(Prayer: Criminal Appeal is filed under Section 374(2) Cr.P.C., to call for the records from the Lower Court and set aside the judgment passed by the learned Sessions Judge (Fast Track Mahila Court), Vrudhunagar District at Srivilliputhur in S.C.No.108 of 2022, dated 21.12.2023 by allowing this appeal.)

G.K. Ilanthiraiyan, J

1. This Criminal Appeal is filed to call for the records and set aside the judgment passed by the Learned Sessions Judge (Fast Track Mahila Court), Virudhunagar District, Srivilliputhur, in S.C.No.108 of 2022, dated 21.12.2023, thereby convicting the appellant/accused for the offences punishable under Section 302 of IPC and Section 4 of the Tamil Nadu Prohibition of Women Harassment Act.

2. THE CASE OF THE PROSECUTION:

                  2(i) The appellant and deceased are husband and wife. The defacto complainant is the brother of the deceased. On 12.02.2022, at about 09:00 p.m., when the defacto complainant and the deceased were speaking in the appellant’s house, the appellant had come there and had questioned about a missing hen and had scolded the deceased using filthy language. When the deceased replied to the same, the appellant got angry and assaulted the deceased with hand and also pushed her and dashed her head on the iron cot. The deceased sustained injuries and became unconscious due to the same. Immediately she was taken to the Government Hospital Srivilliputhur where she was provided first aid treatment and she was later referred to Government Rajaji Hospital, Madurai for further treatment and was admitted there on 13.02.2022, where after four days i.e., on 16.02.2022, the deceased died.

3. On the basis of the complaint, F.I.R was registered in Crime No: 88 of 2022 for the offences under Section 294(b), 323, 307 of I.P.C r/w. Section 4 of the Tamil Nadu Prohibition of Women Harassment Act. Thereafter, the offences were altered 294(b), 323, 302 of I.P.C r/w. Section 4 of the Tamil Nadu Prohibition of Women Harassment Act. After completion of investigation, the respondent filed a final report and the same was taken cognizance by the Trial Court.

4. To bring the charges to home, the prosecution examined P.W.1 to P.W.13 and produced documents Ex.P.1 to Ex.P.19 and produced material objects which were marked as M.O.1 and M.O.2. on the side of the appellant, no witnesses were examined and no documents or material objects were produced.

5. On perusal of the oral and documentary evidences, the Trial Court found the appellant guilty for the offences under Section 302 of IPC and Section 4 of the Tamil Nadu Prohibition of Women Harassment Act and sentenced him to undergo life imprisonment and imposed a fine of Rs. 5,000/- and in default of the same, to undergo one-year Rigorous Imprisonment for the offence punishable under Section 302 of IPC and the appellant was also sentenced to undergo 3 years Rigorous Imprisonment and was imposed a fine of Rs. 10,000/- and in default of the same, to undergo six months Rigorous Imprisonment for the offence under Section 4 of the Tamil Nadu Prohibition of Women Harassment Act.

6. Aggrieved by the same, the appellant has preferred this present appeal.

7. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL APPEARING FOR THE APPELLANT:

                  7(i) The learned counsel for the appellant submits that the prosecution has failed to establish the charges beyond reasonable doubt. Despite this, the Trial Court mechanically convicted the appellant, even though the material witnesses did not support the prosecution’s case. It was also submitted that the establishment of motive is essential in a case which is completely based on circumstantial evidences, but the prosecution had failed to establish the same.

                  7(ii) It was the further contention of the appellant that, the evidence of P.W.1, who is the brother of the deceased and is also the defacto complainant, is not reliable as his presence at the scene of crime is highly doubtful as he did not take any step to prevent the alleged occurrence and P.W.8, who is the doctor attached to the Government Hospital, Srivilliputhur, who issued the accident register and provided first aid to the deceased also deposed that the deceased was brought to the hospital by her mother-in-law and not by P.W.1. The delay in lodgment of the complaint was also pointed out wherein the complain was lodged only on 17.06.2022 which is on the next day of the alleged occurrence.

                  7(iii) It was further submitted that, the Trial Court failed to consider the evidence of P.W.10 who is the Doctor attached to Government Rajaji Hospital, Madurai. He had clearly deposed that the patient suddenly was affected by cardiac arrest and that there is a possibility that the deceased died due to the cardiac arrest. He further pointed out that the Trail Court failed to consider the Accident Register which was marked as Ex.P7, that states that the deceased herself fell down from the water tank and sustained injuries. It was therefore submitted that, the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt and the minor discrepancies stated above are fatal to the case of the prosecution. It was further submitted that, even though the specific overt act of the appellant is proved by the prosecution, the offence might not attract Section 300 of IPC and rather it only amounts to culpable homicide. Therefore, it is his grievance that the Trial Court without considering the above details, had mechanically convicted the appellant.

