Partly allowed

Gopal v. the Inspector of Police

Madras HC1 Aug 2024CRL A(MD)/183/2020

Case brief

AI extract

What is this about?

The Madras High Court set aside the appellant's life imprisonment for murder under Section 302 IPC and convicted him under Section 304 IPC Part II for seven years. The court held the killing during a sudden quarrel in heat of passion without premeditation falls under Exception 4 to Section 300 IPC.

What did the court decide?

Conviction under Section 302 IPC set aside; appellant convicted under Section 304 IPC Part II and sentenced to seven years rigorous imprisonment and fine.

Gopal Vs the Inspector of Police — Murder and Culpable Homicide | Madras HC (2024)

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Crl.A.(MD) No.183 of 2020

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Reserved on : 03.06.2024

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Pronounced on: 01.08.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA and THE HONOURABLE MR.JUSTICE K. RAJASEKAR

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Crl.A.(MD) No.183 of 2020

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Gopal

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... Appellant / Accused

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-vs-

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The Inspector of Police Rameswaram Town Police Station Ramanathapuram District Crime No.130 of 2013

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... Respondent / Complainant

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Criminal appeal is filed under Section 374(2) Cr.P.C., to call for the records relating to the judgment dated 21.02.2020 made in S.C. No.73 of 2015 on the file of the Fast Track Mahila Court, Ramanathapuram and set aside the conviction and sentence imposed against the appellant/accused and allow the appeal by acquitting the accused.

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For Appellant : Mr.G. Karuppasamy Pandian For Respondent : Mr.A. Thiruvadikumar Additional Public Prosecutor

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https://www.mhc.tn.gov.in/judis

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J U D G M E N T

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A.D.JAGADISH CHANDIRA, J.,

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This Criminal appeal has been preferred by the Appellant / Sole Accused against the Judgment, dated 21.02.2020, made in S.C.No.73 of 2015, by the learned Sessions Judge, Fast Track Mahila Court, Ramanathapuram,

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2 . For the sake of convenience, the accused is herein after will be referred to as "appellant ''

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The appellant stands convicted and sentenced as under:

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Section of Law	Sentence of imprisonment	Fine amount
302 I.P.C.,	Life Imprisonment	Rs.2,000/-, and in default, to undergo rigorous imprisonment for three months.

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The sentences shall run concurrently

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3(i). The case of the prosecution in brief is that the deceased Vanitha is the younger sister of P.W. 2/Umayaselvam. The deceased Vanitha was married to the appellant/accused and out of the wedlock they were blessed with two boys and one girl. The appellant was employed in abroad and he had come back to Erakkad 1^1/2 months ago. There was some misunderstanding between the appellant and the deceased/wife in

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respect of selling his property and giving share to his sister, due to which there were frequent quarrels between them. Whileso, on 19.07.2023 at about 2.00 a.m., P.W.2 received a phone call and he was informed that the appellant had killed his sister by stabbing her with knife and thereby he had gone to her house and seen her sister lying dead on the floor with injuries. P.W.2 had immediately rushed to the Ramanathapuram Town Police Station on same day at about 3.00 a.m., and gave an oral complaint to P.W.12/Sub Inspector of Police stating that the appellant had killed his sister Vanitha. The oral statement/ Ex.P.1 was reduced into writing by P.W. 12 who registered First Information Report/Ex.P.8 in Crime No. 130 of 2013.

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(ii) Thereafter he had handed over the First Information Report to P.W. 15/ Investigation Officer and on the same day he had sent the complaint and the First Information Report to the higher officials. P.W. 15 after receiving the First Information Report took up the case for investigation and went to the scene of occurrence at 3.45 a.m., and prepared the rough sketch/Ex.P.11 in the presence of P.W.6 and one Kalidass and recorded their statements. Thereafter he conducted inquest in respect of the deceased in the presence of the witnesses and prepared inquest report/Ex.P.12. Thereafter he through P.W. 14/Balu took the photographs of the scene of occurrence and the body of the deceased and sent the body of the deceased for autopsy through police Constable/P.W.10. He thereafter recovered M.O. 1/Mat, M.O.2/Blood stained Pillow, M.O.3/Blood stained saree worn by the deceased in the presence of P.W.6 and Kalidass under athachi/Ex.P.5 in https://www.mhc.tn.gov.in/judis

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their presence. On the same day he recorded statements of P.W.1,2,6 and one Kalidass.

