D.Sudha v. State By

Bail Slip The Appellant/Accused viz., D.Sudha, was already directed to be released on bail in and by the Order of this Court dated 01/12/2010 and made in MP.No.1/2010 in Crl.A.No.699/2010.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 19.06.2019

CORAM

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA Crl.A.No.699/2010 D.Sudha ..

Appellant / Accused Vs State rep.by:

The Inspector of Police Keelaiyur Police Station Nagapattinam District.

[Crime No.94/2007] ..

Respondent Prayer:- Criminal Appeal filed u/s.374[2] Cr.P.C., to set aside the judgment of conviction and sentence dated 27.10.2010 imposed on the appellant in SC.No.40/2008 on the file of the learned Sessions Judge, Nagapattinam and acquit the appellant/accused. For Appellant :

Mr.S.K.Subramanian For Respondent :

Mr.K.Prabakar, APP

JUDGMENT

This Criminal Appeal is filed against the judgment of conviction and sentence, dated 27.10.2010 made in SC.No.40/2008 by the learned Sessions Judge, Nagapattinam. The appellant stood charged and tried for the commission of the offence under section 302 IPC and the Trial Court, vide impugned judgment dated 27.10.2010, had found the appellant/accused guilty for the offence under section 304[Part II] IPC and convicted and sentenced her to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5000/-, in default, to undergo one year simple imprisonment.

The case of the prosecution as per the charge sheet filed by the Inspector of Police, Keelaiyur Police

Station, the respondent herein, is that the appellant/accused Sudha and the deceased Murugaiyan are the residents of Erikarai Street, Karai Nagar, Tirupoondi. The land measuring 40 Kuzhi, was pledged for Rs.150/- by one Gopal, father-in-law of the deceased Murugaiyan to one Dhanapal, father of the appellant/accused and the said Dhanapal was in occupation and enjoyment of the said land. The land was situate behind the house and in between the lands of the deceased Murugaiyan. The deceased Murugaiyan had attempted to redeem the land from Dhanapal - father of the appellant/accused. But, the said Dhanapal had refused to return the property and therefore, there existed an enmity between the families of the deceased Murugaiyan and Dhanapal.

While so, three days prior to the occurrence, the appellant/accused had cut the branches of acacia trees which stood on the Southern side of the said land and thereafter, on the date of occurrence, i.e., on 24.04.2007, at about 7.00 a.m., the appellant/accused had tried to remove the branches already cut by her and the deceased Murugaiyan objected to, due to which, there ensued a wordy altercation between the deceased and the appellant/accused. During the quarrel, the appellant/accused, with an intention of causing the death of Murugaiyan, fisted him on the chest, as a result of which, the said Murugaiyan had fallen down.

Thereafter, the appellant/accused had sat on the stomach of Murugaiyan and beat him on his chest with hands knowing well that it is likely to cause the death of Murugaiyan. Murugaiyan died due to shock and haemorrhage due to the injuries on the vital organ. The charge sheet was filed against the appellant/accused for the offence punishable under section 302 IPC.

The case was taken on file in PRC No.9/2007 on the file of the Judicial Magistrate No.2, Nagapattinam and subsequently, the case was made over to the Trial Court, viz.,the learned Sessions Judge, Nagapattinam, in SC.No.40/2008 and necessary charge was framed. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the prosecution examined PW.1 to PW.11 and also marked Exs.P1 to P16. No oral and documentary evidence was let in on the side of the defence. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313[1][b] Cr.P.C as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused has come with the version of total denial and stated that she has been falsely implicated in this case.

The Court below, after hearing the arguments advanced on either side and also looking into the materials available on record, acquitted the appellant/accused for the

offence under section 302 IPC and however, found her guilty for the commission of the offence under section 304[Part II] IPC and awarded punishment, as referred to above, which is challenged in this Criminal Appeal.

The facts of the prosecution, as culled out from the evidence let in before the Trial Court, are as follows:- (1) P.W.1-Kasiyammal / defacto complainant is the wife of the deceased Murugaiyan and P.W.2-Vijayakumari is the daughter of P.W.1 and the decesaed Murugaiyan. They are the residents of Erikarai Street, Karai Nagar, Thirupoondi. She had deposed that an extent of 100 Kuzhi of lands belonged to one Nagamuthu, junior paternal father of the deceased Murugaiyan. The father of the appellant/accused had paid a sum of Rs.150/- to the said Nagamuthu and had taken possession and was enjoying the land belonging to the deceased family. The deceased Murugaiyan had asked for the return of the land, due to which, there was a dispute and enmity between the families of the deceased and the appellant/accused. She had further deposed that on 24.04.

