(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., praying to set aside the conviction and sentence imposed on him by the Learned Principal Sessions Judge, Dharmapuri by Judgment dated 12.02.2015 in S.C.No.135 of 2014 and acquit the Appellant by allowing its Appeal.)

1. The Appellant/A1 has preferred the instant Criminal Appeal (as an aggrieved person) as against the Judgment dated 12.02.2015 in S.C.No.135 of 2014 passed by the Learned Principal Sessions Judge, Dharmapuri.

2. The Learned Principal Sessions Judge, Dharmapuri, while passing the impugned Judgment in S.C.No.135 of 2014 dated 12.02.2015, at paragraph 21, had observed the following:

“21. With reference to offence u/s.302 is concerned in the earlier incident the accused took away the fuse carrier so as to stop taking of water by the wife of the deceased. As rightly contended by the defence, it is more probable that the deceased's family alone could have raised the issue in the night. It has been argued that the wife of the deceased was injured in the incident citing the portion of the confession narrating as Kaliammal sustained injuries by falling down while escaping and the counsel submitted that the wife of deceased was assaulted by the deceased and the accused could have exceeded the right of private defence and he cannot be held guilty u/s 302 IPC. Such an argument appear to be sound. Considering the previous quarrel at the field, taking away of fuse carrier by the accused, fact that irrigating turn on the day is that of the accused as admitted by PW3 and quarrel thereon, this Court is of the view that the quarrel might have started from the family of the deceased after the arrival of the deceased. In such quarrel the deadly assault was made by the accused without any plan as a sudden provocation. On considering the overall sequence of events, facts and circumstances of this case and a single, major wound inflicted on the deceased would go to probabalise that the act of the accused is retaliation and out of sudden provocation. Hence this court finds it is safe to deal the accused for the offence punishable u/s 304 part 2 instead of 302 IPC since the death was caused by an act which is likely to cause death but without intention due to sudden provocation.”

and finally, found the Appellant not guilty under Section 302 I.P.C. but found him guilty under Section 304(ii) I.P.C. and imposed a punishment of seven years Rigorous Imprisonment and also directed him to pay a fine of Rs.5,000/-, in default of payment of fine, he was further directed to undergo three months Rigorous Imprisonment.

3. During the pendency of main S.C.No.135 of 2014 on the file of trial Court, A2 (Kaliammal - wife of Appellant/A1) died on 22.06.2013 and therefore, the charges under Sections 294(b), 302 I.P.C. levelled against her, stood abated.

4. Assailing the correctness, legality and validity of the Judgment of the trial Court in S.C.No.135 of 2014 dated 12.02.2015, the Appellant/A1 has filed the instant Appeal, by taking a plea that except the interested evidence of P.W.1 to P.W.4, no other independent witnesses were examined to corroborate the prosecution case, but these aspects were not taken note of by the trial Court in a proper and realistic fashion.

5. The Learned Counsel for the Appellant/A1 contends that there was a genuine doubt about the presence of light at the time of occurrence and absolutely, there was no evidence to show that there was light available at the time of occurrence and furthermore, there was no evidence to show as to who examined the deceased in the hospital and pronounced him brought dead coupled with the fact that there was no intimation by the hospital to the outpost police station in the hospital. These aspects do really createa reasonable doubts which were not taken note of by the trial Court at the time of passing the impugned Judgment.

6. The Learned Counsel for the Appellant projects an argument that P.W.2, in her evidence, had clearly deposed that the problem arose at the time when the deceased was taking his dinner and that the evidence of the Postmortem Doctor P.W.6 was to the effect that there was semi digested food found in the stomach of the deceased, which fact goes to show that the occurrence could not have taken place at the time, as alleged by the prosecution.

7. Advancing his arguments, the Learned Counsel for the Appellant takes a forceful stand that the evidence of P.W.10 (Investigation Officer) was to the effect that P.W.5 (V.A.O.) was present at the scene of occurrence when he visited the spot at 6.00 a.m. on 19.03.2013 whereas the evidence of V.A.O. (P.W.5) was to the effect that when he was at the scene of occurrence at 1.30 p.m. he received a call to his mobile phone from P.W.10 informing him that he had arrested the Accused and asked him to come to Pananthope Bus Stop. Therefore, it is represented on behalf of the Appellant that P.W.10 had not spoken the truth and as such, his evidence could not relied upon. Yet another contention advanced on behalf of the Appellant/A1 is that the lower Court had failed to note as to how P.W.10 – Investigating Officer was able to arrest the Appellant/ Accused.

