(Prayer: Criminal appeal filed under Section 374(2) of Cr.P.C., to call for the records and set aside the judgment, conviction and sentence passed by the learned Additional Sessions Judge, Theni at Periyakulam dated 28.04.2023 in SC No.132 of 2021.)
P. Dhanabal , J.
1. Challenging the conviction and sentence rendered by the learned Additional Sessions Judge, Theni at Periyakulam, in SC No.132 of 2021 dated 28.04.2023, the present criminal appeal has been filed by the appellant.
2. The trial Court has convicted the appellant as follows:
| Penal Provisions | Sentence of Imprisonment | Fine Amount |
| 302 of IPC | Life Imprisonment | Rs.5,000/- i/d to undergo one year rigorous imprisonment |
3.1. P.W.1 wife of the deceased came there and poured water on the face and he was unconscious and thereafter he died. PW.1 went to the police station and lodged complaint/Ex.P.1.Based on the said complaint PW.12 registered a First Information Report /Ex.P.8 in Crime No.194 of 2021 for the offences under Section 302 of IPC. Thereafter P.W.14 has taken over the investigation of the case and he went to the place of occurrence and prepared observation mahazhar/Ex.P.4 and rough sketch/Ex.P.9 in the presence of witnesses and thereafter he conducted inquest on the body of the deceased and prepared inquest report/Ex.P.10. Thereafter he had taken steps to sent the body of the deceased to post mortem. Thereafter the doctor/P.W.11 had conducted post mortem on the body of the deceased and issued post mortem certificate /Ex.P.6 and after obtaining report from forensic lab he gave final opinion/Ex.P.7. Thereafter P.W.14 arrested the appellant on 17.05.2021 and the appellant voluntarily gave confession statement and based on the disclosure statement he recovered M.O.1 in the presence of witnesses and thereafter the appellant was remanded to judicial custody. Thereafter P.W.15 conducted further investigation in this case, filed final report after examining witnesses.
3.2. On the appearance of the appellant, the provisions of Section 207 of Cr.P.C. were complied with, and the case was committed to the Court of Session, where it was taken on file in in SC No.131 of 2021 and made over to the Additional Sessions Judge, Theni at Periyakulam for trial.
3.3. After receipt of case papers, the trial Court has framed charges for the offence under Sections 294(b) and 302 of IPC The above charges were read over and explained to the appellant. The appellant denied the charges and claimed to be tried.
3.4. The prosecution examined P.W. 1 to P.W.15 and marked exhibits Ex.P.1 to P.16 and material objects M.O.1 to M.O.6 were produced. After completion of prosecution witnesses the appellant was questioned under Section 313 (1)(b) of Cr.P.C., with regard to the incriminating circumstances appearing against him, he denied the same as false. On the side of the appellant no one was examined and no documents were marked.
3.5. After analyzing the evidence and upon hearing both sides, the trial Court has acquitted the appellant for the offence under Section 294 (b) of IPC and convicted the appellant for the offence under Section 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- in default to undergo one year rigorous imprisonment. Aggrieved by the said judgment of conviction the present appeal has been filed by the appellant.
4. The learned counsel appearing for the appellant would submit that there is a dispute between the appellant and the deceased and due to that enmity the defacto complainant lodged a false complaint as against the appellant and based on the said complaint the respondent police registered a case in Crime No.194 of 2021 for the offence under Section 302 of IPC. The Investigation Officer without proper investigation filed final report and the trial Court without any prima facie materials framed charges and the prosecution have not established the guilt of the appellant for the offences charged against him and the evidence are filled with doubts. The prosecution witness are not cogent and the prosecution failed to prove the charges beyond all reasonable doubt. The prosecution failed to prove the recovery of material objects. The complaint itself has not been marked and the prosecution only marked the signature of P.W.1 in the complaint and all the witnesses are interested and related witnesses and the prosecution has not proved the charges beyond reasonable doubts. However the trial Court without appreciation of evidence erroneously convicted the appellant and thereby judgment of conviction passed by the trial Court is liable to be set aside and the appeal is to be allowed.
5. The learned Additional Public Prosecutor would submit that there was enmity between the appellant and the deceased due to land dispute and on the date of occurrence when the deceased was cutting the ridges through hoe at that time P.W.1 to 3 were collecting grass. After seeing the deceased the appellant came there along with sickle and cut the left leg below knee saying that always you are creating problem by encroaching the land and immediately P.W.1 came there and poured water on the fact but the deceased was unconscious and the appellant ran away from the place of occurrence. Thereafter P.W.1 gave complaint before the respondent police and based on the said complaint they registered a case and thereafter the case was investigated by P.W.14 and P.W.15. To prove the case the prosecution has examined P.W. 1 to P.W.15 and marked exhibits Ex.P.1 to P.16 and produced six material objects.
