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CASE NO.: Appeal (crl.)  79 of 2006

PETITIONER: CHINNATHAMAN

RESPONDENT: STATE REP. BY INSPECTOR OF POLICE

DATE OF JUDGMENT: 13/12/2007

BENCH: C.K. THAKKER & J.M. PANCHAL

JUDGMENT: J U D G M E N T  

J.M. PANCHAL, J.                  1.              This appeal is directed against the judgment dated  28th March, 2005 rendered by the High Court of Judicature at  Madras in Criminal Appeal No.648 of 1997, by which,  judgment dated February 14, 1997 passed by learned First  Additional Sessions Judge, Coimbatore in Sessions Case  No.63 of 1996, convicting the appellant under Section 302 of  the Indian Penal Code (for short \021the Code\022) and sentencing  him to R.I. for life, is confirmed. 2.              The facts emerging from the record of the case are  as under:                 The appellant is a resident of village  Thirumalainaickenpalayam.  The name of his younger brother  is Dorai @ Nataraj, who was also residing in the same village  at the relevant time.  The elder daughter of Nataraj was going  to Pioneer Mill School for studies.  She had an affair with one  Kirshnamurthy, who was a teacher in the school.  Therefore,  Mr. Dorai vacated his house situated in village and shifted his  family to a house located in the garden.  He also stopped  Punitha from attending the school.  Punitha, however, eloped  with her teacher and, therefore, a missing report was lodged  by Dorai @ Nataraj with Periyanaickenpalayam Police Station.   The appellant came to know that his uncle\022s grandson  Maruthachalam and his sister\022s son Chandran had facilitated  elopement of Punitha with her teacher and, therefore, scolded  both of them.  The incident in question took place on April 27,  1994.  On the date of incident at about 10.00 AM the  appellant was repairing the leakage in the pipe fitted near the  well situated in his field.  Maruthachalam with his brother  Senthil Kumar approached the appellant and asked him to  give bitterguard.  The appellant refused to give bitterguard  saying that they had defamed his family by helping Punitha to  elope with her teacher.  Thereupon a verbal altercation took  place.  The appellant picked up aruval (sickle) lying on the  ground and caused injuries on the neck of Maruthachalam.   Thereupon Senthil Kumar raised shouts as result of which  Thiru Ramasamy, the father of Maruthachalam, who was  working in his field rushed at the place of incident.  The  appellant after causing injuries to Maruthachalam left his field  and went to village Administrative Officer with the sickle.  The  village Administrative Officer recorded the statement of the  appellant and took him to Periyanaickenpalayam Police  Station with sickle.  At the said police station, Thiru Jayabalan  was discharging duties as sub-inspector.  On the basis of the  statement made by the appellant before the village  Administrative Officer, the sub-inspector registered an offence

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punishable under Section 302 of the Code against the  appellant and commenced investigation.  The police officer  went to the place of incident and seized incriminating articles  under a panchnama.  The dead body of the deceased was sent  to the hospital for autopsy.   The police officer also recorded  the statements of those persons who were found to be  conversant with the facts of the case.  The incriminating  articles seized were sent to forensic science laboratory for  analysis.  On completion of investigation the appellant was  chargesheeted for commission of offence punishable under  Section 302 IPC in the court of learned Judicial Magistrate  Court No.VI Coimbatore.  As the offence punishable under  Section 302 IPC is exclusively triable by court of session, the  case was committed to the court of learned Additional  Sessions Judge, Coimbatore for trial.   

3.              The learned Sessions Judge framed charge against  the appellant for commission of offence punishable under  Section 302 IPC.  It was read over and explained to him.  He  pleaded not guilty to the same and claimed to be tried.   The  prosecution, therefore, examined 12 witnesses to prove its  case against the appellant and also produced necessary  documentary evidence.

4.              After recording of the evidence of prosecution  witnesses was over, the learned judge explained to the  appellant the circumstances appearing against him in the  evidence of the prosecution and recorded his statement under  Section 313 of the Code of Criminal Procedure.  In his further  statement, the case of the appellant was that of total denial.   He did not examine any witness in his defence.

