1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Criminal Appeal(MD)No.101 of 2011 Kennedy Kumar .. Appellant Vs. State rep.by The Inspector of Police, Rameswaram Town Police Station, in Cr.No.231/2001 Ramanathapuram District. .. Respondent Appeal filed under Section 374 Cr.P.C. against the judgment passed in S.C.No.26 of 2003 dated 15.12.2003 on the file of the Principal Sessions Judge, Ramanathapuram. For Appellant : Mr.E.Somasundharam For Respondent : Mr.K.S.Duraipandian, Addl.Public Prosecutor JUDGMENT (Judgment of the Court was delivered by G.M.AKBAR ALI, J.) This Criminal Appeal is directed against the judgment passed in S.C.No.26 of 2003 dated 15.12.2003 on the file of the Principal Sessions Judge, Ramanathapuram convicting the first accused / appellant herein under Section 302 IPC and sentencing him to undergo life imprisonment, and also convicting him under Section 324 IPC (2 counts). Since life imprisonment has been imposed against him, no separate punishment has been imposed for conviction under Section 324 IPC (2 counts). 2.The case of the prosecution in brief is that on 24.10.2001, when P.Ws.1 to 5 and also the deceased-Somasundaram were proceeding in front of one Ramanathaswamy Theatre at Rameswaram, they saw the appellant and another accused-Murugan sitting near the ladies-side ticket counter of that theatre. P.W.1 as well as the deceased-Somasundaram asked the appellant "you both are thieves, why are you sitting here". Infuriated by such act, the appellant is said to have stabbed the deceased on his right chest and also caused injuries to the other witnesses. It is also alleged that the second accused had also caused certain injuries, and the deceased and the other injured witnesses were taken to the hospital. 3.P.W.1-Gani @ Nainar Gani gave a complaint to the respondent-Police Station and the same was registered in Crime No.231 of 2001 for offence punishable under Sections 302 and 324 IPC. P.W.22-Inspector of Police, Rameswaram took up the case for investigation. He went to the scene of occurrence and prepared Ex.P19-Rough Sketch and Ex.P2-Observation Mahazar. Thereafter he went to the Government Hospital, Ramanathapuram and conducted inquest over the dead body of the deceased-Somasundaram in the presence of witnesses and panchayatars and prepared Ex.P20-Inquest Report. Thereafter he recorded the statements of witnesses and recovered M.Os.2 to 4, viz. blood-stained dhoti, blood-stained full hand shirt and https://hcservices.ecourts.gov.in/hcservices/ 2 an underwear which were produced before the Rameswaram Police Station, through Form-95. The second accused-Murugan surrendered before the Rameswaram Court on 02.11.2001. Thereafter further investigation was taken over by P.W.23-Inspector of Police who succeeded P.W.22. He arrested the first accused / appellant on 21.11.2002 at about 6.00 a.m. in the Rameswaram Bus Stand. The first accused gave a confessional statement, the admissible portion whereof is marked as Ex.P11. On the basis of the confessional statement given by the first accused, he recovered M.O.1-knife used in the occurrence, and sent the same to the Court. After completing the investigation, he filed charge sheet against the accused under Sections 341, 324 and 302 r/w 34 IPC. 4.Before the learned Judicial Magistrate, Rameswaram, the case was taken on file in P.R.C.No.10 of 2003. On completing the formalities, the case was committed to the Court of Sessions and the learned Principal Sessions Judge, Ramanathapuram had conducted the trial and convicted and sentenced the first accused as stated supra, and acquitted the second accused. 5.In order to prove the case of the prosecution, witnesses P.Ws.1 to 24 were examined and documents Exs.P1 to P21 were marked, and M.Os.1 to 4 were produced. Based on the evidence of P.Ws.1 to 5, the learned Principal Sessions Judge, Ramanathapuram found the second accused not guilty and acquitted him, but however found the first accused/appellant guilty under Sections 302 and 324 IPC (2 counts) and sentenced the appellant to undergo life imprisonment for the offence punishable under Section 302 IPC. No separate punishment was imposed for the offence under Section 324 IPC (2 counts). 6.Aggrieved over the conviction and sentences imposed by the Trial Judge, the first accused / appellant has filed the present Criminal Appeal. 