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(iii) On the same day on information arrested the accused at a Thoppu/Farm on the western side of Erakkad temple in the presence of Village Administrative Temple, Jeyakanthan/P.W.9 and Village Assistant, Saravanan/PW.5. During enquiry the appellant had confessed to have committed the murder and on his confession M.O.4/knife used for murder was recovered. The admissible portion of confession statement is marked as Ex.P.13. The appellant/accused was sent to remand on the same day. Thereafter he had recorded the statements of witnesses and thereafter he had examined Boominathan/ Head Constable who had taken the First Information Report to the Court and thereafter sent the case properties to the Court. Thereafter he had recorded the statement of the Head Clerk of the Court and after the Post mortem recovered blood stained blouse/M.O.6, Inskirt/M.O.7 and Blood stained saree/M.O.9 worn by the deceased and thereafter recorded statement of the witnesses and photographer Balu and examined P.W. 13, Assistant Professor / DR. Raja Prabhu, who conducted post mortem and on 30.04.2014 he sent the viscera for medical examination and obtained Exs.P.6 and 7/ Forensic Science Laboratory report and Serology report from P.W.11 and recorded their statements and also received viscera report/Ex.P.14. After recording the statements of P.W. 12 completed the investigation.

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After completion of investigation, the respondent – Police had

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filed a final report before the learned Judicial Magistrate, Rameswaram, who had taken cognizance of the final report in P.R.C.No.7 of 2015. On the appearance of the appellant, the provisions of Section 207 Cr.P.C., were complied with and the case was committed to the Court of Sessions in S.C.No.73 of 2015 and was made over to the learned Sessions Judge, Fast Track Mahila Court, Ramanathapuram. The trial Court framed charges against the appellant and when questioned, the appellant pleaded not guilty.

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In order to prove the charges the prosecution had examined

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P.Ws.1 to 15 and marked exhibits Exs.P1 to P14 and material objects M.O.s.1 to 8 were marked.

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After completing the examination of witnesses, when the incriminating materials and circumstances were put to the appellant / accused, under Section 313 Cr.P.C., he denied the evidence of the prosecution side as false, however, no oral and documentary evidence was adduced on the side of the defence.

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After hearing both sides and perusing the oral and documentary evidence adduced, the learned Trial Judge, by Judgment dated 23.07.2015, had found the appellant / accused guilty of the offence under Section 302 I.P.C., and sentenced him to undergo imprisonment for life and also to pay a https://www.mhc.tn.gov.in/judis

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fine of Rs.2,000/-, and in default, to undergo rigorous imprisonment for three months. Challenging the said conviction and sentence, the appellant / accused has preferred the present criminal appeal.

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Heard Mr.G. Karuppasamy Pandian, learned counsel appearing for the appellant / accused and Mr.A. Thiruvaidkumar, learned Additional Public Prosecutor appearing for the State and carefully perused the Judgment of the Court below as well as the evidence and materials placed on record.

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The learned counsel appearing for the appellant/ accused contended that the case of the prosecution hinges upon the solitary ocular testimony of P.W.1. The evidence of P.W.1 is not consistent with the prosecution case and there are material contradiction between the evidence of P.W.1 and the evidence of doctor/P.W.13 who conducted autopsy with regard to the time of occurrence and thereby creating a doubt with regard to the presence of P.W.1 at the time of occurrence. As per the evidence of P.W.13 the death of the deceased would have been caused on 19.07.2013 either in the afternoon or in the evening, whereas it the claim of P.W.1 that the death of his mother took place in the wee hours at about 2.00 a.m., on 20.07.2013. The material contradictions negates the claim of P.W.1 and thereby the possibility of P.W.1 having witnessed the occurrence is false. The evidence of P.W.1 cannot be relied on. Further when the evidence of solitary evidence is un-reliable a duty is cast upon the Court to seek corroboration https://www.mhc.tn.gov.in/judis

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from other source of independent witnesses and in this case excepting P.W2, P.W.4 and P.W.5 who are uncles of PW.1 and brother of the deceased there is no other independent evidence to corroborate the evidence of P.W.1 regarding the occurrence. When there is no legal evidence sans the solitary evidence of P.W. 1, the trial Court erred in convicting the accused without corroboration. Further as per the Ex.P.12/Inquest Report, P.W.3 is the person who is stated to have lastly seen the deceased on 20.07.2013 at 1.45 am., if that is so the presence of P.W.1 at the place of occurrence is also doubtful.

