BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/03/2007 CORAM THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE G. RAJASURIA Criminal Appeal (MD) No.755 of 2004 Vandu alias Madasamy .. Appellant Vs State by The Inspector of Police, Srivilliputtur Taluk Police Station, Srivilliputtur, Virudhunagar District. .. Respondent Appeal filed against the Judgment of learned Principal Sessions Judge, Virudhunagar District at Srivilliputtur in S.C.No.2 of 2002 by judgment dated 23.9.2002. !For Appellant .... Mr. V.Kathirvelu Amicus Curiae ^For Respondent .... Mr.P.N.Pandidurai Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM,J.)
The sole accused/appellant in the case of murder on being found guilty as
per the charge on trial and awarded life imprisonment in S.C.No.2/2002 on the
file of the learned Principal Sessions Judge, Virudhunagar District, has
challenged the judgment before this Court.
2.The short facts necessary for disposal of this appeal can be stated
thus:
(a)The accused is the husband of Somu since deceased in the incident.
P.W.1 is the sister of the deceased. P.W.3 is the daughter of the deceased and
the accused. Out of wedlock, the accused and the deceased had two children.
From the time of marriage, he was suspecting the fidelity of his wife. From the
place where they were living, she often used to go P.W.1’s house at Mathur.
Thereafter, the brother of the deceased by name Sundarraj shifted the house from
Mathur to Kothankulam. The deceased along with her children came to her
brother’s house four months prior to the occurrence. The accused, two months
prior to the occurrence, came to Kothankulam and called her back. But, she
refused. Then, the accused agreed to live with his family at Kothankulam.
Accordingly, he came and they took a rented premises of one Gopal and they were
living with their children. The deceased was employed in Alagammal Villow
Factory while the accused was doing some pipeline work at Srivilliputtur.
(b)On 17.2.2001 during evening hours, the accused came in a drunken mood
and quarreled with his wife. The next day, i.e., on 18.2.2001, at about 8
O’clock, the accused took his wife to Pillaiyarkulam Kanmai Bund for collecting
firewood. At that time, he took an aruval also. At about 1.00 p.m. he returned
home and informed the children that they could be in the house along with their
senior maternal aunt, P.W.1 and he would be coming back with his wife. At the
place of occurrence, he called his wife, the deceased, to share the bed. When
she refused, he cut her with aruval, M.O.1 and caused her death and fled away
from the place of occurrence. P.W.1, since her sister, the deceased did not
turn up, was in search of her and found her dead at the place of occurrence.
P.W.1 gave a complaint to P.W.12 the Sub Inspector of the respondent Police, on
the strength of which a case came to be registered under section 302 of Indian
Penal Code. The Express F.I.R-Ex.P.10, was despatched to the Court. P.W.14,
when he was the Inspector of Police, Srivilliputtur Taluk Police Station, on the
receipt of the copy of the F.I.R., took up investigation, proceeded to the spot,
made inspection in the presence of witnesses, prepared Ex.P.3-Observation
Mahazar and also the sketch-Ex.P.12. He conducted inquest on the dead body in
the presence of witnesses and panchayatdars and prepared Ex.P.13-the Inquest
Report. He also recovered the material objects from place of
occurrence. Following the inquest made, a requisition was forwarded to the
Government Hospital for the purpose of autopsy. P.W.10, the doctor attached to
the Government Hospital conducted the autopsy on the dead body and gave the
postmortem certificate, Ex.P.9, where he has opined that the deceased would
appear to have died 24 to 28 hours prior to autopsy due to shock and
haemorrhage.
(c)The accused appeared before P.W.8, the Village Administrative Officer
of Pillaiyarkulam who was in his office on 20.2.2001 at about 1.00 p.m. and gave
a confessional statement narrating the entire incident, which was marked as
Ex.P.5. Along with the confessional statement, the Village Administrative
Officer produced the accused before the respondent Police Station. The
Inspector also enquired him. When he came forward to give the confessional
statement, the same was also recorded by the investigating officer, the
admissible part of which was marked as Ex.P.7. The aruval M.O.7 was also
produced along with M.Os.8 and 9, the blood stained shirt and dhothi. They were
all recovered under the cover of Mahazar. The accused was sent for judicial
remand.
(d) All the material objects recovered from the place of occurrence, from
the dead body and also the material objects recovered from the accused including
the aruval were all subjected to chemical analysis by the Forensic Department
which resulted in two certificates, Exs.P.16 and 17, the Chemical Analysis
Report and the Serologist Report. On completion of investigation, the
investigating officer filed the final report.
