IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 12.11.2010 Coram THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM and THE HONOURABLE MR. JUSTICE C.S. KARNAN Crl. A. No.539 of 2010 Poongavanam ... Appellant/Accused ..Vs.. State, rep. by the Inspector of Police, Coonoor Town Police Station, The Nilgiris. ... Respondent/Complainant (Crime No.359 of 2008) Appeal filed against the judgment dated 29.7.2010 passed by learned Sessions Judge, Nilgiris, Udhagamandalam in S.C. No.23 of 2009. For Appellant : Mr. E. Ramamoorthy For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 29.7.2010 passed by the learned Sessions Judge, Nilgiris, Udhagamandalam in S.C. No.23 of 2009, whereby the sole accused stood charged, tried and found guilty as per the charge of murder and sentenced to undergo life imprisonment. 2. The short facts necessary for the disposal of the case can be stated thus:- (i) P.W.1 is the paternal aunt of the deceased Parthasarathy. P.W.2 is the husband of P.W.1. P.Ws.3 and 4 are all neighbors. The deceased, who was a physically challenged person, was employed in a jewellery shop at Coonoor. The accused/appellant and deceased Parthasarathy fell in love with each other and they got https://hcservices.ecourts.gov.in/hcservices/ married. While they were living together, the accused developed illicit intimacy with one Antony @ Edison. When Parthasarathy raised objection, they had quarrel. The deceased lodged a complaint Ex.P13 to All Women Police Statiion, Coonoor. P.W.12 the then Sub Inspector of Police conducted an enquiry after calling all the concerned persons and thereafter, the parties were advised to go to the Court of Civil law. Thereafter, she left to her parently home at Dindigul. (ii) One month prior to the occurrence, she came back to the house of Parthasarathy at Coonoor and informed him that she would live with him forgetting the past and she began to live with him. On 5.8.2008 at 3.30 p.m., there was a quarrel between the deceased and the accused. P.Ws.1 and 2, who are neighbors, rushed to the house of the deceased and pacified them and they came back. Again the quarrel started. When they came back, the deceased took an iron pipe M.O.1 and beat him on the head of the deceased. Thereafter, the deceased fell down and immediately the accused left the place of occurrence. P.Ws.3, 5 and 6 went over there and took the deceased to the Government Hospital, Coonoor for treatment. P.W.8 Doctor gave initial treatment and Accident Register is marked as Ex.P7. and he advised them to take the injured to the Government Hospital, Coimbatore. (iii) On getting information, P.W.15 Sub Inspector of Police attached to Coonoor Police station proceeded to the Government Hospital, Coonoor and recorded the statement of P.W.1. After receiving Ex.P1 complaint, on the strength of which, he registered a case in Crime No.359 of 2008 for the offence under Section 307 of the Indian Penal Code. Ex.P16 First Information Report was despatched to the Court. (iv) Investigation was taken up by P.W.16 Inspector of Police who, went to the place of occurrence, made an enquiry and prepared Observation Mahazar Ex.P2 and also rough sketch Ex.P17. Thereafter, P.W.16 recovered M.O.2 blood stained earth and M.O.3 sample earth from the place of occurrence under the cover of mahazar Ex.P3. At about 9.40 p.m. on 5.8.2010 Parthasarathy died in the Hospital. Then, the same was informed to the police station. On receiving the said information, the case was altered to one under Section 302 of the Indian Penal Code and amended First Information Report Ex.P18 was despatched to the Court. (v) Further, P.W.16 conducted inquest on the dead body at the Government Hospital, Coonoor in the presence of witnesses and the inquest report is marked as Ex.P19. Thereafter, the dead body was subjected to post-mortem under requisition Ex.P10. P.W.9 Doctor conducted autopsy on the dead body and issued post-mortem Certificate Ex.P11 where he has opined that the deceased would appear to have died due to shock and hemmorrhage and due to the head injury. https://hcservices.ecourts.gov.in/hcservices/ (vi) Pending investigation, the accused was arrested on 6.8.2010. Pursuant to the same, she gave confession statement voluntarily and the same was recorded in the presence of witnesses. The admissible portion of the same is marked as Ex.P4. Pursuant to the same, P.W.16 also recovered M.O.1 iron pipe, M.O.4 chudidhar tops and M.O.% Thuppatta under the cover of mahazar Ex.P6. Thereafter, the accused was sent for judicial remand. (vii) P.W.17 took up further investigation and sent all the material objects for chemical analysis and Chemical Analysis report Ex.P22 and Serology report Ex.P23 were received. 