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The learned counsel appearing for the appellant would further contend that the complaint and the First Information Report are shrouded with doubts. According to the prosecution, P.W.3 is said to have gone in person and given complaint on 20.07.2013 @ 3.00 a.m.,and thereafter investigation was said to be set in motion, whereas P.W.3 in his cross examination admitted that he had gone to police station only at 10.30 am., and given the complaint to the police station. It is the case of prosecution that Ex.P.1 was reduced into writing by P.W.12 , whereas P.W.12 had denied the same. These aspects creates the doubt with regard to the genesis of the case thereby shaking the very foundation of the prosecution case.

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The learned counsel for the appellant in the alternative would contend that the occurrence has taken place during a heated altercation https://www.mhc.tn.gov.in/judis

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between spouses in the night hours. There was no pre meditation and the

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act was done in the heat of passion and the accused had not taken any undue advantage or acted in a cruel manner and thereby the case falls within Exception 4 of Section 300 of IPC and thereby he would seek for modification of the sentence. In order to support his contention he relied on the judgment of the Hon'ble Apex Court in the case of Mariappan .Vs. State Rep. by the Inspector of Police reported in (2024)2 SCC 598.

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Per contra, the learned Additional Public Prosecutor submitted that it is a case of Uxoricide. P.W.1 is none other than the son of the deceased and the appellant and there is no necessity for P.W.1 to falsely implicate his father in this case. The evidence of P.W.1 is cogent and clear. P.W.1 had spoken vividly about the incident and the subsequent event of informing the son of P.W.3 and the arrival of his uncles/P.W.2 and P.W.4 immediately after the occurrence and further based on the complaint of P.W.2 the case was registered and the accused was arrested and based on his confession weapon/M.O.4 used for the commission of offence was recovered. The evidence of the doctor /P.W.13 who conducted the postmortem revealed that the death was caused by a sharp edged weapon. As per the opinion of P.W. 13 with regard to the alleged time of death it is only a opinionated evidence of doctor and as per the alleged variance between the medical and ocular evidence is concerned it is well settled that ocular evidence has to get primacy and the medical evidence is basically opinionated and when the testimony of the witnesses is cogent and clear it cannot be thrown out on https://www.mhc.tn.gov.in/judis

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the ground inconsistency. Further the occurrence said to have taken place during quarrel and the appellant said to have taken the knife and caused injuries. The offence said to have committed inside the house. The appellant along with P.W.1,his elder son and other children were present in the house and the murder had happened inside the house and the burden is cast upon the accused to explain the circumstances under which the occurrence had happened. Further the contradictions pointed out are not so grave to affect the case of prosecution, thereby he seeks dismissal of the appeal.

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We have considered the submissions of the learned counsel for the appellant/accused and the learned Additional Public Prosecutor for the State and consciously gone through the evidence and material on record.

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It is a case of Uxoricide. P.W.1 is the minor son of the appellant and the deceased. He was eleven years at the time of occurrence and 15 years at the time of trial. The trial Court after examining him and being satisfied had recorded his evidence. P.W.1 had deposed that the appellant is his father and that he has got two siblings. On 18.07.2013 after having dinner he along with his siblings had gone to bed around 9.00 p.m., and that his father and mother were watching T.V and he and his siblings have fallen asleep and around 2.00 midnight he woke up finding his sister crying and he had seen his father and mother fighting with each other and that during the quarrel his father had taken knife and stabbed his mother in the upper lip, left neck and that his mother had fallen down and she did not https://www.mhc.tn.gov.in/judis

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wake up. Thereafter he had gone to his aunt's house nearby and informed P.W.3 his uncle and his son and they rushed to his house and on seeing them his father who standing with knife had run away from the place of occurrence. Thereafter the son of P.W.3 had informed his maternal uncle P.W.2 over phone and P.W.2 and P.W.4 had gone there and villagers have also come there and P.W.2 and P.W.4 had gone to the police station and given the complaint and later his mother was taken to hospital in an ambulance.

