BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/04/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN Crl.A.(MD) No.87 of 2009 G.Chinnathambi .. Appellant Vs State by The Inspector of Police, Thogamalai Police Station, Karur District (Crime No.79/2007) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the conviction and sentence of life imprisonment imposed on the appellant by the learned Principal District and Sessions Judge, Karur made in S.C.No.4 of 2008, dated 30.07.2008. !For Appellant ... Mr.N.Sankar Ganesh ^For Respondent ... Mr.Daniel Manoharan Additional Public Prosecutor :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
Challenge is made to the Judgment of the Court of Sessions, Karur made in
S.C.No.4 of 2008, whereby the appellant/sole accused stood charged under Section
376 and 302 I.P.C., tried and found guilty under Section 302 I.P.C. and awarded
life imprisonment along with fine and default sentence, but, he was acquitted
for the charge under Section 376 I.P.C.
2.The short facts necessary for the disposal of the prosecution case can
be stated as follows:-
a) P.W.1 is the wife of the deceased. P.W.2 is the father of P.W.1.
P.W.1 and her husband borrowed money from different persons and they were put to
liability. On the date of occurrence, P.W.1 and her deceased husband were
proceeding to Thogaimalai. On the way they were intercepted by the
accused/appellant and he invited them to stay in his house and they prepared to
stay in his house. During the night hours, the accused/appellant had sexual
intercourse with P.W.1 with force, which came to the knowledge of the deceased.
Immediately, the deceased questioned the conduct of the accused and further
informed that the matter will be placed before the panchayat. At that time,
they were naturally standing near a well and the accused took a stick and
attacked him and P.W.1’s husband died and thereafter, when he fell down,
immediately the accused pushed the body into the well. It was witnessed by
P.W.1. She shouted and the others came there.
b)P.W.1 proceeded to the respondent police station, where P.W.13, the
Inspector of Police, was on duty. She gave a complaint Ex.P.1 on 22.02.2007 at
10.00 A.M. On the strength of the same, a case came to be registered by P.W.13,
in Crime No.79 of 2007 under Section 302 IPC. Ex.P.20, the Express FIR, was
despatched to the concerned Judicial Magistrate’s Court.
c)Thereafter, on the medical examination, the F.I.R. was altered into
Sections 302 and 376 of the Indian Penal Code. Ex.P.23, the Alteration Report
was also despatched to the Court. P.W.13, took up the investigation, proceeded
to the place of occurrence, made an inspection in the presence of two witnesses
and prepared Ex.P.3, the observation mahazar, and Ex.P.21, the rough sketch.
Then, he examined the witnesses and recorded their statements. He conducted
inquest on the dead body of the deceased in the presence of the witnesses and
panchayatdars and prepared Ex.P.22, the inquest report.
d)On 23.02.2007, the dead body of the deceased was sent to the hospital,
for the purpose of autopsy. P.W.6, the Doctor, attached to Kulithalai
Government Hospital, on receipt of the requisition, has conducted autopsy on the
dead body of the deceased and has issued Ex.P.11, the post-mortem certificate,
wherein he has narrated the injuries and has opined that the deceased would
appear to have died of Asphyxia due to drowning about 36 to 40 hours prior to
postmortem.
e)Pending investigation, the Investigator arrested the Accused on
23.02.2007 in the presence of the witnesses and he made a confessional statement
voluntarily. The same was recorded, the admissible part of which was marked as
Ex.P.5. Pursuant to which, M.O.1, Stick was recovered in the presence of the
witnesses under a cover of mahazar Ex.P.6.
f)Then the Investigating Officer sent a requisition to the Judicial
Magistrate to record the statement of P.W.1 under Section 164(5) of Cr.P.C.,
which was also recorded. All the material objects were sent for chemical
analysis pursuant to a requisition given by the Investigating Officer to the
concerned Judicial Magistrate. Ex.P.33, the Chemical analyst’s report and
Ex.P.37, the Serologist’s report were received. On completion of the
investigation, the Investigating Officer has filed the final report before the
concerned court, which in turn has committed the case to the court of sessions
and necessary charges were framed and the case was taken up for trial.
