IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.758 of 2009 Muthu .. Appellant/Accused Vs. State represented by The Inspector of Police, B-4, Police Station (Law and Order) Race Course, Coimbatore District. Crime No.1235/2009) .. Respondent/Complainant The criminal appeal filed U/Sec.344(2) of Cr.P.C. has been preferred under Section 374 Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore District made in S.C.No.115 of 2009 dated 12.11.2009 For Appellant : Mr.N.Duraisamy & Mr.V.Chinnasamy. For Respondent : Mr.V.R.Balasubramanian, A.P.P. J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgement of the Additional Sessions Division, Fast Track Court-II, Coimbatore District made in S.C.No.115 of 2009 whereby the sole accused/appellant stood charged, tried and found guilty of murder and awarded life imprisonment along with fine of Rs.1,000/-, in default, to undergo six months rigorous impirsonment. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (i) The appellant married the deceased Dhanalakshmi on 10.7.2002. They had two children. The deceased often quarrelled with her husband and during the relevant time, she went to her parental home. On the date of occurrence, that was, on 8.7.2009 the accused came to the deceased parental home at Coimbatore and took back the deceased Dhanalakshmi to the matrimonial home. The deceased and the accused started from there and came to the bus stop to go to their home at https://hcservices.ecourts.gov.in/hcservices/ Vedasanthur Dindigul District. At the bus stand, both of them quarrelled with each other. The deceased proceeded to All Women Police Station at Gandhipuram, Nanjappa Road. The wordy quarrelled continued. The accused asked the deceased, with whom she was living. Immediately, the deceased Dhanalakshmi removed her thali and threw it on the ground. She said that she is going to give a complaint against him in the All Women Police Station. Enraged by the same, the accused immediately rushed to the nearby shop and took a knife and cut her neck. It was witnessed by P.Ws.1 to 3- auto drivers who were standing in the nearby auto stand. Immediately, they went to the rescue but they could not save her. P.Ws. 1 to 3 caught the accused red-handed and handed over to P.W.15 Inspector of Police. P.W.1 gave complaint Ex.P1. On the strength of which, a case came to be registered in Crime No.1235/2009 under section 302 I.P.C. The express F.I.R., Ex.P16 was despatched to Court. (ii) P.W.15, Investigating Officer, took up investigation. He arrested the accused. He went to the spot, made an inspection and prepared the Observation mahazar Ex.P10 in the presence of witnesses and panchayatdars. He also drew a rough sketch Ex.P.17. He recovered the blood stained earth and sample earth under a cover of mahazar. He conducted inquest on the dead body in the presence of witnesses and prepared the inquest report Ex.P.18. Thereafter, he sent the dead body for the purpose of post mortem. (iii) On the requisition made, P.W.9 doctor attached to the Government Hospital conducted autopsy on the dead body of the deceased Dhanalakshmi and found the following injuries. " A transversely oblique cut injury 10 x 3 cm x Tracheal deep noted on front and both sides of neck. The right end is 7 cm below to right mastoid, left end is 6 cms below to left mastoid and 8 cm below to chin." The doctor also gave the opinion through the contents in the post mortem certificate Ex.P.7 and also as a witness before the trial Court that the deceased would appear to have died of shock and haemorrhage due to neck injury sustained by her. (iv) Since the accused has also sustained injury, he was taken to the hospital for treatment. P.W.8, doctor attached to the Goverment Hospital gave treatment and issued the accident register copy, Ex.P3. Thereafter, the accused was sent for judicial remand. Further, investigation was done by P.W.16 Inspector of Police. On completion of the investigation, the investigating officer filed a final report. (v) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 16 witnesses and relied on 18 exhibits and 10 material objects. 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 the prosecution witnesses and he denied them as false. No defence witness https://hcservices.ecourts.gov.in/hcservices/ was examined. The trial Court heard the arguments on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty of murder and awarded life imprisonment along with fine and default sentence as referred to above. Hence, this appeal at the instance of the appellant/accused. 3. Advancing the arguments on behalf of the appellant, Mr.N.Duraisamy, the learned counsel would submit that in the instant case, according to the prosecution, the occurrence has taken place at 4.30 p.m. on 8.7.2009 in front of the auto stand where P.Ws. 1 to 3, auto drivers were in the auto stand and witnessed the occurrence but no auto stand was shown in the observation mahazar or in the rough sketch which would indicate the fact that such an occurrence could not have taken place near the auto stand and the auto drivers P.Ws.1 to 3, the alleged eye witnesses, could not have seen the occurrence at all. Further, P.W.15 has categorically admitted that Ex.P1 was written by the head constable but the said Head Constable was not examined. 