IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 12.04.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.41 of 2010 Periyasamy ... Appellant/Accused ..Vs.. State : Inspector of Police, Sendamangalam Police Station, Namakkal District. ... Respondent/Complainant Appeal filed against the judgment dated 21.2.2008 passed by the learned Principal Sessions Judge, Namakkal in S.C. No.9 of 2008. For Appellant : Mr. G. Paranthaman For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 21.2.2008 passed by the learned Principal Sessions Judge, Namakkal in S.C. No.9 of 2008, whereby the sole accused stood charged, tried and found guilty for the offence under Section 302 of the Indian Penal Code and awarded Life Imprisonment along with a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for six months. 2. The short facts necessary for the disposal of the case can be stated thus: (i) The accused/appellant was residing with his wife Saroja at Vadugapatti village. They had got two daughters and one son and they are also living with them. The accused/appellant, after death of his three previous wives, married the deceased as his fourth wife. The accused was not doing any work since he was suffering from stomach pain and the deceased used to go for work and maintain the https://hcservices.ecourts.gov.in/hcservices/ entire family, but he was again and again harassing her and demanding money also. Hence, she came to the parent's house and stayed with her parents for two weeks. P.W.1 cousin brother and P.W.2 sister of the deceased Saroja intervened and pacified them. (ii) When they came to the village of Vadugapatti on 8.2.2008 at about 2 p.m., the accused demanded money for his medical treatment. The deceased not only refused to make payment but also scolded him. When P.Ws.1 and 2 pacified them and left the place of occurrence for few yards, they heard a distressing cry of Saroja. Then, they came back and found the accused attacking her with the spade handle with iron ring M.O.1 not only on the head but also on different parts of the body. She fell down and died on the spot. (iii) P.W.1 proceeded to the respondent-police station and gave complaint Ex.P1. P.W.12 Sub Inspector of Police, who was on duty, on receipt of Ex.P1 complaint, registered the case in Crime No.135 of 2008 for the offence under Section 302 of the Indian Penal Code. Express first Information Report Ex.P15 was despatched to the Court. (iv) P.W.13 Inspector of Police took up investigation, proceeded to the spot, made an inspection and prepared observation mahazar Ex.P3 and rough sketch Ex.P16. He conducted inquest on the dead body in the presence of panchayatars and the inquest report is marked as Ex.P17. Thereafter, he sent the dead body to the Government Hospital at Sendamangalam for the purpose of conducting autopsy. P.W.7 Doctor conducted autopsy and issued post-mortem Certificate Ex.P9, where he has opined that the death would have occurred about 18 to 24 hours prior to autopsy and the deceased would appear to have died of shock and hemorrhage due to head injury and injuries to vital organs. In the said Certificate, he has noted the following injuries:- "Ext. Injuries:- 1. An irregular lacerated injury of size 7cm x 7 cm x bone depth over the scalp above Rt Ear and the occipital area. 2. An irregular lacerated injury of 5 cm x 5 cm x 3 cm below Rt ear. 3. An irregular lacerated injury of 5 cm x 5 cm x bone depth over the Rt side forehead. 4. An abrasion over the Rt. Side neck. 5. Diffused contusion over the back of Rt. Shoulder. https://hcservices.ecourts.gov.in/hcservices/ 6. An irregular lacerated injury of 3 cm x 2 cm x 1 cm over the Rt ankle. 7. Lt Elbow broken with abrasion and contusion with fracture at that side." (v) P.W.13 Investigation Officer, during the course of his investigation, arrested the accused on 9.2.2008 and recorded the confession statement given by him voluntarily and the admissible portion of the same is marked as Ex.P5. Pursuant to the confession statement, he produced M.O.1 spade handle with iron ring and the same was recovered under the cover of mahazar. All the material objects were sent for chemical analysis. Serological report and biological reports are marked as Ex.P12 and P13 respectively. He examined all the witnesses and recorded their statements. 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 13 witnesses and relied on 19 documents and also relied on M.Os.1 to 15. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 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 scrutinising the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded the 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 beyond reasonable doubt. The occurrence took place at 2 p.m. on 8.2.2008. P.Ws.1 and 2 have been examined as eye witnesses. Both of them could not have been present at that time since they belong to some other village. They came to the village along with the deceased and left the place leaving the deceased. When the occurrence took place at about 2 p.m., they were not present. There is a discrepancy in the evidence of P.Ws.1 and 2. The major part of their evidence would indicate the fact that they could not have seen the occurrence. The ocular testimony projected by them did not corroborate through medical evidence. 