8. Furthermore, the submission of the Learned Counsel for the Appellant is that there was no evidence to show that the blood stained alleged to have been found in the weapons and blood stained found in the cloth purported to have been recovered from the Appellant belong to the same group. In short, the stand of the Appellant is that the trial Court should have rejected the version of the prosecution case.

9. The Learned Counsel for the Appellant brings it to the notice of this Court that except the interested evidence of P.W.1 and P.W.2 to show as to how long the land dispute was there between the parties and what was the gravity of such dispute, the trial Court in the instant case, had incorrectly observed in its impugned Judgment that there was a motive for the Appellant to commit the offence because of the land dispute in question.

10. The Learned Counsel for the Appellant submits that at the place of occurrence, there was no light and it was dark and in the instant case, it was not shown before the trial Court that there was light at the time of occurrence and therefore, the Accused could not have been identified by the concerned prosecution witnesses.

11. The Learned Counsel for the Appellant contends that as per Ex.P11 (Printed Copy of express F.I.R.), the date of occurrence was on 18.03.2013 at about 20.45 hours and that the information received at the Police Station was on the same day at 23.00 hours. Furthermore, the Learned Judicial Magistrate No.I (In charge), Dharmapuri at Ex.P11 – F.I.R. had made an endorsement that he received the said F.I.R. at 8.00 a.m. on 19.03.2013 and therefore, there is a delay in sending the F.I.R. to the Court concerned.

12. In this connection, the Learned Counsel for the Appellant refers to Section 157(1) Cr.P.C., in and by which, the First Information Report is to be transmitted to the Magistrate concerned forthwith. Further, it is represented on behalf of the Appellant that in the instant case, Ex.P11 – F.I.R. was received by the Learned Judicial Magistrate No.I (In charge) on 19.03.2013 at 8.00 a.m. even though the date of occurrence was at 18.03.2013 at 20.45 hours and therefore, the delay of despatch of F.I.R. is fatal to the prosecution.

13. Lastly, it is the submission of the Learned Counsel for the Appellant that in any event, the trial Court had committed an error in imposing a punishment of seven years Rigorous Imprisonment and imposition of fine of Rs.5,000/- to the Appellant/A1, which is unsustainable in Law.

14. To lend support to the contention that a delay in despatch of First Information Report is fatal to the case of Respondent/Prosecuting Agency, the Learned Counsel for the Appellant places reliance on the Division Bench of this Court in Ramachandran and others V. State, by Inspector of Police, Tirupur North Police Station, Tirupur, 2012(3) MWN (Cr.) 266 (DB) at special pages 275 & 276, at paragraph Nos.23,26 & 28, whereby and whereunder, it is observed as follows:

“23. In the case before us, it is clear from the evidence of Pws.1 & 2 that FIR in this case is a fabricated document. It shakes the very prosecution version of the case as well as the credibility of vital prosecution witnesses, namely, Pws.1 & 2, who are eyewitness in this case.

26. There is yet another infirmity in this case. According to prosecution, the occurrence was on 5.5.2008, at about 12.30 a.m. The FIR was recorded by PW12-Jayaraman, Sub-Inspector of Police, at the Govt. Hospital, Tirupur at about 2.45 a.m. and it was registered by him at the Tirupur North Police Station at about 3.45 a.m. The FIR has been handed over to Judicial Magistrate No.I, Tirupur, on the next day, at about 10 a.m. From the cross examination of PW12, it is seen that the said Court is situate within 250 yards from the Police Station. So, the FIR has reached after 6 hours of delay. As to this, PW12 was also cross-examined by the defence. It was also suggested to him that the FIR was not registered at the time and place as stated by him. Absolutely, there was no explanation from him as to the said delay.

