IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.02.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.603 of 2007 Jayaraman S/o Vaithi .. Appellant/Accused -vs- State rep.by Inspector of Police Mecheri Police Station Salem District Crime No.592/2002 .. Respondent/Complainant Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 4.1.2005 made in S.C.No.407 of 2005 on the file of the learned Principal Sessions Judge, Salem. For Appellant :: Mr.K.Ethirajalu For Respondent :: Mr.P.Kumaresan Addl. Public Prosecutor JUDGMENT (Judgment of the Court was delivered by V.PERIYA KARUPPIAH, J.) This appeal is directed against the judgment of conviction and sentence passed by the learned Principal Sessions Judge, Salem in S.C.No.407 of 2005 dated 4.1.2005 convicting and sentencing the appellant to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 302 IPC. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution is that on 20.8.2002 around 7.00 p.m., at Anna Nagar in the house of the mother of the deceased-Kannagi, the appellant/accused called his wife, the deceased, to come and live with him and since she refused, the accused, with an intention to cause the death of his wife, had stabbed her with a soori knife on the chest, left axillary, right hand, left palm and caused injuries and due to the said injuries, the deceased died on 27.8.2002 at 5.00 a.m., in the Government Mohan Kumaramangalam Medical College & Hospital, Salem despite the treatment given to her and thereby the accused is liable to be punished under Section 302 IPC. 3. On receipt of intimation under Ex.P-8 on 20.8.2002 from the hospital, P.W.8, the Head Constable attached to Mecheri Police Station, went to the hospital on 21.8.2002 at 11.00 a.m., and recorded the complaint, Ex.P-7 of the injured- Kannagi. On receipt of the complaint from P.W.8 at 2.00 p.m., on 21.8.2002, P.W.9, the Head Constable registered the same in Cr.No.592 of 2002 for the offence under Section 326 IPC. The printed First Information Report is Ex.P-9. He forwarded the express reports to the Court as well as to the higher police officials. 4. P.W.10, the Inspector of Police attached to Mecheri Police Station, took up investigation and proceeded to the scene of occurrence on 21.8.2002 and prepared an Observation Mahazar, Ex.P-3 and also drew a rough sketch, Ex.P-10. He examined P.Ws.1 to 5 and other witnesses and recorded their statements. He seized the bloodstained earth, M.O.2 and the sample earth, M.O.3 in the presence of the said witnesses. In the meantime, the accused was arrested on 22.8.2002 at 6.30 a.m., by the Sub Inspector of Police near Mecheri bus stop in the presence of P.W.4 and another witness and in pursuance of the admissible portion of his confession under Ex.P-1, the said Sub Inspector of Police seized the soori knife, M.O.1 in the presence of the said witnesses. 5. In the meanwhile, he received intimation under Ex.P- 11 on 27.8.2002 from the hospital that the injured had died at about 5.00 a.m. He thereafter altered the offence to one under Section 302 IPC and sent the altered report, Ex.P-12 to the Court through the Head Constable, P.W.9. He came to the Government Mohan Kumaramangalam Medical College & Hospital, Salem and conducted inquest on the body of the deceased in the presence of the panchayatdars and witnesses and prepared the inquest report, Ex.P-13. He sent a requisition under Ex.P- https://hcservices.ecourts.gov.in/hcservices/ 5 to the doctor for conducting post-mortem on the body of the deceased. 6. P.W.7, Civil Surgeon-Tutor in Forensic Medicine Department attached to the hospital, commenced post-mortem on the body of the deceased at 1.40 p.m., on 27.8.2002 and he noted the following injuries:- "1. Sutured wound over abdomen to a length of 20 cm from epigastric area to just below umblicus. (surgical) 2. Another sutured wound below the left breast seen in the inner quadrant. On removal of sutures edges are sharp and wound is muscle deep. 3. Sutured wound over inner aspect of left arm to a length of 4 cm. On removal of sutures edges of wound are sharp and ends are acute muscle deep. 4. Sutured wound over left axillary area to a length of 4 cm. On removal of sutures wound is muscle deep. 5. Another sutured wound over left palm 3 cm in length. On removal of sutures edges are sharp and muscle deep. 6. Sutures done at the middle 1/3 of stomach. 7. Omentum was tied with silk linear (surgical)." He issued the post-mortem certificate, Ex.P-6 with his opinion that the deceased would appear to have died due to the effect of stab injury. 7. P.W.10, continuing with his investigation, examined the other witnesses and recorded their statements. He examined the post-mortem doctor, P.W.7 on 6.9.2002 and recorded his statement. He sent the seized material objects through the Court for chemical examination under Exs.P-14 & P-15 and received the chemical analyst's report, Ex.P-16 and https://hcservices.ecourts.gov.in/hcservices/ Serologist's report, Ex.P-17 on 11.4.2003. He also seized the bloodstained saree, M.O.4 of the deceased under Form-95. After completing investigation on 22.9.2002, he laid the charge sheet against the accused for the offence under Section 302 IPC before the Court. 8. To bring home the charges against the accused, the prosecution examined 10 witnesses, marked 17 exhibits and produced 4 material objects. 9. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he denied them as false. No witness was examined and no document was marked on the side of the defence. After analysing the evidence of the prosecution witnesses, the Court below came to the conclusion that the accused is guilty of the offence under Section 302 IPC and accordingly, inflicted the aforesaid sentence on him. 10. Learned counsel for the appellant Mr.K.Ethirajalu would submit in his arguments that the accused is the husband and the deceased is his wife and the evidence of the eye- witnesses would go to show that the accused, provoked by the refusal of his wife to come and live with him, had caused injuries and those injuries are also not very deep injuries leading to the death of the deceased-Kannagi. He would draw the attention of the Court that the evidence of the doctor, P.W.7 would go to show that the injuries sustained by the deceased-Kannagi were only muscle deep and there is no serious injuries caused by the accused and only due to the absence of proper treatment, the deceased had died. Therefore, he would submit that the intention of the accused was not to commit the murder of his wife and the Court below was not right in coming to the conclusion that the accused had committed the murder of his wife and the conviction under Section 302 IPC is not sustainable in law. He would further submit that the eye- witnesses, P.Ws.1 to 3 would also go to show that Kannagi had died seven days after the date of occurrence and the circumstances under which the occurrence had taken place was not a planned one, but was accidental. Therefore the learned counsel would submit that the offence said to have been committed by the accused may not attract Section 302 IPC, but only under Section 304 (Part-II) IPC. https://hcservices.ecourts.gov.in/hcservices/ 11. Mr.P.Kumaresan, learned Additional Public Prosecutor would submit in his reply arguments that the submission of the learned counsel for the appellant cannot be accepted, because the accused was in possession of a knife at the time of occurrence and the injuries inflicted on the deceased-wife were on the vital parts and therefore it cannot be said that the accused had no intention to cause the death of his wife and hence the submission that the conviction under Section 302 IPC is not sustainable in law is not correct. He would further submit that the evidence of the eye-witnesses, P.Ws.1 to 4 would go a long way to show that the accused had threatened the persons who were present there when they tried to prevent the assault on the deceased-Kannagi. Therefore he would submit that the clear intention on the part of the accused has been proved by the prosecution witnesses and the conviction under Section 302 IPC may be sustained, as it would not attract the offence under Section 304 (Part-II) IPC. 12. We have given our anxious consideration to the arguments advanced by both sides. The evidence of the prosecution witnesses would go a long way to show that the occurrence had taken place in the school, where the deceased- Kannagi was working, and the accused had gone over there and asked his wife to come and live with him and in the meantime, a wordy quarrel had erupted between them and P.W.1 had intervened and told them that they should not quarrel in the school and they should leave without making any quarrel. His evidence would further show that the accused and the deceased had moved from the said place and in the meantime, the accused had taken out a knife from his hip and attacked on the left axillary and right chest of Kannagi and that she shouted. Immediately the accused had taken away the knife and fled from the scene of occurrence. The other eye-witnesses would also corroborate the said evidence. Therefore, we could see that before the commission of the offence, the accused had called his wife to come and live with him. Thereafter a wordy quarrel had erupted on the reply of the deceased-Kannagi that she would consider his request after her father returned from outstation. Further, if we peruse the evidence of the doctor- P.W.7, we could see that the deceased had sustained injuries on her left chest, left shoulder and left axillary and all those injuries were sutured and when it was opened, those injuries were found to be muscle deep. Therefore, these three injuries, even though caused by the soori knife, M.O.1, have been only upto muscle deep. The evidence of the doctor, P.W.7 https://hcservices.ecourts.gov.in/hcservices/ would also show that she died on 27.8.2002 i.e., seven days after the occurrence. It has been elicited in his cross examination that the treatment was given only to the stab injuries. In these circumstances, the argument of the learned counsel for the appellant that the death of the deceased was caused owing to lack of proper attention cannot be ruled out since the injuries caused by the accused on the deceased are not so serious injuries even though they were inflicted on the vital parts like abdomen and chest. On consideration of the overall circumstances namely, the quarrel which had erupted before the commission of the offence and the nature of injuries caused on the body of the deceased, we could see that though the accused was in possession of the knife, M.O.1 with him at the time of occurrence and he had the knowledge that the stabbing with the said knife would cause death, as there was no intention on the part of the accused to cause the death of his wife by inflicting those injuries, the offence committed by the accused would attract only Section 304 (Part- II) IPC. 13. For the aforesaid reasons, we set aside the conviction and sentence imposed by the Court below on the appellant for the offence under Section 302 IPC for life and instead convict the appellant for the offence under Section 304 (Part-II) IPC and sentence him to undergo rigorous imprisonment for seven years. The period already undergone by the accused shall be set off. However, the fine amount of Rs.1,000/- imposed by the Court below with the default sentence stands unchanged. ss Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Principal Sessions Judge, Salem 2. The Superintendent, Central Prison, Coimbatore https://hcservices.ecourts.gov.in/hcservices/ 3. The Public Prosecutor, High Court, Madras 4. The Inspector of Police, Mecheri Police Station, Salem District 5. The District Collector, Salem 6. The Director General of Police, Chennai • One cc to Mr. K. Ethirajulu, Advocate sR 6770 KG (co) sg 03/03/08 Crl.A.No.603 of 2007 11.02.2008 https://hcservices.ecourts.gov.in/hcservices/