CHANDRAN Vs. STATE

JUDGEMENT

(1.) THE appellant is the sole accused in S. C. No. 285 of 1997 on the file of the Principal Sessions Court , Salem . This appeal is directed against the conviction and sentence of seven years imposed on the accused for the offence under Section 304 Part II IP C as per Judgment dated 23. 10. 1998.

(2.) THE facts led to the filing of this appeal are as follows:- " (a) P. W. 2-Thangam is the wife of the deceased Kaliyappa n. P. W. 3 is the sister of P. W. 2. P. W. 1 is residing in the opposite house of the deceased. For the past one year prior to the occurrence, the deceased and his wife P. W. 2 used to quarrel and accordingly they also quarreled on the day of occurrence at 4. 30 p. m. P. W. 1, who is residing opposite to the house of the deceased, P. W. 3 sister of P. W. 2 and p. W. 1's husband by name Karuppan , who died during the pendency of the case and one and half month before p. W. 1 gave evidence, went to the house of the deceased. THE accused also came there and questioned P. W. 1 and P. W. 3 and the husband of P. W. 1 as to why they have been keeping quiet even after seeing the quarrel between the deceased and his wife P. W. 2. During which time, the deceased pushed the accused out of his house by catching hold of his neck. Whereupon the accused picked up the stone-M. O. 1 from near the house of the deceased and threw the same, which hit on the deceased and thereby the deceased fell down. THE accused had run away from the occurrence place. THE matter was informed to the panchaya t President P. W. 4, who came to the scene of occurrence and sent the husband of p. W. 1, namely Karuppan to Karipatti Police Station, who gave the complaint Ex. P-6 to P. W. 7, the Sub Inspector of police attached to the said station. (b) On receipt of the complaint Ex. P-6, P. W. 7, the Sub inspector of Police attached to Karipatti Police station, registered case in Crime No. 733 of 1996 for the offence under Section 302 IP C. THE printed First Information Report is marked as Ex. P-5. Further investigation was taken up by P. W. 8, the Inspector of police attached to Karipatti Police Station. P. W. 8 upon taking up the case went to the scene of occurrence and prepared the observation Mahaza r Ex. P-1 and Rough Sketch Ex. P-7. He then conducted inquest on the body of the deceased in the presence of the panchayatdar s and the witnesses. THE inquest report is ex. P-8. THEreafter, he sent the body for post mortem to P. W. 5, the Doctor. (c) THE Doctor, P. W. 5, conducted autopsy on the body of the deceased and found the following injuries:- "1. Bruising on the front of left side of chest wall, 12 cms x 7 cms - Dark red. 2. Bruising of the 4th and 5th intercostal muscles, on the front of left side of chest, 4 cms x2 cms and 7 cms x 2 cms respectively Dark red. 3. Bruising of the upper part of lower lobe of left lung on the front, 8 cms x 5. 5 cms Dark red. 4 laceration of lower part of upper lobe of left lung, 2 cms x 2 cm x 1 cm with surrounding area bruising Dark red. Left side of thoracic cavity contains 400 ml of fluid blood with clots. Left lung is found collapsed. Right lung on cut section congested. Right side of thoracic cavity empty.

(3.) THE learned counsel for the appellant for the accused in taking this Court through the entire evidence argued that even an offence under Section 304 Part-II IPC is not attracted and at best only an offence under Section 324 IPC will be attracted since the ingredients of Section 304-II IPC is not made out. It is further submitted by the learned counsel that in trying to mediate the quarrel between the deceased and his wife P. W. 2, since the accused was pushed outside the house of the deceased, in a heat of passion the accused attacked the deceased with M. O. 1-stone without any intention to cause bodily injury likely to cause death. THE learned counsel also referred to the evidence relating to P. W. 1 to P. W. 3 with regard to the occurrence and also the injuries spoken to by the post-mortem Doctor P. W. 5 and the injuries noted by the Doctor found in the post-mortem certificate Ex. P-4.