2007, at about 8.30 a.m., the deceased had come to his house for having food and returned to the field which was situated just behind his house. At that time, he had seen the appellant/accused cutting the thorny bushes and objected the same, due to which, there ensued a quarrel. The appellant/accused had fisted on the deceased and he fell down. Thereafter, she had sat on the deceased and punched him on his chest. The above occurrence was witnessed by P.W.2-Vijayakumari/daughter of P.W.1 and the deceased and also by P.W.3-Mariyappan and P.W.4-Gopi who are the residents of the same Village and neighbours of the deceased Murugaiyan.

(2) P.W.2-Vijayakumari, daughter of P.W.1 and the deceased Murugaiyan, had deposed about her witnessing the occurrence said to have happened on 24.04.2007 at about 7.00 a.m. and the appellant/accused running away from the scene of crime by saying ''I have killed him''. She had further deposed about taking her father/deceased to the hospital and also accompanying her mother [P.W.1] to the police station to prefer a complaint. She had also deposed about the enmity that existed between her family and the family of the appellant/accused with regard to 100 Kuzhi of land and that she had attested the Inquest Report under Ex.P.2. (3) P.W.3-Mariyappan, a resident of Karai Nagar, had deposed that on 24.04.2007, while he was having bath in the pond situate near the house of the deceased Murugaiyan, he had

seen the quarrel that took place between the deceased and the appellant/accused and subsequently, the deceased falling down on account of fisting by the appellant/accused. He had further deposed that the appellant/accused sat on the chest of the deceased and punched him and thereafter, ran away from the scene of occurrence. P.W.3 had also deposed that witnesses, viz., P.Ws.1, 2, 4 and one Neethipathi, also rushed to the scene of occurrence and the deceased Murugaiyan was taken to the Government Hospital at Nagapattinam, in an auto by P.Ws.1 to 3 and one Kumar, brother of P.W.3. P.W.3 had attested the Inquest Report under Ex.P.3.

(4) P.W.4-Gopi had deposed that he had seen people gathering in the place of occurrence and had also seen the appellant/accused running away from the place, saying that ''I have killed him''. Immediately, P.Ws.1 to 3 and others had taken the victim to hospital, where the doctor, who examined him, declared him dead.

(5) P.W.5-Gunasekaran was the witness to the preparation of Observation Mahazar under Ex.P.5. P.W.6-Premaboi, was the Headmistress of the Government High School at Tirupoondi at the relevant point of time and she had issued the Certificate under Ex.P.6 regarding the age of the appellant/accused at the time of occurrence. She had also deposed that the appellant/accused was studying 9th standard during the year 2003-2004 and that her Date of Birth was 15.06.1985.

(6) P.W.7-Dr.Ramesh Babu, Civil Surgeon attached to the Government Hospital at Nagapattinam at the relevant point of time, had deposed that he had examined the deceased Murugaiyan on 24.04.2007 at about 8.25 a.m. and declared that he was brought dead. He had sent the body to Mortuary for postmortem and also given intimation to the police. He issued the Death Intimation under Ex.P.8 and the Accident Register under Ex.P.8.

(7) P.W.9-Velayutham had deposed about the arrest of the accused and affixing his signature under Ex.P.13, in the admissible portion of the confession statement of the appellant/accused.

(8) P.W.10-Selvamani, Head Constable attached to the respondent Police Station had deposed about handing over the FIR under Ex.P.14 and the complaint under Ex.P.1 to the Judicial Magistrate Court.

(9) P.W.11-Rajendran, Inspector of Police attached to the

respondent Police Station had deposed that on 24.04.2007, at about 8.30 a.m., he received the intimation from the Government Hospital, Nagapattinam and went to the hospital and recorded the statement of P.W.1-wife of the deceased Murugaiyan ; returned to the Police Station and registered a case in Crime No.94/2007 for the offence under section 302 IPC. Ex.P.14 is the FIR. He sent the complaint [Ex.P.1] and FIR [Ex.P.14] to the Court concerned through the Head Constable. Thereafter, he went to the hospital at about 10.00 a.m., on the same day and held inquest on the dead body of the deceased in the presence of Panchayatdars and witnesses and prepared the Inquest Report under Ex.P.15 and sent the body for postmortem along with a requisition [Ex.P.9].

