Judgment :- M. CHOCKALINGAM, J. Challenge is made to the judgement dated 14.10.2009 passed by the learned Additional District and Sessions Judge, Fast Track Court No.I, Erode in S.C. No.77 of 2009, whereby the sole accused stood charged, tried and found guilty for the offences under Sections 302, 309 of the Indian Penal Code and awarded life imprisonment and to pay a fine of Rs.500/- in default to undergo Rigorous Imprisonment for one year for the offence under Section 302 of the Indian Penal Code and to undergo Simple Imprisonment for one year for the offence under Section 309 of the Indian Penal Code. 2. The short facts necessary for the disposal of the case can be stated thus:- (i) P.W.1 is working as a Gardener in the Engineering College, which is situated in the jurisdiction of the respondent-police. The deceased Sudha is her daughter. P.W.1 desires her daughter to go for further studies. At that time, the accused made a request to the parents of Sudha that she should be married to him, but the parents of Sudha did not agree for the same. (ii) While the matter stood thus, on 18.4.2009 at about 6.30 a.m., when P.W.1 accompanied by the deceased Sudha went towards the fields within a part of the College campus to attend the natures call. At that time, the accused/appellant, who came with a knife, saying that "if she could not marry him, she should not live", stabbed her on various parts of her body. Thereafter, he took the poisonous substance from the bottle and ran away from the place of occurrence. This was witnessed by P.W.1, who accompanied the deceased and P.W.2 who came over there. P.W.2 Mani tried to chase him, but could not catch the accused. Immediately, the severely injured Sudha was taken in an auto, which was driven by P.W.5 auto driver, to K.M.C.H. Hospital at Perundurai. After examining her, P.W.9 Doctor attached to the Hospital informed that she was dead. (iii) On the same day at about 8 O clock, when P.W.8 was in the Hospital, the accused appeared before him and P.W.8 Doctor medically examined him and found that he consumed poison and gave treatment immediately. P.W.9 Doctor gave intimation to P.W.13 Judicial Magistrate for recording dying declaration. (iii) On the same day at about 8 O clock, when P.W.8 was in the Hospital, the accused appeared before him and P.W.8 Doctor medically examined him and found that he consumed poison and gave treatment immediately. P.W.9 Doctor gave intimation to P.W.13 Judicial Magistrate for recording dying declaration. P.W.13 rushed to the hospital and recorded the dying declaration Ex.P12 in the presence of P.W.8 Doctor after satisfying that he was mentally fit to give the dying declaration. (iv) When P.W.17 Sub Inspector of Police was in the respondent-police station, P.W.1 proceeded to the respondent-police and gave Ex.P1 complaint, on the strength of which a case in Crime No.41 of 2009 was registered for the offence under Section 302 of the Indian Penal Code and Express First Information Report Ex.P18 was despatched to the Court. (v) P.W.19 Inspector of Police took up investigation, proceeded to the place of occurrence, made an inspection and prepared Ex.P2 Observation Mahazar and Ex.P19 rough sketch. He also recovered blood stained earth M.O.9 and ordinary earth M.O.10, one pair of chappals M.O.5 series, plastic bottle M.O.11 under the cover of mahazar Ex.P3. He conducted inquest on the dead body in the presence of witnesses and the inquest report is marked as Ex.P20. Thereafter, the dead body was subjected to autopsy. P.W.10 Doctor attached to Perundurai Government Hospital conducted the post-mortem on the dead body and the post-mortem Certificate is marked as Ex.P9, where he has opined that the deceased died between 6 and 12 hours prior to autopsy due to shock and hemorrhage and due to the multiple injuries sustained by her. (vi) Pending investigation, the accused was arrested on 21.4.2009 at 9.10 hours. Pursuant to the same, the accused came forward to give confession statement voluntarily and the same was recorded in the presence of witnesses and the admissible portion of the same is marked as Ex.P10. Pursuant to the same, he produced M.O.1 knife and M.O.12 shirt and M.O.13 lungi and the same were recovered under the cover of mahazar Ex.P11 and thereafter, he was sent for judicial remand. All the material objects were sent to for chemical analysis. Chemical analysis report Ex.P16 and Serological report Ex.P17 were received. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. All the material objects were sent to for chemical analysis. Chemical analysis report Ex.P16 and Serological report Ex.P17 were received. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 19 witnesses and relied on 21 documents and also relied on M.Os.1 to 15. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinizing the materials available on record, found the accused guilty under Sections 302 and 309 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the accused, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case. In order to prove its case, the prosecution has marched over two witnesses who are P.Ws.1 and 2. Both the witnesses could not have seen the occurrence. Insofar as the evidence of P.W.2 is concerned, even according to the F.I.R., after the occurrence, immediately the accused/appellant took poisonous substance from the bottle. According to P.W.2, who has given statement to the effect that immediately after the accused stabbed the deceased, he ran away from the place of occurrence. This particular statement made in Ex.P1 by P.W.1 was not within the knowledge of P.W.2. Thus, it is quite clear that P.W.2 could not have seen the