports. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 15 witnesses and also relied on 31 exhibits and 9 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. On the side of the defence, though no witness was examined, they marked three documents as Exs.D1 to D3. On completion of the evidence on both sides, the trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellant and also the other three accused guilty and awarded the above punishment. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel would submit that though the prosecution has marched P.Ws.1 to 3 not only as eyewitnesses, but also as injured witnesses, and P.W.4 as an eyewitness, it has miserably failed to prove its case; and that the occurrence, according to the prosecution, has taken place at about 5.00 P.M. on 15.6.2007; but the delayed FIR would clearly indicate that the prosecution story was nothing but false. 5.Added further the learned Counsel pointing to Ex.D1, the FIR registered in the counter case in Crime No.480 of 2007, that the said case came to be registered at the instance of A-1; that A-1 has also sustained injuries; that Ex.D3, the accident register copy, would clearly indicate the same; that injury was also caused on his head; that without being inflicted by a weapon, such an injury could not have been caused; that it would be quite clear that the prosecution has burked the genesis of the occurrence and also failed to explain how the injury was sustained by A-1; that if to be so that on the very same transaction, two cases came to be registered, a duty was cast upon the prosecution to place and prove all the materials available enabling the Court to find out the truth; but the prosecution has miserably failed to do so, and under the circumstances, the trial Judge should have rejected the case of the prosecution outright.
6.Added further the learned Counsel in the second line of argument that even assuming that the factual matrix of the prosecution case is taken to have been proved, the act of the appellants would not attract the penal provision of murder; that at best, it would attract the penal provision of Sec.324 of IPC, and it has got to be considered by the Court.
7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
8.It is not in controversy that one Chinnathambi, the husband of P.W.2, following an incident that had taken place at about 5.00 P.M. on 15.6.2007, was taken to the Government Hospital, Villupuram, and after being treated by P.W.11, the Doctor, as could be seen from the accident register copy, Ex.P13, Chinnathambi was taken to the Government General Hospital, Pondicherry, where he succumbed to the injuries sustained by him. Further, the case originally registered under Sec.307 IPC inter alia, on his death, was subsequently altered to Sec.302 IPC. Following the inquest made by the Investigator, the dead body was subjected to autopsy by P.W.13, the Doctor, who has given a medical opinion as a witness before the Court and also through the contents of the postmortem certificate that he died out of head injuries. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court, and under the circumstances, the trial Judge was perfectly correct in recording so.
9.In order to substantiate the charges levelled against the appellants/A-1 and A-2 and also the other two accused shown as A-3 and A-4, the prosecution marched four witnesses as eyewitnesses, out of whom three namely P.Ws.1 to 3, were injured witnesses. Trite law it is, in a given case like this where an eyewitness happened to be an injured witness, the Court should not discard his testimony unless and until a strong circumstance is noticed by the Court, or reason is brought about. In the instant case, it is also noticed that P.Ws.1 to 3 are closely related to the deceased. But, on that ground, their evidence cannot be discarded. However, it must be subjected to careful scrutiny. In the instant case, what is noticed by the Court is that the incident is an admitted fact. It is urged by the learned Counsel for the appellants that in the same incident, A-1 was also attacked, and he also sustained injury, and a case came to be registered by the very same police in Crime No.480 of 2007. All would clearly indicate that two cases came to be registered in the course of the same transaction, and hence it becomes quite evident that such a transaction has taken place. It is pertinent to point out that all the family properties remained undivided between the families consisting of the prosecution witnesses on the one side and A-1 and A-2 on the other. At that time, the deceased plowed certain coconuts and handed over to the temple. Aggrieved over the same, the appellants actually committed some mischief on the date of occurrence, and when it was being questioned by the deceased, it was A-1 and A-2, the appellants herein, who attacked him with koduvals, and as a direct consequence, death has ensued. This was witnessed by P.Ws.1 to 3. P.Ws.1 and 2 were attacked by A-1 and A-2 and apart from that, P.W.3 was also attacked by A-3 and A-4 with koduval and wooden-log respectively. All have deposed in that regard, and the medical opinion in that regard has also been placed by examining the Doctor. The accident register copies in their regard have also been produced before the Court. Under the circumstances, the contention put forth by the learned Counsel that the prosecution has not brought forth the genesis before the Court enabling it to render justice cannot be countenanced.
10.Added further, in a given transaction like this, the Court is able to see that A-1 is found to have sustained injuries in the same transaction. It is not necessary for the prosecution that in every case, the prosecution must explain the injuries sustained by the accused and that too in a case where the injuries are superficial or simple. Now, at this juncture, it is pertinent to point out that Ex.D3 would indicate that A-1 sustained injuries, and apart from that, he has also given a complaint on the strength of which a case came to be registered wherein P.Ws.1 to 3 and the deceased are shown as accused. In such circumstances, the act of A-1 cannot be said to be intentional or premeditated, but at the time when the quarrel has taken place, the incident has taken place. When the prosecution is able to show the genesis of the occurrence, and how it commenced, and it was actually because of the intervention by the other, the act of either A-1 or A-2 cannot be brought under Sec.302 of IPC. This Court is of the considered opinion that the act of the appellants would attract Sec.304 (Part II) IPC and awarding a punishment of five years Rigorous Imprisonment would meet the ends of justice.
11.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellants/ A-1 and A-2 under Sec.302 of IPC are set aside, and instead, they are convicted under Sec.304 (Part II) of IPC and are directed to suffer five years Rigorous Imprisonment. The sentence already undergone by them, shall be given set off. The fine amount imposed by the trial Court will hold good.
12.As regards the conviction and sentence imposed by the trial Court on the appellants under Sec.324 of IPC, they are found to be reasonable, and thus they are confirmed. Both the sentences are ordered to run concurrently. 13.In the result, this criminal appeal is, accordingly, disposed of.