7.Learned counsel for the appellant would submit that the appellant is in prison right from 21.11.2002 for the alleged offence under Section 302 IPC. Learned counsel for the appellant brought to our attention the evidence of P.Ws.1 to 5 as well as the Ex.P21-First Information Report, wherein it is stated that it was only the deceased and the other witnesses teased the appellant by calling him as a thief which infuriated him to loose his mind control and hence the offence committed is not a pre-meditated one and it was only a sudden provocation. 8.Learned counsel for the appellant further submitted that the appellant caused only a single injury on the deceased and no other injuries found on the deceased, which would only go to show that the act of the appellant would fall under the exception to Section 300 IPC. 9.Heard the learned counsel appearing for the appellant and also the learned Additional Public Prosecutor appearing for the respondent-State. 10.Admittedly, the witnesses were known to the appellant. It is also admitted that on the fateful day, i.e. on 24.10.2001, after witnessing the oyilattam, P.Ws.1 to 5 were returning to home via Ramanathaswamy theatre at Rameswaram. It is also admitted that they saw the appellant and another person sitting in a suspicious manner. P.Ws.1 to 5 and the deceased questioned the appellant as to the reason for sitting there. It is pertinent to note that the words used by the deceased are "eP';fs; https://hcservices.ecourts.gov.in/hcservices/ 3 ,UtUk; jpUlh;fs; Vd; ,';F cl;fhh;e;jpUf;fpwPh;fs;". It is in evidence that on hearing these words, the appellant got infuriated and replied as to why they were calling them as thieves. Evidence of witnesses also would show that "mjdhy; Mj;jpukile;j Kjyhk; vjphp bfd;do Fkhh; jd; ifapy; itj;jpUe;j fj;jpahy; nrhkRe;juj;ij tyJ gf;f khh;gpy; Fj;jpdhh;." The Doctor who conducted post mortem over the dead body of the deceased would admit that when he examined the deceased, he found only one stab injury on the chest of the deceased. The Post Mortem Certificate would also reveal that the death had been caused only due to the stab injury inflicted on the chest. 11.Exception-1 to Section 300 IPC reads as under:- "When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident." From the reading of Exception-1 to Section 300 IPC, it is clear that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. This exception is squarely applicable to the facts of the present case, as there was only a sudden provocation which caused the death of the deceased. Therefore the act of the appellant attracts Exception-1 to Section 300 IPC and the offence would fall under Section 304 IPC. 12.Section 304 IPC reads as under:- "304.Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 13.Even though there is no pre-meditation or pre-planning on the part of the appellant to commit the crime of murder, he had caused the death of the deceased knowingly that such injury is likely to cause death. Therefore, the act of the appellant would fall only under Section 304 Part-I IPC and hence he is punishable only under Section 304 Part-I IPC. 14.Therefore, the conviction of the appellant by the Trial Court under Sections 302 and 324 (two counts) IPC and the sentence of life imprisonment imposed for the offence under Section 302 IPC, are set aside and instead, he is convicted under Section 304 Part-I IPC. Learned counsel for the appellant has submitted that the appellant is in prison right from 21.11.2002, i.e. for a period of more than eight years. Therefore, the appellant/first accused is sentenced to undergo the imprisonment for the offence under Section 304(i)IPC, for the period https://hcservices.ecourts.gov.in/hcservices/ 4 which he had already undergone. Therefore, the appellant/ first accused is set at liberty and he is directed to be released forthwith, unless his presence is required in connection with any other case. 15.In the result, the criminal appeal is partly allowed. Consequently, M.P.(MD)No.2 of 2011 is closed. Sd/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar To 1.The Principal Sessions Judge, Ramanathapuram. 2. The Judicial Magistrate, Rameswaram. 3. -DO- Thro The Chief Judicial Magistrate, Ramanathapuram. 4. The District Collector, Ramanathapuram. 5. The Superintendent, Central Prison, Madurai. 6. The Inspector of Police, Rameswaram Town Police Station, Ramanathapuram. 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1CC TO E. SOMASUNDARAM, ADVOCATE SR.19560 Km SR : 12.07.2011 : 4p/9c Crl.A.(MD)No.101 of 2011 21.06.2011 https://hcservices.ecourts.gov.in/hcservices/