6. Learned counsel further added that insofar as recovery of M.O.1 spadle was concerned, according to the investigator, on arrest, the accused gave confession statement, pursuant to which, M.O.1 was recovered in the presence of witnesses. This part of evidence is shaking. Under the circumstances, barring this evidence, https://hcservices.ecourts.gov.in/hcservices/ the prosecution has no evidence to offer. Hence, it cannot be stated that the prosecution has proved its case. 7. The second line of argument put forth by the learned counsel for the appellant is that the accused/appellant did not go for job during the relevant time due to stomach pain. It is true that the deceased was earning as Coolie and was maintaining the entire family. Even on the date of occurrence, there was a quarrel. Since the accused was suffering from stomach pain, he was demanding money for treatment. The deceased not only abused him but also refused to give money. Being provoked by the words spoken to by the deceased, the accused has taken a spadle found nearby and attacked her. The act of the accused was neither intentional nor deliberate, but due to sudden quarrel and provocation and hence, it would not attract the penal provisions of murder, but only culpable homicide not amounting to murder. This has to be considered by the Court. 8. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the above contentions. 9. It is not in controversy that in an incident that had taken place on 8.2.2008 at about 2 p.m., in the house of the accused/appellant, Saroja wife of the accused died. In order to substantiate the case of the prosecution that the deceased Saroja died due to homicidal violence, the prosecution has marched not only eye witnesses but also relied on post-mortem Certificate given by Doctor. The Certificate given by the Doctor was never disputed by the appellant before the Trial Court and equally here also. Hence, there is no impediment for this Court to record so and accordingly the same is recorded. 10. In order to substantiate the charge that it was the accused, who attacked the deceased with spadle handle with iron ring and caused her death, the prosecution has examined P.Ws.1 and 2 as eye witnesses. P.W.1 is the cousin brother and P.W.2 is the sister of the deceased. According to them, two weeks prior to the occurrence, due to the quarrel with her husband, she came to the parental house along with her children. They brought her back and pacified the situation. 11. On the day when they were about to start at 2 p.m., they heard her distressing cry and immediately, they got inside the house and saw the accused attacking her with the handle of spadle on different parts of the body. They have also spoken to the fact that the deceased died instantaneously at the spot. The evidence of P.Ws.1 and 2 remain unshaken. The ocular testimony corroborated through medical evidence canvassed by post-mortem Doctor P.W.7, who has spoken to the fact that the injuries could have been caused by M.O.1 spadle handle with iron ring. https://hcservices.ecourts.gov.in/hcservices/ 12. Pursuant to the confession statement given by him on arrest, the accused produced M.O.1 spadle and the same has been recovered in the presence of witnesses and the witnesses have been examined to that effect. All would clearly indicate the fact of recovery of weapon of crime from the accused pursuant to the confession statement given by him, which would point out the nexus of crime to the accused. Hence, it would be quite clear that the prosecution had brought home the guilt of the accused with sufficient evidence. In the face of evidence recorded by the Trial Court and available materials, this Court is of the considered opinion that anyone of the contentions put forth by the learned counsel for the appellant would not merit acceptance and would not carry any merit. 13. Insofar as the act of the accused is concerned, this Court is able to see some force in the contention of the learned counsel for the appellant. Admittedly, during the relevant time, due to stomach pain, the accused did not go for work. It is true, being a lady, she was earning and maintaining the family. When the accused was demanding money, she had not paid. She not only refused to give money but also scolded him. Since he was suffering from stomach pain, it is quite natural that he got provoked, took a spadle and attacked her on different parts of the body. The act of the accused is neither intentional nor premeditated. At the same time, due to sudden quarrel and provocation, he has acted so. Hence, the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting vto murder. Therefore, the act of the accused would attract the penal provisions of Section 304 (I) of the Indian Penal Code and awarding punishment of seven years Rigorous Imprisonment would meet the ends of justice. 14. Accordingly, the conviction of the sentence imposed on the appellant under Section 302 of the Indian Penal Code are modified and instead the appellant is convicted under Section 304(I) of the Indian Penal Code and sentenced to undergo seven years Rigorous Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. The find 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, the criminal appeal is disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssa. 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 Sendamangalam Police Station, Namakkal District. 1 cc To Mr.G.Paranthaman, Advocate, SR.24331 Crl. A. No.41 of 2010 GS(CO) sra 27/04/2010 https://hcservices.ecourts.gov.in/hcservices/