JayaramanS/o Vaithi v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.02.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.603 of 2007JayaramanS/o Vaithi ..Appellant/Accused-vs-State rep.by Inspector of PoliceMecheri Police StationSalem DistrictCrime No.592/2002..Respondent/ComplainantMemorandum of Grounds of Criminal Appeal under Section374(2) of the Criminal Procedure Code against the judgmentdated 4.1.2005 made in S.C.No.407 of 2005 on the file of thelearned Principal Sessions Judge, Salem.For Appellant::Mr.K.EthirajaluFor Respondent::Mr.P.KumaresanAddl. Public Prosecutor JUDGMENT(Judgment of the Court was delivered by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment ofconviction and sentence passed by the learned PrincipalSessions Judge, Salem in S.C.No.407 of 2005 dated 4.1.2005convicting and sentencing the appellant to undergoimprisonment for life and also to pay a fine of Rs.1,000/-, indefault to undergo rigorous imprisonment for six months forthe offence under Section 302 IPC. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the prosecution is that on 20.8.2002around 7.00 p.m., at Anna Nagar in the house of the mother ofthe deceased-Kannagi, the appellant/accused called his wife,the deceased, to come and live with him and since she refused,the accused, with an intention to cause the death of his wife,had stabbed her with a soori knife on the chest, leftaxillary, right hand, left palm and caused injuries and due tothe said injuries, the deceased died on 27.8.2002 at 5.00a.m., in the Government Mohan Kumaramangalam Medical College &Hospital, Salem despite the treatment given to her and therebythe accused is liable to be punished under Section 302 IPC.3. On receipt of intimation under Ex.P-8 on 20.8.2002from the hospital, P.W.8, the Head Constable attached toMecheri Police Station, went to the hospital on 21.8.2002 at11.00 a.m., and recorded the complaint, Ex.P-7 of the injured-Kannagi. On receipt of the complaint from P.W.8 at 2.00 p.m.,on 21.8.2002, P.W.9, the Head Constable registered the same inCr.No.592 of 2002 for the offence under Section 326 IPC. Theprinted First Information Report is Ex.P-9. He forwarded theexpress reports to the Court as well as to the higher policeofficials.4. P.W.10, the Inspector of Police attached to MecheriPolice Station, took up investigation and proceeded to thescene of occurrence on 21.8.2002 and prepared an ObservationMahazar, Ex.P-3 and also drew a rough sketch, Ex.P-10. Heexamined P.Ws.1 to 5 and other witnesses and recorded theirstatements. He seized the bloodstained earth, M.O.2 and thesample earth, M.O.3 in the presence of the said witnesses. Inthe meantime, the accused was arrested on 22.8.2002 at 6.30a.m., by the Sub Inspector of Police near Mecheri bus stop inthe presence of P.W.4 and another witness and in pursuance ofthe admissible portion of his confession under Ex.P-1, thesaid Sub Inspector of Police seized the soori knife, M.O.1 inthe presence of the said witnesses.5. In the meanwhile, he received intimation under Ex.P-11 on 27.8.2002 from the hospital that the injured had diedat about 5.00 a.m. He thereafter altered the offence to oneunder Section 302 IPC and sent the altered report, Ex.P-12 tothe Court through the Head Constable, P.W.9. He came to theGovernment Mohan Kumaramangalam Medical College & Hospital,Salem and conducted inquest on the body of the deceased inthe presence of the panchayatdars and witnesses and preparedthe inquest report, Ex.P-13. He sent a requisition under Ex.P- https://hcservices.ecourts.gov.in/hcservices/ 5 to the doctor for conducting post-mortem on the body of thedeceased.6. P.W.7, Civil Surgeon-Tutor in Forensic MedicineDepartment attached to the hospital, commenced post-mortem onthe body of the deceased at 1.40 p.m., on 27.8.2002 and henoted the following injuries:-"1. Sutured wound over abdomen to a lengthof 20 cm from epigastric area to just belowumblicus. (surgical)2. Another sutured wound below the leftbreast seen in the inner quadrant. On removal ofsutures edges are sharp and wound is muscledeep.3. Sutured wound over inner aspect of leftarm to a length of 4 cm. On removal of suturesedges of wound are sharp and ends are acutemuscle deep.4. Sutured wound over left axillary areato a length of 4 cm. On removal of sutures woundis muscle deep.5. Another sutured wound over left palm 3cm in length. On removal of sutures edges aresharp and muscle deep.6. Sutures done at the middle 1/3 ofstomach.7. Omentum was tied with silk linear(surgical)."He issued the post-mortem certificate, Ex.P-6 with hisopinion that the deceased would appear to have died due to theeffect of stab injury. 7. P.W.10, continuing with his investigation, examinedthe other witnesses and recorded their statements. He examinedthe post-mortem doctor, P.W.7 on 6.9.2002 and recorded hisstatement. He sent the seized material objects through theCourt for chemical examination under Exs.P-14 & P-15 andreceived the chemical analyst's report, Ex.P-16 and https://hcservices.ecourts.gov.in/hcservices/ Serologist's report, Ex.P-17 on 11.4.2003. He also seized thebloodstained saree, M.O.4 of the deceased under Form-95. Aftercompleting investigation on 22.9.2002, he laid the chargesheet against the accused for the offence under Section 302IPC before the Court.8. To bring home the charges against the accused, theprosecution examined 10 witnesses, marked 17 exhibits andproduced 4 material objects.9. When the accused was questioned under Section 313 ofthe Criminal Procedure Code as to the incriminating materialsappearing against him, he denied them as false. No witnesswas examined and no document was marked on the side of thedefence. After analysing the evidence of the prosecutionwitnesses, the Court below came to the conclusion that theaccused is guilty of the offence under Section 302 IPC andaccordingly, inflicted the aforesaid sentence on him.10. Learned counsel for the appellant Mr.K.Ethirajaluwould submit in his arguments that