In the High Court of Judicature at Madras
Dated: 22/04/2004
Coram
The Honourable Mr.Justice V.KANAGARAJ
and
The Honourable Mrs.Justice R.BANUMATHI
Criminal Appeal No.54 of 1997
Azhagarswamy ..Appellant
-Vs-
State
rep.by Inspector of Police,
Tirumangalam Taluk Police Station,
Tirumangalam. ..Respondent
Criminal Appeal filed under Section 374 of Criminal Procedure Code
against the judgment dated 03.01.1997 made in S.C.No.241 of 1994 on the file
of II Additional Sessions Court, Madurai.
!For Appellant : Mr.G.Krishnamurthy
^For Respondent : Mr.E.Raja,
Additional Public Prosecutor.
:J U D G M E N T
R.BANUMATHI, J.,
Accused is the Appellant in S.C.241/1994 on the file of II Additional
Sessions Judge, Madurai. By the Judgment dated 03.01.1997, the II Additional
Sessions Judge, Madurai convicted the Appellant / Accused under Sec.302 IPC
and sentenced him to suffer Life Imprisonment.
2. Case of Prosecution could be stated thus:-
Deceased AngalaEaswari is the sister of P.W.1 Pandiarajan and
P.W.2 Pandiammal. While P.W.1 Pandiarajan was residing at Pulianthoppu, the
Accused was residing in the nearby house of P.W.1 and was doing ‘ Ehy;ghuk;’
business with bullock cart at Madurai Pulianthoppu. Accused was already
married and having children through his first wife. While the Accused was
residing nearby the house of P.W.1, the Accused developed illicit intimacy
with deceased AngalaEaswari, due to which the said AngalaEaswari became
pregnant. First wife’s family of the Accused lived in Madurai Town. The
Accused married AngalaEaswari as his second wife and they settled in
Keeriyagoundenpatty. A male child was born to the Accused and deceased
AngalaEaswari. While the deceased was living with the Accused, she used to
visit the house of her mother Meena and inform P.W.1 and mother Meena about
the frequent quarrel by the accused suspecting her fidelity or chastity.
3. On 16.05.1993 – 9.30 PM the Accused went to the house of P.W.1 and
informed them that AngalaEaswari is admitted for treatment of injuries due to
electric shock at Thirumangalam Government Hospital. P.Ws.1 and 2 and their
mother Meena immediately went to Thirumangalam Government Hospital. They came
to know that AngalaEaswari was not admitted in that hospital for treatment.
When P.W.1 and deceased Meena along with their relatives immediately went to
the house of the Accused at Keeriyagoundenpatty, they found AngalaEaswari
dead. There was also a marked contusion around the neck as if a rope was tied
around the neck. P.Ws.1 and 2 and their mother Meena expressed their
suspicion against the Accused. On knowing the same, the Accused ran away from
the house and the people gathered.
4. Complaint and Registration of the case: Meena – the mother of
deceased AngalaEaswari went to Thirumangalam Police Station and lodged Ex.P.7
– Complaint. P.W.8 – Sub Inspector of Police, Thirumangalam registered the
case in Crime No.128/1993 under Sec.174 of Crl.P.C. in Ex.P.8 – First
Information Report.
5. Investigation: P.W.8 – Sub Inspector of Police had taken up the
preliminary investigation. Scene of occurrence was inspected in the presence
of P.W.6 – Village Administrative Officer and one Pichai. Ex.P.4 –
Observation Mahazar and Ex.P.9 – Rough Plan were prepared at the scene of
occurrence.
6. Inquest: On 17.05.1993 from 10.15 AM to 12.15 PM, P.W.8 conducted
the inquest on the body of the deceased AngalaEaswari and prepared the Inquest
Report – Ex.P-10. After inquest, the body was entrusted to P.W.7 – Constable
Govindaraj for being handed over to autopsy.
7. Post Mortem: Pursuant to the Requisition from the Inspector of
Police (Ex.P-1), P.W.4 – Dr.Nagendran conducted autopsy on the body of
deceased AngalaEaswari. He noted
an incomplete circular marking present below the hyoid bone.
Internal Examination: On dissection of the neck subcutaneous tissues are
congested. Ecchymosis present. Extravasation of blood present.
Opining that AngalaEaswari died of Asphyxia due to compression of the neck by
a rope, P.W.4 issued Ex.P.2 – Post Mortem Certificate; and Ex.P.3 – Final
Opinion.