28. In the facts and circumstances of this case, the said unexplained delay in FIR reaching the Court assumes signal importance since we have held that the FIR in this case is not free from doubt. This delay goes to the root of the matter. It shakes the version of the prosecution case embodied in the FIR.”

15. Per contra, it is the submission of the Learned Government Advocate (Crl. Side) for the Respondent that P.W.1 and P.W.2 were the eyewitnesses to the occurrence (being the son and wife of the deceased) who had spoken about the occurrence and their evidence were taken note of by the trial Court at the time of passing the impugned Judgment.

16. The Learned Government Advocate for the Respondent urges before this Court that the evidence of P.W.3 and P.W.4 had corroborated the evidence of P.W.1 and P.W.2 in regard to the manner of happening of occurrence and in the present case, the trial Court had came to a conclusion that the Appellant/A1, due to sudden provocation, had stabbed the deceased (Periyasamy) on his chest and imposed a punishment of seven years Rigorous Imprisonment under Section 304(ii) I.P.C. (instead of under Section 302 I.P.C.) and also directed him to pay a fine of Rs.5,000/-, in default of payment of fine, it also imposed a default sentence of three months Rigorous Imprisonment.

17. The Learned Government Advocate for the Respondent takes a stand that the imposition of punishment of seven years Rigorous Imprisonment by the trial Court upon the Appellant/A1 was a lesser punishment and in short, the Judgment of the trial Court deserves to be confirmed.

18. At the out set, it is to be pointed out by this Court that the case of the Respondent/Prosecuting Agency is that there was enmity between the Appellant/A1 and the deceased Periyasamy's family in regard to the drawing of water from the common well. Furthermore, it comes to light that on 18.03.2013, the deceased Periyasamy's wife and another relative were irrigating water to the betel leaf plants and that the Appellant/A1 and his wife (Kaliammal) came there and staked a claim that it was their turn and they took away the fuse carrier of the common motor pumpset and in respect of the same, there was a quarrel on the night of 18.03.2013 at about 5.00 p.m. and later, at 8.45 hours in the night the Appellant/A1 and his wife [A2 - Kalliammal (deceased)] stabbed the deceased Periyasamy.

19. It is to be pointed out that the present case rests on oral testimony of witnesses. In fact, P.W.1 (son of deceased Periyasamy) had categorically deposed in regard to the aspect of relationship between the parties, common well and the dispute pertaining to drawing of water on the particular day and removing of fuse carrier by the Accused. As a matter of fact, he was not an eyewitness in regard to the occurrence that took place at the field. However, in regard to the assault that took place on 18.03.2013 at about 23.00 hours, he had stated in his evidence that the Appellant/A1 and his wife (A2 – Kalliammal) near Panchayat Threshing Floor, abused his family members and upon hearing the same, his father (since deceased) went to the place and pursuant to the altercation that took place between the parties, the Appellant/A1 attacked his father Periyasamy (deceased) with knife and because of the injury, his father had died.

20. P.W.2 (Mallika - wife of deceased Periyasamy), in her evidence, had spoken about the occurrence that took place at the occurrence field and removing of fuse carrier by the Appellant/A1 and later, occurrence that took place at about 8.45 p.m. In fact, she had deposed in her evidence that the Appellant/Accused had uttered the following words 'on seeing her husband only if you died the solution would be found' and by so saying, took out a hidden knife and with it's aid stabbed her husband on the chest and his wife (Appellant/A1's wife) stabbed deceased Periyasamy on his left hand and leg.

21. P.W.3 (relative of both the Appellant/A1 as well as the deceased Periyasamy) had deposed about the occurrence that took place at the field and removing of fuse carrier by the Appellant and further, she had added that there was some noise at about 7.30 p.m. and she found the deceased Periyasamy and the Appellant quarrelled with each other and in fact, saw the deceased Periyasamy with brutal injuries.

22. P.W.4 in his evidence had stated in regard to the division of lands and the turn in respect of common well and also the dispute between the deceased Periyasamy and the Appellant/A1 and further he went to the Panchayat Threshing Floor on hearing the noise, where he saw Periyasamy with brutal injuries and also had seen the Appellant and his wife (A2 since deceased) running away from the place. Admittedly, the deceased Periyasamy and the Appellant/A1 are brothers. On behalf of the Appellant, it is represented that the Complainant's (P.W.1) family endeavoured to draw water to which they were not entitled to because of the reason that it was the turn of the Appellant/A1. But the fact of the matter is there is a motive for the quarrel that took place.

