IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.1646/2002 Karnal @ Sanjeevimuthu Appellant Vs The State by Inspector of Police St.Thomas Mount Police Station Chengalput East District (Cr.No.513 of 1991) Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 18.9.2001 passed in SC.No.190/1995 by the learned Principal Sessions Judge, Chengalput, convicting and sentencing the appellant for the offence under Section 304(1) of IPC to undergo 7 years Rigorous Imprisonment. For Appellant : Mr.S.Panneerselvam For Respondent : Mr.S.Senthil Murugan, GA ORDER This Criminal Appeal is filed against the judgement dated 18.9.2001 passed in SC.No.190/1995 by the learned Principal Sessions Judge, Chengalput, convicting and sentencing the appellant for the offence under Section 304(1) of IPC to undergo 7 years Rigorous Imprisonment. 2. The case of the Prosecution is as follows:- a. On 4.7.1991 at abut 9.00 p.m. at Manapakkam near Sathya Nagar Tea Stall, the deceased Shanmugam used filthy language against the mother of the Appellant/accused and the Appellant had warned him not to use abusive language against his mother. But, the deceased did not stop with that and had pushed aside the Appellant, due to which the Appellant got angry, took a casurina stick from PW.1's (K.Gangadharan Nair) Tea Shop and attacked the deceased on his head, which resulted in head injuries to the deceased and the deceased died on the spot itself. PW.2 Sekar is doing welding business at Ramavaram. PW.3 Rajavelu is doing Turning Work at Ramavaram Main Road, Manapakkam. Pws.1 to 3 are known to the deceased Shanmugam and witnessed the occurrence. PW.1 went to the house of the deceased and informed his son-in-law Natesan about the occurrence and came back to the place of occurrence and found that the deceased was dead and went to the St.Thomas Police Station and gave complaint Ex.P1. https://hcservices.ecourts.gov.in/hcservices/ b. On receipt of the complaint, PW.8 Head Constable attached to the said Police Station registered a case in Cr.No.513/1991 on 4.7.1991 for the offence under Section 302 of IPC and prepared FIR Ex.P8. On receipt of Ex.P8, PW.9 the Inspector of Police attached to the said Police Station took up the case for investigation and went to the scene of occurrence and found the body of the deceased Shanmugam at Mount Poonamallee road near Ramavaram Bus Stop and prepared rough plan Ex.P9 and observation mahazar Ex.P.2 on the same day the 22.30 hours in the presences of PW.4 Annamalai and Babu and seized blood stained mud MO.2 and ordinary mud MO.3 in the presence of the same witnesses under mahazar Ex.P3. From 23.00 hours to 1.00 hour on 5.1.1991, PW.9 conducted inquest on the body of the deceased in the presence of the Panchayatdars and prepared inquest report Ex.P10 ad sent the body of the deceased to Chromepet Government Hospital with a requisition through PW.6 Gopal Police Constable and also examined the witnesses PW.1 Gangadaran, PW.3 Rajavel, Marriyappan, Raja, Natesan, PW.8, PW.5, PW.6 Gopal, Manickam and another Raja, Selvam Baskar, Murthy, Srinivasan, Lakshmi, Parvathi and Gopal and recorded their statements. c. PW.6 Gopal Head Constable handed over the body of the deceased along with a requisition given by PW.9 to the Chromepet Government Hospital and he received MO.4 blood stained shirt removed from the body of the deceased and handed over to PW.9. PW.7 Dr.Yuvarani attached to the said Hospital conducted postmortem on the body of the deceased and found the following injuries "1. A lacerated injury of 2" x 1/2" x bone depth on left parietal region. 2. A lacerated injury of 1"x1/2%x1 on left side of neck below the angle of the mansible. 3. A contusion of 3"x2" on the right parietal region." and opined in Ex.P7 Postmortem certificate that the deceased died due to head injuries caused to him. After Post Mortem, PW.6 handed over the body of the deceased to his relatives. d. PW.9 received MO.4 under Form-95 in the presence of the witnesses and sent a requisition for the chemical examination along with the letter of Judicial Magistrate Ex.P12 and Ex.P13 is the chemical examination report and Ex.P14 is the serology report. PW.9 arrested the accused on 7.7.1991 at 5.00 p.m. at Porur Junction and recorded his confession statement under Ex.P5 in the presence of the witnesses PW.3 and babu. On his confession statement, PW.9 seized MO.1 blood stained stout stick from a bush near the place of occurrence under Ex.P3 mahazar. He also examined the Doctor who conducted the autopsy and recorded her statement and after completing investigation, he filed a final report under Section 302 of IPC. 3. The case was taken on file in SC.No.190/1995 on the file of the learned Principal Sessions Judge, Chengalput and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 https://hcservices.ecourts.gov.in/hcservices/ witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P14 and 4 Material Objects. 