IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.9.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.JEYAPAUL Crl.A.No. 203 of 2009 Ethiraj .. Appellant/Accused Vs. State Rep. by the Inspector of Police, Baluchettichatiram Police Station Kanchipuram District. .. Respondent/Complainant Crime No.49/2007 * * * Prayer : Appeal against the Judgment, dated 26.8.2008, passed in S.C.No. 331 of 2007 on the file of the Additional Sessions Judge, (Fast Track Court No.II), Kanchipuram. * * * For Appellant :: Mr. T.Munirathinam Naidu for Mr.S.Ananth For Respondent :: Mr. Hassan Mohamed Jinnah Addl. Public Prosecutor J U D G M E N T
(The Judgment of the Court was made by C. NAGAPPAN, J.)
Appellant Ethiraj is the sole accused in Sessions Case No.331 of 2007 on the file of the Additional Sessions Judge (Fast Track Court-II), Kanchipuram, and he has preferred this appeal challenging the conviction and sentence imposed on him by judgment dated 26.8.2008 in the case. For the sake of convenience, in this Judgment, the appellant will be referred to as accused.
2. The learned Additional Sessions Judge found the accused guilty of the charge under Sections 302 IPC and convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo three months Rigorous Imprisonment.
3. To prove its case, the prosecution examined P.Ws.1 to 19 and marked Exs.P.1 to P.10.
4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows.
The deceased Uma is the wife of the accused Ethiraj and P.W.11 Minor Banu Priya is their daughter. P.W.3 Saminathan is the junior paternal uncle; P.W.5 Babu is the brother; P.W.6 Vijayan is the cousin brother; P.W.7 Palani is the sister’s husband of the deceased Uma. P.W.12 Daniel, P.W.13 Milka, P.W.16 Shanmugham are the neighbours of the deceased Uma.
The accused Ethiraj married Uma in the month of September, 1996 and started living in a rented house at Sirukaveripakkam and they were blessed with a daughter and a son. The accused Ethiraj was employed in a Rice Mill on a monthly salary of Rs.2,000/-. During the year 2006, he purchased a plot in New Colony and built a house and started living there. The accused Ethiraj constructed the house by borrowing loan from financier and he was finding it difficult to pay the dues besides meeting domestic expenses. He pledged the jewels of his wife Uma and borrowed loan and he could not redeem the jewels and his wife Uma quarrelled with him for his inability to redeem the jewels and went to her parents’ house and refused to come back. A compromise talk was held on 8.2.2007 and at the instance of the brother and sister-in-law of the accused, Uma returned to her matrimonial home and further quarrelled with the accused alleging illicit intimacy with some other lady.
On 13.2.2007, the accused Ethiraj and his wife Uma along with their children were sleeping in their house. On 14.2.2007 at 3.00 a.m., P.W.11 Minor Banu Priya woke up on hearing the scream of her father and saw her mother lying unconscious in the kitchen. She got scared and called the neighbours. P.W.12 Daniel, P.W.13 Milka and P.W.16 Shanmugham went to the house of the accused Ethiraj and found Uma lying dead. The accused Ethiraj was found there crying.
P.W.1 Venkatesan, Village Administrative Officer of Sirukaveripakkam, was in his Office at 10.00 a.m. on 14.2.2007 along with P.W.2 Manoharan and Devaraj, Village Menials, and the accused Ethiraj appeared before him and wanted to give a confession statement about the occurrence. P.W.1 V.A.O. Venkatesan recorded Ex.P1 Confession statement given by the accused Ethiraj in the presence of both the Menials in his Office and obtained the signature of the accused Ethiraj in it and both the Menials attested the same as witnesses. P.W.1 V.A.O. Venkatesan prepared Ex.P2 Report and took the accused Ethiraj to the Police Station and produced him before P.W.17 Sub Inspector Masilamani at 1.00 p.m. on 14.2.2007 and handed-over Exs.P1 and P2 Documents to him. P.W.17 Sub Inspector Masilamani registered a case in Crime No.49/07 under Section 302 IPC and prepared Ex.P7 Printed First Information Report and sent the same to the Court and the Higher Officers and detained the accused after arresting him. He also telephonically informed the Inspector-in charge and went to the occurrence place. P.W.7 Palani is the sister’s husband of the deceased Uma and on receiving information over telephone about the occurrence regarding the death of Uma, he went to the occurrence place after informing his Officers.
P.W.18 Inspector Kanniappan received the information and went to the occurrence place at 1.45 p.m. on 14.2.2007 and took up the investigation. He prepared Ex.P3 Observation Mahazar in the presence of P.W.8 Barnabas and another. Ex.P8 is the Rough sketch drawn by him. He conducted inquest on the body of Uma from 3.30 pm in the presence of panchayatars and prepared Ex.P9 Inquest Report. He sent the body for post-mortem through P.W.15 Head Constable Vijayalakshmi by giving requisition.
