CORAMTHE HONOURABLE MR v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.10.2007CORAMTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.1774 of 2004Villalan.. Petitioner/ AccusedVersusState rep by Station House Officer,Orleanpet Police Station,Pondicherry.(Cr.No.173/2000) .. Respondent/ ComplainantPrayer:-This revision petition has been preferred under Section397 and 401 of Cr.P.C., against the judgment dated 20.10.2004 inC.A.No.9 of 2003 passed by the Principal Sessions Judge, Pondicherry. For petitioner : Mr.R.Natarajan, Advocate For respondent : Mr.M.R.Thangavelu, Public Prosecutor (Pondicherry) ORDERThe accused, who has faced the charge under Section 304(ii) IPCbefore the Assistant Sessions Judge, Pondicherry, is the revisionpetitioner herein.2.The brief facts of the case of the prosecution relevant fordeciding this revision petition are as follows:-On 28.07.2000 at about 14.30 hours the accused in a heatof passion upon a sudden quarrel gave a blow on the face of thedeceased Raji, S/o.Mani, which resulted in his death. Hence, theaccused was charged for an offence of culpable homicide not amountingto murder [304 (ii) IPC].3.The committal Magistrate had furnished copies to the accusedunder Section 207 of Cr.P.C. on his appearance on summons. Since thecase is exclusively triable by the Court of sessions, the learnedcommittal Magistrate had committed the case under Section 209 ofCr.P.C., to the court of Sessions. The learned Sessions Judge, onappearance of the accused before him had framed charge under Section304(ii) IPC and when questioned the accused pleaded not guilty. https://hcservices.ecourts.gov.in/hcservices/ Before the trial Court P.W.1 to P.W.10 were examined and Ex.P.1 toEx.P.9 were marked.4.P.W.1 is the brother of the deceased, who is an ocular witnessto the occurrence. P.W.1 would depose that at the time ofoccurrence, the accused had assaulted his brother deceased Raji onthe cheek and due to the impact his brother fell on the ground andsustained injuries on the head and breathed his last at the place ofoccurrence itself. After the occurrence he along with his brother'swife went to the police station and preferred Ex.P.1-complaint.5.P.W.2 is the wife of the deceased. P.W.2 would admit thatalong with P.W.1 she had preferred Ex.P.1-complaint with the policeafter the occurrence.6.P.W.3 also corroborated the evidence of P.W.1 to the fact thatat the time of occurrence, the accused had assaulted the victim withhands on the cheek and that the victim fell down on the ground andsustained injuries. P.w.4 also corroborated the evidence of P.W.1to P.W.3.7.P.W.9 is the then Inspector of Police, who had registered thecase in Cr.No.173 of 2000 under Section 304 IPC on the basis of thecomplaint preferred by P.W.1 under Ex.P.1. Ex.P.9 is the printedcopy of FIR. He had visited the place of occurrence and arranged totake up photos through P.W.8-Kannan, Photographer. He has examinedthe witnesses and recorded their statements. He had conductedinquest on the corpse of the deceased and had sent the corpse forpostmortem through PC.1652. P.W.9 would further depose that theaccused surrendered before him on 31.07.2000 and he had arrested theaccused immediately and produced him before the Judicial Magistratefor judicial custody.8.P.W.10 is the successor of P.W.9, who had conducted furtherinvestigation. P.W.5 is the witness to Ex.P.2-observation mahazar.P.W.6 is a witness in Ex.P.3-inquest report. P.W.7 is the doctor,who had conducted postmortem on the corpse of the deceased and issuedEx.P.4 postmortem certificate. According to P.W.7-doctor, the deathwas caused due to internal hemorrhage. Ex.P.5 is the final opinionof the doctor and Ex.P.6 is the viscera report. P.W.10 aftercompleting the formalities had filed the charge sheet on 19.2.2000against the accused under Section 304(A) IPC.9.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., he would deny his complicity with the crime.The learned trial Judge after going through the evidence both oraland documentary, has convicted the accused under Section 304(ii) IPCand sentenced him to undergo 4 years RI and slapped a fine ofRs.1000/- with default sentence. Aggrieved by the findings of thelearned trial Judge, the accused preferred an appeal before thePrincipal Sessions Judge, Pondicherry in C.A.No.9 of 2003. The https://hcservices.ecourts.gov.in/hcservices/ learned first Appellate Judge after scanning the evidence both oraland documentary and also after giving due deliberations to thesubmissions made by the learned counsel for the appellant as well asthe learned Public Prosecutor, while confirming the conviction, hasmodified the sentence of the learned trial Judge by convicting theaccused under Section 323 of IPC instead of under Section 304(ii)IPC, and sentenced him to undergo 4 months SI and to pay a fine ofRs.1000/-, which necessitated the accused to prefer this revision.10.Heard Mr.R.Natarajan, the learned counsel appearing for therevision petitioner and Mr.M.R.Thangavelu, the learned PublicProsecutor (Crl. Side, Pondicherry) and considered their respectivesubmissions.11.When the revision was taken up for consideration, the learnedcounsel appearing for the revision petitioner would contend that heis not going to argue on the merits of the case but he will beconfined only with regard to the sentence. The learned counselwould contend that the accused is a first offender and he was aged 43years at the time of the occurrence and some leniency may be shown onthe sentence.12.Taking into consideration that the revision petitioner is afirst offender and only due to the sudden passion he had assaultedthe victim with hand causing simple injury, but unfortunatelyresulted in his death and he is working as Sentry in Jipmer Hospitaland is a Central Government servant, I am of the view that theprovision under Section 4(1) of the Probation of Offenders Act can beapplied to the present facts of the case.13.In fine, the revision petition is dismissed confirming theconviction of the accused under Section 323 IPC passed by the FirstAppellate Judge, but the sentence alone is modified and the accusedis directed to be released on his executing a personal bond for a sumof Rs.5,000/- with one surety for the like sum to the satisfaction ofthe learned Trial Judge (Additional Assistant Sessions Judge,Pondicherry), with a condition that he shall appear before the TrialCourt on every working day at 10.30 am for six months and with afurther condition that he shall keep peace and good behavior duringthe said period and to appear to receive the sentence when called forduring the said period. Fine amount, if any paid, shall be construedas costs in lieu of Section 5 of the Probation of Offenders Act. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssv https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal Sessions Judge, Pondicherry.2.The Additional Assistant Sessions Judge, Pondicherry.3.The Public Prosecutor, High Court, Madras.4.The Judicial Magistrate No.II, Pondicherry.5.The Chief Judicial Magistrate, Pondicherry.6.The Superintendent of Central Prison, Pondicherry.7.The Station House Officer, Orleanpet Police Station, Pondicherry.2 ccs to Mr.R. Natarajan, SR,. 645411 cc to Senior Public Prosecutor, Pondicherry, Sr. 64627Crl.R.C.No.1774 of 2004MDR (CO)kk 29/10