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15.P.W.2 is the brother of the deceased. He had deposed that his sister got married to the accused 12 years ago and that they have three children who were studying in school and that the accused, his brother-inlaw was working abroad and that he had come back home 1^1/2 months ago and that the accused was having a housing site near Seetha Theertham and that his father had asked him to sell the property and give three lakhs each to his sisters. However since one of the appellant's sister Sethu Nambu had demanded Rs.10,00,000/- there was a dispute between his sister the deceased and the appellant. It is the further evidence that on 19.07.2013 he had called his sister over phone and his sister/deceased had told him that she and her husband were doing well. Whileso on the same day at about 2.00 a.m., he received phone call from his relative Mani, S/o. P.W.3 that the appellant had killed his sister. Immediately he along with his brother P.W.4 had gone to the house of the appellant and he had seen his sister lying dead with bleeding injuries on a mat on the floor and that he along with P.W.4 https://www.mhc.tn.gov.in/judis

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had rushed to police station and given complaint/Ex.P.1. However in his cross examination he had deposed that when he had gone to his sister's house there were about 50 police men at the spot and that he had given a oral statement to the police on the next day at 10.00 am.

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P.W.3 is a neighbour and brother -in-law of the appellant whose son Mani said to have informed P.W.2 about the incident and he has not supported the case of prosecution and thereby he had been treated as hostile.

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17.P.W.4 is the brother of P.W. 2 who had accompanied P.W.2 to the police station and he had corroborated the evidence of P.W. 2.

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18.P.W.5 is yet another brother of P.W.2 and the deceased and he had corroborated the evidence of P.W.2.

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P.W.6 is the witness for observation mahazhar and he deposed about the preparation of observation mahazhar, Ex.P.2 and Athatchi /Ex.P. 3 and recovery of M.O.1/a Torn Mat, M.O.2/blood stained pillow cover and M.O.3/Blood stained saree.

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P.W.7 and 8 the neighbours who have been examined have not supported the case of prosecution and they have been treated as hostile.

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P.W.9 is the Village Administrative Officer and he deposed about

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the arrest of the accused and the confession leading to recovery of M.O. 4/knife through Athatchi/Ex.P.5.

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22.P.W.10 is the Head Constable who had taken the body of the deceased for post mortem and identified the same for post mortem and also taken the viscera for chemical examination and having handed over the body of the deceased after examination.

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P.W.11 is the forensic expert. He had received M.O.1 to M.O.7

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from the Court and he had found blood stains on M.O.1 to M.O.7. He had through Ex.P.6 send it for serological report/Ex.P.7. Serological report/Ex.P. 7 reveals that group of blood found on M.O.1 to M.O.7 belongs to ''A" group.

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24.P.W.12/Sub Inspector of police who registered the First Information Report. He had deposed that on 20.0.7.2013 about 3.00 a.m.,when he was in the station, P.W.2 had come to the station and informed him that his sister Vanitha was murdered by her husband using knife and that earlier complaint was given by P.W.2 was reduced into writing and his signature was obtained. Based on the statements case in Crime No. 130 of 2012 was registered for the offence under Section 302 of IPC/Ex.P.8 and that he has forwarded the same to the Court and higher officials for

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further action.

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25.P.W. 13 is the doctor who conducted post mortem. He deposed

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that on 20.07.2013 he had conducted post mortem and give certificate Ex

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P9 . During post mortem he had noted down the following injuries on the body of the deceased.

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1. Stab injury near left nostril 4X3 bone deep including nose philtrum

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1. Cut injury left jaw 7X3X2cm

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1. Stab injury left neck below jaw 6X2X8cm

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Stab injury left neck over middle of sternocleidomastoid muscle

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7X3X9cm (opening the wound, great vessels of neck – carodit artery and jugular vein cuts and severed)

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contusion(left side of neck left difference10X10 cm (50gm clotted blood left)

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6)Abrasion left dorsum of left hand 3X2cm

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He had opined that the injuries found in the body of the deceased is caused by sharp edged weapon like knife. He had started post mortem at 10.50 am., He had also opined that the death of the deceased would have caused around 12-18 hrs prior to the post mortem and that the death would have occurred between noon and evening on 19.07.2023. He further deposed that the injuries would also have been caused by sickle.