5.              On appreciation of evidence adduced by the  prosecution the learned judge held that it was proved that the  deceased had died a homicidal death.  After placing reliance  on the testimony of eye-witnesses the learned judge concluded  that the appellant was the author of injuries sustained by the  deceased.  The learned judge thereafter considered the nature  of the offence committed by the appellant.  After taking into  consideration the facts of the case and the provisions of  Section 300 IPC, the learned judge concluded that the  appellant had committed an offence punishable under Section  302 IPC.  Therefore, he convicted the appellant under Section  302 IPC and imposed sentence of R.I. for life vide judgment  dated February 14, 1997.  Feeling aggrieved, the appellant  preferred an appeal before the High court of Judicature at  Madras.  The Division Bench of the High Court has dismissed  the appeal by its Judgment dated March 28, 2005 giving rise  to the instant appeal by special leave.

6.              This Court has heard the learned counsel for the  parties and considered the evidence on record.   

7.              The fact that the deceased died a homicidal death is  not in dispute before this Court.  The medical officer who had  performed autopsy on the dead body of the deceased has  mentioned in detail the injuries noticed by him, in his  substantive evidence before the court.  Eye-witness Senthil  Kumar has stated in his testimony that the appellant had  caused injuries on the neck of the deceased by means of a  sickle.  The autopsy report also mentions in detail the injuries  sustained by the deceased.  It is nobody\022s case that the  injuries found on the dead body of the deceased were self  inflicted.  Therefore, the fact that the deceased died a  homicidal death stands proved beyond pale of doubt.

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8.              The testimony of eye-witness Senthil Kumar would  indicate that on the day of the incident the deceased in his  company had gone to the field of the appellant and had  demanded bitterguard.  According to the said witness because  of the elopement of Punitha with her teacher, the appellant  was annoyed and had, therefore, refused to give bitterguard  saying that they had defamed his family.  What is stated by  the said witness is that the deceased had thereupon asked the  appellant to talk in a decent manner and had hardly turned  his back to leave the field of the appellant when the appellant  had delivered a blow with sickle on the neck of the deceased.   Though this witness was cross-examined at length nothing  substantial could be brought on record which would cast a  doubt on his assertion that the appellant was the author of  the injuries sustained by the deceased.  Similarly, another  witness Thiru Ramasami has also deposed that on the day of  incident he had seen the deceased going towards the field of  the appellant in the company of Senthil Kumar and had asked  the deceased as to where he was going.  According to this  witness thereupon the deceased had informed the witness that  he was going to the field of the appellant to get bitterguard.   What is asserted by the witness is that he had advised the  deceased not to go to the field of the appellant as the appellant  was nurturing a feeling that they had helped Punitha to elope  with her teacher.  The witness has further stated that the  deceased had stated that they would come back if the  appellant was not inclined to give bitterguard.  The witness  has also stated that he had heard altercation taking place  between the appellant and the deceased but was not able to  follow the same as he was at a little distance.  What is claimed  by the witness is that he had seen the appellant delivering  blow to the deceased and that he had gone to the field of the  appellant to help his injured son who was bleeding profusely.   The witness has mentioned that the people who were in the  nearby fields, had gathered and thereafter he had gone to the  police station where he had learnt that the appellant had  already lodged a complaint against himself.

9.              This witness is also cross-examined in detail, but  nothing could be brought on record to impeach his credibility.  This witness stands fully corroborated in material particulars  by the testimony of witness Senthil Kumar.  This Court finds  that the Sessions Court and High Court were justified in  holding that the appellant was the author of the injuries  sustained by the deceased.

