IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09/04/2003
CORAM
THE HONOURABLE MR.JUSTICE N.DHINAKAR
AND
THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR
Criminal Appeal No.329 of 2000
S.Jagadeesan .. Appellant
-Vs-
The State, by Inspector of
Police, Palakodu Police Station,
Palakodu, Dharmapuri District.
(Crime No.3 of 1996). .. Respondent
Appeal against the judgment of the learned Principal Sessions Judge,
Dharmapuri at Krishnagiri, made in S.C.No.163 of 1998 dated 25.10.19 99.
!For Appellant : Mr.V.Gopinath, S.C.
For M/s.L.Mahendran &
C.Christopher
^For Respondent : Mr.M.K.Subramanian
Govt. Advocate (Crl. Side)
:J U D G M E N T
(Judgment of the Court was delivered by N.DHINAKAR, J.)
The sole appellant, who, in this judgment, will be referred to
as ‘the accused, was tried before the learned Principal Sessions Judge,
Krishnagiri, in Sessions Case No.163 of 1998. The allegation against him in
the charge is that at 1.00 a.m. on 30/31.12.95, he slapped his wife,
Muthumani and also beat her on the head and after she fell down unconscious,
threw her into a canal, thinking that she is dead, as a result of which, she
died on account of asphyxia due to drowning. The learned Sessions Judge,
accepting the oral and documentary evidence, convicted and sentenced him to
imprisonment for life, which are in challenge in this appeal.
2. The facts necessary to dispose of the appeal can be
briefly summarised as follows:-
The deceased is the wife of the accused. P.W.2 is their
daughter and P.W.1 is the younger brother of P.W.2. During the relevant
period, they were residing at Pallimuthur. The accused developed intimacy
with his sister-in-law and the deceased was, therefore, questioning him as
regards the said conduct. There used to be quarrels between the husband and
wife on account of that. On 30.12.95 at about 8.00 a. m., the accused left
the village, after informing his family members that he intends purchasing
manure. But he did not return home until evening. The deceased, accompanied
by her son, P.W.1, went to the field to irrigate the lands and at 1.00 a.m.,
the accused returned. The deceased questioned the accused as to why he had
taken so much time for purchasing manure and found fault with him. She also
accused him of having relationship with her sister, leading to a quarrel
between the husband and wife. The accused slapped her and also beat her on
the head. The deceased fell down and became unconscious. P.W.1, who was
present, held the hands of his father and requested him not to beat her. The
accused took P.W.1 to the house and after leaving him in the custody of his
daughter, P.W.2, returned to the field and finding his wife remaining
unconscious and thinking that she is dead, threw her into a canal. Later, he
returned home and on being questioned by his two children, informed them that
their mother has left for her parental home. He, thereafter, went to his
father-in-law’s house, where he met P.W.4 on 1.1.96. The accused was
questioned by P.W.4 as he was in a pensive mood and the accused, thereafter,
opened his heart and poured out the truth. P.W.4 took the accused and
produced him before P.W.3, the Village Administrative Officer, at 9.45 a.m.
and to the Village Administrative Officer, P.W.3, the accused narrated the
whole incident. The said narration was reduced into writing. The said
statement of the accused given to P.W.3 is Ex.P.1. P.W.3, thereafter,
prepared his report, Ex.P.2 and sent Exs.P.1, P.2 and the accused to Palacode
police station, where they were produced before P.W.9, the Sub-Inspector at
noon. P.W.9, the Sub-Inspector, on receipt of Ex.P.1, registered a case in
Crime No.3 of 1996 under Section 302 I.P.C. The accused was locked-up. He
prepared express reports and Ex.P.7 is a copy of the printed first information
report. He informed the Inspector of Marandalli.
3. P.W.10, on being informed about the registration of the
crime over V.H.F., reached Palacode police station at 12.40 p.m., where he
obtained a copy of the printed first information report. The accused was in
the police lock-up and he was questioned. The officer then proceeded to the
scene of occurrence and in the presence of P.W.5 and another, prepared an
observation mahazar, Ex.P.3. The body was taken out of the canal and a rough
sketch, Ex.P.8, was prepared. The photographer, P.W.6, took photographs of
the scene of occurrence and the dead body. The inquest was conducted between
3.00 a.m. and 6.15 a.m. in the presence of panchayatdars, during which,
P.Ws.1, 2 and others were questioned and their statements were recorded.