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 17 witnesses and relied on 23 documents and also relied on M.Os.1 to 9. 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, she denied them as false. On the side of the accused, two witnesses were examined and two documents were marked. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded 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, to prove its case, the prosecution relied on two witnesses viz. P.Ws.1 and 2. P.W.1 is the paternal aunt of the deceased, P.W.2 is the husband of P.W.1 and thus, both of them were interested witnesses. If their evidence is subjected to careful scrutiny, their evidence could not be believed. With regard to Ex.P1 report and corresponding First Information Report as put forth by the prosecution, one witness says, it was recorded by the Sub Inspector of Police at the place of occurrence. The other witness says that it was recorded at the Hospital. It was not believable. Insofar as recovery of Material Objects are concerned, the evidence given by the witnesses is inconsistent. 6. Learned counsel added further that the ocular testimony projected through the witnesses P.Ws.1 and 2 never corroborated by medical opinion canvassed through post-mortem Certificate Ex.P11. The injury was found on occipital region. According to P.Ws.1 and 2, the accused attacked the deceased on head, when it was in the standing position. If so, such injury could not have been caused when P.Ws.1 and 2 were standing nearby, that too in a small room of 10 x 5 feet and the accused could not escape and she would have been caught red handed, but not done. Hence, such occurrence could not https://hcservices.ecourts.gov.in/hcservices/ have taken place as put forth by the prosecution. They could not have seen the occurrence and they came to know about the injury only thereafter. Hence, their evidence could not be believed and the case of the prosecution should be rejected. 7. Learned counsel, in his second line of argument, would submit that even if the Court comes to the conclusion that the prosecution has proved the factual matrix that it was she who attacked the deceased and caused the death, the act of the accused would not attract the penal provisions of murder. Even as per the evidence given by P.Ws.1 and 2, there was a quarrel just preceding the occurrence. The relationship of the parties were already strained since the deceased suspected the fidelty of the accused. Even from the evidence of P.Ws.1 and 2, the accused was not armed with anything. Due to the sudden quarrel and provocation, she took the iron pipe, which was found lying in the ground, attacked the deceased and caused only one injury. Hence the said act is neither intentional nor premeditated and this has got 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 submissions made by either side. 9. It is not in controversy that following the incident that had taken place on 5.8.2008 at about 3.30 p.m. in the house where the accused/appellant and the deceased were living, the deceased Parthasarathy was taken to the Government Hospital, Coonoor where he was given treatment by P.W.8 Doctor and issued Accident Register Ex.P7 and thereafter, he was taken to the Government Hospital Coimbatore, but on the way he died and following the registration of the case under Section 307 of the Indian Penal Code by P.W.15 Sub Inspector of Police on the strength of Ex.P1 complaint, on the death of Parthasarathy on 5.8.2008 at about 9.40 p.m., the case was altered to one under Section 302 of the Indian Penal Code. Following the inquest made by P.W.16 Inspector of Police, the dead body was subjected to post-mortem and P.W.9 Doctor, who conducted post-mortem, has categorically opined in Ex.P11 post-mortem Certificate that the deceased would appear to have died due to head injury. In such circumstances, the cause of death as putforth by the prosecution that the deceased died due to homicial violence was never disputed by the accused before the Trial Court and equally here also. Hence the Trial Court was perfectly correct in recording so and rightly to. 10. In order to substantiate the case of the prosecution that it was the accused, who attacked the deceased and caused his death, the prosecution has marched over P.Ws.1 and 2 as eye witnesses. Admittedly, P.W.1 is the paternal aunt of the deceased and P.W.2 is the husband of P.W.1. They were living in a part of the https://hcservices.ecourts.gov.in/hcservices/ house where the deceased and the appellant were staying. When the relationship of the deceased and the appellant were strained, the accused went to her native place. Thereafter, she came back and stayed with the deceased. Often they used to quarrel with each other. 