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.S.Panneerselvam, the learned counsel for the Appellant submitted that there is no previous motive between the deceased and the Appellant and it had taken place due to sudden quarrel and it is the deceased who provoked the Appellant and he is the aggressor. He would submit that even if the Prosecution's version is accepted in its totality, the case would fall only under Section 304(11) of IPC, as there is no premeditation or intention to cause the death of the deceased. 8. Mr.S.Senthil Murugan, the learned Government Advocate (Criminal Side) on the other hand supported the judgement of the court below. 9. The occurrence had taken place on 4.7.1991 at abut 9.00 p.m. at Manapakkam near Sathya Nagar Tea Stall. There is a clear and clinching evidence through the eye witnesses Pws.1 and 2 that the deceased Shanmugam was the aggressor who had used abusive language against the mother of the Appellant, which was protested by the Appellant and had warned him not to use abusive language against his mother. But, the deceased did not stop with that and had pushed aside the Appellant which provoked him and the Appellant in turn took a casurina stick from PW.1's Shop and attacked him on his head which resulted in head injuries to the deceased. In fact, PW.2 stated that initially the deceased quarreled with PW.2 and when the Appellant intervened, he used abusive language and scolded him as "';nfhj;jh". Therefore, the evidence of the eye witnesses clearly established that the deceased was the aggressor and his provocative words made the Appellant to attack the deceased. 10. Now, it has to be seen as to whether the act of the Appellant would come under Exception 4 to Section 300 of IPC. To invoke this Exception, four requisites must be satisfied, namely, (i)it was a sudden fight (ii)there was no premeditation (iii)the act was committed in a heat of passion and https://hcservices.ecourts.gov.in/hcservices/ (iv)the assailant had not taken any undue advantage or acted in a cruel manner. 11. In the present case, all the above conditions exist. On examining the evidence in this case, it is found with reasonable certainty that there had been a sudden fight and the Appellant had caused an unpremeditated assault on the deceased in the heat of passion upon a sudden quarrel. The Appellant had snatched up a casurina log from the PW.1's shop and caused the fatal blow. 12. For the application of the said Exception, it is not only sufficient to show that there was a sudden quarrel and there was no premeditation, but also it must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provisions means "unfair advantage". These aspects have been highlighted in the decisions of the Honourable Supreme Court rendered in the case of Dhirajbhai Gorakhbhai Nayak Vs. State of Gujaraj [2003-5- Supreme-223], Prakash Chand Vs. State of HP [2004-11-SCC-381] and Byvarragu Raju Vs. State of AP and another [2007-11-SCC-218]. 13. When the back ground facts are considered in the light of the legal position elaborated above, the inevitable conclusion that could be arrived at is that in the present case Exception 4 to Section 300 of IPC applies. That being so, the appropriate conviction would be under Section 304 Part II of IPC. Therefore, the conviction under Section 304(1) of IPC is altered into one under Section 304(II) of IPC and in my considered view, custody and sentence of three years would be appropriate and sufficient. 14. In the result, this Criminal Appeal is partly allowed. The conviction and sentence imposed on the appellant by the court below in SC.No.190/1995 is modified and the Appellant is convicted for the offence under Section 304 (II) of IPC and sentenced to undergo three years Rigorous Imprisonment. 15. It is seen from the records that the Appellant was in jail for a period of nearly 14 months and he had been enlarged on bail by this court. The bail granted to the Appellant is hereby cancelled. The period of sentence already undergone by the Appellant is ordered to be given set off and the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. In all other aspects, the impugned judgement shall stand unaltered. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Srcm To: 1.The Principal Sessions Judge, Chengalput. 2.The Public Prosecutor, High Court, Madras. 3.The Superintendent, Central Prison, Cuddalore. 4.The Inspector of Police, St.Thomas Mount Police Station, Chengalpattu. Copy to The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.S.Panneerselvam, Advocate, SR.64567. Crl.A.No.1646/2002 KA(CO) RVL 03.12.2009 https://hcservices.ecourts.gov.in/hcservices/