IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:- 10.11.2010 CORAM THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE C.S. KARNAN CRL. A. NO.501 OF 2010 Raja ... Appellant/Single Accused ..Vs.. State by Inspector of Police, Senthamangalam Police Station, Namakkal District. ... Respondent/Complainant Crime No.489/2009 Appeal filed against the judgment dated 16.9.2009 passed by the learned Principal Sessions Judge, Namakkal in S.C. No.66 of 2009. For Appellant : Mr. N. Manokaran for Mr. R. Marudhachalamurthy For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 16.9.2009 passed by the learned Principal Sessions Judge, Namakkal in S.C. No.66 of 2009, whereby he stood charged, tried and found guilty for the offence under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for one year 2. The short facts necessary for the disposal of the case can be stated thus:- (i) P.W.1 is the husband of the deceased Malarkodi and they got married 16 years prior to the occurrence. They got two female children. The accused Raja, who was employed as Coolie. developed illicit intimacy with the deceased. After coming to know about this, P.W.1 shifted his residence to Sankalakaradu and P.W.3 was living nearby. https://hcservices.ecourts.gov.in/hcservices/ (ii) Two days prior to the occurrence, the deceased informed P.W.1 that there was a wordy altercation between herself and the accused. On 16.8.2009 at about 5 p.m. after returning from the temple, P.W.1 went to Muthukapatti to attend his work. At that time, on the way, he found the accused at Moongil Thoppu nearby his house. Then, the accused went to the house of the deceased and quarreled with her, pursuant to the same, he took M.O.7 koduval and attacker her discriminately and caused her death. The same was witnessed by P.W.3 neighbor. The same was also witnessed by P.W.4, one of the children of P.W.1 that the accused was running away from the place of occurrence with the weapon. (iii) P.W.1 was informed by phone about the occurrence. Immediately, P.W.1 rushed to the spot and after seeing the dead body, he gave a report Ex.P1 to P.W.13 Sub Inspector of Police and on the strength of which, a case in Crime No.489 of 2009 was registered under Section 302 of the Indian Penal Code. Express First Information Report Ex.P16 was despatched to the Court. (iv) P.W.15 Inspector of Police took up investigation, proceeded to the spot and prepared Observation Mahazar Ex.P3 and rough sketch Ex.P19. He conducted inquest on the dead body in the presence of witnesses and panchayatars and the inquest report is marked as Ex.P20. Thereafter, the dead body was sent for post- mortem. P.W.8 attached to the Government Hospital, Senthamangalam conducted post-mortem and issued post-mortem Certificate Ex.P10 certifying that the death was caused due to shock and hemorrhage 16 to 20 hours prior to autopsy. (v) P.W.15 took up further investigation and recovered M.O.1 blood stained thread cot, M.O.2 blood stained wooden log, M.O.3 blood stained mud and M.O.4 ordinary mud from the place of occurrence in the presence of witnesses under the cover of mahazar Ex.P4. Pending investigation, the accused was arrested on 18.8.2009. Thereafter, he gave confession statement voluntarily in the presence of P.W.7 Village Administrative Officer. The admissible portion of the same is marked as Ex.P5. Following the same, he produced M.O.5 blood stained shirt, M.O.6 lungi, M.O.7 koduva and P.W.15 sent all the material objects to the Forensic Department for chemical analysis. Chemical analysis report Ex.P12 and Serological report Ex.P14 were received. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 15 witnesses and relied on 23 documents and also relied on M.Os.1 to 14. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 https://hcservices.ecourts.gov.in/hcservices/ of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case either by direct or by circumstantial evidence. The occurrence had taken place on 16.8.2009 at 5.30 p.m. The only witness examined by the prosecution as if witnessed the occurrence was P.W.3 whose house is situated 1 km. away from the place of occurrence. The evidence of P.W.3 is that at the time of occurrence, she was standing nearby her house. After hearing the wordy altercation between the accused and the deceased, P.W.3 came from her house. Hence, it is quite clear that P.W.3 could not have seen the occurrence at all. 6. Learned counsel added further according to P.W.4, immediately after the occurrence is over, she found the accused running with koduva. The witness is 13 years old. Hence her evidence should be rejected on the ground of immaturity. The arrest was on 18.8.2009 and the recovery of M.O.7 koduva was pursuant to the confession statement. These facts are newly introduced to strengthen the case of the prosecution. The prosecution has miserably failed to prove its case, but the Trial Judge has taken an erroneous view. 7. Learned counsel in the second line of argument submits that even if the Court takes the view that the prosecution has proved the factual matrix that the accused took M.O.7 koduva and attacked the deceased and caused her death, the act of the accused would not attract the penal provisions of murder. The only witness examined is P.W.3 who has categorically spoken to the fact that at the time of occurrence, there was a quarrel during which he attacked the deceased with koduva. It is also pertinent to point out that even as per Ex.P1 report, it has been clearly stated that koduva was lying on the ground and the accused was not armed with koduva and the act of the accused is neither intentional nor premeditated. Hence the act of the accused would not attract the penal provisions of murder. This has got to be considered by the Court. 8. This Court heard the learned Additional Public Prosecutor on the above contentions. 