P.W.14 Dr. Senthilkumar and Dr. E.Vijayalakshmi conducted post-mortem on the body of Uma at 12 noon on 15.2.2007 and found the following –
” A body of female lying on its back, arms by sides, Eyes closed. Eye lids swollen and black in colour. Mouth partially opened. Tongue clenched by teeth. Blood stained discharge from nose and mouth. Partially decomposed body, skin black in colour. Multiple blisters with peeling of the skin, whole body swollen and distended with gas. White colour vaginal discharge present.
Teeth 3 6 Mammary glands well developed. 6 6 Scalp hair loose. External Injuries: 1 x 1cm triangle shape, black colour abrasions seen Right side neck. On C/s subcut ecchymosis present. Internal Examination: Hyoid:- Intact, preserved. Thorax: No Ribs fracture. Heart:- 300 gms. empty. Lungs:- Right 500 gms. Left 450 gms. C/s Congested. Stomach: Distended with gas partially digested rice 250 ml. present. Liver:- 1200 gms. C/s Congested. Spleen:- 120 gms. C/s - Congested. Kidneys:- Each 150 gms - Congested. Intestines:- Distended with gas. Bladder: Empty. Uterus: 7 x 5 x 3 cms, 60 gms. Empty Cavity. Ovaries Normal, Cx Normal. P/v : Vagina patulous, normal. Vaginal smear (2) and Vaginal swab (2) are taken. Skull: Intact. Brain: Liquefied. Spine: Intact. Viscera preserved: Reserving opinion as to cause of death pending receipt of Viscera Report Dr.E.Vijayalakshmi issued Ex.P6 Post-mortem Certificate stating that the death would have occurred 36-48 hours prior to Autopsy. After receipt of Toxicology Report and Hyoid Bone Report, P.W.14 Dr. Senthilkumar expressed Final Opinion stating that the deceased would appear to have died of Asphyxia.
P.W.18 Inspector Kanniappan examined P.Ws.1 to 8 on 14.2.2007 itself and recorded their statements. At 7.00 p.m., on the same day, he enquired the accused Ethiraj in the presence of P.W.9 Rajendran and P.W.10 Mani and recorded the confession statement given by him. He examined P.W.9 Rajendran and P.W.10 Mani and recorded their statements.
On 15.2.2007, P.W.19 Regular Inspector Ashok Metha continued the investigation. He examined P.W.11 Minor Banu Priya, P.W.12 Daniel, P.W.13 Milka, P.W.16 Shanmugham and another witness and recorded their statements. He sent the accused Ethiraj for judicial remand. On 22.3.2007 he examined P.W.15 Head Constable Vijayalakshmi and recorded her statement. On 14.5.2007, he examined P.W.14 Dr. Senthilkumar and Dr. Vijayalakshmi and recorded their statements. He completed the investigation on 15.5.2007 and filed the Final Report against the accused.
5. The incriminating circumstances appearing against the accused were put to him during his examination under Section 313 Cr.P.C and he denied the testimonies as false. No witness was examined and no document was marked on his side.
6. The trial Court found the accused guilty of the charge and sentenced him as stated earlier. Challenging the same, he has preferred the present appeal.
7. The prosecution case is that the accused Ethiraj throttled the neck of his wife Uma resulting in her death at the time of occurrence. There are no eye-witnesses to the occurrence and the case is based on circumstantial evidence.
8. The accused Ethiraj is the husband of deceased Uma. PW.11 Selvi Banupriya is their daughter. PW.3 Saminathan, P.W.5 Babu, PW.6 Vijayan and PW.7 Palani are their family members and they did not support the prosecution case and were declared hostile. PW.4 Gopal is a relative of the deceased Uma and PW.12 Daniel, PW.13 Milka and PW.16 Shanmugam are the neighbours of the deceased Uma and all of them turned hostile. Of course, the daughter PW.11 Banupriya also was treated as hostile. PW.9 Rajendran and PW.10 Mani are the witnesses who were examined as having witnessed the recording of confession statement given by the accused and they also were treated as hostile.
9. The incriminating circumstances relied on by the prosecution against the accused are as follows.
"1) The accused Ethiraj and the deceased Uma were together in their dwelling house on the occurrence night and the accused husband offers no explanation as to injuries received by his wife.
2) Homicidal death of Uma.
3) The accused Ethiraj at 10 am on 14.2.2007 presented himself before PW.1 VAO Venkatesan and gave Ex.P1 Extra judicial confession in the presence of Village menial PW.2 Manoharan.
