IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.792 of 2009 Babu .. Appellant vs State by: Inspector of Police Bagayam Police Station Crime No.749/2006 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Vellore, Vellore District, made in S.C.No.365 of 2007 dated 17.11.2009. For Appellant : Ms.S.Shanthakumari For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Vellore, made in S.C.No.365 of 2007 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) The appellant is the husband of the deceased Ellammal. They were soothsayers. In the village of Krishnapuram, there were two buildings belonging to the Panchayat Union Elementary School situated adjacent to each other. There were two families which belonged to soothsayers stayed in both these buildings on 21.12.2006 and 22.12.2006. The accused along with his wife and children were staying in the front side, while P.W.3 and others stayed in the other side. P.W.1 is a resident in the house situated near the school. At https://hcservices.ecourts.gov.in/hcservices/ about 4.00 A.M. on 24.12.2006, he went outside to attend his nature's call. At that time, he heard the distressing cry from inside the house. Then immediately, he was just about to return. At that time, he found the accused running from the place, and thereafter, when he went nearby the school building, he saw P.W.3 and others, and they were looking at the dead body of the deceased. Immediately, he informed the same to P.W.2, the Village President, who in turn informed to the respondent police station. (b) P.W.12, the Sub Inspector of Police, of the respondent police station, on receipt of the message recorded the same in the General Diary and proceeded to the spot at about 6.30 A.M. He recorded the statement of P.W.1, which is marked as Ex.P1, on the strength of which a case came to be registered in Crime No.749 of 2006 under Sec.302 of IPC. The printed FIR, Ex.P23, along with Ex.P1 was despatched to the concerned Judicial Magistrate. The same was received by the Court at about 9.45 A.M. (c) On receipt of the copy of the FIR, P.W.13, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an observation in the presence of witnesses and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P24. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report Ex.P25. The place of occurrence was also photographed along with the dead body by P.W.6, the Photographer. The photos are marked as M.O.11 series, while the negatives are M.O.12 series. Then the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (d) P.W.6, the Civil Assistant Surgeon, attached to the Government Vellore Medical College Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Ellammal and has found the following injuries. "There was a transverse semi lunar shaped undisplaced fracture occipital bone about 19 cm was found. Depressed fracture of temporal and frontal bone in a triangle shape was found on the right temporal parietal region. About 300 ml of clotted blood about 3 m.m. thickness Sub haematoma was found over the occipital region both parietal region and right temporal region. The brain was taken out. There is about 300 ml of blood in the base of the skull bone. Hyoid bone intact." The Doctor has issued a postmortem certificate, Ex.P7, with her opinion that the deceased would appear to have died of haemorrhagic shock due to intra cranial haemorrhage as a result of fracture skull bone and she would appear to have died about 6 to 10 hours prior to autopsy. (e) Pending investigation, the Investigating Officer arrested the accused at 3.00 P.M. near the Central Prison, Vellore, and at the time of arrest, he gave a confessional statement voluntarily. The same was recorded in the presence of witnesses. The admissible part is marked as Ex.P4 pursuant to which he produced M.O.19, bloodstained lungi, which was recovered under a cover of mahazar. Then he was sent for judicial remand. All the materials objects were sent for the purpose of analysis by the Forensic Sciences Department, which https://hcservices.ecourts.gov.in/hcservices/ brought forth Ex.P16, the chemical analyst's report, and Ex.P20, serologist's report. Ex.P17 is the hyoid bone report, while Exs.P18 and P19 are the toxicology reports. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 13 witnesses and also relied on 25 exhibits and 19 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty of murder and awarded life imprisonment. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Counsel Ms.S.Shanthakumari would submit that in the instant case, the prosecution had no direct evidence to offer, but relied only upon the circumstantial evidence; that the first circumstance relied on by the prosecution is the evidence of P.W.1, a Villager; that according to him, he woke up at 4.00 A.M. and went outside to attend nature's call, and at that time he heard the distressing cry, and he found the appellant/accused moving from the place of occurrence; that as far as P.W.1 is concerned, nobody has actually corroborated this piece of evidence; and that it is actually a tutored and also a planted evidence. 5.The learned Counsel would further add that P.W.3 has actually claimed that he was one of the soothsayers, and he also stayed in the other room, and thus his evidence was of no use to the prosecution; that apart from that, it was utter darkness when the occurrence has taken place, and hence nobody could have seen the occurrence; and that merely because the appellant has moved from the place of occurrence, it cannot be inferred that it was he who has committed the offence. Added further the learned Counsel that in the instant case, the recovery of lungi pursuant to the confessional statement, is nothing but a planted evidence; and that under the circumstances, the prosecution has miserably failed to prove its case. 6.Added further the learned Counsel in the second line of argument that even as per Ex.P1, it would be quite clear that at that time, a quarrel between the husband and wife commenced in the afternoon hours of 24.12.2006 and it continued throughout the night; that even in Ex.P1, P.W.1 has categorically stated that due to the quarrel, he has murdered his wife; that apart from that, there is another material available in the instant case produced by the prosecution namely the confessional statement in which he has categorically stated that at the time of the quarrel, she removed the thali and threw on the floor; that the accused due to the sudden provocation, has acted so, and under the circumstances, the act of https://hcservices.ecourts.gov.in/hcservices/ the accused would not attract the penal provision of murder and hence the Court has to consider this aspect. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that the dead body of one Ellammal, the wife of the appellant, was found. Following the inquest made by the Investigator, the dead body was subjected to postmortem by P.W.6 who has given opinion as a witness before the Court and also through the contents of the postmortem certificate that she died out of shock and haemorrhage and she has also narrated the injuries. This fact that she died out of homicidal violence was never disputed by the appellant before the trial Court or before this Court, and hence no impediment is felt by the Court in recording so as rightly done by the trial Court. 9.In order to substantiate the charge levelled against the appellant/accused, the prosecution had no direct evidence to offer. But, on scrutiny of the materials available, this Court has to necessarily agree with the prosecution case since there are necessary circumstances which are proved by the prosecution pointing to the guilt of the accused. It is not in controversy that on the date of occurrence, the family of the accused/appellant and also that of P.W.3 who are soothsayers, were actually staying on the night of 24.12.2006. On that night the occurrence has taken place at about 4.30 A.M. According to P.W.1, he woke up at about 4.00 A.M., and went outside for attending nature's call, and while he was in the other side of the road, he heard the distressing cry from inside the school building, and immediately, within a few minutes, he found the accused running from the place of occurrence towards Vellore Road. In view of this part of the evidence coupled with the fact that the accused has stayed with his wife in the previous night, one would naturally expect the appellant to give reasonable explanation how the death has been caused. In the absence of any explanation coming forth from the mouth of the accused, it could be inferred that it was he who has committed the offence and none else. 10.Added circumstance in the instant case is that immediately after the occurrence, a telephonic call was made by P.W.2 to P.W.12, the Sub Inspector of Police of the respondent Police Station, and he immediately rushed to the spot after making entry in the General Diary. Ex.P1 was given immediately by P.W.1, and the case came to be registered, and the FIR has also reached the Magistrate at about 9.45 A.M. on the very day. Added circumstance against the appellant/accused was the recovery of lungi pursuant to the confessional statement given by him on arrest on the very day at about 3.00 P.M. near Vellore Central Prison. The evidence of the witness for the arrest, confession and recovery remained unshaken, and that part of the evidence would indicate the nexus of the accused with the crime. Added further, the lungi what has been actually recovered from him contained bloodstains, and it was also sent for https://hcservices.ecourts.gov.in/hcservices/ analysis. The serologist's report has also been obtained and placed before the Court. It would be clearly indicative of the fact that the blood group what was found in the lungi was found tallying with each other. Thus the scientific evidence was also in favour of the prosecution. All would clearly indicate that it was he who caused her death by exercising homicidal violence over her. In the face of the evidence available, the contentions put forth by the learned Counsel for the appellant do not carry any merit in this regard. Hence, without any hesitation this Court has to confirm the finding recorded by the trial Court in that regard. 11.Insofar as the second line of contention, this Court is able to see force in the same. It is not in controversy that they were staying in the same room on the previous day and again on the night of 24.12.2006. In Ex.P1, P.W.1 has stated that even in the evening hours of 24.12.2006, they had quarrel. Thus, it would be quite evident that they were actually quarrelling with each other. Another piece of evidence is the confessional statement wherein he has categorically stated that at the time of quarrel, she removed her thali from the neck and threw on the floor. Thus he was suddenly provoked. Naturally, in a given situation, when the thali is removed, it would give provocation to anybody. It can be stated that due to sudden provocation, he committed the act, and hence it cannot be stated to be intentional, but only due to sudden provocation. Considering the facts and circumstances, this Court is of the considered opinion that it would not attract the penal provision of murder, but would fall under Sec.304 (Part I) of IPC and awarding punishment of seven years Rigorous Imprisonment would meet the ends of justice. 12.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant under Sec.302 of IPC are set aside, and instead, he is convicted under Sec.304 (Part I) of IPC and is directed to undergo seven years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. The fine imposed by the trial Court will hold good. 13.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Principal Sessions Judge Vellore District, Vellore. 2.The Inspector of Police Bagayam Police Station 3.The Public Prosecutor High Court, Madras. 4. The Superintendent Central Prison, Vellore 5. The Director General of Police Chennai 6. The District Collector Vellore + One C.C. To M/S. S.Santha Kumari, Advocate,S.R.NO.14421 CRL.A.No.792 of 2009 MBS(CO) https://hcservices.ecourts.gov.in/hcservices/