g)In order to substantiate the charges, at the time of trial, the
prosecution examined P.Ws.1 to P.W.13 and marked Exs.P.1 to P.41 and M.Os.1 to
8. On completion of the evidence on the side of the prosecution, the accused
was questioned under Section 313 Cr.P.C. as to the incriminating circumstances
found in the evidence of prosecution witnesses. He denied them as false. No
defence witness was examined. The lower court, after hearing the arguments of
the counsel, took the view that the prosecution has proved the case of murder
and found him guilty and awarded sentence as referred to above but acquitted the
accused against the charge of rape. Under these circumstances, this criminal
appeal has arisen before this court at the instance of the accused appellant.
3.Advancing arguments on behalf of the appellant, the learned counsel
would submit that in the instant case there was only one eye witness, which was
unbelievable and unreliable. According to the prosecution, the occurrence has
taken place at 10.00 P.M. on 21.02.2007. According to P.W.1, when she was
accompanied by her husband and were proceeding to Thogamalai, they were
intercepted by the appellant/accused and he invited them to his house.
Accordingly, they went to his house and while they stayed over night hours and
fell asleep, at that time, the accused committed sexual intercourse with P.W.1
by compelling her and it came to the knowledge of her husband. The deceased
informed the accused that he would place the matter before Panchayat. Aggrieved
over the same, the accused has caused the death of her husband. But the
evidence of P.W.1 is highly unreliable for more than one. According to P.W.1,
the occurrence took place in the night hours and she was raped forcibly by the
accused/appellant. But the trial Court has not accepted the charge of rape.
Under the said circumstances, the evidence of P.W.1 should be brushed aside.
4.Added further, the learned counsel for the appellant/accused that
according to P.W.1 they took food at 9.00 P.M. and the occurrence took place at
10.00 P.M. But the postmortem certificate and the doctor’s evidence would
clearly indicate that there was 750 ml liquid containing fully digested food
particles found in the intestine. If really they took the rice food at 9.00
P.M., the food could not have been digested. That would clearly show that the
occurrence could not have taken place as put forth by P.W.1.
5.Added further, the learned counsel for the appellant/accused that P.W.1
has categorically admitted that they indebted to so many and it was the
circumstance that impelled the deceased to commit suicide by felling into the
well, for which the accused/appellant cannot be found liable.
6.Added further, the learned counsel for the appellant/accused that at
that time of occurrence, 50 persons were present. When there were independent
witnesses, the prosecution should have examined atleast a few of them, but,
failed to do so. Added further, though the occurrence took place at 10.00 P.M.
on 21.02.2007, the body was taken from the well only in the next day morning and
then she lodged the complaint at 10.00 A.M., and thus there is a delay of 10
hours. Apart from that, the complaint was sent to the Magistrate after a long
lapse of time. It would clearly show the fact that the case was registered as
put forth by P.W.13, the Inspector of Police and thus the prosecution has
miserably failed to prove the case and the accused/appellant is entitled for
acquittal in the hands of this Court.
7.The court heard the learned Additional Public Prosecutor on the above
contentions.
8.The court has paid its anxious consideration on the submissions made,
and also scrutinized the materials available.
9.It is not in controversy that the husband of P.W.1 died out of Asphyxia
due to drowning and this fact has been proved by the prosecution by examining
P.W.6, the postmortem doctor and through the contents of the postmortem
certificate. The cause of death as putforth by the prosecution is never disputed
by the accused either before the trial Court or before this Court. Hence, it has
got to be recorded so.