9. This Court paid its anxious considerations on the submissions made by either side. It is not in controversy that one Malarkodi wife of Sahadevan was done to death in an incident that https://hcservices.ecourts.gov.in/hcservices/ had taken place on 16.8.2009 at the place as put forth by the prosecution. Following the inquest report Ex.P20 prepared by P.W.15 Inspector of Police, the dead body was subjected to post-mortem. P.W.8 Doctor, who has conducted post-mortem, has given his opinion in the post-mortem Certificate marked as Ex.P10 that the deceased died due to shock and hemorrhage and due to the injuries sustained by her. The cause of death as put forth by the prosecution was never disputed by the accused before this Court and before the Trial Court. Hence, there is no impediment in recording so. 10. In order to substantiate the case of the prosecution that it was the accused, who attacked the deceased with koduval M.O.7 and caused her death instantaneously, the prosecution has examined P.W.3 as only eye witness to the occurrence and also P.W.4. one of the children of the deceased, who has witnessed the accused running away with blood stained koduva. P.W.3 has categorically deposed that there was a wordy altercation between the accused and the deceased for some time. The witness was standing in front of the house. Immediately, on hearing the wordy altercation, she rushed to the place of occurrence. At that time, she found the accused attacking the deceased on different parts of the body. The contention of the learned counsel for the appellant that the house of P.W.3 is situated 1 k.m. away from the place of occurrence and hence, she could not have seen the occurrence stands rejected for the simple reason that according to P.W.3, after hearing the wordy altercation, she proceeded to the place of occurrence and she found the accused attacking the deceased with M.O.7 koduva. Hence, there is no reason to disbelieve her evidence. 11. P.W.4, one of the children of the deceased, who was playing in front of the house, found the accused running from the house along with blood stained koduva. At the time of occurrence, the child was 13 years old. She had full maturity and the accused was also known to the child. In such circumstances, the evidence of P.W.3 coupled with the evidence of P.W.4 is in clinching terms that it was the accused, who attacked the deceased with M.O.7 koduva and caused her death instantaneously and fled away from the scene of occurrence. 12. Yet another circumstance, which stood against the accused is that, the ocular testimony is fully corroborated with medical testimony viz. the contents of post-mortem Certificate. Apart from this, yet another circumstance noticed by the Court is the recovery of M.O.s.5 to 7, which are blood stained shirt, lungi and koduva. The recovery of koduva, weapon of crime was pursuant to the confession statement given by the accused and recorded by the P.W.15 Investigating Officer in the presence of P.W.7 Village Administrative Officer, which was spoken to by him. The recovery of weapon of crime following the confession statement made by the accused would be pointing to the nexus of crime to the accused. The contentions of https://hcservices.ecourts.gov.in/hcservices/ the learned counsel for the appellant recorded above cannot be countenanced and they are liable to be rejected and they are accordingly rejected. Thus, the prosecution has proved the case that it was the accused, who attacked the deceased with M.O.7 koduva and caused her death instantaneously. 13. Insofar as second line of argument putforth by the learned counsel for the appellant is concerned, the Court is able to see force. It is an admitted position that the accused/appellant had illicit intimacy with the deceased and P.W.1, on coming to know about this, shifted his residence and at the time of occurrence, when the accused has actually visited the house, P.W.1 was absent and there was a wordy altercation between the accused and the deceased and at that time, the accused took the koduva, which was found nearby the place and attacked the deceased. When the accused went to the house of the deceased, he was unarmed. Added further, since the koduva was lying on the ground, he took the same and attacked her. P.W.3 has categorically spoken that there was a wordy altercation. Under such circumstances, the quarrel culminated in the occurrence in which the accused took the knife from the nearby place and attacked the deceased. Thus, it would be quite clear that he remained unarmed and at the time of quarrel when it reached pitch and being provoked, he took the koduva from the nearby place and attacked the deceased. Thus, the act of the accused was neither intentional nor premeditated, but it was due to sudden quarrel and provocation and hence the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder and therefore, the act of the accused would attract the penal provision of section 304 (I) of the Indian Penal Code and awarding punishment of 7 years Rigorous Imprisonment would meet the ends of justice. 14. Accordingly, the conviction and the sentence imposed on the appellant under section 302 of the Indian Penal Code alone are modified and instead the appellant is convicted under section 304(I) of the Indian Penal Code and sentenced to undergo 7 years Rigorous Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. The fine and default sentence imposed by the Trial Court under Section 302 of the Indian Penal Code will hold good. 15. With the above modification in conviction and sentence, this criminal appeal is disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Judicial Magistrate No.I, Namakkal. 2. The Chief Judicial Magistrate Namakkal. 3. The Principal Sessions Judge, Namakkal. 4. The Superintendent, Central Prison, Namakkal. 5. The District Collector, Namakkal. 6. The Director General of Police, Madras – 4. 7. The Public Prosecutor, High Court, Madras. 8. The Inspector of Police, Santhamangalam Police Station, Namakkal District. 9. The Superintendent, Central Prison, Coimbatore Copy to The Section Officer, Criminal Section, High Court, Madras 1 cc To Mr.R.Marudhachala Murthy, Advocate, SR.80719 Crl. A. No.501 of 2010 LA (CO) RH (25.11.10) https://hcservices.ecourts.gov.in/hcservices/