IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 1-12-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.615 of 2010 Venkatesan .. Appellant vs State rep. By Inspector of Police Madhavaram Milk Colony Police Station Chennai 51 Crime No.3 of 2007 .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional District Judge, Fast Track Court No.III, Tiruvallur, made in S.C.No.193 of 2007 dated 3.5.2010. For Appellant : Mr.G.Karthikeyan For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.III, Tiruvallur, made in S.C.No.193 of 2007 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty of murder and awarded life imprisonment along with a fine of Rs.25000/- and default sentence.
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the brother; P.W.2 is the father and P.W.3 is the mother of the deceased Bhuvaneshwari. She was given in marriage to the accused/appellant. P.W.1 along with the family members was residing in MMDA Colony. The wife of the accused/appellant developed intimacy with P.W.6, and they were exchanging messages. This came to the knowledge of the accused/appellant. He not only rebuked her, but also brought it to the notice of the parents. On the previous occasion, she put a phone call to P.W.6 and called him that night. When he refused, she threatened that if he did not come, she would commit suicide. Under the circumstances, he came over there and stayed with her, and this was seen by the accused/appellant. Immediately, he sent her out, and she came to the mother’s house and was staying over there. The next day i.e., 3.1.2007, P.Ws.1 and 2 and others went to his house, appealed to him and requested him to pardon her. But, he was not amenable. Then it was decided to get a divorce in the Court of law.
(b) On 4.1.2007 at about 4.30 P.M., P.Ws.1 and 2 were in the house, and P.W.3 went to the nearby relative’s house. At that time, the accused came over there and informed that he was to take her. Then both of them went to the nearby bedroom and locked the same inside. After sometime, they heard the distressing cry. Then P.Ws.1 and 2 broke open the door. When they got entry through the hole made therein, they found the accused/appellant squatting on her chest and go on stabbing her instantaneously. When both of them entered in to the room, the accused fled away from the place of occurrence with the weapon of crime. P.Ws.1 and 2 came out, and P.W.1 rushed to the nearby relative’s house and informed to P.W.3. Then P.W.3 came to the house. Thereafter, P.W.1 rushed to the respondent police station and gave Ex.P1, the report, on the strength of which P.W.12, the Sub Inspector of Police, registered a case in Crime No.3 of 2007 under Sec.302 IPC. The printed FIR, Ex.P8, was sent to the Court.
(c) P.W.13, the Inspector of Police of the Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P3. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P10. The photographs were taken which are marked as M.O.7 series. He also collected the material objects from the place of occurrence under a cover of mahazar. The dead body was sent to the Government Hospital for the purpose of autopsy.
(d) P.W.11, the Professor and H.O.D., Department of Forensic Medicine, Stanley Medical College and Hospital, Chennai, on receipt of the requisition, has conducted autopsy on the dead body of Bhuvaneshwari and found 28 injuries which are narrated in the postmortem certificate, which is marked as Ex.P7, wherein he opined that she would have appear to have died of shock and haemorrhage due to multiple stab injuries.
(e) Pending the investigation, the accused was arrested when he came forward to give a confessional statement voluntarily, and the same was recorded in the presence of witnesses. The admissible part of the confessional statement is marked as Ex.P6, pursuant to which he produced M.O.1, knife, and other material objects, which were recovered under a cover of mahazar. Then he was sent for judicial remand. All the material objects were subjected to chemical analysis which resulted in Ex.P11, the chemical analyst’s report. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charge was framed. In order to establish the charge, the prosecution marched 13 witnesses and also relied on 11 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. Though not examined any witness, the defence relied on five documents which are marked as Exs.D1 to D5. On completion of evidence on both sides, the trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded the above punishment which is the subject matter of challenge before this Court.
4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.G.Karthikeyan would submit that in the instant case, the prosecution has miserably failed to prove its case; that the prosecution marched 2 witnesses who are P.Ws.1 and 2; that they are the brother and father of the deceased Bhuvaneshwari respectively. At this juncture, the learned Counsel cautioned the Court as to the legal position that they are the close relations of the deceased and would submit that in such circumstances, their evidence before acceptance must be subjected to careful scrutiny test. He would further submit that if their evidence is subjected to careful scrutiny test, their evidence cannot stand the test; that P.W.1 has categorically stated that they broke open the door and got entry into the room; and that P.W.13, the Inspector of Police, has categorically stated that through that hole, one could not make entry.