5.1. P.W.1 to P.W.3 are the eye witnesses and the doctor who conducted autopsy has categorically deposed about the injuries sustained by the deceased and the cause of death, therefore the prosecution has established the charges levelled against the appellant. Further the trial Court after analyzing the evidence correctly convicted the appellant for the offence under Section 302 of IPC, however acquitted the appellant for the offence under Section 294 (b) of IPC. The trial Court also after elaborate discussion based on evidence came to conclusion that the prosecution has proved the charges levelled as against the appellant and rightly convicted the appellant and awarded sufficient punishment and hence the appeal is liable to be dismissed
6. This Court heard both sides and perused the materials available on record.
7. In this case the appellant has been charged for the offence under Sections 294 (b) and 302 of IPC. The trial Court has acquitted the appellant for the offence under Section 294 (b) of IPC and convicted the appellant for the offence under Section 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- indefault to undergo one year rigorous imprisonment. In this case P.W.1 to P.W.6 are the eye witnesses and due to enmity between the appellant and the deceased regarding land dispute on the date of occurrence the appellant had cut the left leg of the deceased and thereby due to hemorrhage and shock the deceased died.
8. P.W.1 who is the defacto complainant and eye witness to the occurrence has deposed that on the date of occurrence she along with his daughter and grand daughter had collected grass and at that time her husband/deceased Selvam@ Selvaraj was cutting the ridges of his land through hoe, at that time when she was taking water to her husband the appellant came there with aruval and assaulted by saying that always you are cutting the ridges and used obscene words and cut the left leg and ran away, immediately the wife of the deceased poured water on the face of her husband, he was unconscious and thereafter he died, and thereafter the wife of the deceased gave complaint. In the complaint also she stated the same version.
9. P.W.2 also categorically deposed about the manner of occurrence and according to her evidence on 17.05.2024 at about 11.00 a.m., her father and daughter were on field at that time she was taking water to the cattle and her mother is also taking water at that time the appellant and the deceased were scolding each other. When her father was cutting the ridges the appellant cut his left leg with sickle and thereafter immediately he fell down and died on the spot and the appellant ran awy from the place of occurrence.
10. P.W.3 also who is aged about 10 years child witness also deposed that when she was along with grand father, grand mother and mother in the filed the appellant came there and cut the left leg of his grand father. P.W.4 to 6 are the independent witnesses and they have also witnessed the occurrence. They also stated that the appellant cut the deceased on his leg. The evidence of PW.1 to PW.6 have not been shaken through cross examination and their evidence are natural and cogent. The evidences of P.W.1 to P.W.6 cannot be discarded in any way, therefore the prosecution has proved that the appellant had cut the leg of the deceased with sickle.
11. The doctor who conducted post mortem has also deposed that the deceased sustained following injuries:
“ A deep transverse cut injury on back and both sides of left knee joint measuring 11cm x 5cmx bone deep”
and he also opined that the deceased died due to hemorrhage and shock for the injuries sustained by him. The Investigation Officer also deposed about the fair investigation, arrest of appellant and recovery of material objects through the confession statement of the appellant. Therefore the prosecution has proved the charges levelled against him for the offence under Section 302 of IPC beyond all reasonable doubts.
12. Therefore from the evidences the prosecution has proved the occurrence as against the appellant. The trial Court after elaborate discussion and analyzing the evidence found the appellant guilty and convicted him for the offence under Section 302 of IPC.
13. So far as offence under Section 302 of IPC is concerned the evidence shows that there was wordy quarrel between the deceased and the appellant due to land dispute and the deceased also cut the ridges of the land at that time there was a scuffle between the appellant and the deceased and thereby the appellant cut the leg of the deceased.
14. There is no intention on the part of the appellant to kill the deceased and he only cut the leg of the deceased and the deceased sustained only one injury on his leg, therefore the act of the appellant is not coming under definition of 300 of IPC and it comes under Exception 4 to Section 300 of IPC. As per Section 300 of IPC exception IV the culpable homicide not amounting to murder if it is committed without premeditation in a sudden fight in a heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the case on hand there was a dispute between the appellant and the deceased in respect of land and on the date of occurrence the appellant was cutting the ridges of the land and due to which there was a sudden quarrel between them and the appellant cut the left leg of the deceased with sickle. There is no premeditation on the part of the appellant to commit the murder and to sudden quarrel the occurrence said to have taken place and thereby the deceased sustained injuries only on the leg and not in the vital parts of the body. In the considered view of this Court, the facts of the present case can be brought within Exception 4 to Section 300 of IPC. There was no premeditation on the part of the appellant to commit the murder of the deceased. There was a sudden fight and in the heat of passion upon a sudden quarrel, the appellant attacked the deceased. Thereby the act of the appellant will certainly come under Exception IV of Section 300 of IPC.
15. In the result, this criminal appeal is partly allowed and the judgment of conviction under Section 302 of IPC passed by the learned Additional Sessions Judge, Theni at Periyakulam, in S.C.No.132 of 2021 dated 28.04.2023 is set aside the appellant is found guilty for the offence under section 304 (ii) and he is convicted under Section 304 Part II of IPC. The appellant is sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.5,000/- and in default to undergo six months simple imprisonment. The period of sentence already undergone by the appellant shall be set off under Section 428 of Cr.P.C. as against the substantive sentence. The fine amount already paid for the offence under section 302 of IPC can be adjusted to the fine payable for the offence under section 304(ii) of IPC. Bail bond if any executed by the appellant shall stand cancelled. The trial Court is directed to take steps to secure the appellant to undergo the remaining period of sentence.