Bail Slip The Appellant/Accused namely kannan, was directed to be released as per order ot this Court dated 3.4.2007 and made in Crl. M.P. No:1 of 2007 in Crl.A. No.975/2006 as the file of the Hon'ble High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.6.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.975 of 2006 Kannan .. Appellant Vs. State rep. by Inspector of Police Kattumannar Koil Police Station. .. Respondent Appeal against the judgment dated 28.3.2006 made in S.C.No.2 of 2006 on the file of learned Principal Sessions Judge, Cuddalore. For Appellant : Mr.S.Rajadhevan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The appellant is the first accused among three accused. The appellant was convicted and sentenced to undergo imprisonment for life with fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months, for the offence under Section 302, IPC in S.C.No.2 of 2006 on the file of learned Principal Sessions Judge, Cuddalore. The accused 2 and 3 were acquitted, on conclusion of the trial. No appeal against the acquittal has been preferred by the https://hcservices.ecourts.gov.in/hcservices/ State. 2. For the sake of convenience, the appellant is referred to as the first accused. 3. The allegation in the charges framed against the accused is that on 21.6.2004 at about 11.30 pm, due to previous enmity and with common intention accused 1 to 3 went to the house of one Kullammal and used filthy words against her and further, A1 attacked one Sathiyanayagi with half-brick on her left side of the head resulting in her instantaneous death and thereby alleged to have committed an offence punishable under Sections 294(b) read with 34 and 302 read with 34, IPC. 4. The prosecution, to substantiate the allegation, examined P.Ws.1 to 16, marked exhibits P1 to P28 and produced material objects M.Os.1 to 14. 5. The prosecution case in nutshell is as follows: (a) P.W.1, maternal aunt of the deceased, was married to one Pachaiyappan. As they had no issue, P.W.2, who is nonetheless sister of P.W.1 married Pachaiyappan and they had seven children. The deceased is their daughter. One day, when the deceased was sleeping on the pial of her house, A2 pinched her thigh and therefore, Panchayat was convened and the matter was compromised. On the date of occurrence, since the son of P.W.2 was not taking food, P.W.1 scolded him, which was mistaken by the accused family that she is scolding only the accused, who are residing adjacent to the house of P.W.1. Immediately, accused 1 to 3, viz. A1 and A2 along with their mother A3, clustered together and shouted at P.W.1 using filthy words. When the deceased came there, with common intention to do away with her, the first accused attacked her with half-brick on the left side of her head. The deceased fell down and died on the spot. As there was no facility to give complaint during night time, she lodged the complaint on the next day morning, which is marked as Ex.P1. (b) P.W.2, sister of P.W.1 and mother of the deceased, speaks about the motive for the case of prosecution, viz. incident relating to pinching of thigh and also the occurrence in the same terms of P.W.1. (c) P.W.3, daughter of P.W.2 and sister of the deceased also speaks about the motive and the occurrence, as deposed by P.W.1. (d) P.W.4, husband of P.Ws.1 and 2 and father of the deceased, also deposed about the incident relating to thigh pinching and the consequent compromise by the Panchayat. He also deposed about the occurrence which was informed to him on his return to his house in the midnight, viz. 1 am. https://hcservices.ecourts.gov.in/hcservices/ (e) P.W.5, paternal uncle of A1 and A2 and brother-in-law of A3, deposed that he did not know anything about the death of the deceased, thigh pinching incident and the compromise by the Panchayat. He was treated as hostile witness. (f) P.W.6, residing in the village of P.W.1, deposed that even though he knew A1 to A3 and P.Ws.1 to 4, he did not know about the occurrence and therefore, he was treated as hostile witness. (g) P.W.7, a relative of A1 to A3, who was residing in the village of P.W.1, also deposed that he did not know as to how the deceased was done to death and hence, he was treated as hostile witness. (h) P.W.8, a relative of A1 to A3, deposed that he knew P.Ws.1 to 4 and he did not know the cause of death of the deceased. He was also treated as hostile witness. (i) P.W.9, in his evidence, deposed that he knew the accused and P.Ws.1 to 4, but he did not know about the death of the deceased. However, even though he attested his signature in Ex.P3, compromise recorded by the Panchayatdars in the Police Station, he had stated that he did not know about the compromise. Hence, he was treated as hostile witnesses. (j) P.W.10, an agricultural coolie, deposed that he knew the accused and P.Ws.1 to 4, but he did not know about the death of the deceased. He was also treated as hostile witness. (k) P.W.15, Sub Inspector of Police, on receipt of the complaint, Ex.P1 given by P.W.1, registered a case in Crime No.398/2004 for the offence under Section 294 and 302, IPC. Ex.P19 is the printed FIR. He despatched the FIR to the Court and the officials concerned. (l) P.W.16, Inspector of Police, on the basis of FIR, undertook investigation, visited the scene of occurrence and drew rough sketch, Ex.P20 and prepared observation mahazar, Ex.P15. He caused the scene of occurrence to be photographed by P.W.14. He conducted inquest over the dead body in the presence of Panchayatdars and others. Ex.P21 is the inquest report. He sent the body for post mortem through the Constable with requisition, Ex.P12. He recorded the statements of P.Ws.6 to 10 and 13. On information, arrested all the accused and recorded the confession statement of A1 in the presence of Village Administrative Officer and P.W.13. Ex.P22 is the confession statement. Based on the confession of A1, he recovered the half-brick, M.O.1 used for hitting the deceased, under mahazar Ex.P23. Thereafter, he remanded the accused to judicial custody. He requested P.W.11, Judicial Magistrate, to record the statements of https://hcservices.ecourts.gov.in/hcservices/ the accused and P.Ws.1 to 3. After completion of the post mortem, blood stained clothing of the deceased were recovered under Form 95. (m) In the meantime, P.W.12, Doctor, on receipt of the requisition, conducted autopsy over the body of the deceased and opined that the death was due to shock and injury to brain. Ex.P14 is the post mortem certificate. (n) On completion of investigation, P.W.16 filed the charge sheet under Sections 294 and 302, IPC. The case was committed to Court of Sessions and charges were framed and since the accused denied their complicity in the offence, the case was taken up for trial. In order to substantiate the charges levelled against the accused, the prosecution examined P.Ws.1 to 16, filed exhibits P1 to P28 and marked material objects M.Os.1 to 14. 