5.The learned Counsel would further add that according to P.W.1, he chased the appellant/accused, but he could not catch him, and he ran away, and thereafter he informed to P.W.3, who was in the nearby relative’s house; but, on the contrary, P.W.3 would say that she was actually proceeding on the way, and at that time, P.W.1 ran in anxiety and informed her; and that as far as P.W.2 is concerned, when it is viewed from the evidence of P.W.1, it cannot be taken as a corroborative piece of evidence.
6.Added further the learned Counsel that P.W.1 has deposed that when he came to the place of occurrence before he went to the police station, there was a Constable in the house; that the same would clearly be indicative of the fact that the information reached the police even before that and that was the first information, but it was suppressed by the prosecution; that P.W.2 did not know when the police came to the place; and that it would be clearly indicative of the fact that he could not have seen the occurrence at all.
7.The learned Counsel would further submit that in the instant case, according to P.W.4, who is the younger brother of P.W.2, the police was informed immediately, and he came to know that the police personnel came to the place; and that all would be indicative of the fact that the occurrence has actually not taken place as put forth by the prosecution.
8.Pointing to Ex.P2, the observation mahazar, and also the recovery of the material objects from the place of occurrence, the learned Counsel would urge that a document for divorce was actually introduced subsequently; and that there was an interpolation in the document. In order to substantiate the same, the learned Counsel took the Court to the copy of the document served upon him at the time of committal by the Magistrate. He would submit that if to be so, there was a discrepancy found in both the documents; that it would be clearly indicative of the fact that this particular document was inserted after the case was committed to Court of Session.
9.The learned Counsel would further submit that the parties took a decision to have divorce on 3.1.2007 itself; that once there was a decision taken, there was no need for the appellant to come with any document to get her signature either, or to commit such a heinous crime; that admittedly, she had connection with P.W.6; that the accused did not know; that he was innocent and has nothing to do with the crime; that the case has been foisted against him; that when the evidence was lacking, the trial Judge has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside.
10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
11.It is not in controversy that the inquest on the dead body of Bhuvaneshwari was made by P.W.13, the Inspector of Police of the Circle, after the registration of the case by P.W.12, the Sub Inspector of Police, in Crime No.3/2007, and thereafter, the dead body was subjected to postmortem by P.W.11, the Doctor, who has given a categorical opinion in the postmortem certificate marked as Ex.P7, that she died out of shock and haemorrhage due to the multiple injuries sustained by her. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court or before this Court. Hence no impediment is felt in recording so.
12.In order to substantiate that it was the accused who stabbed his wife Bhuvaneshwari indiscriminately and caused her death at the spot instantaneously, the prosecution marched two witnesses. It is true that both the witnesses were closely related to Bhuvaneshwari i.e., one was the brother and the other was the father. It is well settled principle of law that merely on the relationship of the witnesses to the deceased, their evidence cannot be discarded, but before acceptance, the Court must apply the careful scrutiny test. In the case on hand, even after the application of the test, this Court is thoroughly satisfied that their evidence is acceptable since it inspired the confidence of the Court. Both the witnesses have spoken in one voice that on 2.1.2007, there was a quarrel between the spouses; that both of them were called; that she was asked to go with the parents; that accordingly, she was taken to their house; that she was staying there; that on coming to know about the same, P.Ws.1 and 2 and others went to the house of the appellant to make an appeal to take her back; but he was not prepared, and hence they took a decision for divorce; that on 4.1.2007 evening, when P.Ws.1 and 2 were there and P.W.3 went to the nearby house, the accused came over there and in the guise of talking to her, took her to the bedroom inside the house, and after it was being bolted inside, P.Ws.1 and 2 heard the distressing cry, and when they broke open the door, they found the accused/appellant squatting on her chest and stabbing her indiscriminately; that immediately P.W.1 chased him to catch him, but he could not; and that he immediately rushed to the nearby relative’s house and informed P.W.3, who in turn went over there. Now, at this juncture, it is pertinent to point out that the evidence of P.Ws.1 and 2 despite cross-examination in full, remained unshaken in respect of the fact that they witnessed the occurrence.
