IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.253 OF 2006 N.Prasad .. Appellant/Accused Vs. State by Inspector of Police, R-8, Vadapalani Police Station, Chennai. Crime No.390/2004 .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court-II, Chennai made in S.C.No.9 of 2005, dated 11.3.2005. For Appellant : Mr.S.Parthasarathy For Respondent : Mr.R.Balasubramanian, APP JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Additional District and Sessions Division, Fast Track Court No.2, Chennai made in S.C.No.9 of 2005, whereby the sole accused/appellant stood charged under Section 302 IPC, tried, found guilty as per the charge and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 3 months S.I. 2. The short facts necessary for the disposal of this appeal could be stated thus: a)P.W.1 is the son of the deceased Lakshmi and the accused. He along with his parents was residing at No.54, Devchander Apartment, B-Block, Nerkundram Road, Vadapalani. P.W.2 is the daughter of the deceased. P.W.1 is the Assistant Makeup man in the Cinema field. https://hcservices.ecourts.gov.in/hcservices/ During the relevant time, his father/the accused remained unemployed and his mother deceased was questioning the same. Apart from that, the accused was also suspecting the fidelity of his wife. b)On the date of occurrence, namely on 27.3.2004 at about 1.30 p.m., when the deceased asked the accused to take food, he uttered that I don't want to take food from your hand and I would finish you off. So saying, he took the cricket bat and attacked the deceased on her head. The deceased fell down and died instantaneously. The accused fled away from the place of occurrence. P.W.2 witnessed the accused running from the place of occurrence. P.W.1 was the occurrence witness and P.W.2 saw her father running away. c)P.W.1 proceeded to the respondent police station, where he gave Ex.P.1, the complaint to P.W.7, the Inspector of Police, on the strength of which, a case came to be registered in Crime No.390 of 2004 under Section 302 IPC. Ex.P.8, the F.I.R. was despatched to the Court. P.W.7 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.9, the rough sketch. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.10, the inquest report. He recovered the material objects from the place of occurrence under a cover of mahazar. He also examined the witnesses and recorded their statements. The dead body was sent to the hospital for the purpose of autopsy. d)P.W.6, the Doctor attached to the Government Hospital, Royapettah, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.6, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of multiple blunt injuries to head. e)Pending investigation, P.W.7 arrested the accused on the same day at about 22.30 hours in the presence of the witnesses. The accused voluntarily came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.4. Pursuant to the same, the accused produced M.O.1, cricket bat, M.O.2, wooden log, which were recovered under a cover of mahazar. He further enquired the witnesses and recorded their statements. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were sent for chemical analysis by the Forensic Science Department on requisition given through the Court, which resulted in Ex.P.11, the Chemical Examiner's report, Ex.P.12, the blood group examination report and Ex.P.13, the Serologist report. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution marched 7 witnesses and also relied on 15 exhibits and 7 M.Os. On completion of the evidence on https://hcservices.ecourts.gov.in/hcservices/ 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 prosecution witnesses, which he flatly denied as false. No defence witness was examined. The court below heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellant guilty as per the charge of murder and awarded life imprisonment, which is the subject matter of challenge before this court. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that the prosecution, in order to substantiate the factual position that the accused attacked his wife with cricket bat, examined two witnesses who are P.W.1, the son aged only 16 years and also P.W.2, the daughter of the deceased. It is not the evidence of P.W.2 that she saw the occurrence, but she was actually sleeping and after hearing the noise, she woke up and found her father running and thus, she did not know what transpired inside the house. So far as P.W.1 was concerned, he was only 16 years old and he is the son of the deceased. If his evidence is carefully scrutinised, it would be quite clear that the origin of occurrence was at the instance of the deceased and only on being provoked, the accused has acted so. The Medical opinion did not corroborate the prosecution evidence. 5.Added further the learned counsel that the confession statement and the recovery of M.O.1, the cricket bat were all cooked up affairs in order to suit the prosecution case. Thus, the prosecution has miserably failed to prove the factual position. Added further the learned counsel that even if the prosecution has proved the factual position that it was the accused who attacked his wife with the cricket bat and caused her death, the act of the accused would not attract the penal provision of the murder. Even according to P.W.1, there was a wordy quarrel at the time of occurrence and on being provoked by the words uttered by his wife, the accused took the cricket bat, which was lying aside and also attacked her. Thus, it was neither intentional nor premeditated, but it was due to sudden quarrel and provocation and hence this legal position has got to be considered by this court. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.The prosecution has clearly proved the fact that in an incident that has taken place on 27.03.2004 at about 1.30 p.m., the mother of P.W.1 was done to death and following the inquest made by P.W.7, the Investigating Officer and the preparation of Ex.P.10, the inquest report, the dead body was subjected to post-mortem by P.W.6, the Doctor, who has given his opinion in Ex.P.6, the post-mortem certificate that the deceased would appear to have died of multiple blunt injuries to head. Thus, the fact that the deceased died out of homicidal violence was not the subject matter of controversy before the trial court. Hence it has got to be recorded so. https://hcservices.ecourts.gov.in/hcservices/ 8.In order to substantiate that the accused has attacked his wife with M.O.1 cricket bat and caused her instantaneous death, the prosecution has examined two witnesses. P.W.1 was the occurrence witness. At this juncture, it has got to be stated that P.W.1 is not only the son of the deceased, but also the accused. But, no circumstance was brought forth to discard his testimony. P.W.1 was fair enough in speaking that there was a quarrel and following the quarrel, the father/accused took the cricket bat and attacked the deceased. Apart from that, when the accused moved from the place of occurrence along with the cricket bat, P.W.2 has witnessed the same, who is also the daughter of the deceased. Thus, it would be quite clear that through the evidence of P.Ws.1 and 2, the prosecution has proved the fact that it was the accused who attacked his wife with M.O.1 Cricket bat and fled away from the place of occurrence. Despite cross examination in full, the defence has miserably failed to bring atleast one point in his favour. 9.Apart from that the ocular testimony projected by the prosecution through P.Ws.1 and 2 stood fully corroborated with the medical evidence projected through the post-mortem doctor and also the post-mortem certificate. Yet another circumstance against the accused was that he was arrested on the very day at about 22.30 hours and he voluntarily gave confessional statement, pursuant to which he produced M.O.1 Cricket bat, in respect of which a witness has been examined. The evidence of the said witness remained unshaken. Thus, this part of the evidence as to the recovery of M.O.1 cricket bat, namely the weapon of crime, pursuant to the confessional statement would be pointing to the nexus of the accused with the crime. All would go to show that the prosecution has proved that it was the accused who attacked his wife with cricket bat and caused her instantaneous death. 10.So far as the second line of argument put forth by the learned counsel for the appellant is concerned, this court is able to see sufficient force. Even as per the case of prosecution, the accused remained unemployed during the relevant time and in all the occasions in the past, she used to call him jobless and used to abuse him. On the date of occurrence, even according to P.W.1, there was a wordy altercation between the husband and wife. Under such circumstances, being provoked by the words uttered by his wife, he took the cricket bat, which was lying aside and attacked her. It is not the case of prosecution that he was armed at the time of occurrence. But on being provoked, he took the cricket bat and attacked her. Thus, the act done by the accused cannot be said to be either intentional or premeditated. But at the same time, he has got the knowledge that by the attack with the cricket bat on her head, the death would likely to be ensued. Under these circumstances, the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder. Hence the act of the accused would attract the penal provision of section 304 (I) I.P.C and awarding punishment of 7 years R.I. would meet the ends of justice. https://hcservices.ecourts.gov.in/hcservices/ 11.Accordingly, the conviction and sentence imposed on the appellant under section 302 I.P.C are modified and instead, the appellant is convicted under section 304(I) I.P.C 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 the default sentence imposed by the trial court will hold good. With the above modification in conviction and sentence, this criminal appeal is dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT NO.2, CHENNAI. 2. -DO-THROUGH THE PRINCIPAL SESSIONS JUDGE, CITY CIVIL COURT, CHENNAI. 3. THE SUPERINTENDENT, CENTRAL PRISON, VELLORE. 4. THE DISTRICT COLLECTOR, CHENNAI. 5. THE DIRECTOR GENERAL OF POLICE, MYLAPORE, CHENNAI-4. 6. THE INSPECTOR OF POLICE, R-8, VADAPALANI POLICE STATION, CHENNAI. 7. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. + 1 c.c. to Mr. S. Parthasarathy, Advocate. S.R.No.61230. CRL.A.NO.253 OF 2006 RSM (CO) GSK 12.11.2008. https://hcservices.ecourts.gov.in/hcservices/