6. The accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances appeared against them, to which, the accused denied. Neither any witness was examined nor any documentary evidence was produced on their side. 7. The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced A1 and acquitted A2 and A3, as aforementioned. Hence, the present appeal. 8. The learned counsel for the first accused, inviting our attention to the overt act attributed against the first accused that he gave only single blow on the deceased, contends that the first accused had no intention to kill the deceased and the occurrence took place in the spur of the moment misconstruing that P.W.1 was scolding the family of the first accused. Therefore, he seeks modification of the conviction and sentence imposed on the first accused. 9. Per contra, learned Additional Public Prosecutor submits that the overt act attributed against the first accused in attacking the deceased, as per the evidence of eye witness P.W.1 which is corroborated by the evidence of eye witnesses P.Ws.2 and 3, coupled with the medical evidence, P.W.12, would clearly bring home the guilt of the first accused under Section 302 IPC and therefore, no interference to the conviction and sentence imposed on the first accused is warranted. 10. We have given our careful consideration to the rival submissions of the learned counsel on either side. 11.1. A perusal of the evidence of eye witness, P.W.1, would make it clear that there was a quarrel between the deceased family and the first accused family since the second accused pinched the thigh of the deceased when she was sleeping on the pial of her house https://hcservices.ecourts.gov.in/hcservices/ and later, a panchayat was convened and the matter was compromised; from then on, a misunderstanding was brewing between the families of the deceased and first accused; the first accused herein used to shout at the deceased family using vulgar words; on the date of occurrence, P.W.1 was scolding the son of P.W.2 for not having food; the accused family mistook the same as if P.W.1 was scolding the first accused and therefore, the first accused, A2 and A3 gathered in front of the house of the deceased and shouted at P.W.1 with slanderous words; the first accused took a half-brick and assaulted the deceased on her head, which resulted in her death. 11.2. The evidence of P.W.1 is corroborated by the evidence of P.Ws.2 and 3. The collective evidence of P.Ws.1 to 3 substantiates that the first accused attacked the deceased and caused injury on her head, which later proved to be fatal. P.W.12, the doctor who conducted autopsy on the body of the deceased, opined that the deceased would have died due to shock and injury to brain, as per Ex.P14, post mortem certificate. Accordingly, the evidence of P.W.1 corroborates with that of the medical evidence. Therefore, we have no hesitation to conclude that the first accused caused injury on the deceased, which caused her death. 12.1. The consequent question that arises for consideration is whether the act of the first accused would attract lesser offence or not? 12.2. The prior enmity, namely pinching of thigh of the deceased by the second accused, is the motive for committing the crime in question, as projected by the prosecution. But, even according to the prosecution, the said incident had ended in a compromise by panchayat. It is an undisputed fact that on the date of occurrence, since the first accused mistook that P.W.1 was scolding him, there was exchange of hot words and during such course, the first accused took a half-brick lying on the ground and threw it on the deceased, who died on the spot. 12.3. The sequence of events and the manner in which the incident took place would clearly indicate that the first accused had absolutely no premeditation to hit the deceased and to do away with her life. The assault appears to have taken place rather suddenly and on the spur of the moment. It was a sudden quarrel and in the heat of passion, the first accused, who was unarmed, assaulted the deceased by picking up a half-brick lying there and caused a single injury. As per the medical evidence, a contusion was found near the left eye and ear of the deceased. Thus, it can be inferred that the first accused has not taken any undue advantage or acted in a cruel or unusual manner. The fact that the first accused did not repeat the blow would also indicate that he did not intend to cause the death of the deceased, even though he had knowledge that such blow would cause injury which is likely to cause death. Therefore, we hold that the https://hcservices.ecourts.gov.in/hcservices/ crime in question is nothing but culpable homicide not amounting to murder and the first accused shall be convicted under Section 304 Part-II, IPC instead of 302 IPC. 13. In view of the foregoing reasons, we set aside the conviction and sentence imposed on the first accused by the learned Sessions Judge under Section 302 I.P.C. and instead the first accused is convicted under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for five years. The bail bond, if any, executed by the first accused shall stand cancelled. The trial Court is directed to take steps to secure the first accused and to commit him to undergo the remaining period of sentence. The appeal is partly allowed to the extent indicated above. Sd/- Assistant Registrar /true copy/ Sub Assistant Registrar kpl To 1. The Principal Sessions Judge, Cuddalore. 2. The Judicial Magistrate No.1 Chidambaram. 3. The Chief Judicial Magistrate Cuddalore. 4. The District Collector Cuddalore. 5. The Director General of Police, Chennai - 4 6. The Public Prosecutor High court, Madras. 7. The Superintendent Central Prison, Cuddalore. + 1 cc to Mr.S.D.S.Rajadheran Advocate SR No.31517 Crl.A.No.975 of 2006. MDR(CO) JJM(18.07.08) https://hcservices.ecourts.gov.in/hcservices/