IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14-10-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.No.487 of 2007 Adhinarayanan .. Appellant vs State by: Inspector of Police Nettapakkam Police Station (Cr.No.151/2005) Pondicherry .. Respondent Criminal appeal preferred under Sec.374(2) of Cr.P.C. against the judgment of the III Additional Sessions Judge, Pondicherry, in S.C.No.101/2005 dated 30.3.2007. For Appellant : Mr.E.J.Ayyappan For Respondent : Mr.R.Natarajan Additional Public Prosecutor (Pondicherry) JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the III Additional Sessions Division, Pondicherry, made in S.C.No.101 of 2005 whereby the appellant/sole accused in the case stood charged, tried, found guilty for a charge of murder and awarded life imprisonment along with a fine of Rs.5000/- and default sentence. 2.The short facts necessary for the disposal of this appeal could be stated thus: (a) P.W.1 and the appellant/accused are the children of the deceased Kasiammal. P.W.2 is residing in the opposite house. It is the usual practice of the accused to demand money from his mother Kasiammal, quarrel with her and even torture her. P.W.1 was also living along with them. On 24.9.2005 during late hours in the night, the appellant/accused came in a drunken mood, and he was further https://hcservices.ecourts.gov.in/hcservices/ demanding money and beat his mother. The next morning that was on 25.9.2005, at about 6.00 A.M., P.W.1 was driven out of the house by the appellant/accused, and she went to the other brother's house at Karayamputhur and informed him about the incident. Then, she returned at about 1.00 P.M., when the accused and the deceased alone were in the house. On seeing P.W.1, he questioned why she returned, and in that quarrel, the deceased mother intervened. Immediately, he pushed her down, fisted her, took a wooden-log and attacked her on the head. Immediately, he came out of the house when P.W.1 raised a cry. P.W.2 who is actually residing in the opposite house, came out and found the appellant/accused running from the house. Immediately he rushed to the house of the deceased when P.W.1 informed him about the incident. Then, the deceased was taken to the Community Health Centre, Karikalampakkam, where P.W.9, the Doctor, was on duty. When enquired, the deceased informed the Doctor that it was her son who attacked her, and the same was also recorded. Thereafter, on advice she was taken to the Government Hospital for treatment, and she was admitted. But, despite treatment, she died. The information was actually sent to the respondent police. (b) P.W.15, the Sub Inspector of Police, attached to the respondent police station, on receipt of the information, proceeded to the Government Hospital and got the statement from P.W.1, which is marked as Ex.P22 on the strength of which a case came to be registered in Crime No.151 of 2005 under Sec.302 of I.P.C. The complaint, Ex.P22, and the printed FIR, Ex.P23, were all despatched to the Court. (c) P.W.16, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared an observation mahazar, Ex.P4, and a rough sketch, Ex.P5. He also conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P10. Then, a requisition was given to the hospital authorities for the purpose of postmortem. (d) P.W.10, the Specialist Gr.II & Head, Department of Forensic Medicine, General Hospital, Pondicherry, on receipt of the requisition, conducted autopsy on the dead body of Kasiammal and found two external injuries. He has issued a postmortem certificate, Ex.P12, with his opinion that the deceased died of cumulative effect of shock and haemorrhage due to multiple injuries. (e) Pending the investigation, the accused was arrested on 28.9.2005, when he came forward to give a confessional statement which was recorded. The admissible part is marked as Ex.P6. Following the same, he produced M.O.5, bloodstained shirt, and M.O.6, https://hcservices.ecourts.gov.in/hcservices/ wooden-log namely the weapon of crime, and they were recovered under two independent mahazars. He was sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department. They have given two reports namely Ex.P13, the Chemical Analyst's report, and Ex.P20, the Serologist's report, which were placed before the Court. On completion of the investigation, the Investigating Officer filed the final report. 3.The case was committed to Court of Session and necessary charge was framed. In order to substantiate the charge, the prosecution examined 16 witnesses and also relied on 23 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced, looked into the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty under Sec.302 of IPC and awarded life imprisonment which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the main witness examined by the prosecution regarding the occurrence, was only one namely P.W.1; that P.W.1 is the daughter of the deceased; but, she has turned hostile; that nowhere she has stated that she went to the police station either, or she gave information; that Ex.P22 though marked through the Inspector of Police, loses its value and the FIR also; that the only witness available for the prosecution except P.W.1, was P.W.2; that P.W.2 was actually a person residing in the opposite house; that according to him, only after hearing the noise, he came out of the house and found the accused running from the house; that it would be quite clear that he has not seen the occurrence at all; that the deceased was taken immediately to the Community Health Centre and thereafter to the Government Hospital; that the prosecution much relied on Ex.P11, the accident register copy, pertaining to the deceased; that if she was in such a serious condition, she could not have stated anything to the Doctor as found in Ex.P11, the accident register copy; and that under the circumstances, no evidentiary value could be attached to the document. 5.Added further the learned Counsel that as far as the arrest of the accused and recovery of M.O.5, shirt, and M.O.6, wooden-log, were concerned, the evidence that was adduced by the prosecution, was shaky; that apart from that, even assuming that the prosecution case as to the recovery of the weapon of crime was proved, that by itself https://hcservices.ecourts.gov.in/hcservices/ would not suffice to sustain a conviction; that under the circumstances, the prosecution had no evidence worth mentioning placed before the trial Court and hence, the lower Court should not have accepted the evidence to base a conviction and find him guilty as per the charge of murder. 