23. From Ex.P9 – Postmortem Report, the following external injuries are found:

“1) An oblique 9 x 2.5 x 4 cm. Muscle deep cut wound on front and outer aspect of lower 1/3^rd of left thigh, margin were regular, ends were acute.

2) A vertical 5 x 1.5 x 2 cm (muscle deep) cut wound on outer aspect left elbow. Margins were regular and ends were acute.

3) An oblique 4 x 0.5 cm x Chamber deep oval shaped stab wound on the epigastric region, margin of the wound was regular and ends was acute.

The wound was 18 cm below supra sternal notch and 16 cm above umbilicus along the mid line. On dissection the wound passes through subcutaneous tissue, muscle, enters abdominal cavity, pierces the diaphragm, enters the thoracic cavity, pierces the pericardium and enters the right ventricle (inferior border of the heart). The direction of the wound was backwards and upwards. The wound in the heart measures 1.7 x 0.3 cm x chamber deep.

4) 3 x 0.3 cm reddish abrasion on lower part of outer aspect of right forearm.”

24. Further, in Ex.P9 – Postmortem Report, the opinion as to cause of death was reserved and further, it was opined that the deceased would appear to have died to stab injury to the upper abdomen (Epigastric region).

25. In fact, a mere running of the eye in regard to Ex.P9 – Postmortem Report would, in a crystalline fashion, point out that an incised wound was seen upto the heart from the abdomen and pierced the heart chamber and in fact, the Appellant/A1 and his wife (A2 deceased Kaliammal) had attacked the deceased Periyasamy. The injuries sustained by the deceased Periyasamy would point out that the said injuries were not of ordinary nature and it was caused by the use of a deadly weapon.

26. Moreover, a glance of Ex.P2 – Observation Mahazar shows that ' ... North West of place of occurrence at a distance of approximately 160 feet, there was Chinnaraj's cattle hut and adjoining the same, there was a house (jhhp!; tPL) and that on the North West, at a distance of 150 feet approximately, there was a lamp post, in which, there was a light etc'. In Ex.P12 – Rough Sketch, the lamp post with light was shown. It is true that there is no indication in Ex.P12 – Rough Sketch and Ex.P2 – Observation Mahazar that the light was burning, yet, this Court is of the considered view that the evidence of P.W.1 and P.W.2 coupled with the evidence of P.W.3 and P.W.4 unerringly point out that in regard to the stab attack made by the Appellant/A1 against Periyasamy (later deceased). Apart from that, the evidence of P.W.2 (in cross examination) was clearly refers to the aspect of the brightness of light at the place of occurrence and added further, she had went on to state that it was not correct to state that the place of occurrence was a dark one.

27. P.W.6 (Doctor) had found the food particles which were of semi solid nature and partly digested condition. It cannot be forgotten that P.W.1 and P.W.2, in reality, had deposed in their evidence that the deceased (Periyasamy) was taking his food and at that time, there was some noise in the Threshing Floor and upon hearing the noise, the deceased (Periyasamy) went to that place.

28. Coming to the aspect of delay of Ex.P11 (F.I.R.) reaching the Learned Judicial Magistrate No.I, Dharmapuri on 19.03.2013 and there is a delay in this regard, it is true that the date of occurrence was on 18.03.2013 at about 8.45 p.m. and that the information was received on 18.03.2013 by the Mathikonpalayam Police Station and in this regard, on behalf of the Appellant/A1, no question was put to the Investigating Officer (P.W.10). Even then, the delay in regard to reaching of Ex.P11 – F.I.R., in the instant case, could have been avoided because of the reason that Section 157(1) Cr.P.C. enjoins that the said report to the Magistrate concerned must be transmitted forthwith, when an information received in respect of a commission of an offence by the Officer in-charge of the Police Station. But, the delay in regard to the reaching of Ex.P11 – F.I.R. before the Judicial Magistrate No.1, Dharmapuri is not fatal in the case, thereby affecting the story of the Prosecution because of the simple reason that in the instant case, Ex.P1 – Complaint cannot be characterised as a fabricated document. Per contra, even though the Prosecution witnesses P.W.1 to P.W.4 are said to be relatives not only to the Appellant/A1 as well as to the deceased, yet, in these type of cases, there evidence cannot be thrown over board by a Court of Law for the simple reason because they were interested witnesses. Moreover, when they happen to be a relatives of both parties, their evidence assume significance and do play a vital role in regard to the strengthening of the case of the prosecution, in the considered opinion of this Court.

