Kallia Morthy v. State by Inspector of PoliceKoradacherry Police StationNagapattinamCr.No.29/2000

BAIL SLIP---------The Accused/Appellant namely Kallia Morthy was directed to be relesedon bail as per the order of this Court dated 27.07.2001 and made inCrl.M.P.No. 4170 of 2001 in Crl. Appeal.No. 587 of 2001.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.587 of 2001Kallia Morthy ..Appellant/accused -vs-State by Inspector of PoliceKoradacherry Police StationNagapattinamCr.No.29/2000.. Respondent/complainant This appeal is filed against the Judgment made in S.C.No.151 of2000 dated 28.9.2000 on the file of the Court of the Principal SessionsJudge,Nagapattinam.For appellant : Mr.K.Pasupathy For respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor. JUDGMENT This appeal has been preferred against the Judgment in S.C.No.151of 2000 on the file of Court of the Principal Sessions Judge,Nagapattinam.2) The accused, who was convicted and sentenced by the learnedPrincipal Sessions Judge under Section 304(ii) of IPC to undergo ten yearsrigorous imprisonment, is the appellant herein. https://hcservices.ecourts.gov.in/hcservices/ 3) The short facts of the prosecution case are that on 25.1.2000 atabout 1.00p.m., when the accused requested his wife/deceased to prepare adish with tender pumpkin, she refused the same for want of ginglee oil,the accused got enraged assaulted her with a stick on the head causinggrievous injuries, resulting her instantaneous death.4) On the basis of the complaint preferred by P.W1, the ocularwitness to the occurrence, the learned Judicial Magistrate, Thiruvarur hadtaken the case on file as PRC NO.17/2000. On appearance of the accused,copies under Section 207 of Cr.P.C. were furnished to the accused andsince the case is triable by the Court of Sessions, the learned JudicialMagistrate had committed the case to the Court of Sessions under Section209 of Cr.P.C. and on appearance of the accused, the learned SessionsJudge has framed charges under Section 304(ii) of IPC and when questionedthe accused, pleaded not guilty.5) On the side of the prosecution, P.Ws 1 to 9 were examined. Exs P1to P11 were exhibited and M.Os 1 to 6 were marked.6) P.Ws 1 and 2 are the ocular witnesses. P.W.1 the complainant underEx P1,who would depose that on 25.1.2000 at about 1.00pm., while he alongwith his wife, children and her aunt were in the house, she heard a noisefrom the house of the accused at about 1.00p.m., and immediately he alongwith his aunt Mayilammal(P.W.2) went inside the house of the acused andsaw the accused requesting his wife to prepare a dish with tender pumpkinwhich was refused by his wife/deceased on the ground that there was noginglee oil available in the house to prepare the said dish. Suddenly theaccused got infuriated and assaulted the deceased with a bamboo stickcausing grievous injuries on her head resulting , instantaneous death andthat he had preferred Ex P1 complaint at about 2.30p.m., with KoradacherryPolice.6a) P.W.2 is the brother of the accused. According to him, theaccused was living with his wife in a house at Kuzhikaraithoppu. But heused to quarrel with his wife very often and on the date of occurrence,he was in the house of his another deceased brother Manickam and at thattime he heard some noise from the house of the deceased and immdiately hehad rushed to the house of the accused where he saw the accused assaultingthe deceased with a bamboo stick on her head, which resulted in herinstantaneous death. He has also identified M.O.1 bamboo stick used by theaccused at the time of occurrence. https://hcservices.ecourts.gov.in/hcservices/ 6b) P.W.3 and P.W.4 are not the ocular witnesses but they would saythat soon after the occurrence, they were informed about the occurrence byP.W.1. Both P.W.3 and P.W.4 would depose that they saw the accused comingout of his house after the occurrence.6c) P.W.5 is the doctor, who had conducted autopsy on the corpse ofthe deceased. The doctor had noticed a contusion measuring 5 cm x 3 cm onthe left side of the face near the left ear.2) a contusion measuring 5 cmx 3 cm on the centre of the head 3) fracture on the left side of the skullbone measuring 15 cm x 2 cm extending from the injuries of the skullpresent. Meninges and brain matter are seen protruding form the fracturesite. 4)A lacerated injury on the left side of the brain surrounded byblood clot. The doctor has opined that the deceased would have died dueto injuriy Nos. 1 and 2. Ex P2 is the postmortem report. The doctor hasfurther opined that injury Nos 1 and 2 would have been caused with aweapon like M.O.1.6d) P.W. 7 is the Sub Inspector of Police, who had registered thecase under Cr.No.29/ 2000 on the basis of Ex P1 complaint.Ex P4 is thecopy of the First Information Report and he has also passed on theinformation to P.W.8, the Investigating Officer, who had visited the placeof occurrence on 25.1.2000 at about 3.30p.m., and prepared ExP5observation Mahazar in the presence of witnesses and also had drawn arough sketch Ex P6, and seized M.O1 bamboo stick,M.O.5 blood stained sandand M.O.6, Sample sand under Ex P7. He had conducted inquest in thepresence of the witnesses and has examined the witnesses and recordedtheir statements. Ex P8 is the inquest report. Since the accused wasabsconding , he could not arrest the accused on the same day.6e) P.W.9 is the successor of P.W.8, who took up furtherinvestigation and he had made a request to the Judicial Magistrate forsending the material objects connected with this case for chemicalexamination. Ex P9 is the letter of requisition. Exs P10 and P11 are theanalysts' report. After completing the formalities, he has filed thechargesheet on 11.4.2000 against the accused.7.When incriminating circumstances under Section 313 Cr.P.C.were putto the accused, he denied his complicity with the crime. The