Ex.P.9 is the inquest report. After the inquest, a requisition, Ex.P.4, was
issued to the doctor for conducting autopsy and the body was handed over to a
police constable, P.W.8.
4. On receipt of Ex.P.4, the requisition, P.W.7, the then
Civil Assistant Surgeon attached to Government Hospital, Palacode, conducted
autopsy on the body of the deceased Muthumani and found the following external
injuries:-
1. An abrasion over the back of right forearm in the middle 5 cm. x 5 cm.
2. An abrasion over the front of lower jaw and neck 15 cm. x 10 cm.
3. An abrasion over the right cheek 5 cm. x 5 cm.
4. Multiple abrasion over the inner aspect of right and left thighs each 10
and 5 cm.
5. An abrasion over the left temporal region behind the left ear 5 cm. x 3
cm.
6. Bleeding from left ear. All the above said injuries are antemortem
innature.
7. Fish bitten marks over the left eye lids and left side mouth eaten by
fish.
The skin of hands and feet are wrinkled.
The doctor issued Ex.P.5, the post-mortem certificate, with the opinion that
the deceased died on account of asphyxia due to drowning and death would have
occurred about 50 to 60 hours prior to autopsy.
5. P.W.10, continuing with his investigation, questioned
witnesses and recorded their statements. He sent the accused to Court for
remand. He continued with his investigation, as the Inspector of Palacode was
on leave. The investigation in the case was, later, taken up by P.W.11 on
3.12.96, who questioned four witnesses and also the doctor, who conducted
autopsy and later, after his transfer, further investigation was taken up by
P.W.12, who laid the final report against the accused under Section 302 I.P.C.
6. The accused was questioned under Section 313 Cr.P.C. on
the incriminating circumstances appearing against him. He denied all the
incriminating circumstances. He filed a written statement, in which, he has
stated that he had no illicit relationship with his sister-inlaw and on
30.12.95, he took his bed along with his children only to find out his wife
missing in the morning of 31.12.95. He has further alleged that he went in
search of his wife at his father-in-law’s house, where he was informed that
his wife did not come there and on 1.1 .96, he went to Palacode police
station, where he gave a complaint about the missing of his wife and that the
police officers detained him at the police station till 11.00 a.m. and later
they sent for P.Ws.3 , 4 and others. According to him, after the arrival of
P.Ws.3 and 4 and after a discussion, a statement was prepared, in which he was
forced to sign and that he did not give Ex.P.1 at the office of the Village
Administrative Officer, as claimed by the prosecution.
7. The prosecution examined P.W.7, the doctor, to establish
the cause of death. According to the doctor, he found the injuries, which he
noted in the post-mortem certificate, which we have already extracted in the
earlier part of the judgment. According to him, the deceased died on account
of asphyxia due to drowning. The said fact is also not disputed by the
accused.
8. The question that is to be decided by us is whether the
accused intended to cause the death of the deceased and whether with that
intention, threw his wife into the canal, after beating her on the head and on
the cheek, as sought to be proved by the prosecution through the eye witness,
P.W.1. P.W.1 is the son of the deceased. He turned hostile. The daughter,
P.W.2 also turned hostile. The only evidence, on which the prosecution
perforce had to rely, is the statement given by the accused to P.W.3, the
Village Administrative Officer. It is the evidence of P.W.3 that while he was
in his office on 1.11.96 at 9.45 a.m., the accused accompanied by his
brother-in-law, P.W.4, met him and thereafter, the accused narrated the
incident informing him that he has beaten his wife and thinking that she is
dead, threw her into the canal. On going through the evidence of P.W.3, we
find no infirmity in the evidence. In fact, P.W.4, the brother-in-law of the
accused, has supported P.W.3 and according to him, on 1.1.96, the accused came
to his house and was seen in a pensive mood. He questioned him and the
accused, thereafter, informed him that he has beaten his wife and threw her
into the canal and according to him, he took the accused to P.W.3. P.W.3
being an independent witness and having no grudge or ill-will against the
accused, had no reason to come out with a false version. The statement of the
accused that the deceased took her bed on 30.12.95 and was not seen in the
morning on 31.12.95 could only be an after thought, in view of the statement
made by him to P.W.3, the Village Administrative Officer. We do not attach
much importance to the defence theory that the deceased left the house on her
own accord. On going through the evidence of P.W.3 and Ex.P.1, the statement
given by the accused to P.W.3, we find no infirmity and it contains the
details, which could have been only in the exclusive knowledge of the accused.
