BAIL SLIP --- The Appellant/Accused viz., Chandran was directed to be released on bail as per order of this Court dated 7.12.2006 and made in Crl.M.P.No.1/06 in Crl.A.No.986/06 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.09.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.986 OF 2006 Chandran .. Appellant/Accused Vs. The State rep. by The Inspector of Police, J-4, Police Station, Kotturpuram, Chennai-600 085 .. Respondent/Complainant This criminal appeal has been preferred under Section 374 Cr.P.C. against the conviction and sentence passed by the learned III Additional Sessions Judge in the Court of Sessions at Chennai in S.C.No.614 of 2005, dated 28.03.2006. For Appellant : Mr.V.Gopinath, SC for Mr.S.Saravanakumar For Respondent : Mr.V.R.Balasubramanian, APP - - - - JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the III Additional Sessions Division, Chennai made in S.C.No.614 of 2005, whereby the sole accused/appellant stood charged under Sections 325 and 302 IPC, tried and found guilty as per the charges and awarded two years R.I. and also to pay a fine of Rs.1000/-, in default to undergo six months S.I. under Section 325 IPC and life imprisonment and also to pay a fine of Rs.2000/-, in default to undergo one year S.I. under Section 302 IPC. 2.The short facts necessary for the disposal of this appeal could be stated thus: https://hcservices.ecourts.gov.in/hcservices/ a)The deceased is the wife of the accused. Both were working under P.W.1 as daily coolies. About 20 families including the deceased, accused and P.Ws.1 to 3 were residing in a temporary shelter near the pumping station of Anna University. Even after a period of three years from their marriage, the deceased and the accused did not have a child and they had quarrel often. As usual, on the date of occurrence, namely on 12.11.2005 at about 1.30 p.m., P.Ws.1 to 3, after hearing the distressing cry, rushed to the house of the deceased and found that the deceased was beaten by the accused with a wooden stick repeatedly and she fell down. When P.Ws.1 to 3 went nearby, they could see only the dead body. Immediately, the accused fled away from the place of occurrence. b)P.W.1 went to Kotturpuram Police Station and gave Ex.P.1, the complaint to P.W.9, the Sub Inspector of Police. On the strength of Ex.P.1, he registered a case in Crime No.1152 of 2005 under Sections 341, 325 and 302 IPC. Ex.P.8, the F.I.R. was despatched to the Court. c)P.W.10, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.5, the observation mahazar and Ex.P.9, the rough sketch. The place of occurrence and the dead body were photographed through P.W.7, the photographer. Ex.P.7 (series) were the photos and negatives. P.W.10 recovered M.O.1, stick in the presence of the witnesses under Ex.P.6, mahazar. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.10, the inquest report. He examined the witnesses and recorded their statements. Then, the dead body was sent to the Government Hospital for the purpose of autopsy. d)P.W.5, the Doctor attached to the Government Hospital, Royapettah, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.3, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. e)Pending investigation, the Investigating Officer arrested the accused on 13.11.2005. The accused voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses. On the same day, the accused was produced before the court concerned and remanded to judicial custody. P.W.10 enquired P.W.5, the Doctor and recorded his statement. On completion of the investigation, he filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 10 witnesses and relied on 10 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence https://hcservices.ecourts.gov.in/hcservices/ witness was examined. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellant guilty as per the charges and awarded punishments as referred to above, which is the subject matter of challenge before this court. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel would submit that the prosecution has examined P.Ws.1 to 3 as eyewitnesses; that a careful scrutiny of the evidence would indicate that the evidence is not only inconsistent to each other, but also self contradictory; that the medical opinion canvassed through the post-mortem Doctor also did not support the prosecution case; that apart from that, in the instant case, the stick was actually recovered; that according to the prosecution, the stick was recovered from the place of occurrence, but it was quite unnatural and hence the lower court, on evidence, should have acquitted the accused outright. 