6.Added further the learned Counsel that in the case on hand, even assuming that the factual position that it was the accused who attacked the mother on the head with a wooden-log was taken to have been proved, the act of the accused would not attract the penal provision of murder; that in the instant case, according to the report, the deceased was found drunk; that apart from that, there was a quarrel even as per the first information relied on by the prosecution, that preceded the occurrence; that when the quarrel between P.W.1 the sister and the accused, the brother was going on, the deceased mother had intervened and the same has immediately provoked him; that following the quarrel and due to provocation, he has acted so, and hence it is neither intentional nor premeditated; that under the circumstances, it cannot be termed as murder, and this legal position has got to be considered by this Court. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that one Kasiammal following an incident that took place on 25.9.2005 at about 1.00 P.M., was taken originally to the Community Health Centre and thereafter to the Government Hospital, where she was declared dead. Following the inquest made by the Investigator, P.W.16, the dead body was subjected to postmortem by P.W.10, the Medical Person, who has also given his opinion that she died due to shock and haemorrhage and out of the injuries sustained and also she was found drunk. The fact that she died out of homicidal violence was never questioned by the appellant/accused at any stage of the proceedings either before the trial Court or before this Court. Hence no impediment is felt in recording so. 9.In order to establish the factum that it was the accused who attacked his mother with the wooden-log M.O.6 and as a direct consequence the death ensued, the prosecution rested its entire case on the direct evidence of P.Ws.1 and 2. P.W.1, who is the sister of the accused and daughter of the deceased, has turned hostile, and hence her evidence was not available for the prosecution. At the same time, this Court is able to see two pieces of evidence available in the entire case paper which, in the opinion of the Court, are strong against the accused. Firstly, P.W.2 is the person who is actually residing in the opposite house. According to him, on https://hcservices.ecourts.gov.in/hcservices/ hearing the distressing cry at the time of the incident, he came out of the house and saw the accused running from the house. It is pertinent to point out that at the time of occurrence, in the house where the incident took place, P.W.1, the deceased and the accused alone were present. According to P.W.2, after seeing the accused coming out of the house, he went inside the house and questioned about the same, and it was P.W.1 who narrated the entire incident, and immediately, the deceased was taken to the Community Health Centre. This Court is unable to see any reason to disbelieve or discard the evidence of P.W.2. 10.The second strong piece of evidence was Ex.P11, the accident register copy, pertaining to the deceased. When she was taken to the hospital, she has informed to the Doctor, P.W.9, that it was her son who attacked her on the head with the wooden-log. Thus, it was the statement made by the deceased to the Doctor, and the Doctor has also been examined. The document was also marked as Ex.P11. The contents as found in the document, in the opinion of the Court, are vital which would strongly act against the accused. 11.Added circumstance is the recovery of M.Os.5 and 6 pursuant to the confessional statement voluntarily made by the accused to the Investigator in the presence of the witnesses. Now, the witness has also spoken to the factum of arrest, confession and recovery. Thus the recovery of the weapon of crime M.O.6, wooden-log, pursuant to the confessional statement voluntarily made by the accused would be indicative of the nexus of the crime with the accused. Added further, all these material objects were subjected to chemical analysis by the Forensic Sciences Department which brought forth two reports. A perusal of the reports would clearly indicate that the scientific evidence was also in favour of the prosecution. Thus, it can be well stated that the prosecution has proved the fact that it was the accused who attacked his mother with the wooden-log and caused her death. 12.As far as the second line of contention is concerned, this Court is able to see force in the submission made by the learned Counsel for the appellant. Even as per the prosecution case, on seeing P.W.1, the accused immediately questioned why she returned, and at that time, there was a quarrel among the accused, the brother and P.W.1, the sister, and in that quarrel, the deceased mother intervened. At that time, being provoked by the same, he has taken a wooden-log and attacked her, and thus it was neither premeditated nor intentional. But, due to the provocation by the sudden quarrel, he has done so when the mother intervened in the quarrel. Under the circumstances, the act of the accused would amount to culpable homicide not amounting to murder, and it would attract the provisions https://hcservices.ecourts.gov.in/hcservices/ of Sec.304 (Part I) of I.P.C. It is true that it is a case of matricide. Further, this Court is able to see that it was due to the provocation by the intervention of the mother in the quarrel between the brother and the sister. In such circumstances, awarding a punishment of 7 years Rigorous Imprisonment would meet the ends of justice. Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court are set aside, and instead, the appellant is convicted under Sec.304 (Part I) of I.P.C. and is directed to undergo 7 years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. The fine and the default sentence imposed by the trial Court will hold good. 13.With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar nsv/ To: 1.The III Additional Sessions Judge Pondicherry. 2.-do – Throw the Principal Session Judge, Pondicherry. The District Collector, Pondicherry The Director General of Police Pondicherry. 5.The Public Prosecutor High Court, Madras. The superintendent Central Prison Cuddalore. 7.The Inspector of Police Nettapakkam Police Station (Cr.No.151/2005) Pondicherry +1 cc to Mr.E.J Ayyappan Advocate, SR.No.57237 + One cc to Mr.Senior Government Pleader cum Senior Public Prosecutor for pondicherry SR.No. 57371. CRL.A.No.487 of 2007 BS(CO) BK(30/10/2008) https://hcservices.ecourts.gov.in/hcservices/