The court modified the conviction from murder under Section 302 IPC to culpable homicide not amounting to murder under Section 304(ii) IPC, emphasizing the absence of premeditation and the presence of sudden provocation.

JUDGMENT :

(Judgment of this Court was delivered by R.POORNIMA, J.)

PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code to call for the entire records connected to the judgment in S.C.No.3 of 2017 on the file of the II Additional District and Sessions Court, Thoothukudi, dated 19.08.2019 and set aside the conviction and sentence imposed against the appellant.

This Criminal Appeal is filed against the conviction and sentence passed against the accused/appellant in the judgment dated 19.08.2019 by the II Additional District and Sessions Judge, Thoothukudi, in S.C.No.03 of 2017 convicting and sentencing the appellant for the offence punishable under Section 302 to undergo imprisonment for life and to pay a sum of Rs.1,000/- and in default to undergo six months simple imprisonment.

2. The appellant submitted that originally the respondent herein registered a case in Crime No.481 of 2015 dated 24.07.2015 for the alleged offence under Section 302 IPC. After completion of investigation, the respondent Police filed a charge sheet before the learned Judicial Magistrate No.II, Thoothukudi, in PRC.No.47 of 2016. Subsequently, he committed the case to the II Additional District and Sessions Judge, Thoothukudi and the same was taken on file in S.C.No.03 of 2017. The learned II Additional District and Sessions Judge, Thoothukudi, framed a charge against the appellant for the offence of murder. The trial Court examined 12 prosecution witnesses and marked 10 exhibits. After that trial Court convicted the appellant for the offence under Section 302 IPC. Aggrieved over the said judgment, the appellant has filed this Criminal Appeal.

3. The case of the prosecution in brief is as follows:

(a) The complainant, Thiru.Thilak, who is an advocate by profession, on 24.07.2015, was staying in his residence due to 30th death anniversary of his father.

(b) Both Ganesa Boopathy (deceased) and Ponraj (accused) were employed by him. On that date at 11.30 a.m., he asked Ganesa Boopathy to go out and purchase petrol for his father's two wheeler and gave Rs.100/- to Ganesa Boopathy for purchase of petrol. He returned back at 9.00 p.m., with petrol in a plastic bottle. P.W.1 asked him why he had come late, for which he replied that he went to purchase petrol at Swamy Petrol Bunk situated at Ettayapuram Road at 7.30 p.m., and at that time, he was attacked by four unknown persons. He was taken to a nearby plot situated near Sankarapery and the said persons questioned him as to who had handed over the bike to him.

(c) Immediately, P.W.1 along with Ganesa Boopathy (deceased), Ponraj (accused), brother-in-law, Mahesh (P.W.2) went to the said place, but found nobody there. Then they came back to the residence.

(d) At 10.25 p.m., he parked his car in front of his house and entered into the house. At that time, Ponraj attacked Ganesa Boopathy with a bill-hook on his left hand, left chest, right index finger, thumb finger, left side occipital region, right elbow, etc., and indiscriminately inflicted injuries and committed murder.

(e) Both the complainant, P.W.1 and his brother-in-law, P.W.2 held the accused tightly and prevented him from escaping and thereafter, he called the Police and handed him over to them. Then, P.W.1 lodged a complaint Ex.P.1.

(f) P.W.10 Thiru.Shiyam Sundar, Sub Inspector of Police of Thalamuthu Nagar Police Station registered FIR/Ex.P.10 in Crime No.481 of 2015 for the offence under Section 302 IPC.

(g) Thereafter, P.W.11 Thiru.Felix Suresh Peter, Inspector of Police, Thallamuthu Nagar Police Station received the FIR went to the place of occurrence at 00.45 hours, prepared observation Mahazar-Ex.P.2 and rough sketch-Ex.P.11 in the presence of witnesses Antony Raj, Rajesh and also recovered blood stained cement pieces, ordinary cement pieces - M.O.2 and M.O.3 by a recovery mahazar - Ex.P.3.

(h) P.W.11 examined the witnesses Thilak, Mahesh, Antony Raj and Rajesh and then recorded their statements.

(i) Thereafter, on 25.07.2015 at 4.3