13.It is true that P.W.1 has categorically admitted that within a short span of time and even before he went to the police station, a Constable came over there. Nowhere, he has stated that either the Sub Inspector of Police or the Head Constable or the Inspector of Police came to the place. The contention put forth by the learned Counsel for the appellant that there was a prior information to the police only because of which a Constable was deputed, and that was the first information; that the same has been suppressed; that under the circumstances, the prosecution has burked the first information, and now what is available before the Court was only the second information cannot be countenanced for the simple reason that any information in respect of any cognizable offence when it is given, must contain the necessary ingredients of Sec.154 of Cr.P.C. But, in the instant case, merely because a Constable came to the spot on information, by itself it cannot be inferred that there was an information which reached the police in respect of a crime done and which would come under Sec.154 of Cr.P.C. so as to call it as the first information. Thus the said contention has got to be rejected as devoid of merits.
14.The learned Counsel brought to the notice of the Court some inconsistency in the evidence of the witnesses. They are all minor most which, in the considered opinion of the Court, will not shake the true affairs. In the case on hand, the ocular testimony projected through P.Ws.1 and 2, stood fully corroborated by the medical evidence projected through the Doctor, who conducted autopsy and also the postmortem certificate issued by him. Yet another circumstance is the recovery of M.O.1, knife, the weapon of crime, pursuant to the confessional statement voluntarily given by the accused and recorded by the Investigator. The recovery of the weapon of crime pursuant to the confessional statement, would be indicative of the nexus of the crime with the accused. Thus the contentions put forth by the learned Counsel for the appellant and narrated above, do not carry merit. It can be well stated that the prosecution has proved the factual matrix that it was the appellant/accused who stabbed his wife indiscriminately and caused the death instantaneously.
15.The next question that would arise for consideration by the Court, is whether the act of the accused would attract the penal provision of murder. On analysis of the entire evidence, this Court is of the considered opinion that the act of the accused cannot be termed as murder, but a culpable homicide not amounting to murder. Admittedly, Bhuvaneshwari, the daughter of P.Ws.2 and 3, after the marriage with the accused/appellant, developed illicit intimacy with P.W.6. P.W.6 has categorically stated that they had illicit intimacy; that she was carrying his photo also; that there was exchange of SMS and telephonic calls; that two days prior to that, when she called him, he refused, but on her insistence, he went over there; and that at that time, when he was staying with her, it was witnessed by her husband, the appellant herein. It is further to be pointed out from the evidence of P.W.2 that they went to the house of the accused/appellant not only on 2.1.2007, when they took Bhuvaneshwari to his house, but also on 3.1.2007, they went over there and when made an appeal to take her back, he was not ready, and thereafter, they took a decision for divorce, and afterwards, on 4.1.2007, the occurrence has taken place. All the circumstances would be indicative of the fact that he was not only provoked, but also it was lingering in his mind. Under the circumstances, it is a case where this Court is able to notice a sustained provocation, and that theory has got to be applied. Hence the act of the accused would not attract the penal provision of murder, but would amount to culpable homicide not amounting to murder. Therefore, this Court is of the view that finding him guilty under Sec.304 (Part I) of IPC and awarding a punishment of 7 years Rigorous Imprisonment would meet the ends of justice.
16.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant under Sec.302 of IPC, are set aside, and instead, he is convicted under Sec.304 (Part I) of IPC and is directed to suffer seven years Rigorous Imprisonment. The sentence already undergone by him, shall be given set off. The fine imposed by the trial Court, will hold good.
17.In the result, with the above modification in conviction and sentence, this criminal appeal is disposed of.
nsv
To:
1.The Additional District Judge
Fast Track Court No.III
Tiruvallur
2.The Inspector of Police
Madhavaram Milk Colony Police
Station
Chennai 51
Crime No.3 of 2007
3.The Public Prosecutor
High Court,
Madras