5.Added further the learned Senior Counsel that even assuming that the facts of the prosecution case are proved or taken to have been proved, the act of the accused would not attract the penal provision of murder; that even according to P.Ws.1 to 3, the deceased and the accused had quarrel often; that even on the date of occurrence at about 1.30 p.m., they had quarrel; that following the same, being provoked, he took the stick and attacked the deceased; that it is to be noted that he was unarmed and he took the stick due to provocation and attacked the deceased; that it was neither intentional nor deliberate and under these circumstances, no intention could be inferred and hence the act of the accused would not attract the penal provision of murder and all the circumstances attendant have got to be considered by the court. 6.The Court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that the deceased, the wife of the accused, died in an incident that took place at about 1.30 p.m. on 12.11.2005. following the inquest made, the dead body was subjected to post-mortem by P.W.5, the Doctor, who, as a witness before the court and also in his post-mortem certificate, has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. This fact was never questioned by the appellant at any stage of proceedings. Hence the court below felt no impediment in recording so. 8.In order to substantiate the case that it was the accused who beat his wife and caused her death, the prosecution examined P.Ws.1 to 3, who are co-workers and all have spoken in one voice about the incident. This Court is unable to see any reason or any circumstance to discard or disbelieve their evidence. Further, they were neither https://hcservices.ecourts.gov.in/hcservices/ interested to the prosecution nor inimical to the accused. Apart from that, they were working in the same place and were very cordial to each other and thus, on scrutiny, their evidence inspired the confidence of the court. The evidence of the prosecution witnesses that it was the accused who beat the deceased with stick was fully corroborated by the medical evidence. The stick has also been recovered from the place of occurrence and the same was identified by the witnesses. Under these circumstances, it could be stated that the prosecution has proved the necessary facts that it was the accused who attacked the deceased with stick and caused her death. 9.Coming to the question as to the nature of the act of the accused, this court is able to see sufficient force on the contention put forth by the learned Senior counsel for the appellant. The spouses had quarrel often and on the date of occurrence, as usual, at about 1.30 p.m., they had quarrel and the sound was heard by P.Ws.1 to 3 and they rushed to the place of occurrence and found the accused attacking the deceased with stick. It could be well seen that the accused was unarmed, but he has taken a stick found there and attacked the deceased. Thus, it would be quite clear that he had no intention or design to commit the crime, but due to provocation, he has acted so. The act of the accused was neither premeditated nor intentional, but due to sudden provocation, pursuant to the quarrel, he has acted so. Hence the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder. Taking into consideration the circumstances attendant and also the fact that he was unarmed and he took the stick found nearby and beat the deceased and he did not expect that death would have occurred, but it has occasioned, the act of the accused would attract the penal provision of Section 304(2) IPC and awarding punishment of 5 years R.I. would meet the ends of justice. 10.Accordingly, the judgment of conviction and sentence imposed on the appellant under Section 302 IPC is modified and instead the appellant is convicted under Section 304(2) IPC and sentenced to undergo five years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount imposed under Section 302 IPC shall be treated as fine amount imposed under Section 304(2) IPC. In other respects, the judgment of the trial court will hold good. It is reported that the appellant is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. Accordingly, this criminal appeal is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk https://hcservices.ecourts.gov.in/hcservices/ To 1.The III Additional Sessions Judge, Court of Sessions, Chennai. 2. -Do- thro' the Principal Sessions Judge, Chennai. 3. The IX th Metropolitan Magistrate, Saidapet, Chennai. 4. The Chief Metropolitan Magistrate, Egmore, Chennai. 5. The Superintendent, Central Prison, Cuddalore. 6. The Inspector of Police, J-4, Police Station, Kotturpuram, Chennai-600 085. 7. The Public Prosecutor, High Court, Madras. 8. The District Collector, Chennai 9. The Director General of Police, Chennai. + 1 CC To Mr.L.Mahendran, Advocate SR NO.53711 CRL.A.NO.986 OF 2006 GV {CO} TP/30.9.08 https://hcservices.ecourts.gov.in/hcservices/