BAIL SLIP---That v. State of Tamilnadu

BAIL SLIP---That the Appellant/Accused namely Abdul Khadar @ Sait wasdirected to be released on bail by the order of this Court dated30.7.2002 in Crl.M.P.No.6348/02 in Crl.A.NO.160/2002.----IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.07.2009CORAM:THE HONOURABLE MR.JUSTICE.M.JEYAPAULCrl.A.No.160 of 2002Abdul Kadar @ Sait ...Appellant/Accused.Vs.State of Tamilnadu,rep. by Inspector of police,Pothanur P.S.Pothanur,Coimbatore Dist. ...Respondent/Complainant.Criminal Appeal filed under section 374(1) of Code of CriminalProcedure to call for the records in connection with S.C.264/1999, onthe file of the Principal Sessions Judge, Coimbatore and set-asidethe Judgment and conviction imposed on the appellant/accused inS.C.264/1999 by the Principal Sessions Judge, Coimbatore videJudgment dt.25.11.1999 and order to acquit the appellant/accused fromall the charges leveled against him.For petitioner:M/s.T.JaishankarFor respondent:Mr.N. Kumanan, Govt. Advocate.JUDGMENTThe appellant who is none other than the husband of the victimwas convicted for offence under section 304 (i) of the Indian PenalCode, though he was originally charged under section 302 IPC and wassentenced to undergo 10 years rigorous imprisonment. As many as 13witnesses were examined and 33 documents and 8 material objects weremarked on the side of the prosecution. Neither oral nor documentaryevidence was let in on the side of the defence. https://hcservices.ecourts.gov.in/hcservices/

2. The trial court having completely scanned the evidence onrecord has come to an unassailable verdict that the appellant hereinhaving been provoked by his wife as she chose to challenge thechastity of his mother attacked her having grabbed a crow bar lyingover there on her head thrice and caused her death.3.The learned counsel appearing for the appellant would submitthat though the trial court has come to a correct decision withregard to the occurrence that took place on account of theprovocation generated by the victim wife wrongly convicted theaccused under section 304(i) of IPC instead of convicting him undersection 304(ii) of IPC. Drawing the attention of the court to theobservations made by the trial court. 4.The learned counsel appearing for the Appellant would submitthat on the very showing of the trial court only an offence undersection 304(ii) of IPC was made out. Therefore, he would submit thatthe sentence of 10 years rigorous imprisonment imposed on theappellant may be substantially reduced.5. Per contra, the learned Government Advocate (criminal side)would vehemently submit that the eye witnesses have spoken to thefact that the accused grabbing the crow bar lying close by launchedattack on the head not once but thrice and as a result of which thevictim passed away. Therefore, he would submit that the accusedshould have had an intention to cause the death. The trial court hasrightly convicted the accused under section 304(i) of IPC as theoccurrence had taken place on account of the sudden provocation, hewould further contend.6. The oral testimony of PW1 who is the ocular witness presentat the scene of occurrence in conjunction with the medical evidencewas thoroughly perused by this court. True it is that the accusedhad launched not once but thrice attack on the vital part of the bodyof the deceased. Sudden provocation had activated the accused tobehave in such a manner having grabbed a crow bar lying by his side.It is in evidence that the chastity of the mother of the accused waschallenged by the victim which provided sufficient provocation forthe accused to react violently and aggressively. 7. On a close scrutiny of the materials available on record itis found that a lethal weapon was used for launching attack on thevictim. Vital part of the body of the victim was aimed at by theaccused not once but thrice when the attack was launched by theaccused. The trial court having come to the decision that theoccurrence had unfolded on account of sudden provocation provided bythe victim is bound to take a decision whether the offence would fallunder Section 304(i) or 304(ii) of IPC. https://hcservices.ecourts.gov.in/hcservices/

8.The trial court has categorically held that there was nointention for causing the death harboured by the accused at the timeof launching the attack. Nor was it observed by the trial courtbased on the material on record that the accused did harbour anintention to cause such bodily injury as is likely to cause death.Knowledge alone has been attributed by the trial court based on thematerials on record to the accused for causing the death. When theaccused had no intention either to cause the death or to cause suchbodily injury as was likely to cause death but he had only knowledgethat his attack was likely to cause death or his attack was likely tocause such bodily injury as was likely to cause death, his act wouldfall squarely under section 304(ii) of IPC and not under section 304(i) of IPC.9. The trial court has observed that the accused had got only aknowledge that his attack was likely to cause death. Having thusobserved, it appears, the trial court has wrongly convicted theappellant under section 304(i) of IPC instead of section 304(ii) ofIPC.10. In view of the above facts and circumstances, the courtcomes to the decision that the prosecution has established beyondreasonable doubt that the accused has committed an offence punishableunder section 304(ii) of IPC. The penal provision under section 304(ii) is not as graver as the penal provision under section 304(i)IPC. Therefore, the court is inclined to reduce the sentenceproportionate to the lesser gravity adumbrated under section 304(ii)of IPC. The evidence of PW1 would disclose that the accused himselfhaving realised the crime he has committed, secured an auto rickshawand took the victim to the hospital for treatment.11. Therefore, the conviction recorded by the trial court asagainst the accused under section 304(i) of IPC is modified tosection 304(ii) of IPC and he is sentenced to undergo 7 yearsrigorous imprisonment. With the above modifications, the appealstands dismissed.12. The appellant is on bail. The appellant shall surrenderbefore the trial court within 15 days (fifteen days) from the date ofthis order failing which, the trial court shall issue non-bailablewarrant and send him to prison to undergo the unexpired portion ofmodified sentence imposed by this court. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarPri https://hcservices.ecourts.gov.in/hcservices/ To1. Learned Principal Sessions Judge, Coimbatore2. Inspector of police, Pothanur P.S. Pothanur, Coimbatore District.3. The Public Prosecutor, High Court, Madras.4. The Judicial Magistrate No.7, Coimbatore.5. -do- Thro The Chief Judicial Magistrate, Coimbatore.6. The Superintendent, Central Prison, Coimbatore.7. The District Collector, Coimbatore.8. The Director General of Police, Chennai.+1 cc to Mr.T.Kumar, Advocate, SR.No.33853Crl.A.No.160 of 2002MBS {CO}TP/7.8.2009.