29. In the present case, M.O.1 and M.O.2 – Knives were recovered based on the confession given by the Appellant/A1. The confession of the Appellant/A1 (admitted portion) marked as Ex.P4. Also that, based on Ex.P5 - Admitted portion in confession statement of A2 (deceased), the knife was recovered. In the instant case, knife was recovered through Mahazar – Ex.P6; Lungi was recovered through Mahazar – Ex.P7; The requisition letter for Postmortem was marked as Ex.P8; Postmortem Report was marked as Ex.P9; Special Report of Postmortem – Constable was marked as Ex.10; Inquest Report was marked as Ex.P13; Requisition letter for chemical Analysis by Police was marked as Ex.P14; Serological Reports were marked as Exs.P15 & P16; Biological Report was marked as Ex.P17.

30. It is the evidence of P.W.9 that while he was serving as Sub Inspector of Police of Mathikonpalayam Police Station on 18.03.2013 at 23.00 hours, one Palanisamy (son of Appellant/A1) of Vellolai Village, Jalikottai presented himself before the Police Station and gave a written complaint, which was registered as a case in Crime No.49/ 2013 under Section 302 I.P.C. and Ex.P11 was the printed F.I.R. and he sent the F.I.R. through urgent Tapal to the Judicial Magistrate and handed over the case records to the Inspector and that he was examined by the Inspector of Police.

31. P.W.10 (Investigating Officer), in his evidence, had deposed that while he was serving as Inspector of Mathikonpalayam Police Station on 18.03.2013 at about 23.45 hours, he took up the F.I.R. in Crime No.49/2013 registered under Section 302 I.P.C. (by the Sub Inspector of Police) and after seeing the same, went to the scene of occurrence on the next day morning at 6.00 a.m. inspected the place of occurrence in the presence of witnesses Chinnaraj and Sathishkumar and prepared a Rough Sketch Plan – Ex.P12 and in the presence of same witnesses, at about 6.30 a.m. in the morning from the place of occurrence, he collected the cement blood stained Karai in small quantity for which he prepared the Ex.P3 – Mahazar and examined witnesses Palanisamy, Mallika, Ramayee, Selvi, Muniappan, Venkan @ Perumal Sivakumar, Chinnaraj, Sathishkumar etc. and recorded their statements.

32. Further, it is the evidence of P.W.10 that he proceeded to Dharmapuri Government Hospital and conducted an Inquest Report on the body of deceased Periyasamy in the presence of Panchayatdars and prepared the Inquest Report – Ex.P13 and gave a requisition letter for the conduct of Postmortem and also examined the Panchayatdars and recorded their statements. Later, based on the information he obtained, he arrested the Appellant/A1 and his wife (A2 -Kalliammal, since deceased) at 13.30 hours at Pananthope Bus Stop and recorded the voluntary confession statement given by the Appellant/A1 in the presence of witnesses Sankar, Rangan and based on the said confession of the Appellant/A1, he seized the knife, which was used in the commission of offence of stabbing by the Appellant/A1 against Periyasamy (deceased) and the two knives were identified by the Accused at 16.00 hours at Jalikottai Vellolai Lake Channel below the bridge and also in the presence of witnesses, seized the blood stained white full hand shirt (M.O.3), Blue-green colour striped Lungi (M.O.4/5) and later came to the Police Station with the Accused and the case materials and sent the Accused to the Judicial custody and also examined two witnesses and recorded their statements. Apart from that, he gave a requisition letter - Ex.P14 for sending the inner parts of the deceased body (gathered at the Hospital) to the Forensic Science Examination and the Serological Reports were marked as Ex.P15 & Ex.P16 and Ex.P17 was the Biological Report and examined the Doctor, who conducted the Postmortem and obtained the said report and after completion of investigation, laid a Final Report under Sections 294(b), 324, 506(ii) and 302 I.P.C. against the Accused.