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P.W.14 is the photographer who had taken photos at the place of occurrence and the body of the deceased.

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P.W.15 is the Investigation Officer and he deposed that he had

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sent the complaint and the First Information Report to the higher officials. P.W. 15 after receiving the First Information Report took up the case for investigation and went to the scene of occurrence at 3.45 a.m., and prepared rough sketch/Ex.P.11 in the presence of P.W.6 and one Kalidass and recorded their statements. Thereafter he conducted inquest in respect of the deceased in the presence of witnesses and prepared inquest report/Ex.P.12. Thereafter he took up the photographs at the scene of occurrence and body of the deceased through P.W. 14/Balu and sent the body of the deceased for autopsy through Constable/P.W.10. He thereafter recovered M.O.1/Mat, M.O.2/Blood stained Pillow, M.O.3/Blood stained saree worn by the deceased in the presence of P.W.6 and one Kalidass and prepared athachi/Ex.P.5 in the presence of witness. On the same day he recorded statements of P.W.1,2,6 and one Kalidass. On the same day on information arrested the accused at thoppu on the western side of Earkkad temple in the presence of Village Administrative Temple, Jeyakanthan/P.W.9 and Village Assistant, Saravanan/PW.5. During enquiry the appellant had confessed to have committed the murder and on his confession had recovered knife/M.O.4 used for murder. The admitted portion of confession statement is marked as Ex.P.13. The accused was sent to remand on the same day. After recording the statements of P.W. 12 completed the investigation and filed final report.

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28.The learned counsel appearing for the appellant while assailing the judgment of the trial Court would contend that the trial Court failed to take into consideration the contradictions and discrepancies in the prosecution witnesses more particularly P.W 1 the sole eye witness in this case. He also contended that taking into consideration the evidence of P.W.13 doctor who conducted post mortem has stated that the death would not have occurred as spoken by P.W.1 and the presence of P.W.1 at the time of occurrence is doubtful. He also contend that when there is no other eye witnesses to the occurrence other than P.W. 1 his evidence should be looked up with caution and it cannot be believed. The learned counsel also pointed out the contradictions in the evidence of PW2 and PW12 Sub Inspector of Police with regard to the manner and timing of registration of the F.I.R and the alleged presence of the policemen at the house of the accused in the early hours thereby raising doubts with regard to the genesis of the case. Further he also submitted that excepting brothers of deceased and all other independent witnesses have also not supported the case of prosecution. Having gone through the evidence we find that PW2 and his brothers are fishermen by profession and they are naïve persons and the contradictions in the evidence are not that material to affect the case of the prosecution.

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Having gone through materials available on record, we find that the evidence of P.W.1 is clear and cogent. He has vividly spoken about the incident. Admittedly It is a case of homicidal death and it has place inside https://www.mhc.tn.gov.in/judis

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the residential house. The accused is alleged to have committed the murder

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of his wife inside the house in the presence of P.W.1. The prosecution has succeeded by leading evidence by the Exhibits and Material Objects to show that the incident had happened inside the dwelling house where the husband also normally resides and that before the commission of crime the accused and the deceased were seen together. In such circumstances it had been consistently held that if the accused does not offer no explanation how the wife received injuries or if there is no explanation it is a strong circumstances which indicates that he is responsible for the commission of offence.

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The accused when questioned under Section 313 of Cr.P.C., had not offered any explanation for the same. As stated above though certain contradictions have been pointed out through evidence of P.W.2,P.W.4 and P.W.5 with regard to the arrival of police, those contradictions as stated above are not material contradictions which would affect the case of prosecution.

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31.The trial Court has rightly found that the appellant is responsible for the death of his wife. However alternate plea was put forth by the learned counsel for the appellant contending that as per the evidence of P.W2 when he had spoken to his sister the deceased over phone she is said to have told him that the relationship between her and her husband was cordial and subsequently as per the evidence of PW1 his parents were found https://www.mhc.tn.gov.in/judis

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watching TV together and the incident had occurred around midnight during the quarrel and the act of killing the deceased during the fit of anger in a heat of passion and verbal quarrel and there was no intention or premeditation on the part of the accused thereby his act would fall under Exception 4 of section 300 of IPC.

