IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.842 OF 2007 Viswanathan .. Appellant Vs. State rep. by Inspector of Police, Velankanni Police Station, Nagapattinam District (Crime No.249/02) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Nagapattinam made in S.C.No.278 of 2002 dated 29.1.2003. For Appellant : Mr.Philip Ravindran Jesudoss For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT
(The judgment of the court was delivered by
M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Principal Sessions Division, Nagapattinam made in S.C.No.278 of 2002, whereby the sole accused/appellant stood charged under Section 302 IPC, tried, found guilty as per the charges and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 6 months R.I.
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the resident of Vaipur. The deceased Rajeswari is the second sister of P.W.1. She was given in marriage to the accused as his second wife. The accused had got two children through his first wife. Since Rajeswari had no issues, the accused insisted that the her other sister Prema should be given in marriage to him, but they were refusing to do so. Often and often, the accused was going on quarrelling with Rajeswari and was also torturing her.
b)The marriage of Prema was actually settled and her betrothal was scheduled to take place on 17.5.2002. In order to invite for the betrothal, P.W.1 and others went to the house of the accused on 12.5.2002. At about 5.45 p.m., they went to his house and invited him. At that time, the accused replied that he will not come and Rajeswari also will not come for betrothal. On hearing this, there was a quarrel between Rajeswari and the accused. The accused uttered the words that “if I finish you off only, your sister would be given in marriage to me”. So saying, he took the crowbar, which was actually burning in the oven and pierced it into the stomach and lap of Rajeswari. The intestine of Rajeswari came out. This was witnessed by P.Ws.1 to 4. The accused fled away from the place of occurrence.
c)P.W.1 proceeded to the native place in search of the Village President in order to inform the incident and then, he went to the respondent police station at about 11.00 p.m. on the very day. He gave Ex.P.1, the report to P.W.7, the Sub Inspector of Police, on the strength of which a case came to be registered in Crime No.249 of 2002 under Section 302 IPC. Ex.P.6, the F.I.R. was sent to the court.
d)On receipt of the copy of the F.I.R., P.W.11, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.10, the rough sketch. He also recovered the bloodstained earth and sample earth under a cover of mahazar. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.11, the inquest report. The place of occurrence and the dead body were photographed through P.W.6. M.O.7 (series) photos and M.O.8 (series) negatives were marked. Then, the dead body was sent to the hospital for the purpose of autopsy.
e)P.W.10, the Doctor attached to the Government Hospital, Nagapattinam, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.9, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to injury to vital organ, namely liver, 14 to 20 hours prior to autopsy.
f)Pending investigation, the Investigating Officer arrested the accused on 14.5.2002, who has come forward to give confessional statement voluntarily, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.4. Pursuant to the same, he produced M.O.1, crowbar, which was recovered under a cover of mahazar. The accused was sent for judicial remand. The material objects recovered were sent for chemical analysis by the Forensic Science Department on requisition given by the Investigator through the concerned Court, which resulted in two reports, namely Ex.P.14, the Chemical Report and Ex.P.15, the Serologist’s report. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 11 witnesses and also relied on 15 exhibits and 11 M.Os. 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, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced, took the view that the prosecution has proved the case beyond reasonable doubt, found the accused guilty as per the charges and awarded life imprisonment. Hence, this appeal has arisen at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned counsel would submit that the occurrence has taken place on 12.5.2002 at about 5.45 p.m., but the complaint was given at about 11.00 p.m. and thus, there was a delay of nearly 5-1/2 hours; that this would clearly indicate that it itself was a fabricated one; that according to P.W.1, he proceeded to Vaipur, instead of going to the police station, in order to inform the matter to the Village President and thereafter, he came to the police station; and that if to be so, in order to explain the delay, the prosecution should have examined the Village President, but he was not examined and thus, it would clearly indicate that such a thing could not have been happened at all.
5.Added further the learned counsel that it is highly doubtful whether Ex.P.1, the report could have come into existence as put forth by the prosecution; that according to P.W.1, he went to the police station and it was P.W.3 who wrote the same and it was handed over to the Inspector of Police; that according to P.W.3, who accompanied with P.W.1 and also according to P.W.7, the Sub Inspector of Police, who registered the case, a written report was brought and handed over to the Sub Inspector of Police and thus, this discrepancy would clearly indicate that Ex.P.1 could not have come into existence as put forth by the prosecution and that according to the prosecution, four were the eyewitnesses and that they could have intervened and under these circumstances, such an incident could not have been taken place at all.
6.Added further the learned counsel that the accused had two children through his first wife, but she was sick and hence he married Rajeswari as his second wife; that at the time when he married Rajeswari, he gave an assurance that the marriage expenses of the third sister of P.W.1, by name Prema, would be taken by him; that when it was demanded, the accused denied the same and therefore, the accused was roped in; that at the time of quarrel, it was the deceased who fell into the oven and caused injuries to herself and thus, the prosecution has not proved the case beyond reasonable doubt. Further, human blood was not detected from M.O.1, crowbar and that the arrest, confessional statement were all nothing, but an afterthought and were introduced to support the prosecution case, if possible, but in vain and hence the appellant is entitled for acquittal in the hands of this court.
7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its full attention over the same.