8. Further Investigation: P.W.9 – Inspector of Police had taken up
the further investigation. On 20.05.1993 – 8.00 AM he arrested the Accused in
Melakottai in the presence of P.W.6 and witness Pichai. On being
interrogated, the Accused had voluntarily confessed to his guilt. Pursuant to
the admissible portion of his confession statement ( Ex.P-5), M.O.1 – Nylon
rope was recovered from the house of the Accused under Ex.P.6 – Mahazar.
9. On completion of the formalities of the investigation, P.W.11 –
Inspector of Police filed the charge sheet against the accused on 01.04.1994
for an offence punishable under Sec.302 IPC.
10. To substantiate the charge against the Accused, in the trial
court, P.Ws.1 to 11 were examined. Exs.P-1 to P-13 were marked. M.Os.1 to 8
were remanded to the Court by the Prosecution. The Accused was questioned
under Sec.313 of Crl.P.C., about the incriminating circumstances and evidence.
The Accused denied all of them and stated that a false case was foisted
against him.
11. Upon consideration of the evidence, referring to the injury on
the neck, death was found to have been proved to be homicidal. The learned
Sessions Judge mainly pointed out the conduct of the Accused in giving false
information to P.Ws.1 and 2 and their mother Meena that the deceased
AngalaEaswari was seriously injured due to electric shock and admitted in
Thirumangalam Government Hospital. Such conduct of the Accused was held
against the Accused as relevant under Sec.8 of the Indian Evidence Act. Point
urged onbehalf of the Accused on the non-examination of four year old child
Karnan was negatived by the trial court and the learned Sessions Judge was of
the view that nothing would materialise by the examination of child witness.
12. Assailing the conviction and the findings of the trial court, the
learned counsel for the Accused mainly urged that non-examination of four year
old child witness is fatal to the Prosecution case. Finding of the trial
court is also attacked on the ground that the trial court erred in placing
reliance upon the evidence of P.Ws.1 and 2, who are brother and sister of the
deceased. The learned counsel further submitted that the trial court erred in
drawing the impermissible inferences in referring to the conduct of the
Accused that he gave false information to P.Ws.1 and 2 and that he had run
away from the scene of occurrence. It is further submitted that in the
absence of examination of other witnesses from the surrounding area, it would
be unsafe to base the conviction upon the evidence of P.Ws.1 and 2 and the
medical evidence.
13. Countering the arguments of the Accused, the learned Additional
Public Prosecutor has drawn the attention of the Court to Ex.P.7 – Complaint
and submitted that even from the beginning needle of suspicion is pointed
towards the Accused. The learned Additional Public Prosecutor countered the
arguments of the Accused laying emphasis upon the conduct of the Accused on
three aspects;
(i) that deceased was last seen alive in the company of the Accused where they
resided in the same house in Keeriyagoundenpatty;
(ii) conduct of the Accused in giving false information to P.Ws.1 and 2 that
deceased sustained injuries due to electric shock and admitted in
Thirumangalam Government Hospital for treatment;
(iii) conduct of the Accused in running away from the house when P. Ws.1 and
2 expressed suspicion against the Accused.
It is submitted that the trial court has rightly appreciated the evidence and
the proved circumstances and the conviction warrant no interference.
14. Upon reassessment of the evidence and materials on record,
impugned judgment and submissions of both sides, in our considered view, the
following points arise for consideration in this Appeal:
(i) Whether the Accused is proved to be responsible for the homicidal death of
the deceased AngalaEaswari ?
(ii) Whether the conviction of the Appellant / Accused warrants any
interference ?
15. From the facts and evidence detailed above, it is clear that case
of the Prosecution relies upon circumstantial evidence. In every case based
upon circumstantial evidence, the question that would need to be determined is
whether all the links in the chain of circumstances are so complete so as to
establish the guilt of the Accused ruling out the possibility of his
innocence.
16. It is not in dispute that the Accused already being a married man
and having children through his first wife, developed illicit intimacy with
AngalaEaswari. Accused married her as a second wife. Both Accused and
AngalaEaswari had a four year old son by name Karnan. Accused and deceased
were residing in Keeriyagoundenpatty; first wife of the Accused was living
with her children in Madurai Town. The Accused frequently visited the
deceased in the residence at Keeriyagoundenpatty. During the questioning
under Sec.313 of Crl.P.C., the Accused admitted his marriage with the
deceased. He also admitted having four year old son.
