M.Karpagavinayagam, J. - (1.) For having caused the death of his wife Yesammal, the appellant herein was convicted for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment and to pay a fine amount of Rs.500/-. Challenging the same, this Appeal has been filed.
(2.) The short facts of the prosecution case leading to the conviction are summarized as follows: "(a) The accused Sundar Raj is the husband of the deceased Yesammal. P.W.1 Jabamani is the father of the deceased. 12 years back, the deceased got married to the accused. Out of their wedlock, two sons were born. The deceased and the accused along with their children were living separately at Thanichiam and P.W.1 Jabamani, the father of the deceased was living with his family in Valiknokkam. (b) On 20-02-1998, the deceased Yesammal and the accused Sundar Raj along with their two children went to Valinokkam to visit P.W.1 Jabamani. They were staying for about two days. On 22-02-1998 at about 9.00 p.m., there was a wordy quarrel ensued between the accused and the deceased. On noticing the same, P.W.1 questioned the accused as to why the accused was using abusive words against the deceased. After pacifying both of them, P.W.1 went to Aadkidakai, where he used to take bed. At about 9.00 p.m., both the accused and the deceased took bed in the house. The accused did not sleep and he was restless. The deceased asked the accused to go for sleep. Within a few minutes, the accused took the axe M.O.1 and gave three cuts on the left and right hip as well as on her right elbow. When the deceased cried, the neighbours as well as P.W.1 came to the scene. The accused was found running away from the scene with M.O.1. Then, a van was arranged and the injured was taken to the Government Hospital, Ramanathapuram for treatment. (c) On 23-02-1998 at 1.25 a.m., the injured victim was admitted by P.W.7 Dr.Santhakumari. P.W.7 gave treatment and issued accident register Ex.P.8. Then, she sent an intimation Ex.P.16 to police and requisition to the Judicial Magistrate II, Ramanathapuram, to record dying declaration. On receipt of the same, on 23-02-1998 , P.W.15, Judicial Magistrate II, Ramanathapuram, came to the hospital and examined the deceased and recorded dying declaration in the presence of P.W.7 Dr.Santhakumari. The dying declaration is P.17, which was attested by P.W.7 certifying that the deceased was conscious. (d) On 23-02-1998, P.W. 11 Sub-Inspector of Police on receipt of the information went to the hospital at about 11.30 a.m. and obtained a complaint Ex.P.1 from P.W.1, since the deceased was unable to give statement. Then, he came back to the police station and case was registered for an offence under Section 307 I.P.C. The printed First Information Report is Ex.P.12. (e) P.W.16 Inspector of Police on receipt of the information took up investigation and went to the scene of occurrence. He prepared observation mahazar Ex.P.25 and drew rough sketch Ex.P.19. He recovered M.O.2 blood stained straw mat, M.O.3 blood stained earth and M.O.4 sample earth under a cover of mahazar Ex.P.2. Thereafter, he went to the Government Hospital and recovered M.O.8 blood stained nylon saree Ex.P.20 worn by the deceased. Then, he examined other witnesses. (f) On 24-02-1998, P.W.16 Inspector of Police arrested the accused at Valinokkam and in pursuance of his confession Ex.P.21, P.W.16 recovered M.O.1 axe under a cover of mahazar Ex.P.22. (g) In the meantime, P.W.9 Dr.Ravi Rajendran conducted operation on the deceased and gave treatment. On 1-3-1998, the deceased died at the hospital despite the best treatment. (h) The death intimation was received by P.W.16 Inspector of Police. Then, the case was altered into one under Section 302 I.P.C. Thereafter, he went to the hospital and conducted inquest over the body of the deceased and examined the witnesses. The inquest report is Ex.P.24. (i) As per the requisition, P.W.10 Dr.Rajeswari commenced post-mortem at 2.30 p.m. and found as many as three injuries on the body of the deceased. She issued post-mortem certificate Ex.P.11 and gave opinion that the deceased would appear to have died of septicemia due to multiple injuries. (j) P.W.16 thereafter arranged to send the material objects for chemical examination through the Court. He examined the other witnesses. After completion of the investigation, he filed the chargesheet against the accused for the offence under Section 302 I.P.C. (k) During the course of trial, on the side of prosecution, P.W.s 1 to 16 were examined, Exs.P.1 to P.25 were filed and M.Os. 1 to 8 were marked before the trial Court. (l) When the accused was questioned under Section 313 Cr.P.C. about the incriminating materials, he simply denied his complicity in the crime in question. He would further state that nothing was recovered from him and he did not give any confession and when he was in the house, police came and arrested him. (m) On consideration of the evidence available on record, the trial Court found the accused guilty of the offence under Section 302 of I.P.C. and sentenced him to undergo life imprisonment and to pay a fine amount of Rs.500/-. Hence, this Appeal.
(3.) Mr.A.D.Jagadish Chandira, the learned counsel appearing for the appellant would take us through the entire evidence and would submit that the materials available on record would not be sufficient to hold the accused guilty of the offence under Section 302 of I.P.C. Having perceived the difficulty in arguing the case for acquittal, the learned counsel, ultimately confined to the point relating to the nature of the offence. According to the learned counsel for the appellant, the occurrence had taken place out of a sudden provocation, since the accused had suspected the fidelity of the deceased and further, the death was not the direct result of the injuries caused by him and according to the doctor, death was due to septicemia and as such, the accused could not be convicted for the offence under Section 302 I.P.C. and he would be liable to the convicted for the offence either under Section 304 (i) or under Section 304 (ii) I.P.C.;