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2019 Supreme(Mad) 2794
IN THE HIGH COURT OF MADRAS
M.M. Sundresh, M. Nirmal Kumar, JJ.
Nirmal Sarkar - Appellants
Vs.
State - Respondent
Crl. A. Nos. 321 and 861 of 2018
Decided On : 19-08-2019
For the Appellant : C.R. Malarvannan for V. Rajamohan
For the Respondents: R. Prathap Kumar, Additional Public Prosecutor
Headnote:
Indian Penal Code,1860 - Sections 302 – Criminal Procedure Code,1973 - Section 313 - Plastic Company – Investigation - Case of prosecution is that friend of deceased and are husband and wife they have a female child appellants and the deceased hail from State of Tripura often used to visit house of deceased and in course of it illicit relationship developed between the wife of deceased - Further left company of deceased and her daughter came down to Chennai along with - Both accused were living together as husband and wife Street deceased had called upon ascertained her location and came Chennai along with his daughter - Thereafter deceased and appellants lived together in said address there was quarrel between deceased arid with regard to washing clothes of deceased –Held, Court have already discussed classification of an offence into either Part of Section primarily a matter - This would have to be decided with reference to nature of the offence intention of offender weapon used place and nature of the injuries existence of premeditated mind persons participating in commission of crime and to some extent motive commission of crime appellants are not disputed and they were living as husband and wife for the past five years is admitted and further there is no grouse for same and deceased travelled from and stayed with accused had seen appellants and the deceased together in market to purchase articles hence there was cordiality between them - There seems to be some misunderstanding between and deceased which led fight between them accused attacked deceased his forehead using which a single blow -This version of the prosecution case is established by eye-witnesses medical evidence and the recovery statement of clear that there was heated exchange of words between deceased and Appellants and provocation was initiated by the deceased and thereafter the appellants have assaulted deceased with and ultimately resulted in his death - It is not a case of previous animosity and nothing was there to show that the relationship between appellant and deceased was not cordial contrary there is evidence that relations between them were cordial as deposed by dispute and deceased was with regard to washing of his clothes and it is clear that Appellant had not committed crime with any premeditation - There was no intention on his part to commit murder - However that appellants had no knowledge that such injury could cause the death of deceased cannot be countenanced appellant committed offence same done with the intent to cause a bodily injury which could result in death of deceased - Thus has by various citations referred above in our opinion offence committed by Appellant was only culpable homicide not amounting to murder - These circumstances Court are inclined to bring down offence from first degree murder to culpable homicide not amounting to murder punishable first - Appeal disposed
JUDGMENT :
M. Nirmal Kumar, J.
1. These Criminal Appeals arise out of the conviction and sentence passed by the learned IV Additional Sessions judge, Ponneri in S.C. No. 184 of 2016 dated 04.01.2018. The appellants were charged for the offence under Sections 302 r/w. 34 of IPC. The trial Court on completion of trial found the appellants guilty for offence under Section 302 r/w. 34 of IPC, convicted and sentenced them to undergo life imprisonment each and to pay a fine of Rs. 1.000/- each in default to undergo three months Simple imprisonment.
2. The case of the prosecution is that A1 is the friend of the deceased. The deceased and A2 are husband and wife, they have a female child Arpitha Debnath/P.W. 8. The appellants and the deceased hail from the State of Tripura. A1 often used to visit the house of the deceased and in course of it, illicit relationship developed between the wife of the deceased/A2 and A1. Further, A2 left the company of the deceased and her daughter, came down to Chennai along with A1. Both the accused, were living together as husband and wife at Gangaiammal Kovil Street, Pallikuppam, Palavoyal, Redhills. The deceased had called upon A2, ascertained her location and came to Chennai on 18.12.2015 along with his daughter P.W. 8. Thereafter, the deceased, P.W. 8 and the appellants lived together in the said address. On 20.12.2015 there was a quarrel between the deceased arid A2 with regard to the washing the clothes of the deceased. On the same day, the deceased and A1 went to the market to purchase vegetables and chicken. After purchasing the things there was a wordy quarrel between them, P.W. 10 compromised them. On the day itself at about 10.00 p.m., the appellants has beaten the deceased on his head with a wooden log [M.O. 5] and caused the death of the deceased. At that time hearing the noise, P.W. 8 woke up from the bed, A2 shuttered her mouth and turned off the light and asked her to go to sleep. Thereafter, the accused put the body of the deceased in a gunny bag and disposed it in the half constructed building. Thereafter, the accused/A1 and A2 along with P.W. 8 had returned back to their native Tripura. After some time foul smell emanated from the gunny bag. The nearby residents informed P.W. 2/the Village Assistant. P.W. 2 and P.W. 1/VAO visited the scene, opened the gunny bag and found the decomposed body of the deceased. P.W. 1 lodged a complaint [Ex. P1] on 31.12.2015 to the Inspector of Police; Redhills Police Station. On receipt of the complaint, P.W. 18 registered a case in Crime No. 1901 of 2015 [Ex. P13] for the offence under Sections 302 r/w. 34 of IPC and produced the body for postmortem and thereafter disposed the same. On further investigation, coming to know about the role of the accused, P.W. 14, P.W. 17 and P.W. 18 went to Silchar, arrested the accused, who confessed about the murder and produced them before the Chief Judicial Magistrate; Silchar for transit warrant. After obtaining the transit warrant, brought the appellants to Chennai, on completion of investigation charge sheet came to be filed.
3. Before trial Court, prosecution examined 19 witnesses and marked 17 exhibits and 18 material objects. None were examined by the defence nor any exhibits marked.
4. The available evidence from the prosecution witnesses are as follows:
4.1. P.W. 1 the Village Administrative Officer has stated that on 31.12.2015 at about 10.00 a.m. on getting information from his Assistant P.W. 2 on foul smell emanating from a gunny bag near the half constructed building, went to the place and informed to the Police. On opening the gunny bag, they saw a body in a decomposed state both the hands and legs were tied with rope and found the deceased person worn a green colour shirt, military brown colour half trouser, cash Rs. 20/- on the shirt pocket. P.W. 1 lodged a complaint [Ex. P1] before the Inspector of Pol