17. Deceased is the sister of P.W.1 Pandiarajan and P.W.2 –
Pandiammal. Their mother Meena was then alive and was the Complainant in
Ex.P-7. In their evidence, P.Ws.1 and 2 have consistently spoken about the
quarrel between the Accused and the deceased. P.Ws.1 and 2 have stated that
deceased AngalaEaswari frequently used to visit their house and tell them that
the Accused was quarrelling with her suspecting her fidelity. We find, by the
evidence of P.Ws.1 and 2, Prosecution has proved the ill-will that swelled up
in the mind of the Accused to commit the murder of his wife. We are of the
view that by proof of motive, Prosecution case is rendered probable.
18. To establish the guilt of the Accused, Prosecution relies upon
the following circumstances;
(i) death of AngalaEaswari is homicidal;
(ii) That Accused and deceased were residing in the same house. That deceased
was last seen alive in the company of the Accused. The Accused alone had the
opportunity to commit the offence;
(iii) conduct of the Accused in giving false news to P.Ws.1 and 2 that
AngalaEaswari sustained grievous injuries due to electric shock and admitted
in Thirumangalam Government Hospital;
(iv) When P.Ws.1 and 2 expressed their suspicion against the Accused, conduct
of the Accused in running away from the house and his subsequent abscondence.
(v) Arrest of the Accused on 20.05.1993 and recovery of M.O.1 – Nylon rope at
his instance.
19. Circular marking injury around the neck was noted by P.Ws.1 and
2. P.Ws.1 and 2 have spoken about the injury which they found on the body of
AngalaEaswari. In Ex.P.10 – Inquest Report also, it has been stated thus:-
@///////// ,we;jthpd; fGj;jpd; Kd;gFjpapy; g[jpa fhaj; jGk;g[ ,Ug; gjhYk;
mthpd; jhahh; kPdh jd;kfspd; (m’;fhs <!;thp)apd; ,wg;gpy; re; njfk;
,Ug;gjhft[k;. mth;pd; fzth; mHfh;rhkpia re;njfg;gLtjhft[k; TWfpwhh;//////@
20. By the evidence of P.W.4 – Dr.Nagendran and Ex.P.2 – Post Mortem
Certificate, death is proved to be homicidal. During autopsy, P.W.4 noted
an incomplete circular marking present below the hyoid bone …..
Internal examination: On dissection of the neck subcutaneous tissues are
congested. Ecchymosis present. Extravasation of blood present.
P.W.4 opined that the death was due to Asphyxia due to strangulation with an
object like M.O.1 – rope. P.W.4 based his opinion on the following;
(i) Incomplete circular marking present below the hyoid bone;
(ii) No possibility for hanging;
(iii)Congestion of the tissues present ecchymosis present;
(iv) Seminal discharge present in the Vagina;
(v) Strangulation of the Windpipe with a Rope.
(vi) Certainly not due to Electrocution.
Thus death is proved to be homicidal by the evidence of P.Ws.1 and 2 and the
unimpeachable medical evidence.
21. As we have already noted, the Accused and the deceased were
having their residence in Keeriyagoundenpatty. Case of Prosecution is that on
the evening of 16.05.1993 the Accused strangulated the deceased with M.O.1 –
Nylon rope. The scene of occurrence is the residential house, where the
Accused and the deceased lived together. Since Accused and deceased were
living together, Accused alone had the opportunity of committing the offence.
The opportunity available to the Accused to perpetrate the offence unerringly
points to his guilt.
22. Presence of the Accused in the house at the time of occurrence
and the presence of Semen in the vagina of deceased AngalaEaswari clearly show
that the Accused, who was the husband of the deceased, had coitus with the
deceased prior to the occurrence. In our considered view, presence of semen
in the vagina of the deceased and that the Accused had access to the deceased
is the strong circumstance against the Accused.
23. On the date of occurrence, the Accused diverted the attention of
P.Ws.1 and 2 and their mother Meena. At about 9.30 PM, Accused went to the
house of P.Ws.1 and 2 and informed them that AngalaEaswari sustained injuries
due to electric shock and admitted in Thirumangalam Government Hospital for
treatment. In his opinion, P.W.4 – Dr. Nagendran has categorically denied
that the death could not have occurred due to Electrocution. Further P.W.5
Thambi working as a Wireman in Tamil Nadu Electricity Board has stated that
all the electric wires and the service connection in the house of the deceased
were found to be intact. He has expressed his opinion that there was no
possibility of causing death due to shock since all the wires were intact. On
being diverted, P.Ws.1 and 2 and their mother Meena went to the hospital and
found that AngalaEaswari was not admitted to the hospital. Immediately they
went to the house at Keeriyagoundenpatty. They found AngalaEaswari dead with
injury over the neck. When P.Ws.1 and 2 expressed their suspicion towards the
Accused, the Accused ran away from the scene of occurrence.