8.It is not in controversy that one Rajeswari, the sister of P.W.1 and the wife of the accused, following an incident that took place at about 5.45 p.m. on 12.5.2002, died and following the inquest made by the Investigator, the dead body was subjected to post-mortem by P.W.10, the Doctor, who has issued Ex.P.9, the post-mortem certificate and has also deposed before the court as a witness that the deceased would appear to have died of shock and haemorrhage due to injury to vital organ, namely liver. The fact that she died out of the injuries caused was not questioned by the appellant/accused before the lower court. But, for the first time, it is urged before this court that the injuries were sustained by herself and not by the act of the accused. From the evidence available, the court has to record that the death has been caused not by way of the commission of suicide, but it was the act done by the other and the deceased died out of homicidal violence.
9.In order to substantiate the fact that it was the accused, who took the burning crowbar from the oven and pierced it into the stomach of the deceased and caused her death, the prosecution has examined P.Ws.1 to 4. It is true, P.W.1 is the brother of the deceased, while P.Ws.2 to 4 are the independent witnesses. From their evidence, it would be quite clear that the accused married Rajeswari as his second wife and she had no issues and he insisted that the her other sister Prema should be given in marriage to him as his third wife, but P.W.1’s family was not amenable and therefore, the accused began to torture the said Rajeswari all along. The marriage of Prema was settled and her betrothal was scheduled to take place on 17.5.2002 and in order to invite for the same, P.W.1 accompanied by P.Ws.2 to 4 went to the house of the accused on 12.5.2002 and P.W.1 invited the accused for betrothal. The accused replied that he will not come and further, he will not also send Rajeswari for betrothal. Following the same, there was a wordy altercation between the accused and Rajeswari. At that time, the accused uttered that “if I finish you off only, your sister would be given in marriage to me” and so saying, he took the burning crowbar from the oven and pierced it into the stomach of Rajeswari, as a result of which her intestine came out and she also died instantaneously. The entire incident put forth by the prosecution was spoken by P.Ws.1 to 4 in one voice and despite cross examination in full, they stood the test and have also clearly spoken about the occurrence and the evidence of those witnesses was rightly accepted by the trial court and hence the contention put forth by the learned counsel for the appellant in that regard has got to be rejected.
10.The ocular testimony projected through P.Ws.1 to 4 was fully corroborated by the medical evidence through P.W.10, the Doctor and also her post-mortem certificate Ex.P.9, wherein she has categorically opined that the injuries would have been caused by burning crowbar and also death would have been caused by the injuries sustained to liver. Yet another circumstance is the recovery of M.O.1 crowbar from the accused on production following the confessional statement made, which was recovered in the presence of two witnesses. The prosecution has put forth sufficient evidence to believe the same. Thus, the recovery following the confessional statement of the accused would clearly indicate the nexus of the accused with the crime.
11.Now the contention put forth by the learned counsel for the appellant is that there was a delay in the F.I.R. and the non examination of the Village President also would be fatal, which in the considered opinion of the court has got to be rejected. P.W.1 after witnessing the occurrence, has proceeded to Vaipur in search of the Village President to inform the occurrence and thereafter, he went to the police station and has given the complaint at about 11.00 p.m. At this juncture, it is pertinent to point out that the respondent police station is situated 20 kms. from the place of occurrence. According to the prosecution, the occurrence has taken place at about 5.45 p.m. and the complant was given at 11.00 p.m. Though there was a delay of 5 hours and 15 minutes noticed, in the opinion of the Court, the prosecution has come forward with proper explanation through P.W.1. The non examination of the Village President in view of the other circumstances attendant would not in any way affect the prosecution case.
12.Further, in the instant case, the other contention put forth by the learned counsel for the appellant is that P.W.1 has stated that the complaint was written by P.W.3 and thereafter, it was given to the Inspector, but P.W.3 has denied the same by stating that a written complaint was taken to the police station and P.W.7, the Sub Inspector of Police has stated that a written complaint was brought and hence it is highly doubtful whether Ex.P.1 has come into existence as put forth by the prosecution. It is true, there are certain discrepancies noticed by the court, but those discrepancies in the considered opinion of the court are minor most and in view of the same, the truth of the prosecution case that too in a given case like this where four eyewitnesses have spoken to the fact that it was the accused who actually attacked the deceased with crowbar, cannot be doubted. Hence that contention has got to be rejected.
13.The third contention put forth by the learned counsel for the appellant is that at the time of marriage with Rajeswari, the accused assured that the marriage expenses of the other sister Prema would be taken by him and therefore, since the marriage of Prema was settled, it was demanded, but the accused refused to give the same and hence he was roped in. This court is of the considered opinion that it is nothing but an outcome of futile imagination of the accused and at no stretch of imagination, it could be accepted, when all the witnesses have spoken the truth and the ocular testimony was corroborated by the other evidence and the other attendant circumstances are noticed as recorded above. It is a case where the husband after marrying Rajeswari as his second wife, has committed gruesome murder by taking the burning crowbar from the oven and piercing the same into the stomach of the deceased and has caused her instantaneous death. Under these circumstances, it cannot but be termed only as murder, awarding punishment of life imprisonment. Accordingly, the lower court has done, which in the opinion of the Court is correct.
14.In the result, this criminal appeal fails and the same is dismissed.
vvk
To
1.The Principal Sessions Judge,
Nagapattinam.
2.The Inspector of Police,
Velankanni Police Station,
Nagapattinam District.
3.The Additional Public Prosecutor,
High Court,
Madras