8. ARGUMENTS ADVANCED BY THE LEARNED ADDITIONAL PUBLIC PROSECUTOR APPEARING FOR THE STATE:

                   8(i) Per contra, the learned Additional Public Prosecutor submitted that the appellant is a drunkard and does not generate any income and the deceased, who is the wife of the appellantwas the one who went to work and brought home some income. On the date of occurrence, at about 09:00 p.m., the appellant had consumed alcohol and had come home and had asked the deceased about the missing hen. She had told him that they could search for the hen the next day. Infuriated by her response, the appellant abused her in filthy language, slapped her and grabbed her hair and hit her on the iron cot. P.W.1 who is the brother of the deceased was present at place of occurrence and had witnessed the whole incident. Therefore, the prosecution case is not based on circumstantial evidence rather P.W.1 is the sole and credible eye witness to the offence and his evidence is well corroborated by other prosecution witnesses and the medical evidences.The prosecution has thus proved the charge under Section 302 of IPC beyond all reasonable doubts. Hence, the Trial Court rightly convicted the appellant, and the conviction does not call for any interference of this Court. Heard the learned counsels appearing on either side and perused the materials available on record.

9. FINDINGS AND CONCLUSION:

                  9(i) The specific case of the prosecution is that, the appellant and deceased are husband and wife. The defacto complainant/P.W.1 is the brother of the deceased. On 12.02.2022, at about 09:00 p.m., when P.W.1 and the deceased were in the appellant’s house, the appellant had come there and had questioned about a missing hen and had scolded the deceased using filthy language. When the deceased replied to the same in a lethargic manner, the appellant gotenraged and assaulted the deceased with hand and grabbed her hair and dashed her head against the iron cot. The deceased sustained injuries and became unconscious due to the same. Immediately she was taken to the Government Hospital, Srivilliputhur, where she was provided with first aid treatment and she was later referred to Government Rajaji Hospital, Madurai for further treatment and was admitted there on 13.02.2022, where after four days i.e., on 16.02.2022, the deceased died.

                  9(ii) The appellant had raised a specific ground stating that the evidence of P.W.1 and his presence in the scene of occurrence is doubtful. It is relevant to extract the deposition of P.W.1 hereunder:



       

             

                  9(iii) On perusal of the deposition of P.W.1, it can be seen that he had clearly and categorically stated the occurrence, wherein the appellant, who was intoxicated, had come to the house and due to sudden altercation, started assaulting the deceased. After the occurrence, P.W.1 had sent the deceased along with her mother-inlaw in an auto and he had followed them in a two-wheeler. Though the auto driver who was examined as P.W.2 turned hostile, that alone cannot break the credibility of the evidence of an eye witness. It is a well settled principle of law that even the evidence of a sole interested and related eyewitness is reliable, provided that the evidence is natural, cogent, convincing and trustworthy. Therefore, this Court is inclined to consider whether the evidence of P.W.1 is reliable or not and for that reason, it is pertinent to consider other corroborating evidences submitted by the prosecution in this regard. On perusal of the evidence of P.W.8, the doctor attached to the Government Hospital, Srivilliputhur and Ex.P7 which was the Accident Register issued by her, it is revealed that the deceased herself fell from the water tank on the first floor to the ground floor. The deposition of P.W.8 is extracted hereunder:

                       

                                  9(iv) But the deposition of P.W.8 also clearly reveals that the said accident register was issued on the information of the mother-in-law of the deceased who had accompanied the deceased to the Hospital. Since the appellant/accused is her own son, it is unlikely of her to have stated the truth to the Doctor. Therefore, the same cannot on its own deplete the credibility of the prosecution case and this Court is not inclined to take into consideration the evidences of P.W.8 and Ex.P7.