occurrence at all. 6. Learned counsel, pointing to the evidence of P.W.1, submits that P.W.1 could not have seen the occurrence at all. The occurrence has taken place within a short distance of the house of P.W.1, which is not far away. P.W.1 is the mother of the deceased. It is also stated that the accused/appellant originally made a demand for giving Sudha in marriage to him. Knowing about this, on the surmise that the accused would have killed her, P.W.1 had deposed like this. But she would not have witnessed the occurrence. Before accepting the evidence of P.Ws.1 and 2, a careful test has to be applied. It is also stated that the accused/appellant originally made a demand for giving Sudha in marriage to him. Knowing about this, on the surmise that the accused would have killed her, P.W.1 had deposed like this. But she would not have witnessed the occurrence. Before accepting the evidence of P.Ws.1 and 2, a careful test has to be applied. After applying the said test, neither the evidence of P.W.1 nor the evidence of P.W.2 can be believed. 7. Learned counsel added further that according to the evidence of P.Ws.8 and 9, who are working as Doctors in the very same Hospital at Perundurai, between 7.30 and 8.00 a.m. on 18.4.2008, P.W.8 has medically examined the accused and found that the accused had consumed poison. Pursuant to the same, an intimation was given to P.W.13 Judicial Magistrate, who came over there and recorded the dying declaration Ex.P12. At this juncture, pointing to this, learned counsel would submit that the accused was given treatment by P.Ws.8 and 9. It is claimed by the Investigator that the accused was arrested on 21.4.2009 i.e. after few days that too in a public place, following which the accused gave confession statement and all the material objects were recovered from him including the weapon of crime. The recovery of material objects from the accused is nothing but false. Thus, the prosecution has miserably failed to prove its case. 8. Learned counsel in the second line of arguments would submit that even before Ex.P1 complaint has come into existence, the accused/appellant was medically examined by P.Ws.8 and 9 Doctors at the Government Hospital, Perundurai on 18.4.2010 between 7.30 and 8 O clock. From the same, it is clear that the accused/appellant consumed poison and treatment was given, following the same, P.W.13 Judicial Magistrate was requested to record dying declaration and he also went to the Government Hospital, Perundurai and he recorded Ex.P12 dying declaration. It is true that the accused is surviving. But that would not nullify the dying declaration given by the accused. How the incident has happened was fully naratted even prior to the coming into the existence of Ex.P1, the complaint. 9. It is true that the accused is surviving. But that would not nullify the dying declaration given by the accused. How the incident has happened was fully naratted even prior to the coming into the existence of Ex.P1, the complaint. 9. A reading of Ex.P1 complaint would clearly indicate that the accused/appellant and the deceased were loving each other for a period of three years and at the time, when the demand was made for marriage, the parents of the deceased were not willing. On the date of occurrence, the accused/appellant went to the place of occurrence and asked the deceased to marry him. But she refused. Therefore, the accused got vexed since she loved him for a period of three years. When he said that he would consume poison, she replied that if he likes to do so, he could do so. Immediately, he took poison. Being provoked by the answer given by the deceased after loving for three years, it has reached the pitch, which culminated in the accused attacking the deceased, resulting in her death and hence the act of the accused cannot be said to be intentional or premeditated. In such circumstances, the act of the accused cannot be termed as murder, but only culpable homicide not amounting to murder. But the Trial Court has taken an erroneous view. This has got to be considered by this Court. 10. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the submissions made. 11. It is not in controversy that a girl by name Sudha, who is the daughter of P.W.1 was done to death in the incident that had taken place on 18.4.2009 at 6.30 a.m. at the place as put forth by the prosecution. After the inquest was made by P.W.19 Inspector of Police, the dead body was subjected to autopsy by P.W.0 Doctor, who has given categorical opinion in Ex.P10 post-mortem Certificate that the deceased would have died due to shock and hemorrhage and due to the multiple injuries sustained by her. The cause of death as putforth by the prosecution that the deceased died due to homicidal violence, was never the subject matter before the Trial Court by the accused and equally here also. 12. The cause of death as putforth by the prosecution that the deceased died due to homicidal violence, was never the subject matter before the Trial Court by the accused and equally here also. 12. In order to substantiate the case of the prosecution that it was the accused/appellant, who caused the death of one Sudha, the prosecution has marched over P.Ws.1 and 2 as eye witnesses. Insofar as P.W.1 is concerned, she is the mother of the deceased. It is pertinent to point out that merely because of the relationship of the witness to the deceased, the evidence of P.W.1 cannot be discarded. A careful scrutiny is necessary before accepting her evidence. Even after application of the said test, this Court is of the considered opinion that the evidence of P.W.1 had stood the test. 13. According to P.W.1, she is the mother of the deceased Sudha. She was living within the College campus. On the date of occurrence i.e. 18.4.2009 at about 6.30 a.m. she went with her daughter to attend natures call whereby the accused came over there and attacked her indiscriminately and within a short span of time, she succumbed to the injuries. 