(10) P.W.8-Dr.J.J.Lankaram, was the Assistant Medical Officer at District Headquarters Government Hospital at Nagapattinam and he had deposed that on 24.04.2007, he received the requisition through one Arumugam, Head Constable for conducting postmortem on the body of Murugaiyan and commenced the same at about 4.45 p.m., on the same day. He found the following injuries:- External Injury:- An abrasion of size 1x0.5cm present in left cheek. No discharge from ear, nose and mouth jaws clenched. Tongue inside the mouth.

Internal Appearance:- Thorax - well formed, no fracture ribs. Heart - weight 350 gm. C/s.Chamber contains blood. Lungs weight right 450 gms - Left 400 gms. C/s.Pale. A contusion of size 2x2 cm in base of right lung. Hyoid bone intact. Abdomen - Distended. Blood present in the peritoneal cavity. Retro Peritoneal haematome present. Liver weight 1500 gm. A laceration of size 6x2x2cm present in the posterior aspect of right lobe of liver - c/s pale. Spleen - 180 gm weight. C/s.Pale. A Haematoma of size 2x1 cm in head of pancreas. Kidneys each weighing 150 gms c/s. Pale.''

Ex.P.9 is the Postmortem Certificate. He had preserved the viscera and sent the same to the Forensic Lab and after the receipt of Viscera Report [Ex.P.11], P.w.8 had opined that the deceased would have appeared to have died of shock and haemorrhage due to the injury sustained in the vital organ.

(11) P.W.11-the Investigating Officer, had proceeded with the further investigation and went to the scene of occurrence and prepared the Observation Mahazar [Ex.P.5] and a Rough Sketch [Ex.P.17] in the presence of P.W.5 [Gunasekaran] and on Neethipathi. He also recorded the statements of the witnesses. On 25.04.2007 at about 11.00 a.m., he effected the arrest of the appellant/accused in the presence of P.W.9-Velayutham and one Tamizhselvam and recorded her

confession statement.

Thereafter, he sent the appellant/accused to judicial custody. After completion of the investigation, he laid the charge sheet against the appellant/accused for the offence u/s.302 IPC on 02.06.2007. The Trial Court, on consideration and appreciation of the oral and documentary evidences and other materials, had convicted and sentenced the appellant/accused as stated above and hence, this appeal.

The learned counsel for the appellant/accused, while assailing the impugned judgment of conviction and sentence, made the following submissions:- a) The conviction and sentence imposed by the learned Trial Judge against the appellant on 29.07.2010 in SC.No.28/2010 is illegal and contrary to the evidence before the Court. b) The Trial Court having disbelieved the evidence of P.Ws.1 and 2, ought to have disbelieved the evidence of P.Ws.3 and 4 also.

c) There was pre-existing enmity between the families of the deceased and the appellant/accused with regard to a land and further, there also existed an enmity between P.W.3 and the father of the appellant/accused and when such being so, the Trial Court ought not to have given credence to the evidence of P.W.3, who is an interested witness, for convicting the appellant/accused.

d) It is the admitted case of the prosecution that the deceased Murugaiyan is a chronic alcoholic for 30 years and that, even as per the evidence of P.W.8, the doctor who conducted the Postmortem, the death of the deceased could have been due to alcoholism and that there is a possibility that the deceased could have been affected by the disease called ''Pantriatitis'' and that there is also a possibility of the liver getting injured and the doctor had specifically stated no reasons for such injury being found in the deceased. P.W.8-Doctor also stated that there is a possibility that the death could have happened at 4.45 a.m., on 24.04.2007, which would suggest that the witnesses could not have seen the occurrence at all as spoken by them and that the appellant/accused was falsely implicated due to the pre-existing enmity and animosity between the parties.

e) The occurrence is stated to have happened in the middle of the village where there are other houses ; but the prosecution has failed to examine any independent witnesses, more specially, the witnesses mentioned in the FIR, have been omitted to be examined for no reason. If the persons whose names are mentioned in the FIR have been examined, the real fact would have come to light. f) There is an inordinate and unexplained delay in FIR

reaching the Court concerned. Though it is an admitted evidence of P.W.10, the Head Constable who had taken the FIR to the Court, that he had received the passport along with FIR at about 12.00 p.m. on 24.04.2007 and the distance between the police station and the jurisdictional Court is only 25 Km and the travelling time is only half-an-hour. He would submit that there are frequent buses between Keelaiyur and Nagapattinam and in such circumstances, the unexplained delay in the FIR reaching the Court, creates a doubt in the entire case of the prosecution.

g) Further, the statements of the witnesses recorded under section 161 Cr.P.C., and the other documents relating to the case, were sent to the Magistrate Court concerned, with a great delay, creating a grave doubt in the prosecution case.

