IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.07.2009 CORAM: THE HONOURABLE MR.JUSTICE.M.JEYAPAUL Crl.A.No.160 of 2002 Abdul 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 Criminal Procedure to call for the records in connection with S.C.264/1999, on the file of the Principal Sessions Judge, Coimbatore and set-aside the Judgment and conviction imposed on the appellant/accused in S.C.264/1999 by the Principal Sessions Judge, Coimbatore vide Judgment dt.25.11.1999 and order to acquit the appellant/accused from all the charges leveled against him. For petitioner :M/s.T.Jaishankar For respondent :Mr.N. Kumanan, Govt. Advocate. JUDGMENT
The appellant who is none other than the husband of the victim was convicted for offence under section 304 (i) of the Indian Penal Code, though he was originally charged under section 302 IPC and was sentenced to undergo 10 years rigorous imprisonment. As many as 13 witnesses were examined and 33 documents and 8 material objects were marked on the side of the prosecution. Neither oral nor documentary evidence was let in on the side of the defence.
2. The trial court having completely scanned the evidence on record has come to an unassailable verdict that the appellant herein having been provoked by his wife as she chose to challenge the chastity of his mother attacked her having grabbed a crow bar lying over there on her head thrice and caused her death.
3.The learned counsel appearing for the appellant would submit that though the trial court has come to a correct decision with regard to the occurrence that took place on account of the provocation generated by the victim wife wrongly convicted the accused under section 304(i) of IPC instead of convicting him under section 304(ii) of IPC. Drawing the attention of the court to the observations made by the trial court.
4.The learned counsel appearing for the Appellant would submit that on the very showing of the trial court only an offence under section 304(ii) of IPC was made out. Therefore, he would submit that the sentence of 10 years rigorous imprisonment imposed on the appellant may be substantially reduced.
5. Per contra, the learned Government Advocate (criminal side) would vehemently submit that the eye witnesses have spoken to the fact that the accused grabbing the crow bar lying close by launched attack on the head not once but thrice and as a result of which the victim passed away. Therefore, he would submit that the accused should have had an intention to cause the death. The trial court has rightly convicted the accused under section 304(i) of IPC as the occurrence had taken place on account of the sudden provocation, he would further contend.
6. The oral testimony of PW1 who is the ocular witness present at the scene of occurrence in conjunction with the medical evidence was thoroughly perused by this court. True it is that the accused had launched not once but thrice attack on the vital part of the body of the deceased. Sudden provocation had activated the accused to behave 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 was challenged by the victim which provided sufficient provocation for the accused to react violently and aggressively.
7. On a close scrutiny of the materials available on record it is found that a lethal weapon was used for launching attack on the victim. Vital part of the body of the victim was aimed at by the accused not once but thrice when the attack was launched by the accused. The trial court having come to the decision that the occurrence had unfolded on account of sudden provocation provided by the victim is bound to take a decision whether the offence would fall under Section 304(i) or 304(ii) of IPC.
8.The trial court has categorically held that there was no intention for causing the death harboured by the accused at the time of launching the attack. Nor was it observed by the trial court based on the material on record that the accused did harbour an intention to cause such bodily injury as is likely to cause death. Knowledge alone has been attributed by the trial court based on the materials on record to the accused for causing the death. When the accused had no intention either to cause the death or to cause such bodily injury as was likely to cause death but he had only knowledge that his attack was likely to cause death or his attack was likely to cause such bodily injury as was likely to cause death, his act would fall 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 a knowledge that his attack was likely to cause death. Having thus observed, it appears, the trial court has wrongly convicted the appellant under section 304(i) of IPC instead of section 304(ii) of IPC.
10. In view of the above facts and circumstances, the court comes to the decision that the prosecution has established beyond reasonable doubt that the accused has committed an offence punishable under 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 sentence proportionate to the lesser gravity adumbrated under section 304(ii) of IPC. The evidence of PW1 would disclose that the accused himself having realised the crime he has committed, secured an auto rickshaw and took the victim to the hospital for treatment.
11. Therefore, the conviction recorded by the trial court as against the accused under section 304(i) of IPC is modified to section 304(ii) of IPC and he is sentenced to undergo 7 years rigorous imprisonment. With the above modifications, the appeal stands dismissed.
12. The appellant is on bail. The appellant shall surrender before the trial court within 15 days (fifteen days) from the date of this order failing which, the trial court shall issue non-bailable warrant and send him to prison to undergo the unexpired portion of modified sentence imposed by this court.
30.07.2009
Index:Yes/No
Internet:Yes/No
Pri
To
1. Learned Principal Sessions Judge, Coimbatore
2. Inspector of police,
Pothanur P.S.
Pothanur,
Coimbatore District.
3. The Public Prosecutor,
High Court, Madras.
M.JEYAPAUL,J
pri
Crl.A.No.160 of 2002
30.07.2009