3.The case was committed to Court of Sessions. Necessary charges were
framed. In order to substantiate the charge levelled against the accused, the
prosecution examined 15 witnesses and relied upon 17 exhibits and 14 material
objects. On completion of evidence on the side of the prosecution, when the
accused/appellant was questioned under Section 313 Cr.P.C., he denied them as
false. No defence witnesses were examined.
4.Both sides were given opportunity to advance their arguments. Arguments
were heard, materials were scrutinised and the Trial Court took a view that the
prosecution has proved the case beyond reasonable doubt and found the accused
guilty under Section 302 IPC and awarded life imprisonment. Hence, this appeal
is preferred at the instance of the accused.
5.Advancing his arguments Mr.V.Kathirvelu, learned counsel appointed as
amicus curiae by this Court to appear on behalf of the appellant/accused, inter-
alia, submitted the following:
(a)The prosecution had no direct evidence and it rested its entire case on
two circumstances, viz., the last seen theory as spoken to by P.Ws.1 and 3 that
they saw the accused in the company of the deceased at about 8.00 a.m. on the
day of occurrence and secondly, the extra judicial confession alleged to have
been made by the accused to the Village Administrative Officer, P.W.8 at about
1.00 p.m. on 20.2.2001. Attacking these pieces of evidence, the learned counsel
would submit that in the instant case, P.Ws.1 and 3 could not be believed for
the simple reason that P.W.1 is the own sister of the deceased and P.W.3 was the
daughter of the deceased. So far as these two witnesses are concerned, what
they have stated was that the accused left the house along with his wife at
about 8.00 a.m. and the occurrence has taken place during evening hours and
there was sufficient interval and apart from this, even as per the prosecution
case, the accused came to the house during noon hours. In the circumstance,
what happened in the intervening period, was not known to the accused and hence,
the last seen theory would be of no avail to the prosecution case.
(b)The learned counsel further added that the extra judicial confession
was also not believable for the reason that there is nothing to point out that
the accused has previously acquainted to P.W.8-the Village Administrative
Officer and thus, there is no occasion for him to meet the Village
Administrative Officer and give such a confessional statement. Thus, the
confessional statement alleged to have been given by the accused to the Village
Administrative Officer, P.W.8 was nothing but an introduction by the prosecution
to suit its convenience and hence, both these materials were not available for
the prosecution. But, the lower Court has erroneously believed the same and
recorded an order of conviction. Hence, the evidence has got to be rejected.
(c)Advancing his arguments further, the learned counsel would submit that
in the instant case, there was provocation which led the accused to act so, even
if it could be taken that the prosecution has proved the case that it was the
accused who attacked his wife and caused her death. Even as per the narration
of the prosecution case, the accused suspected the fidelity of his wife in the
past and also on previous day, there was a quarrel between them. On the day of
occurrence, both of them left for cutting firewood and when both of them were in
the Kanmai Bund, after making preparation, the accused called her for sharing
the bed. But, she refused. In the circumstance, it passed in the mind of the
accused that she used to have sharing offer with the third parties and not with
him and once he got such an opinion in his mind, he got provoked naturally and
took the aruval and cut the deceased on her neck. Thus, there was a provocation
due to the conduct of the wife and also sustained provocation due to suspicion
entertained by him. Under such circumstance, it has got to be considered by
this Court.
6.Heard the learned Additional Public Prosecutor on the above contentions
and this Court paid its anxious consideration over the same.
7.It is not in controversy that the wife of the accused was done to death
in an incident that took place at the time and place of occurrence as put forth
by the prosecution. In order to prove the said fact the prosecution has
examined P.W.10, Postmortem doctor, through whom Ex.P.9, postmortem certificate
was marked wherein he opined that the deceased would appear to have died of
shock and haemorrhage due to the injuries sustained. She died of homicidal
violence as put forth by the prosecution, was never questioned by the accused at
any stage of proceedings. Hence, it has got to be recorded so.
8.In order to prove that it was the accused who caused the death of his
wife, the prosecution had no direct evidence to offer. But, in the instant
case, in the considered opinion of the Court, the prosecution has placed
circumstances which are sufficient and also pointing to the hypothesis that
except the accused no one else could have committed the offence.