The learned counsel for the appellant/accused, apart from pointing out the above infirmities in the prosecution case, would in the alternate, submit that as per Ex.P.15-Inquest Report, the reason for the incident is stated to be that the deceased Murugaiyan said to have abused the appellant/accused in filthy language and also sexually abused her, which provoked her, as a result of which, she had pushed him down and that the deceased, who was already a chronic alcoholic for more than 30 years and whose health condition was affected due to his alcoholism, had fallen down and died.

He would further submit that the act of the appellant/accused was not done either with the knowledge that it was likely to cause the death or that she had any intention to cause the death or cause such bodily injury as is likely to cause death and it was only due to quarrel and the provocation by the deceased Murugaiyan abusing her in filthy language and attempting to assault her. Further, the medical evidence is not conclusive that the death of the victim was only due to the assault by the appellant/accused and thereby, the act of the appellant/accused will not come within the ambit of section 340[Part II] IPC when it is neither done with knowledge nor with any intention to cause death or cause such bodily injury as is likely to cause death.

He would also submit that the appellant/accused had already suffered 50 days of incarceration and taking into consideration, the plight of the appellant/accused who was 21 years old at the time of occurrence, prayed that this Court may modify the sentence to one of period already undergone.

The learned counsel for the appellant/accused, in support of his contentions, has placed reliance on the following decisions:- A) AIR 1976 SC 2423 [Ishwar Singh Vs. State of U.P.] B) AIR 1980 SC 638 [Marudanal Augusti Vs. State of Kerala] C) AIR 1981 SC 1230 [Sevi and Another Vs. State of Tamil Nadu

and another] D) 2001 [3] SCC 620 [Sohan and Others Vs. State of Haryana and another].

E) AIR 2003 SC 1813 [Rajeevan and Another V. State of Kerala] F) 2016 [13] SCC 333 [Baby Alias Sebastian and another V. The Circle Inspector of Police, Adimaly].

Per contra, Mr.K.Prabakar, learned Additional Public Prosecutor appearing for the respondent/State would submit that the prosecution has proved its case beyond all reasonable doubt and would further submit that though the Trial Court has not believed the evidence of P.Ws.1 and 2, the prosecution has proved its case through the evidence of P.Ws.3, 4 and 7. The learned Additional Public Prosecutor submitted that the delay in despatching the FIR to the Court concerned, as alleged by the learned counsel for the appellant/accused, is not that serious as the case was registered around 12.00 Noon on 24.04.2007 and the FIR had reached the Court on the same day at 6.00 p.m. He would further submit that the infirmities pointed out by the learned counsel for the appellant/accused are trivial in nature and further, in the cross examination of P.W.

11-Investigating Officer, the appellant/accused has confirmed her presence at the scene of occurrence and having assaulted the deceased and thereby, the Trial Court, on proper appreciation of both oral and documentary evidence, had rightly convicted the appellant/accused and that the impugned judgment of the Trial Court does not warrant any interference at the hands of this Court and prays for dismissal of this criminal appeal. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgement of conviction, including the relevant provisions of Law and authorities of various Courts.

Point for Consideration:- [1] Whether the prosecution has proved the guilt of the appellant/accused beyond all reasonable doubt ? ; and [2] Whether the judgment, impugned herein, warrants interference ?

It is the admitted case of the prosecution that there existed enmity between the families of the deceased Murugaiyan and the appellant/accused with regard to the possession and occupation of a land. This aspect has been categorically spoken to by P.Ws.1 and 2, who are, respectively the wife and daughter of the deceased.

On a careful perusal of the evidence placed before this Court, it could be seen that there is an inordinate delay in despatching the FIR to the jurisdictional Court concerned. It is the evidence of P.W.1 in the cross-examination that she went to the respondent police station along with her daughter/P.W.2 at about 9.00 a.m., on 24.04.2007 and given a complaint under Ex.P.1. This fact has also been categorically admitted by P.W.2. The distance between the Police Station and the jurisdictional Court is only about 25 Km and it would hardly take half-an-hour to one hour to reach the Court. However, the FIR had reached the Court only at 6.00 p.m., on 24.04.2007 with an inordinate and unexplained delay. The evidence of P.W.10Head Constable in this regard, assumes importance as he has clearly stated that he had handed over the FIR to the Magistrate concerned only at 6.00 p.m., on the same day though he had received the passport and FIR at about 12.00 Noon itself. Hence, the delay in sending the FIR to the Court concerned casts doubt on the case of the prosecution case.