10.In order to substantiate, it was the accused who attacked him with
stick on his head and thereafter, pushed the body of the husband of P.W.1 into
the well, the prosecution has examined one eye witness viz., P.W.1. The learned
counsel for the appellant was much commenting on the evidence of P.W.1 as
narrated above. The evidence of P.W.1 would show that they belonged to
Perumalpatti Village and they got indebted during the relevant time. Hence, on
the date of occurrence, P.W.1 accompanied by her husband went to the house of
her sister and coming back to Thogamalai and it was the accused who intercepted
and invited them to his house. Accordingly they went to the house of the
accused/appellant and stayed over that night. On that day, according to P.W.1,
she was raped by the accused. But the trial Court was unable to believe that,
since the evidence is lacking in that regard. But P.W.1 has categorically
stated that when she raised alarm, the deceased woke up and immediately and
questioned the conduct of the accused/appellant. At that time, the deceased also
informed the accused/appellant that he would place the matter before panchayat.
On hearing the same, the accused had got much worried and took a stick and
attacked him on the back of the head. Now, correspondingly, the Court is able to
see a contusion on the head of the deceased, which was also noticed by the
doctor. P.W.1 has added further that it was the accused, who threw the body of
her husband into the well and water was available in the well. According to
P.W.1 after draining the water, the body was taken out. The doctor was of the
opinion that the deceased died due to asphyxia due to drowning. Under the said
circumstance, this Court is unable to see any reason as to why P.W.1 should
throw such an accusation against the accused/appellant.
11.It is true that P.W.1 and her husband indebted to somany, but it is not
the case of the accused that he also lent money to or demanded the money from
the deceased. Under the said circumstances, without any reason and without
witnessing such incident, P.W.1 could not have come over with such a complaint
as found under Ex.P.1. So, there is no necessity to doubt the evidence of P.W.1.
Though it is true that there were 50 persons in the place of occurrence, it is
pertinent to point out that the occurrence took place during night hours, and
only after the occurrence when she raised alarm, the other people have gathered.
Hence, no body was there in that night hours at the time of occurrence. The
medical opinion supports the ocular testimony of P.W.1. That apart, the accused
was arrested and he has given a confessional statement, following which the
stick has been recovered. In the instant case, he has not only attacked the
deceased on his head, but also pushed him into the well as a result of which the
husband of P.W.1 died and thus it would be quite clear that the
appellant/accused outraged P.W.1’s modesty and when she raised alarm, the
husband of P.W.1 came there and questioned the conduct of the appellant.
Further, he informed that the matter would be placed before the panchayat. On
hearing the words, the accused has got angry. When P.W.1 raised cry as to the
conduct of the appellant/accused, the accused has not only attacked the
deceased, but also threw the body into the well and caused the death.
12.In fact, the learned counsel for the appellant pointed out that there
was a delay in lodging the complaint. Delay in lodging the complaint cannot be
a reason to suspect the evidence of P.W.1. The occurrence had taken place
during the night hours. The body of the deceased was taken out from the well
only in the morning. Thereafter, she went to the police Station and lodged the
complaint narrating the entire incident. It is true that there is some delay,
and because of the delay in lodging the complaint by itself, the Court is unable
to doubt the case of the prosecution or veracity of evidence of P.W.1. Under
the circumstances, the prosecution has brought home the guilt of the accused
from the evidence of P.W.1. It is true that P.W.1 was the only eyewitness who
spoke the prosecution case. The Indian Evidence Act does not look for quantity
of evidence, but only quality of evidence. The sole and uncorroborated
testimony of evidence can be accepted, provided it should inspire the confidence
of the Court. In the circumstances, P.W.1 along with her husband was invited by
the accused/appellant to his house where the incident has taken place. There is
no reason for P.W.1 to give complaint accusing the appellant/accused. No reason
was brought to the notice of the Court by the appellant as to why P.W.1 should
come with such complaint or give evidence against the accused/appellant. Under
the circumstances, it can be well stated that the prosecution has brought home
the guilt of the accused and the trial Court was perfectly correct in finding
him guilty under Section 302 of Indian Penal Code and awarding life
imprisonment, which, in the considered opinion of the Court, does not require
interference either legally or factually.
11. In the result, the appeal is dismissed and the conviction and sentence
imposed on the appellant by the trial Court are confirmed.
sj/rj2
To
1.The Principal District Judge,
Theni.
2.The Inspector of Police,
Bodi Taluk Police Station,
Theni District
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.