                  9(v) On Perusal of the evidence of P.W.11, the doctor attached to the Government Rajaji Hospital, Madurai who conducted the autopsy of the deceased has clearly stated that the injuries incurred by the deceased does not seem like she had fallen to the ground from the first floor on her own. There were injuries on the whole of the deceased’s head which corroborates with the evidence of P.W.1 wherein the appellant had forcefully dashed the deceased’s head against the iron cot. The cross examination of P.W.11 is extracted hereunder:

                                    

     

9(vi) Further, on perusal of the evidence of P.W.10, the doctor who administered treatment for the deceased at the to the Government Rajaji Hospital, Madurai, it is revealed that during the course of the treatment, the deceased had suffered a heart attack and had eventually died. The cross examination of P.W.10 is extracted hereunder:

                                     

                                        

On a keen reading of the above extract, it can be seen that the P.W.1 had clearly stated that the deceased had suffered a heart attack only due to the injuries that she had incurred in her brain. Therefore, this Court is not inclined to appreciate the contention of the appellant that the death of the deceased was caused only due to the heart attack and not because of his assault on the deceased. Even if that is the case, the heart attack was caused only due to the brain injuries that was inflicted upon the deceased as the appellant had dashed her head repeatedly against the iron cot.

10. Therefore, the prosecution has proved beyond reasonable doubt that the offence was committed by the appellant. The only point for consideration in this appeal is whether the conviction under Section 302 of I.P.C can be sustained, in the absence of any intention on part of the appellant to do away with the life of the deceased. In order to decide the pivotal question of intention, which alone would determine whether the offence falls under Section 302 or 304 Part II of I.P.C., the facts and circumstances of the case have to be examined with care and caution.

11. Admittedly, and even according to the case of the prosecution and the evidence of P.W.1, the appellant, at the time of occurrence, was in an intoxicated state. At that time, when the appellant had questioned the deceased about the missing hen, her lethargic reply had enraged the appellant. The seriousness of the quarrel had increased as it was fueled by the consumption of alcohol on part of the appellant. It is an undisputed truth that, alcohol makes a man lose his prudent senses and the case on hand is a classic example for the same.

12. Though, intoxication as such is not a defense in a criminal charge, it shows that what started as a normal quarrel between the appellant and deceased, quickly turned into a violent unfortunate situation that caused the death of the deceased. In this regard, it is relevant to reply upon judgement of the Hon'ble Supreme Court of India in the case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P [2007 (1) SCC (CRI) 500], wherein it has been observed as follows:

                   “18. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters like plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:

                   (i) nature of the weapon used;

                  (ii) whether the weapon was carried by the accused or was picked up from the spot;

                  (iii) whether the blow is aimed at a vital part of the body;

                  (iv) the amount of force employed in causing injury;

                  (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

                  (vi) whether the incident occurs by chance or whether there was any pre- meditation;

                  (vii) whether there was any prior enmity or whether the deceased was a stranger;

                  (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

                  (ix) whether it was in the heat of passion;

                  (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

                  (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.”

13. On a keen observation of the factual matrix of this case, it can be seen that, there was no preparation or premeditation on the side of the appellant to commit the offence and he had absolutely no intention to do away with the life of the deceased. The appellant had admittedly consumed alcohol and when a wordy quarrel ensued between the appellant and the deceased, in the spur of the moment and due to sudden provocation, the appellant had grabbed the deceased’s hair and had dashed her head repeatedly against the iron cot. It is to be noted that the appellant neither carried any weapon with him all alongnor used any weapon to do away with the life of the deceased. Therefore, the offence had taken place in the course of sudden quarrel or sudden fight without any premeditation.

14. Therefore, the cumulative effect of the unshaken testimony of the sole and credible eye-witness i.e., P.W.1,the medical findings that corroborate the evidence of P.W.1 and the failure of the appellant to rebut the case of the prosecution, incontrovertibly establishes the guilt of the appellant. But the prosecution has failed to establish beyond reasonable doubt that the appellant’s act was an effect of the intention he had to do away with the life of the deceased.

15. In view of the above, the conviction and sentence imposed on the appellant by the Learned Sessions Judge (Fast Track Mahila Court), Virudhunagar District, Srivilliputhur, in S.C.No.108 of 2022 dated 21.12.2023, for the offence punishable under Section 302 of I.P.C are set aside. The appellant is convicted for the offence punishable under Section 304 Part II of I.P.C and sentenced to undergo six years Rigorous Imprisonment and to pay a fine of Rs. 5,000/- in default, to undergo six months Simple Imprisonment. However, the sentence imposed under Section 4 of the Tamil Nadu Prohibition of Women Harassment Act is sustained.

16. With the above modification, the Criminal Appeal is partly allowed. It is made clear that if the appellant has already paid any fine, the same shall be adjusted towards the fine amount imposed by this Court. The sentences of imprisonment shall run concurrently. The period of imprisonment already undergone by the appellants shall be set off under Section 428 of Cr.P.C. Consequently, connected miscellaneous petition is closed.