accused hasnot examined any witness on his side.8. The learned trial Judge after meticulously going through theevidence both oral and documentary adduced before him, has come to aconclusion that the prosecution has proved the guilt of the accused under https://hcservices.ecourts.gov.in/hcservices/ Section 304(ii) of IPC and convicted the accused under the aboveprovisions of law and sentenced him to under go ten years rigorousimprisonment, which necessitated the accused to prefer this appeal.9. Now the point for consideration in this appeal is whether thefindings of the learned trial Judge in S.C.No.151 of 2000 on the file ofthe Principal Sessions Judge, Nagapattinam is liable to be set aside forthe reasons stated in the memorandum of appeal?10. Heard Mr.K.Pasupathy, learned counsel appearing for the appellantand Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor for therespondent and considered their respective submissions.11. The Point:The learned counsel appearing for the revision petitioner/accused relyingon some of the discrepancies in the evidence of P.W1 and P.W.2 wouldcontend that both the ocular witnesses viz., P.W.1 and P.W.2 would nothave witnessed to the occurrence. P.W.1 in his evidence in the crossexamination has admitted that he is working in an Auto parts shop atThiruvarur and his weekly holiday is Sunday. But the occurrence had takenplace on a Tuesday. P.W.9 the investigating Officer in his crossexamination would also admit that he has not investigated as to thepresence of P.W.1 on the occurence day . But in the chief examination,P.W.1 has deposed that on 25.1.2000 ie., on the date of occurrence atabout 1.00p.m., he was in his house with his wife, children and auntMayilammal, who has come to his house as a guest from Killukudi villageand that on hearing a noise from the house of the accused, he and his auntMayilammal went inside the house of the accused and saw the accused arerequesting his wife to prepare a dish with tender pumpkin, which wasrefused by her and out of hunger, he assaulted his wife with M.O.1 bamboostick causing grievous injuries on her head resutlng her instantaneousdeath. P.W.2 has also corroborated the evidence of P.W.1. P.W.2 is noneother than the brother of the accused. There is no motive attributedagainst P.W.1 and P.W.2 to falsely implicate the accused in this crime.12. The other discrepancies pointed out by the learned counsel forthe appellant is that according to P.W.1, Ex P1 complaint was drafted byhis friend. But, P.W.7 would depose that P.W.1 came to the police stationand submitted the complaint. But P.W.7 nowhere has stated that P.W1 haspreferred the complaint only in the police station in his own hand. 13. The learned trial Judge, taking into consideration that there wasa quarrel between the victim and the accused immediately before theoccurrence and only out of sudden provocation, the accused had assaulted https://hcservices.ecourts.gov.in/hcservices/ his wife with M.O.1 causing grievous injuries resulting instantaneousdeath, has held that the accused is liable to be convicted only underSection 304(ii) of IPC and not under Section 302 of IPC.14. The evidence of P.W.1 and P.W.2 have been corroborated by themedical evidence. P.W.5 the doctor, who had conducted autopsy and issuedpostmortem certificate Ex P2, has also deposed that he could see fractureon the skull of the victim and contusion on the centre part of the head ofthe deceased and that injury Nos 1 and 2 are sufficient to cause the deathof the victim. The doctor has opined that both the injury Nos 1 and 2mentioned in Ex P2 would have been caused by the weapon like M.O.1. I donot find any reason to interfere with the findings of the learned trialJudge convicting the accused under Section 304(ii) of IPC.15. At this juncture, the learned counsel appearing for the appellantwould represent that some leniency may be shown on the sentenceconsidering the age of the accused, who is now 70 and also to considerthat there was no premeditation or intention of the accused to cause thedeath of his wife and that the occurrence had taken place only due tosudden provocation due to quarrel in the family.16. Mr.V.R.Balasubramaniam,the learned Additional Public Prosecutorhas produced a citation in Mohd Shakeel-vs- State of A.P.(2007)3 SupremeCourt Cases 119) and submitted that he has no serious objection formodifying the sentence, taking into consideration ,the age of the accusedand also the circumstances under which the occurrence had taken place. Inthe above said ratio,while convicting the accused under Section 304(ii) ofIPC, the Honourable Apex Court, taking into consideration,the nature ofthe offence has modified the sentence from seven years to the periodalready undergone.17. The learned counsel appearing for the appellant submits that theaccused was in in-caceration from 29.1.2000 till 10.8.2001 ie., one yeareight months and if he is once again sent to prison then he will notsurvive. Under such circumstances, I am of the view that the sameyardstick applied by the Honourable Apex Court in the above said ratiodecidenti can be applied in this case also. The point is answeredaccordingly. https://hcservices.ecourts.gov.in/hcservices/

18. In fine, the appeal is dismissed confirming the conviction butsentence alone is modified to that of a period already undergone insteadof ten years rigrigiorous imprisonment. The bail bond stands cancelled.sgSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Principal Sessions Judge,Nagapattinam2. The Judicial Magistrate ,Nagapattinam3.-do- through the Chief Judicial Magistrate, Nagapattinam4. The Public Prosecutor, High Court, Madras5.The Superintendent of Central Prison, Cuddalore6. The Inspector of Police, Koradacherry Police Station, Nagapattinam.+ One cc to Mr. Mr. Pasupathy, Advocate sR 38178ASM (co)sg 10/7/07Crl.A.No. 587/2001