14. The evidence of P.W.2 also, despite cross-examination in full, stood the test. Insofar as the evidence of P.W.2 is concerned, the contention of the learned counsel for the accused/appellant that P.W.2 could not have seen the occurrence at all cannot be countenanced. According to P.W.2, he heard the distressing cry and he came nearby the place of occurrence and he saw the accused/appellant stabbing her. He has immediately attempted to catch him, but could not. All would indicate that when the occurrence is on, P.W.2 has witnessed the same. Under the circumstances, the evidence of P.W.2 stood fully corroborated with the evidence of P.W.1. 15. Apart from the above, the prosecution had the medical evidence, which stood full corroboration with the ocular testimony. However, insofar as recovery of M.Os. are concerned, this Court is unable to agree with the evidence as put forth by the prosecution. Under the circumstances, the evidence of P.W.2 stood fully corroborated with the evidence of P.W.1. 15. Apart from the above, the prosecution had the medical evidence, which stood full corroboration with the ocular testimony. However, insofar as recovery of M.Os. are concerned, this Court is unable to agree with the evidence as put forth by the prosecution. It is an admitted position that immediately after the occurrence, the accused went to the Government Hospital, Perundurai and he was treated by P.Ws.8 and 9 Doctors and P.W.13 Judicial Magistrate of Perundurai is also requested to record the Dying Declaration of the accused, which was also done, after certifying that he was fit enough to give Ex.P12 dying declaration. Under such circumstances, one would naturally expect the Medical officer to inform the police about the dying declaration. If to be so, the accused would have been arrested on the very day and not on 21.4.2009 as claimed by the Investigator. Therefore, once the factum of arrest as claimed by the investigator is not to be believed, the following confession statement and the recovery of weapon of crime have got to be rejected. 16. Though this part of arrest and confession statement and recovery of M.Os. are rejected, the prosecution had the evidence through P.Ws.1 and 2 supported by medical evidence. Under such circumstances, the Court is of the considered opinion that the prosecution had proved the factual matrix that it was the accused, who attacked the deceased and caused her death. 17. Insofar as the second line of argument is concerned, the Court is able to see force in the contention put forth by the learned counsel for the appellant. In the instant case, even as per the F.I.R., the accused made a demand to marry the deceased girl. The Court is able to see that the accused was loving the deceased for few years. He was under the impression that she also loved him. But, it was one side love. The accused made a demand to the parents to give her daughter to marry her under the impression that she also loved him. But the same was refused by them. He went to the place of occurrence not only with weapon of crime but also with poison filled up bottle. But, it was one side love. The accused made a demand to the parents to give her daughter to marry her under the impression that she also loved him. But the same was refused by them. He went to the place of occurrence not only with weapon of crime but also with poison filled up bottle. As could be seen from the statement given to the Judicial Magistrate P.W.13, the accused made a demand to the deceased, but she refused. At that time, he told her, he was to take poison. She did not worry about him. Under such circumstances, he was irritated by the words uttered by the deceased and stabbed her and caused her death. He has actually taken poison, following which he was given treatment by P.Ws.8 and 9 Doctors. Under such circumstances, the question is whether he took poison earlier to the occurrence or immediately after the occurrence? It is quite clear that before stabbing her, he told her, he would consume poison, if she would not marry him. But she did not care for it. Being irritated by the words utter by the deceased, he attacked the deceased and caused her death. Hence, the act of the accused cannot be said to be intentional or pre-meditated, but it would be one culpable homicide not amounting to murder and therefore, the act of the accused would attract the penal provision of section 304(II) of the Indian Penal Code and awarding punishment of 5 years igorous Imprisonment would meet the ends of justice. Insofar as second sentence imposed under Section 309 of the Indian Penal Code is concerned, it is reduced to 6 months Simple Imprisonment. Both the sentences have to run concurrently. 18. Accordingly, the conviction of the sentence imposed on the appellant under section 302 of the Indian Penal Code are modified and instead the appellant is convicted under section 304(II) of the Indian Penal Code and sentenced to undergo 5years Rigorous Imprisonment. The sentence imposed on the appellant under Section 309 of the Indian Penal Code is reduced to six months Simple Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. The fine and default sentence imposed by the trial court under Section 302 of the Indian Penal Code will hold good. 19. With the above modification in conviction and sentence, this criminal appeal is dismissed.