We, therefore, accept Ex.P.1 as a statement given by the accused to P.W.3 and
find that the accused beat the deceased and thereafter, threw her into the
canal, thinking that she is dead.
9. The final question that is to be decided by us is the
nature of offence committed by the accused. Admittedly, the case of the
prosecution itself is that the accused beat the deceased on the head and she
fell down. A perusal of the statement, Ex.P.1, indicates that the accused,
after beating the deceased, took P.W.1 from the place and after leaving him at
the house, returned to the scene of occurrence and found his wife lying on the
ground. According to him, he felt that his wife has died and therefore, in
order to escape the consequences of murder, he threw the dead body into a
canal. This shows that when he threw his wife into the canal, he was of the
impression that his wife is dead on account of the beating given by him and
did not know that she was alive. Therefore, the accused did not throw his
wife into the canal to cause her death by drowning, but threw her under the
mistaken impression that she is dead and he is throwing the dead body into the
canal.
10. In CHINNATHAMBI Vs. STATE [1952 M.W.N.(Cr.) 227], a
Division Bench of this Court had to decide the nature of the offence committed
by the appellant in that case and the facts in the case before the Division
Bench are that the deceased was beaten by the accused with a stick and later,
thinking that the person, who was beaten, is dead, the body was hanged by a
rope and as a result of the said hanging, the said person died. The Division
Bench, on the above circumstances, came to the conclusion that the hanging had
taken place in order to create a false evidence under the impression and
belief that the woman, the deceased in that case, had already died as a result
of the blow which the appellant dealt on her, while in fact death has really
been caused by the hanging itself and therefore, it cannot be said that the
appellant intended to cause the death by hanging. The Division Bench further
observed that he was only hanging the body, which was dead already, according
to his belief, in order to make it appear that the woman got herself hanged by
the rope and died as a result thereof and in such case, the offence committed
by the accused will only fall under Section 325 I.P.C., as he has caused a
grievous injury.
11. It could also be seen that the act itself does not make a
person guilty, unless his intentions are shown to be guilty, from the maxim
‘Actus non facit reum, nisi mens sit rea’. When we apply the above maxim, we
are of the view that the facts of the present case and the facts in the
judgment cited supra considered by the Division Bench are similar in nature
and that the said judgment will apply with all force to the facts of the
present case. In the present case also, the accused had beaten the deceased.
She fell down unconscious and thereafter, the accused, after returning from
his house, where he left his son P.W.1, thinking that his wife is dead, threw
her into the canal and his wife, who was alive, died on account of asphyxia
due to drowning. At the time when the accused threw the body into the canal,
he did not know that his wife is only unconscious and is not dead and
therefore, when he was throwing the body of his wife into the canal, he was
under the mistaken impression that the death has already occurred and
therefore, the subsequent act of throwing the body into the canal is not
committed with an intention to cause her death by drowning. In the above
circumstances, we are of the view that the conviction and sentence of the
accused under Section 302 I.P.C. are to be set aside and instead, he is to be
convicted under Section 325 I.P.C., since the doctor, who conducted autopsy,
found a fracture on the base of the skull.
11. Accordingly, the conviction and sentence imposed on the
appellant under Section 302 I.P.C. are set aside and instead, he is convicted
under Section 325 I.P.C., for which he is sentenced to undergo rigorous
imprisonment for a period of three years. The appeal is dismissed with the
above modification in conviction and sentence. The learned counsel for the
appellant submits that the appellant has already undergone the sentence of
three years and if so, he shall be released forthwith, unless he is required
in connection with any other case.
(N.D.,J.) (S.A.,J.)
09.04.2003
Index: Yes
Website: Yes
sra
To
1.The Principal Sessions Judge, Dharmapuri at Krishnagiri.
2.The District Collector, Dharmapuri District.
3.The Director General of Police, Chennai.
4.The Superintendent, Central Prison, Salem.
5.The Inspector of Police, Palakodu Police Station, Palakodu, Dharmapuri
District.
6.The Public Prosecutor, High Court, Madras.