the accused is the husbandand the deceased is his wife and the evidence of the eye-witnesses would go to show that the accused, provoked by therefusal of his wife to come and live with him, had causedinjuries and those injuries are also not very deep injuriesleading to the death of the deceased-Kannagi. He would drawthe attention of the Court that the evidence of the doctor,P.W.7 would go to show that the injuries sustained by thedeceased-Kannagi were only muscle deep and there is no seriousinjuries caused by the accused and only due to the absence ofproper treatment, the deceased had died. Therefore, he wouldsubmit that the intention of the accused was not to commit themurder of his wife and the Court below was not right in comingto the conclusion that the accused had committed the murder ofhis wife and the conviction under Section 302 IPC is notsustainable in law. He would further submit that the eye-witnesses, P.Ws.1 to 3 would also go to show that Kannagi haddied seven days after the date of occurrence and thecircumstances under which the occurrence had taken place wasnot a planned one, but was accidental. Therefore the learnedcounsel would submit that the offence said to have beencommitted by the accused may not attract Section 302 IPC, butonly under Section 304 (Part-II) IPC. https://hcservices.ecourts.gov.in/hcservices/

11. Mr.P.Kumaresan, learned Additional PublicProsecutor would submit in his reply arguments that thesubmission of the learned counsel for the appellant cannot beaccepted, because the accused was in possession of a knife atthe time of occurrence and the injuries inflicted on thedeceased-wife were on the vital parts and therefore it cannotbe said that the accused had no intention to cause the deathof his wife and hence the submission that the conviction underSection 302 IPC is not sustainable in law is not correct. Hewould further submit that the evidence of the eye-witnesses,P.Ws.1 to 4 would go a long way to show that the accused hadthreatened the persons who were present there when they triedto prevent the assault on the deceased-Kannagi. Therefore hewould submit that the clear intention on the part of theaccused has been proved by the prosecution witnesses and theconviction under Section 302 IPC may be sustained, as it wouldnot attract the offence under Section 304 (Part-II) IPC. 12. We have given our anxious consideration to thearguments advanced by both sides. The evidence of theprosecution witnesses would go a long way to show that theoccurrence had taken place in the school, where the deceased-Kannagi was working, and the accused had gone over there andasked his wife to come and live with him and in the meantime,a wordy quarrel had erupted between them and P.W.1 hadintervened and told them that they should not quarrel in theschool and they should leave without making any quarrel. Hisevidence would further show that the accused and the deceasedhad moved from the said place and in the meantime, the accusedhad taken out a knife from his hip and attacked on the leftaxillary and right chest of Kannagi and that she shouted.Immediately the accused had taken away the knife and fled fromthe scene of occurrence. The other eye-witnesses would alsocorroborate the said evidence. Therefore, we could see thatbefore the commission of the offence, the accused had calledhis wife to come and live with him. Thereafter a wordy quarrelhad erupted on the reply of the deceased-Kannagi that shewould consider his request after her father returned fromoutstation. Further, if we peruse the evidence of the doctor-P.W.7, we could see that the deceased had sustained injurieson her left chest, left shoulder and left axillary and allthose injuries were sutured and when it was opened, thoseinjuries were found to be muscle deep. Therefore, these threeinjuries, even though caused by the soori knife, M.O.1, havebeen only upto muscle deep. The evidence of the doctor, P.W.7 https://hcservices.ecourts.gov.in/hcservices/ would also show that she died on 27.8.2002 i.e., seven daysafter the occurrence. It has been elicited in his crossexamination that the treatment was given only to the stabinjuries. In these circumstances, the argument of the learnedcounsel for the appellant that the death of the deceased wascaused owing to lack of proper attention cannot be ruled outsince the injuries caused by the accused on the deceased arenot so serious injuries even though they were inflicted on thevital parts like abdomen and chest. On consideration of theoverall circumstances namely, the quarrel which had eruptedbefore the commission of the offence and the nature ofinjuries caused on the body of the deceased, we could see thatthough the accused was in possession of the knife, M.O.1 withhim at the time of occurrence and he had the knowledge thatthe stabbing with the said knife would cause death, as therewas no intention on the part of the accused to cause the deathof his wife by inflicting those injuries, the offencecommitted by the accused would attract only Section 304 (Part-II) IPC.13. For the aforesaid reasons, we set aside theconviction and sentence imposed by the Court below on theappellant for the offence under Section 302 IPC for life andinstead convict the appellant for the offence under Section304 (Part-II) IPC and sentence him to undergo rigorousimprisonment for seven years. The period already undergone bythe accused shall be set off. However, the fine amount ofRs.1,000/- imposed by the Court below with the defaultsentence stands unchanged. ssSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Principal Sessions Judge, Salem2. The Superintendent, Central Prison, Coimbatore https://hcservices.ecourts.gov.in/hcservices/

3. The Public Prosecutor, High Court, Madras4. The Inspector of Police, Mecheri Police Station, Salem District5. The District Collector, Salem6. The Director General of Police, Chennai•One cc to Mr. K. Ethirajulu, Advocate sR 6770KG (co)sg 03/03/08Crl.A.No.603 of 200711.02.2008