Mahendran vs State by the Inspector of Police

M. Chockalingam, J.—This appeal challenges the judgment dated 27.4.2007 passed by the learned Principal Sessions Judge, Chennai in

S.C. No. 29 of 2007, whereby the sole accused/Appellant stood charged, tried and found guilty for the offence u/s 302 of the Indian Penal Code

and sentenced to undergo Life imprisonment and to pay a fine of Rs. 1,000/- in default to undergo Simple Imprisonment for three months.

The short facts necessary for the disposal of the case can be stated thus:

(i) P.W.1 is the daughter of the deceased Sasikala They were living in the upstairs portion bearing Door No. 54th Cross Street, Thiruvalluvar

Nagar, Thiruvanmiyur, Chennai. The accused was living with his wife in the downstairs. The accused and his wife had often quarrelled and the wife

of the accused used to leave the matrimonial home often. The accused suspected that the deceased and her daughter were responsible for the act

of his wife.

(ii) On the date of occurrence i.e. 19.11.2006 at about 2.45 p.m., P.W.1 came from outside. When she was about to go to upstairs, she was

intervened by the accused. The accused told her that herself and her mother were responsible for his wife going from the matrimonial house. P.W.1

replied in the negative. When she went to upstairs, she informed the same to her mother. Immediately, the deceased accompanied with P.W.1

came to downstairs and questioned the accused. There was a wordy altercation. Immediately, he got into the house, took M.O.1 iron pipe and

attacked the deceased on her head and thereafter, she fell down. Not satisfied with the first blow, he gave his blows on two more places. This was

witnessed by P.W.2 who was carrying on a laundry shop in the opposite side, who also questioned him. This was also witnessed by P.W.3, who

was coming across the street. The accused/Appellant ran away from the place of occurrence.

(iii) P.W.1 gave complaint Ex.P1 to the Respondent-police. P.W.10 Sub Inspector of Police, who received the complaint Ex.P1, on the strength

of the same, registered a case in Crime No. 1013 of 2006 for the offence u/s 307 of the Indian Penal Code. First Information Report Ex.P11 was

despatched to the Court. Thereafter, the deceased was taken to the Government Royapettah Hospital. P.W.5 Doctor gave treatment to her and

the Accident Register is marked as Ex.P3. Despite treatment, she died at 5.45 p.m. The case was altered to one u/s 302 of the Indian Penal Code

and amended First Information Report Ex.P13 was despatched to the Court.

(iv) P.W.10 Investigating Officer took up investigation and proceeded to the place of occurrence, made an inspection and prepared Observation

Mahazar Ex.P7 in the presence of witnesses and Rough Sketch Ex.P12. He also seized blood stained mosaic M.O.2 and ordinary mosaic M.O.3

in the presence of witnesses under the cover of mahazar Ex.P8. He also conducted inquest on the dead body in the presence of witnesses and the

inquest report is marked as Ex.P14. Thereafter, the body was sent for post-mortem under requisition letter Ex.P4.

(v) P.W.6 Doctor conducted autopsy on the dead body and issued post mortem Certificate Ex.P5 and opined that the deceased would appear to

have died due to head injury. Pending investigation, the accused was arrested on 20.11.2006. He came forward to give confession statement

voluntarily and the same is recorded in the presence of witnesses and admissible portion of the same is marked as Ex.P9. Pursuant to the

confession statement, he also produced M.O.1 iron pipe and the same was recovered under the cover of mahazar. On completion of investigation,

final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.

In order to substantiate its case, the prosecution examined 10 witnesses and relied on 14 documents and also relied on M. Os.1 to 7. On

completion of examination of witnesses on the side of the prosecution, when the accused was questioned u/s 313 of the Code of Criminal

Procedure, he denied them as false. No witness was examined on the side of the accused.

The Trial Court, after hearing the arguments advanced by either side and scrutinizing the materials available on record, found the accused guilty

u/s 302 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the Appellant.

Advancing arguments on behalf of the Appellant, learned Counsel fairly conceded the factual matrix that the accused/Appellant attacked the

deceased at the time of occurrence with iron pipe as a direct result of which the deceased died was proved by sufficient evidence. Learned

Counsel would further urge that in the instant case, even as per the prosecution case, the Appellant was living with his wife in the downstairs when

P.W.1 and the deceased lived in the upstairs. The wife of the accused often used to leave the matrimonial home due to the quarrel. The accused

suspected that the deceased and P.W.1 were responsible for that act.

On the date of occurrence, even according to the evidence of P.W.1, the accused questioned P.W.1, who, in turn, informed the same to her

mother, who questioned the accused about the same and there was a wordy altercation between them. At that juncture, the accused/Appellant had

taken M.O.1 iron pipe from inside the house and attacked the deceased on her head. Learned Counsel, pointing to the evidence of P.W.1, would

submit that there was a wordy altercation and at that time, the accused was not having any weapon. Due to sudden provocation, he went inside the

house and took the iron pipe and attacked the deceased. Under such circumstances, the act of the accused would not attract the penal provisions

of murder, but only culpable homicide not amounting to murder. This has got to be considered by the Court.

This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the submissions

made.

As could be seen from the available materials, it is quite clear that the prosecution has proved that one Sasikala, the mother of P.W.1 died out

of homicidal violence by adducing sufficient evidence by examining the medical person and marking post-mortem Certificate. In order to

substantiate that it was the accused who attacked the deceased with M.O.1 iron pipe and caused her death, the prosecution examined P.Ws.1 and

2 as eye witnesses and also relied on the medical evidence, which stood corroborated with ocular testimony and also the recovery of M.O.1

weapon of crime. It is also fairly conceded by the learned Counsel for the Appellant that the prosecution has sufficient evidence in respect of

relevant facts. The Court need not labour in that aspect.

Insofar as the second contention put forth by the learned Counsel for the Appellant that the act of the accused would not attract the penal

provisions of murder, the Court is able to see force in his contention. Admittedly, the deceased and P.W.1 were living in the upstairs and the

accused and his wife were living in the downstairs. Often, there was a quarrel between the accused and his wife and his wife used to leave the

matrimonial home. The accused suspected that the deceased and her daughter P.W.1 were responsible for the said act.

On the date of occurrence, the accused complained that both of them were responsible for the act of his wife. P.W.1 gave negative answer

and informed the same to her mother. Both of them came down and it was the deceased, who questioned him. There was a wordy altercation.

Even the evidence of P.W.1 is that there was a wordy altercation and the accused went inside the house and took an iron pipe and attacked the

deceased, as a direct result, the death has occurred. 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(I) of the Indian Penal Code and

awarding punishment of 7 years Rigorous Imprisonment would meet the ends of justice.

Accordingly, the conviction of the sentence imposed on the Appellant u/s 302 of the Indian Penal Code alone are modified and instead the

Appellant is convicted u/s 304(I) of the Indian Penal Code and sentenced to undergo 7 years Rigorous Imprisonment. The period of sentence

already undergone by the Appellant is ordered to be given set off. The fine and default sentence imposed by the trial Court u/s 302 of the Indian

Penal Code will hold good. With this modification in conviction and sentence, the above criminal appeal is disposed of.