Next comes the contradictions in the evidence of P.Ws.1 and 2 with regard to the lodging of the complaint before the respondent police. It is the categorical and specific evidence of both P.Ws.1 and 2 that after admitting the victim Murugaiyan in the Government Hospital at Nagapattinam, they went to the respondent Police Station at about 9.00 a.m., and P.W.1 gave a oral complaint which was reduced into writing by the official in the police station under Ex.P.1 and that she had affixed her thumb impression in the said complaint. P.W.2 also affirmed this factum of lodging the complaint by her motherP.W.1. In the cross-examination, P.W.2 had specifically stated that her mother/P.W.1 did not give any complaint in the hospital. Whereas, it is the categorical admission of the Investigating Officer-P.W.

11 that on receipt of the intimation from the hospital, he went to the hospital at about 8.30 a.m. on 24.04.2007 and recorded the statement of P.W.1 and thereafter, returned to the police station and registered the case in Crime No.94/2007 for the offence u/s.302 IPC. This creates a grave doubt as to the genesis of the complaint.

Though the above discrepancies affects the case of the prosecution at the very threshold itself, it is to be seen whether the prosecution has proved the overt act attributed against the appellant/accused?

The existence of previous enmity between the families of the deceased and the appellant/accused with regard to pledging of the land by one Nagamuthu, the junior paternal uncle of the deceased with one Dhanapal, father of the appellant/accused for Rs.150/- and the refusal of returning the

land by the said Dhanapal to the deceased family, has been clearly spoken to by P.Ws.1 to 3. Three days prior to the occurrence, the appellant/accused had cut the thorny bush in the land in question and kept it in the said land and on the date of occurrence, i.e., on 24.04.2007, when the appellant/accused attempted to remove the said thorns from the field, the deceased Murugaiyan objected to the same by abusing the appellant/accused in filthy and bad language and hence, there ensued a quarrel between them. Upon provoked by the abusive words of the deceased, the appellant/accused had pushed the deceased and sat on him and repeatedly beat him on his chest. This quarrel and the subsequent incident were witnessed by P.Ws.3 and 4 who were taking bath in the nearby pond.

Though the defence had raised various suspicions with regard to the registration of the FIR and with regard to the witnesses having witnessed the occurrence, while cross-examining the appellant/accused, P.W.11Investigating Officer had asserted and confirmed the incident by suggesting that the occurrence had happened during a sudden quarrel, on being provoked by the deceased.

Now, having confirmed the occurrence and assault, this Court has to decide as to whether the act of the appellant/accused comes within the ambit of section 304 [Part II] IPC for convicting her?

Section 304 IPC reads thus:-

304. Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Part[II]:-'whoever commits culpable homicide not amounting to murder shall be punished with an imprisonment of either description for a term which may extend to 10 years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without

any intention to cause death, or to cause such bodily injury as is likely to cause death. '' A careful reading of the above section coupled with a thorough scanning of the evidence on the side of the prosecution, would go to show that it was the deceased Murugaiyan who had quarreled with the appellant/accused and the appellant/accused, being a young lady at the age of 21 years at the time of occurrence, being provoked by the filthy words used by the deceased, had assaulted him. Hence, this Court is of the view that the prosecution has proved that it was the appellant/accused who had attacked the deceased Murugaiyan and the Trial Court was right in finding that the appellant/accused had committed the act. Further, it is the evidence of the other witnesses that after the incident, the appellant/accused fled away from the scene of occurrence stating that she had done away with the deceased. Hence, this Court confirms the finding of the Trial Court that the appellant/accused is guilty of having caused the death of the deceased Murugaiyan.

However, it has to be seen whether the appellant/accused either had the knowledge or intention to cause the death of the deceased?

The Hon'ble Supreme Court of India, in the decision reported in 1993 SCC Online AP 253 : 1994 Cri.LJ 1146 [Bellana Kannam Naidu V. State of Andhra Pradesh], has held in paragraph No.9 that:- ''9 The only question which, however, falls for determination is the nature of the offence committed by the accused. It may be recalled that the accused wanted to take the plots of land allotted to his father and was demanding to part with the same. On the fateful day the accused went to the house of the deceased and renewed his demand.