11. On the date of occurrence, when the deceased and the accused were quarrelling, immediately, P.Ws.1 and 2 intervened and pacified the situation. When they went to the house, the quarrel started. Immediately, they came back and they found the accused took an iron pipe found nearby and attacked the deceased on his head. The evidence of P.Ws.1 and 2, despite cross-examination, remained unshaken. After careful scrutiny, the Court is unable to see any reason as to why their evidence should not be believed. 12. Added further, this ocular testimony projected by the prosecution stood fully corroborated through medical evidence by examining P.W.8 Doctor, who gave initial treatment to the deceased Parthasarathy in the Government Hospital, Coonoor. The contents of Accident Register Ex.P7 marked through P.W.8 Doctor would also clearly indicate the fact of place and time of occurrence and also the fact that the assailant is the known person and the weapon of crime is iron pipe. P.W.9 Doctor, who conducted autopsy on the dead body, has also given evidence to the effect that the head injury was vital, which caused the death. 13. The Court is able to see yet another circumstance putforth by the prosecution is the recovery of weapon of crime M.O.1 iron pipe pursuant to the confession given by the accused on her arrest on the next day in the bus stand in the presence of witnesses. The recovery of weapon from the appellant pursuant to the confession statement would be pointing out to the nexus of crime to the accused. Apart from the above, the scientific evidence was also in favour of the prosecution. At the time of arrest, the accused, not only produced M.O.1 iron pipe but also M.O.4 chudithar tops and M.O.5 thuppatta. The same were sent for chemical analysis and Ex.P22 Chemical analysis report and Ex.P23 Seology report were placed before the Trial Court. On a perusal of the same, M.Os.2 and 3 recovered from the place of occurrence, M.Os.6 to 9 recovered from the body of the deceased, M.O.1 weapon of crime and M.Os.4 and 5 recovered from the accused pursuant to the confession statement, all would indicate the same blood group. Apart from this, the prosecution had direct evidence by examining P.Ws.1 and 2. In such circumstances. The contentions put forth by the learned counsel for the appellant are contrary and they have got to be rejected and accordingly, they are rejected. Hence, the Court is of the considered opinion that the prosecution has proved its case beyond reasonable doubt that it was the accused, who attacked her husband Parthasarathy with M.O.1 iron pipe on his head and caused fatal injury, as a direct consequence, he died. https://hcservices.ecourts.gov.in/hcservices/ 14. This Court is ablve to see some force in the second line of argument as put forth by the learned counsel for the appellant. Admittedly, the relationship of the deceased Parthasarathy and the accused was strained. At the time of occurrence, there was a quarrel and though the same was pacified, it did not stop and further they continued to quarrel. In that process, the accused took an iron pipe and attacked him on his head. Thus, it would be quite clear that she remained unarmed at the time of quarrel and when it reached pitch and being provoked, she took the iron pipe from the nearby place and attacked him only one blow on his head. Thus, the act of the accused was neither intentional nor premeditated, but it was due to sudden quarrel and provocation and hence the act of the accused cannot be termed as 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 (II) of the Indian Penal code and awarding punishment of 5 years Rigorous Imprisonment would meet the ends of justice. 15. Accordingly, the conviction and the sentence imposed on the appellant under section 302 of the Indian Penal Code is modified and instead the appellant is convicted under section 304(II) of the Indian Penal Code and sentenced to undergo 5 years Rigorous Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. 16. With the above modification in conviction and sentence, the criminal appeal is disposed of. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ssa. To 1. The Judicial Magistrate, Coonoor. 2. -Do Thro The Chief Judicial Magistrate, Udhagamandalam. 3. The Sessions Judge, Nilgiris, Udhagamandalam. https://hcservices.ecourts.gov.in/hcservices/ 4. The Superintendent, Central Prison, Udhagamandalam. 5. The Inspector of Police, Coonoor Town Police Station, The Nilgiris. 6. The District Collector, Udhagamandalam. 7. The Director General of Police, Madras – 4. 8. The Public Prosecutor, High Court, Madras. 9. The Superintendent, Central Prison, Vellore. 10.The Section Officer, Criminal Section, High Court, Madras. 1 cc to Mr.B.Ramamoorthy, Advocate, Sr.No.81896 Crl. A. No.539 of 2010 NG {CO} TP/21.12.2010. https://hcservices.ecourts.gov.in/hcservices/