10. On the occurrence night, the accused Ethiraj was in his house with his wife Uma and children. Their daughter PW.11 Banupriya, though treated hostile, in her testimony in chief-examination has stated that she slept with her parents on the occurrence night and she woke up at about 3 am in the early morning on hearing the scream of his father and she found her mother Uma lying unconscious in the kitchen and she got scared and called the neighbours and they sprinkled water on the face of her mother and told that Uma is dead. PW.12 Daniel, PW.13 Milka and PW.16 Shanmugam, who were neighbours of the deceased Uma, though declared hostile, have stated in their examination in chief that PW.11 Banupriya was crying and calling them and they went inside and saw Uma lying dead in the house and the accused was sitting near the body and crying. Though the above witnesses were declared as hostile, their testimonies to the extent referred above can be relied on, which would establish that the accused was present in the dwelling house on the occurrence night.
11. The settled position of law is that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that the offence took place in the dwelling home where the husband was found present with his wife and if the accused does not offer any explanation as to how his wife received injuries, it would be non-explanation and it is a strong circumstance which indicates that the accused is responsible for the commission of the crime. In the present case, the accused when examined under Section 313 Cr.P.C., has merely stated that the testimonies of the witnesses are false and did not offer any explanation as to how his wife Uma received injuries. He did not also file any written statement. The husband cannot get away by simply keeping quiet and offering no explanation, since a burden is cast on him to give a cogent explanation as to how the crime was committed. The mere denial of the prosecution case coupled with absence of any explanation is inconsistent with the innocence of the accused, but consistent with the hypothesis that the accused committed the murder of his wife. The prosecution has established the first circumstance relied on by it.
12. Uma suffered homicidal death is established by the testimony of the post-mortem doctor. PW.14 Dr.Senthilkumar along with Dr.Vijayalakshmi conducted autopsy on the body of Uma at 12 noon on 15.2.2007. PW.14 Dr.Senthilkumar has testified that he found eye lids were swollen and black in colour; tongue clenched by teeth; blood stained discharge from nose and mouth and he saw external injury 1 x 1 cm triangle shape, black colour abrasions on right side neck and on dissection subcut ecchymosis present. Opinion as to cause of death was kept reserved pending receipt of viscera report and they issued Ex.P6 Post-mortem Certificate stating that death would have occurred 36-48 hours prior to Autopsy. On receipt of Ex.P10 Viscera Report and the Hyoid bone report, PW.14 Dr.Senthilkumar expressed final opinion that the deceased would appear to have died of asphyxia. In his testimony in examination in chief, PW.14 Dr.Senthilkumar has deposed that the asphyxia found on the body could have occurred by pressing the neck with hands resulting in death.
13. The learned counsel for the appellant submits that the post-mortem doctor PW.14 Dr.Senthilkumar in his cross-examination has deposed that he has mentioned in his Post-mortem Report that the death had not occurred due to throttling with hands and hence the prosecution has not established the cause of death as throttling. Per contra, the learned Additional Public Prosecutor submits that the opinion expressed in the post-mortem certificate is only that the death has occurred due to asphyxia and in the examination in chief, PW.14 Dr.Senthilkumar has deposed that the death has occurred due to throttling with hands and he has reiterated the same during his cross-examination by referring to the symptoms.
14. PW.14 Dr.Senthilkumar was examined and cross-examined on 22.7.2008 itself. In the chief-examination on that date, he has stated that asphyxia found on the body of the deceased could have occurred due to throttling with hands and in the cross-examination on the same day, he has testified that the eye-lids were found swollen and black in colour and the tongue was clenched by teeth and these symptoms would indicate the death due to throttling of the neck with hands. PW.14 Dr.Senthilkumar was re-called on 13.8.2008 and in his cross-examination, he has deposed that in the post-mortem certificate he has mentioned that the death has occurred not due to throttling of neck. The above testimony is factually wrong. Ex.P6 is the Post-mortem Certificate, in which, he has opined that the deceased would appear to have died of asphyxia. No further opinion is expressed. Moreover, as already seen, in his testimony given on 22.7.2008, he has categorically stated that the death could have occurred due to asphyxia by throttling with hands by referring to the symptoms found on the body. In such circumstances, a factually erroneous stray reply given in the further cross-examination of PW.14 Dr.Senthilkumar pales into insignificance. Accepting the medical testimony, it is clear that Uma died of homicidal violence and this circumstance stands established.