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In the present case while looking at the facts and circumstances of the case, it is the admitted case of P.W1 that in the previous night his father and mother were watching TV and that around 2.00 a.m., he woke up by crying of his sister and he had seen his father and mother fighting with each other and his father had taken knife and suddenly stabbed his mother. The weapon used is kitchen knife/M.O.1.The accused had also not acted cruelly.

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In this regard, it is useful to refer to judgment of the Hon'ble Apex Court in the case of Mariappan .Vs. State Rep. by the Inspector of Police reported in (2024)2 SCC 598 has held as follows:

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14. Having heard the arguments of both the parties, we find that the evidence presented before the trial court and the facts and circumstances of the case clearly establish beyond reasonable doubt that the wound caused by the appellant was the reason for the death of the deceased. The High Court also reaffirmed this observation that the injuries with soori-knife caused by the appellant were the reason for the death of the deceased

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15. Hence the only question that remains for consideration before

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us is whether the act of the accused is culpable homicide amounting to murder or not. In other words, the question is whether the acts of the accused would come under Exception 4 to Section 300IPC or would be an act of culpable homicide amounting to murder punishable under Section 302

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16. This Court in Rampal Singh v.State of U.P.[Rampal Singh v.State of U.P., (2012) 8 SCC 289 : (2012) 3 SCC (Cri) 860] , while altering the offence under Section 302 to Section 304 Part I IPC, has elaborately discussed the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder. What is held is that classification would be a matter of fact depending upon the evidence led in the trial. Broadly speaking, the factors to be considered are enumerated in para 25 thereof. The same has been reproduced below : (SCC p. 301, para 25)

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“25. As we have already discussed, classification of an offence into either part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premeditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view i.e. by applying the “principle of exclusion”. This principle could be applied while taking recourse to a twostage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, “culpable homicide amounting to murder”. Then secondly, it may proceed to examine

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if the case fell in any of the Exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused.”

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17. It would also be apt here to refer to the judgment of Surinder Kumar v.State (UT of Chandigarh)[Surinder Kumar v.State (UT of Chandigarh), (1989) 2 SCC 217 : 1989 SCC (Cri) 348] , wherein this Court had laid down the grounds to invoke Exception 4 to Section 300IPC : (SCC p. 220, para 7)

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“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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18. In the present case, while looking at the facts and circumstances of the case, it can be seen that the appellant had suddenly stabbed the deceased during a heated verbal argument with him and not during a pre planned attack which was carried out with the sole intention

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of causing the death of the deceased. The previous enmity between the appellant and the deceased had been a contributory factor leading to the verbal altercation but it was not the reason for the accused to carry out a pre planned fatal attack against the deceased. The appellant had acted “suddenly”, in the heat of passion and without a pre planned approach to kill the deceased.

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19. Right from the beginning i.e. the prosecution story as set up in the FIR was that initially there was a heated discussion between the parties and in a fit of anger the physical assault took place. Even the ocular testimony is also to the same effect. Although on the same evidence the trial court has acquitted the two co-accused and convicted only the appellant. It has also come in evidence that the appellant had caused only one injury whereas other accused had caused multiple injuries. However, the trial court acquitted the other two accused.

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20. Hence, it can be safely concluded from the evidence led in the present case that the appellant's overt act of killing the deceased happened during a fit of anger in the heat of a passionate verbal quarrel and would fall under Exception 4 to Section 300IPC. Moreover, the clear intent needed to prove culpable homicide amounting to murder has also not been established by the prosecution.

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Taking into consideration the totality of the facts and circumstances of the case, it is seen that the accused had stabbed the deceased suddenly during a quarrel and it is not a pre planned attack with the sole intention of causing death and thereby the case squarely falls within exception 4 to Section 300 IPC.

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https://www.mhc.tn.gov.in/judis

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20/22

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Crl.A.(MD) No.183 of 2020

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In view of the above the criminal appeal stands partly allowed. In

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the result, the conviction under Section 302 I.P.C is set aside. Instead the appellant is convicted under Section 304 Part II of IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2000/- in default to undergo rigorous imprisonment for a period of two months. The Trial Court is directed to secure the appellant / accused to enable him to serve the remaining period of sentence.

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[A.D.J.C.,J.] [K.R.S.,J.] 01 .08.2024

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Internet : Yes / No Index : Yes / No aav

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To:

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