4. The learned counsel for the appellant would further submit that there are lot of discrepancies in the evidence of P.Ws 1 to 3 hence, their evidence could not have been relied on by the trial Court. The ocular testimony did not corroborate with the medical evidence. All the material objects recovered from the place of the occurrence including M.O.1 knife M.O.2 shirt and M.O.3 pant, though claimed to have blood stains, no one of the material objects were sent for chemical analysis for the reason best known to the investigator. No explanation has been broughtforth from the prosecution side in this regard. Hence, it would be go to show that the prosecution has not proved the case beyond reasonable doubt. Hence, the trial Court should have acquitted the accused but failed to do so. 5. As the second line of argument, the learned counsel would submit that in the instant case even if the Court takes a view that the prosecution has proved the factual matrix that it was the accused who caused the death of the deceased, the act of the accused would not come under the provision of murder. According to the learned counsel, even as per the evidence added by the prosecution and also the charge which was based on the statement of the prosecution witnesses that there was wordy altercation between the husband and wife when they were in the bus stand, proceeding to their home. At that time, it was the deceased to took her thali and threw it on the ground. Immediately, the accused got wild and took a knife and cut her neck. Therefore, the accused had no intention nor premeditation but it was only due to sudden provocation he has acted so. Under such circumstances, the act of the accused would not attract the penal provision of murder but would amount to culpable homicide not amounting to murder which has got to be considered by this Court. 6. The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 7. It is not in controversy that one Dhanalakshmi, wife of the appellant/accused died in the incident that had taken place on 8.7.2009 at 4.30 p.m. within a short distance from the respondent Police Station. At the time of occurrence, P.Ws.1 to 3 auto drivers were standing nearby the place of occurrence. They went to the rescue but they could not do so, at the same time, they were able to catch hold of the accused. They produced the accused before the police station. P.W.1 gave a complaint within short span of time. On the strength of which, a case came to be registered in Crime No.1235/2009 under section 302 I.P.C. against the accused. The evidence of P.Ws.1 to 3 fully corroborates with the medical evidence putforth by the post mortem doctor. In order to substantiate that Dhanalakshmi died out of homicidal violence, the prosecution , through the post mortem certificate has given opinion that the deceased died out of the neck injury sustained. The cause of death as putforth by the prosecution was never disputed by the appellant before the trial court or before this Court. Hence, it could be safely recorded that the deceased died out of homicidal violence. 8. P.Ws.1 to 3, though they were chance witnesses, they have spoken to the effect that when they were standing in the auto stand, the occurrence has taken place. The contention of the learned counsel, that the investigator, at the time of preparation of the observation mahazar or the rough sketch has not mentioned the auto stand is concerned, the Court is able to see from all the materials available that it was actually a mistake committed by the investigator and the Court is of the opinion that on this ground, the case of the prosecution, cannot be rejected. 9. Apart from the above, all the material objects were recovered immediately from the accused and the witnesses have also been examined in that regard. The recovery of blood stained material objects from the accused immediately after the occurrence is sufficient to indicate the nexus between the accused and the crime. It is true the material objects were not sent for analysis. It was also the mistake committed by the investigator. These irregularities will in no way affect the truth of the prosecution case since the Court is able to see sufficient evidence to show that it was the accused who cut the neck of his wife Dhanalakshmi and caused her death instantaneously. All would clearly indicate that it was the accused who has caused the death of the deceased by cutting her neck. 10. Insofar as the second line of argument is concerned, the Court is able to see force in the contention putforth by the learned counsel for the appellant. Even as per the prosecution case, while both husband and wife were proceeding to their way home, near the bus stand there was wordy quarrel between them. At that time, the deceased Dhanalakshmi removed her thali and threw it on the ground. As a husband, naturally, he got provoked. He took a knife and cut her neck and caused her death instantaneously. Under these circumstances, it would be quite clear that the act of the accused was neither intentional nor premeditated nor planned, but it was done due to sudden quarrel, which arose between the deceased and the accused. Hence the act of the accused would not attract the penal provision of https://hcservices.ecourts.gov.in/hcservices/ 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) IPC and awarding punishment of 7 years R.I. would meet the ends of justice. 11.Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are modified and instead the appellant is convicted under Section 304(I) IPC and sentenced to undergo 7 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and default sentence imposed by the trial court will hold good. 12. With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST TRACK COURT NO.II COIMBATORE DISTRICT 2. -DO- THRO THE PRINCIPAL SESSIONS JUDGE,COIMBATORE 3. THE JUDICIAL MAGISTRATE NO.3,COIMBATORE 4. -DO-THRO THE CHIEF JUDICIAL MAGISTRATE,COIMBATORE 5. THE SUPERINTENDENT CENTRAL PRISON,COIMBATORE 6. THE INSPECTOR OF POLCIE B-4 POLICE STTION (LAW AND ORDER) RACE COURSE,COIMBATORE DISTRICT 7. THE PUBLIC PROSECUTOR HIGH COURT,MADRAS 1 cc To Mr.N.Doraisami, Advocate, SR.16784 Copy to:The Section Officer, Criminal Section, High Court, Madras. CRL.A.No.758 of of 2009 GV(CO) sra 22/03/2010 https://hcservices.ecourts.gov.in/hcservices/