9.Admittedly, the accused was living with his wife and also with his
children in a premises which belongs to one Gopal. On the day of occurrence,
leaving the children and P.W.1, the accused took his wife for collecting
firewood. This fact is also not denied by the accused. When they went
together, it was the accused who came to the house at noon hours. At that time,
his wife/deceased did not come with him and thereafter, the accused left the
house stating that his wife is collecting firewood and that he would come with
her back. But, he did not come with his wife. On the contrary, he absconded.
10.At this juncture, it has to be pointed out that the deceased was found
in the company of the accused at about 8.00 a.m. and both went for collecting
firewood. These facts are spoken to by P.Ws.1 and 3. But, the accused had no
explanation to offer as to what happened to his wife. In the opinion of the
Court, this is a strong circumstance against the accused. It is needless to say
in a given case where the prosecution rested the case on circumstantial
evidence, if a particular fact or circumstance is within the special knowledge
of the accused, he must come forward with a clear answer or explanation to that
and in the absence of the same, that circumstance itself will be acting against
the accused. In the instant case, the accused had no answer or explanation to
state what happened to his wife.
11.Secondly, the prosecution had to its benefit an extra judicial
confession made by the accused to P.W.8 the Village Administrative Officer. In
a given case, before accepting the extra judicial confession, the Court has to
apply three tests, viz.,
“1.To whom the said extra judicial confession is made?;
2.Whether the person to whom the extra judicial confession is made, his evidence
inspires the confidence of the Court?;
and
3.Whether the extra judicial confession is consistent to the prosecution case?”
If these tests are applied to the present case, the Court is thoroughly
satisfied that the prosecution case has passed all the above three tests.
P.W.8, is the Village Administrative Officer of the same place. The accused
appeared before him and made the confessional statement. It is recorded by the
Village Administrative Officer, P.W.8 and also the accused was immediately taken
to the Police Station along with the extra judicial confession. It is true that
Village Administrative Officer and the accused were not previously acquainted to
each other. That by itself cannot be a reason to reject the extra judicial
confession and in the instant case, the evidence of P.W.8 is marshalled by the
lower Court and it inspired the confidence of the Court.
12.Apart from this, the entire narration in the extra judicial confession
is consistent to the prosecution case. In such circumstance, the lower Court
was perfectly correct in relying its decision on the piece of evidence also and
thus, the last seen theory spoken to by P.Ws.1 and 3 and also the extra judicial
confession given by the accused, both put together, in the opinion of the Court,
would be the sufficient circumstances pointing to the guilt of the accused.
13.Coming to the question of the nature of the act of the accused, the
Court has to necessarily disagree with the contention put forth by the learned
counsel appearing for the accused/appellant. What was all contended by the
accused before the Court below as narrated by him in the extra judicial
confession and also before this Court, is that he found his wife talking with
few male at two or three places and thus, he entertained suspicion in her
fidelity. It is highly doubtful when a man see his wife talking with male
members in a society, whether it would lead to pass in the mind or make an
impression or form an opinion that the character of his wife has got to be
doubted or not.
14.Further, in the instant case, he has given in the entire narration that
he has not spoken anything at any point of time and she has acted in such a way
that her fidelity would be questioned. The learned counsel further added that
there was a sudden provocation as could be seen from the entire confessional
statement, that preceding the occurrence the accused called her to share the
bed. But, she was not amenable to his request. The reason being that it was an
open kanmai bund and it is naturally the modesty of a woman to make her to
refuse. But, he called her, to which course of action she refused. At any
stretch of imagination the refusal of a wife to share the bed of a man and that
too in a public place cannot cause provocation. Thus, it would be quite clear
that a provocation was one that itself was made and he was not provoked by his
wife. Neither the sustained provocation nor sudden provocation was available in
the case for the accused to act so.
15.So, under such circumstance, the Court is of the opinion that when the
accused cut the deceased on her neck on the neck with aruval, he should have
certainly known that the injuries cause would in the ordinary course of action
would cause death. Therefore, it would attract the penal provision of murder.
The lower Court has correctly convicted the accused under Section 302 IPC and
sentenced him to life imprisonment.
16.The judgment of the lower Court in convicting and sentencing the
accused to life imprisonment under Section 302 IPC does not require any
interference and the same is affirmed. Hence, the appeal must fail and fails.
Accordingly, the criminal appeal is dismissed.
ap
To
1.The Principal Sessions Judge,
Virudhunagar District.
2.The Inspector of Police,
Srivilliputtur Taluk Police Station,
Srivilliputtur,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.