CHINNA KALAPPAN Vs. STATE

JUDGEMENT

(1.) 1. (Prayer: Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge (Fast Track Court), Dharmapuri, made in S.C.No.150 of 2007 dated 5.9.2008.) M. Chockalingam, J. Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court, Dharmapuri, made in S.C.No.150 of 2007 whereby the appellant/A-1 along with A-2 stood charged, tried, and found guilty as follows: TABLE Pending trial, A-2 died, and hence charges against him stood abated.

(2.) SHORT facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the cousin brother of the deceased Kumar. On 21.8.2005 at about 6.00 P.M., P.W.1 was just crossing the shop of one Vijai. At that time, he found A-1 and the deceased quarreling with each other, and A-1 was demanding money which he gave to the deceased as a loan. At that time, A-2 was also present. P.W.1 and also Vijai pacified them. At about 8.30 P.M., when P.W.1 was proceeding along with a torch light to take a basket as per the direction of his master, he heard the sound near the cattle shed of one Muniappan. Then he went nearby and heard the words "You did not pay back the money for the past two months despite so many demands. Then you should be finished off". So saying A-1 attacked the deceased with a billhook on the neck which crime was facilitated by A-2. This was witnessed by P.Ws.1 and 2. When there was a distressing cry, both the accused fled away from the place of occurrence. Then P.W.1 proceeded to the respondent police station where P.W.11 was the Sub Inspector of Police. P.W.1 gave a report, Ex.P1, on 21.8.2005 at about 11.00 P.M., on the strength of which a case came to be registered in Crime No,371/2005 under Sections 342 and 302 of IPC. The printed FIR, Ex.P14, was despatched to the Court along with Ex.P1, the report. (b) P.W.12, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P15. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16. He examined the witnesses and recorded their statements. The dead body was sent to the Government Hospital along with a requisition for the purpose of postmortem. (c) P.W.8, the Assistant Surgeon, attached to the Government Hospital, Palacode, on receipt of the requisition, conducted autopsy on the dead body of Kumar and has issued a postmortem certificate, Ex.P8, with her opinion that the deceased would appear to have died 18 to 24 hours prior to autopsy, and death was due to shock and hemorrhage due to head injury and fracture to skull bones. (d) Pending investigation, on 23.8.2005, A-1 and A-2 were arrested. A-1 came forward to give a confessional station, which was recorded. The admissible part is Ex.P4, pursuant to which he produced M.O.1, billhook, which was recovered under Ex.P5, the mahazar. A-2 gave a confessional statement, which was also recorded. Both were sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and M.O.1 were subjected to chemical analysis by the Forensic Sciences Department on a requisition made by the Investigator through the concerned Court. After analysis, Ex.P11, the serologist's report, and Ex.P12, the chemical analyst's report, were received. On completion of investigation, the Investigator filed the final report.

(3.) ADDED further the learned Counsel in the second line of argument that in the instant case, even as per P.W.1's evidence, there was a quarrel, and A-1 has lent money to the deceased a few months before, and he was giving false promise often that he would borrow money and pay it back that even at the time of occurrence, A-1 was demanding money but, the same answer was given by him that in that quarrel, uttering the words he has cut him with the billhook and caused injuries that even assuming that the factual position that it was A-1 who actually cut the deceased and caused his death, the act of A-1 would not attract the penal provisions of murder, but it was only due to the quarrel followed by the provocation on account of the non-payment of the money which the deceased owed to A-1 and false promise for a few months that under the circumstances, it would fall within one of the exceptions to definition of murder and this legal aspect has got to be considered by this Court.