Thereafter there was altercation between the two and thereupon the accused brought a stick and dealt blows on the head of the deceased. Undoubtedly, the attack on the deceased was not a premeditated one. We have scanned the entire evidence of the prosecution and we are not convinced that the accused attacked the deceased with the intention of causing the death or with the intention of causing such bodily injury to cause the death of the deceased or that he intended to cause such bodily injury as is sufficient in the ordinary course of nature to cause death or that he knew that the act committed by him was so imminently

dangerous that it would, in all probability, result in the death of the deceased.....''

In the decision reported in 2012 [2] SCC 648 [Alister Anthony Pareira Vs. State of Maharashtra], the Hon'ble Supreme Court has held in paragraph No.40 that:- '40 Indictment of an accused under section 304 Part II and section 338 IPC can coexist in a case of single rash or negligent act. The two charges are not mutually destructive. If the act is done with the knowledge of the dangerous consequences which are likely to follow and if death is caused then not only is the punishment for the act but also for the resulting homicide ; and a case may fall within section 299 or section 300 depending upon the mental state of the accused, viz., as to whether the act was done with one kind of knowledge or the other or with intention. Knowledge is awareness on the part of the person concerned of the consequences of his act of omission or commission indicating his state of mind. There may be knowledge of likely consequences without any intention.

Criminal culpability is determined by referring to what a person with reasonable prudence would have known.''

From the perusal and consideration of the evidence placed, this Court is of the opinion that there is room to take the view that the act of the appellant/accused would attract section 323 IPC which would apply more appropriately to the facts established by the evidence rather than section 304 [Part II] IPC. Section 304 [Part II] IPC applies where culpable homicide not amounting to murder has been committed if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. Here in the instant case, there could be no intention or knowledge on the part of the appellant/accused either to cause death of the deceased Murugaiyan or to cause such bodily injury as was likely to cause the death.

From the perusal of the evidence it is seen that the entire occurrence had taken place at the spur of the moment without any premeditation and that too, due to the provocation made by the deceased and that the appellant/accused was enraged by the disparaging remark passed by the deceased. Section 323 IPC provides punishment for voluntarily causing hurt.

nature of the injuries that were found to have been suffered by the deceased Murugaiyan, the conclusion is inevitable that by giving fist and kick blows, the appellant/accused had voluntarily caused hurt inasmuch as the hurt caused, endangered the life of the deceased. Further, the deceased Murugaiyan is an alcoholic for about 30 years and this fact has also been spoken to by his wife [P.W.1] and daughter [P.W.2]. Hence, the internal organs of the deceased would have been affected due to alcoholism and when the appellant/accused pushed him down, he fell down and died. Excepting an abrasion measuring 1x0.5cm, there is no other external injury. The doctor, who conducted the postmortem, viz., P.W.8, in his cross examination had deposed that the internal organs would get affected on continuous intake of alcohol and there is a possibility that the internal organs of the deceased might have been affected due to alcohol. According to the doctor, there is no external injuries on the body of the deceased.

This Court, on thorough consideration of the facts and materials placed and also the decisions of the Hon'ble Apex Court [cited above], is of the view that the appellant/accused had no knowledge or intention that her act would cause the death of the deceased or would cause such other bodily injury as is likely to cause the death.

Considering the facts and circumstances of the case and the plight of the young lady, this Court is of the considered view that altering the conviction from the offence punishable under section 304 [Part II] IPC to the offence punishable under section 323 IPC and awarding the sentence to one of period already undergone by her, would meet the ends of justice.

Accordingly, the criminal appeal is PARTLY ALLOWED and the conviction imposed by the Trial Court on the appellant/accused for the offence u/s.304[Part II] IPC in SC.No.40/2008 vide impugned judgment dated 27.10.2010 is hereby modified to one under section 323 IPC and the sentence awarded by the Trial Court is also modified to one of the period already undergone by her. Bail bond if any, executed by her shall stand discharged. Fine amount stands confirmed.

Sd/- Assistant Registrar(CS-VI) // True Copy// Sub Assistant Registrar AP

To:

1.The Sessions Judge Nagapattinam.

2.The Principal District and Sessions Judge Nagapattinam.

3.The Chief Judicial Magistrate Nagapattinam.

4.The Judicial Magistrate No.2 Nagapattinam.

5.The Inspector of Police Keelaiyur Police Station Nagapattinam District.

6.The Public Prosecutor, High Court, Madras.

+1cc to Mr.MK.Subramanian, Advocate, SR.No.50041. Judgment in Crl.A.No.699/2010 BP (CO) CSR(10/12/2019)