10.             This brings the court to consider the question as to  which offence is committed by the appellant.  Admittedly, the  incident had taken place in the field/garden belonging to the  appellant, where he was engaged in his farming activities.   From the evidence led by the prosecution it is evident that the  deceased, in the company of witness Senthil Kumar had gone  to the field of the appellant to get bitterguard though they were  warned not to do so by the father of the deceased.  In spite of  knowing that the appellant was nurturing a feeling that the  deceased and his own sister\022s son had facilitated elopement of  Punitha with her teacher, the deceased in the company of  Senthil Kumar had gone to the field of the appellant on the  pretext of getting bitterguard.  The testimony of the father of  the deceased establishes that his deceased son, in the  company of witness Senthil Kumar had stayed in the field of  the appellant for about 15 minutes and that there was an  altercation between the appellant and the deceased.  The  appellant never knew and anticipated that the deceased would

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enter his field  nor had prepared himself in advance to attack  the deceased.  Thus there was no premeditation or pre-plan on  the part of the appellant, to cause the death of the deceased.    Though the appellant is senior in age to the deceased, the  deceased had advised the appellant to behave nicely without  rhyme or reason, when the appellant had refused to part with  bitterguard saying that the deceased and others had disgraced  his family by facilitating elopement of Punitha with her  teacher.  It is not the case of the prosecution that on seeing  that the deceased was entering his field in the company of  Senthil Kumar, the appellant had straightway attacked him.   The evidence led by the prosecution clearly establishes that  after verbal duel, which had lasted for pretty long time, the  appellant had picked up a sickle which is an agricultural  implement, lying on the ground and delivered a blow on the  neck of the deceased.  By entering the field of the appellant on  the pretext of getting bitterguard, though he was knowing fully  well that the appellant was nurturing a feeling that he had  played a role in the elopement of Punitha with her teacher as  well as engaging himself in an altercation with the appellant,  and advising the appellant to behave the deceased had offered  grave and sudden provocation to the appellant as a result of  which the appellant, in the heat of the moment had delivered a  blow with sickle to the deceased. The medical officer who had  performed autopsy on the dead body of the deceased has not  stated that the injuries sustained by the deceased were  sufficient in the ordinary course of nature to cause his death.   It is not the case of the prosecution that the appellant had  acted cruelly, in the sense that he had delivered successive  blows to the deceased.  There was sufficient time and  opportunity to the appellant to give repeated blows.  It is not  the case of the prosecution that the appellant wanted to  deliver other blows and that he was prevented from doing so,  by any person.  So, there is reasonable ground to believe that  after giving the blow, the appellant had stopped and not acted  cruelly.  As noticed earlier, the appellant was doing his work  and was not waiting for the deceased to come.  On the facts  and in the circumstances of the case, this Court is of the  opinion that Exception 1 to Section 300 IPC would apply to the  facts of the case and the offence committed by the appellant  would be one punishable under Section 304 IPC.  There is  nothing on record to indicate that the appellant had  committed culpable homicide amounting to murder by causing  death of the deceased with the intention of causing death of  the deceased or of causing such bodily injury as was likely to  cause his death.  Therefore, the provisions of Part II of Sction  304 IPC would apply to the facts of the case on hand.  Thus,  the appeal will have to be allowed by converting the conviction  of the appellant under Section 302 IPC to one punishable  under Section 304 Part II IPC.  This Court has considered the  submissions advanced at the bar for the purpose of imposition  of sentence on the appellant for commission of offence  punishable under Section 304 Part II IPC.  As held earlier  there was no pre-meditation or pre plan on the part of the  appellant to cause death of the deceased, and the occurrence  had taken place when the deceased, with another had entered  the field of the appellant and engaged himself in an altercation  with the appellant when the appellant had refused to part with  bitterguard.   Having regard to the attending circumstances in  which the incident had taken place, this Court is of the  opinion that the interest of justice would be served if the  appellant is sentenced to rigorous imprisonment for five years  for commission of offence punishable under Section 304 Part  II IPC.

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11.             For the foregoing reasons, the appeal partly  succeeds.  The judgment of the High Court of Judicature at  Madras dated March 28, 2005 rendered in Criminal Appeal  No.648 of 1997, confirming the conviction of the appellant  under Section 302 IPC and sentence of life imprisonment  recorded by the learned First Additional sessions Judge,  Coimbatore vide judgment dated February 14, 1997, delivered  in Sessions Case NO.63 of 1996, is set aside.  Instead the  appellant is convicted for commission of an offence punishable  under Section 304 Part II IPC for the said offence.  The  appellant is sentenced to undergo rigorous imprisonment for  five years and a fine of Rs.5,000/-, in default, simple  imprisonment for one year.  The appeal accordingly stands  disposed of.