24. The learned Additional Public Prosecutor has placed much reliance
upon the conduct of the Accused and contended that his conduct in giving wrong
information to P.Ws.1 and 2 and running away from the scene of occurrence is
very much relevant under Sec.8 of the Indian Evidence Act. The state of mind
of the Accused can be judged from the surrounding circumstances. By what had
subsequently taken place, the criminal intention of the Accused could be
inferred. The criminal intention of the Accused is clear from his conduct in
giving false information to P.Ws.1 and 2 and their mother Meena to divert
their attention. Likewise, the conduct of the Accused in running away from
the place of occurrence when P.Ws.1 and 2 and their mother Meena expressed
doubts against the Accused. As rightly submitted by the learned Additional
Public Prosecutor, this conduct of the Accused is very much relevant under
Sec.8 of the Indian Evidence Act. The learned Sessions Judge was right in
inferring the criminal intention of the Accused from his conduct. By careful
evaluation of proved circumstances, we find no reason to take a different
view.
25. Conduct of the Accused is not merely running away and flight.
But his abscondence was nearly for five days. Only after five days, on
20.05.1993 – 8.00 AM the Accused was arrested in Melakottai. On the basis of
his confession statement (Ex.P-5), from their residence in Keeriyagoundenpatty
M.O.1 – Nylon rope (with 3 knots) was seized under Ex.P.6 – Seizure Mahazar.
Recovery of M.O.1 at the instance of the Accused is a strong circumstance
against the Accused. No reasonable explanation is forthcoming from the
Accused.
26. As we have noted earlier, Accused and deceased had a male child
by name Karnan aged about four years. It is contended that there is every
possibility of the said Karnan being present in the house having witnessed the
occurrence. Main contention urged onbehalf of the Accused is that the
non-examination of child Karnan either during the investigation or before the
Court is fatal to the Prosecution case. By perusal of the judgment of the
court below, it is clear that this point was urged before the trial court and
the learned Sessions Judge carefully considered the same and found that by
examination of four year old child witness, nothing would materialise. Child
Karnan was aged about only four years. Even if examined during investigation
or in the Court, it would have been only an evidence of a child witness, who
might have been unable to discern between truth and falsehood. The
Investigating Officer and the Public Prosecutor, who conducted the trial in
the Court of Session, might have formed an opinion that the child Karnan would
not have developed proper understanding. The child witness being aged only
about four years, Prosecution cannot be faulted for non-examination of the
child witness.
27. Equally, we are not impressed upon the point urged on the
nonexamination of independent witnesses. The residential house of the Accused
and deceased in Keeriyagoundenpatty is surrounded by few other residential
houses. On the factual circumstances of the case, Prosecution could not have
examined any witness for the occurrence. The occurrence was inside the house
which was between the husband and wife; that too, after the Accused had
developed privacy with the deceased and also had coitus with her prior to the
occurrence. In that circumstance, it would be unreasonable to expect the
Prosecution to examine any independent witnesses.
28. In our considered view, the proved circumstances if put together
points to one direction – namely, the guilt of the Accused. The circumstances
are fairly established by the Prosecution. We are of the view that the proved
circumstances unerringly point towards the guilt of the Accused. In our
considered view, the trial court was right in finding that the Prosecution has
established the guilt of the Accused.
29. The learned Sessions Judge has carefully analysed the entire
evidence and circumstances. Recorded findings are based upon sound reasonings
and proper inferences, which according to us, are in conformity with facts and
circumstances of the case. The learned Sessions Judge has given cogent and
convincing reasonings for accepting the case of the Prosecution. Having
carefully considered the evidence, we do not find any reason to interfere with
the findings of the trial court.
30. In the result, the judgment of the trial court / II Additional
Sessions Court, Madurai, in S.C.No.241/1994 dated 03.01.1997 convicting the
Appellant / Accused under Sec.302 IPC and the sentence of imprisonment imposed
upon him is confirmed and this Appeal is dismissed.
31. The trial court is directed to take immediate steps for securing
the Accused to commit him to prison for serving the remaining period of
sentence.
Index:Yes.
Internet : Yes.
gl
To
1. The II Additional sessions Judge,
Madurai.
2. The Principal Sessions Judge,
Madurai.
3. The Superintendent,
Central Prison,
Madurai.
4. The Collector,
Madurai District,
Madurai.
5. The Inspector of Police,
Thirumangalam Taluk Police Station,
Thirumangalam.
6. The Public Prosecutor,
High Court, Madras.