33. It is to be relevantly pointed out that in a Criminal Justice Delivery System, a Court of Law is to delicately functioned by applying the ingredients of the Criminal Procedure Code to the facts of a given case, with a clear indication in regard to the category of cases falling under Section 304(i) and (ii).

34. As a matter of fact, Section 304(ii) I.P.C. comes into operative play, when death is caused by performing an act with a knowledge that it is likely to cause death, but there is no indication on the part of an Accused either to cause death or to cause such bodily injury as his likely to cause death, as per decision Surajit Sarkar V. State of West Bengal, AIR 2013 SC 807.

35. Furthermore, Section 304 I.P.C. itself does not create any distinct/different offence. In reality, it specifies punishment in cases where there is culpable homicide not amounting to murder. Also that, the prosecution evidence should lead evidence and then point out that the case is covered under Section 304 I.P.C.

36. It is to be pointed out that each case is to be decided on its own merits and a Court of Law is to perform a delicate task of applying the relevant provisions of the Criminal Procedure Code to the facts of a given case with a clear boundary as to under what category of cases, the instant case on hand comes within its ambit and ultimately, so punished an Accused. Of course, the Legislature had covered the aspect of 'Culpable Homicide' that 'amounting to murder' and also that, 'not amounting to murder' in a composite fashion, under Section 300 Cr.P.C. No wonder, it is not possible to lay a straight-jacket formula that would apply to all types of cases for such decision.

37. Be that as it may, in the instant case, the evidence of P.W.1 to P.W.4 clearly point out to the manner and happening of occurrence and in fact, P.W.1 and P.W.2 had categorically deposed as to how the Appellant/A1 had attacked the deceased Periyasamy with the knife on the chest, being a vital part of the body. Indeed, Periyasamy was brought dead to the Hospital. Only because of the sudden provocation, the Appellant/A1 took the hidden knife and stabbed the deceased Periyasamy on his chest and because of which, Periyasamy died. When earlier quarrel took place at about 5.00 p.m. on 18.03.2013 the fuse carrier was taken away by the Appellant/A1 and although in the present case, P.W.3 had admitted in candid term that it was the turn of the Appellant/A1 to irrigate on that day, yet, this Court is of the considered view that the Appellant/A1 should have shown utmost restraint when the quarrel that took place, however, the same was not shown and the incident took place. Although, the Appellant/A1 was charged under Section 302 I.P.C., only because of sudden provocation owing to his retaliatory act, the stabbing incident took place, this Court is in agreement with the view arrived at by the trial Court that the act of the Appellant/A1 falls under Section 304(ii) I.P.C., instead of Section 302 I.P.C. Suffice it for this Court to point out that the trial Court's finding of the Appellant/A1 guilty in respect of an offence under Section 304(ii) I.P.C., is free from legal infirmities. Moreover, P.W.1 and P.W.2 had only stated in their evidence about filthy language employed by the Appellant/A1 at the time of occurrence and the other witnesses had not spoken about the words used and annoyance caused because of the Appellant's/A1 act and therefore, the trial Court had rightly found the Appellant/A1 not guilty under Section 294(b) I.P.C. because of the reason, the said charge was not proved.

38. In view of the fact that the Appellant/A1 is rightly found by the trial Court guilty under Section 304(ii) I.P.C., this Court, based on the facts and circumstances of the case, is of the considered view that imposition of punishment of seven years upon the Appellant/A1 is marginally on the higher side and therefore, in furtherance of substantial cause of Justice, reduces the punishment to that of five years Rigorous Imprisonment. In regard to the fine of Rs.5,000/- imposed by the trial Court, this Court is not displacing the same at this distance point of time. Consequently, the Appeal succeeds in part.

39. In fine, the Criminal Appeal is partly allowed in above terms. The Learned Principal Sessions Judge, Dharmapuri is directed to take necessary steps to secure the presence of the Appellant and to immure him in Prison for serving the remaining period of sentence.