15. The accused is said to have given an extra judicial confession to the Village Administrative Officer admitting the guilt in the presence of Village menial. PW.1 Venkatesan is the Village Administrative Officer of the occurrence place viz., Sirukaveripakkam and he has testified that on 14.2.2007 when he was present in his office along with Village menials PW.2 Manoharan and Devaraj, the accused Ethiraj came there at 10 'O' clock in the morning and expressed his wish to give confession statement about the occurrence and he, in the presence of village menials, recorded Ex.P1 Confession Statement given by the accused and obtained his signature in it and also obtained the signatures of PW.2 Manoharan and Devaraj as witnesses in Ex.P1 Confession Statement and prepared Ex.P2 Report and took the accused Ethiraj to Baluchettichatiram Police Station and produced him before the Sub Inspector along with Exs.P1 and P2 documents. PW.2 Manoharan in his testimony has confirmed that he was with PW.1 VAO Venkatesan in his office at 10 am on 14.2.2007 and the accused came there and gave Ex.P1 extra judicial confession to the Village Administrative Officer in his presence and it was recorded by the Village Administrative Officer and he and Devaraj attested the same and PW.1 VAO Venkatesan prepared his report and they all took the accused to the Police Station and produced him along with the documents. PW.17 Masilamani is the Sub Inspector of Baluchettichatiram Police Station and he has stated that on 14.2.2007 at 1 pm, PW.1 VAO Venkatesan produced the accused Ethiraj and handed over Exs.P1 and P2 documents and he registered a case in Crime No.49 of 2007 under Section 302 IPC and prepared Ex.P7 First Information Report and despatched the same to the Court and higher officers and he arrested the accused and detained him in the police station. PW.18 Kanniappan was the Inspector In-charge on 14.2.2007 for Baluchettichatiram Police Station and he has deposed about taking up investigation in the case.
16. The learned counsel for the appellant contends that the accused would not have come to the office of Village Administrative Officer as stated by P.Ws.1 and 2 and Exs.P1 and P2 documents could not have come into existence as spoken to by the witnesses and they came into being in the police station after the arrival of PW.18 Inspector Kanniappan and the counsel points out a contradiction in this regard in the testimonies of P.Ws.1 and 2 and that of Investigation Officer.
17. It is true that P.Ws.1 and 2, in their cross-examination, have stated that when they went to Baluchettichatiram Police station, both Sub Inspector and Inspector were present there and PW.2 Manoharan had also mentioned the Inspector's name as Kanniappan; whereas PW.18 Inspector Kanniappan in his testimony has stated that the regular Inspector of the Police Station had gone on other duty on 14.2.2007 and he was in-charge Inspector and he received information about the registering of the case and he went to the occurrence place, namely, New Colony at Sirukaveripakkam at 1.45 pm and obtained the express report from PW.17 Sub Inspector and took up the investigation. The contradiction with regard to the presence of the Inspector in the police station at the relevant time is not a material one which would go to the root of the matter. Admittedly, PW.1 VAO Venkatesan had produced the accused Ethiraj along with Exs.P1 and P2 documents only before the Sub Inspector PW.17 Masilamani and he had registered the case. On 14.2.2007, the regular Inspector PW.19 Ashok Metha had gone to Panruti Court to give evidence in a case and he returned to Baluchettichatiram Police Station only on 15.2.2007. The Deputy Superintendent of Police, Kanchipuram had put PW.18 Inspector Kanniappan as in charge Inspector and as directed he went to the occurrence place and took up the investigation. Hence there is no possibility of PW.18 Inspector Kanniappan present in the police station at the relevant time. Therefore, the contention that Exs.P1 and P2 documents came into being in the police station in the presence of PW.18 Inspector Kanniappan, is devoid of merit and liable to be rejected.
18. PW.1 Venkatesan is the jurisdictional Village Administrative Officer of the occurrence place and his office is located one kilometre from the occurrence house. From the testimonies of witnesses, it is seen that the accused Ethiraj was found crying near the body of his wife in the morning on 14.2.2007. Fearing apprehension by the police, the accused had gone to the office of the Village Administrative Officer and had expressed his wish to give confession statement about the occurrence and that has been recorded as Ex.P1 Confession Statement by PW.1 Venkatesan. PW.2 Manoharan is one of the witnesses present during the recording of the confession statement and he has also corroborated the testimony of PW.1 VAO Venkatesan. Ex.P2 is the Report prepared by PW.1 Venkatesan about the recording of the confession and he had produced the accused along with Exs.P1 and P2 documents in the police station. In the averments in Ex.P1 Confession Statement, the accused Ethiraj has stated that he obtained loan from financier for constructing the house and he could not pay the dues and meet the domestic expenses and on account of that he pledged the jewels of his wife and borrowed loan and he could not redeem the jewels and his wife Uma quarrelled with him for his inability to redeem the jewels and had gone to her parents' house and refused to come back and there was compromise talk on 8.2.2007 and at the instance of his brother and sister-in-law, his wife Uma returned to her matrimonial home, and Uma was quarrelling with him alleging illicit intimacy with some other lady and on the occurrence night, his wife Uma picked up quarrel by pointing out his inability to redeem the jewels and his illicit intimacy and hence he throttled her neck with hands when she was asleep and committed the murder.
19. P.W.1 V.A.O. Venkatesan was subjected to lengthy cross-examination and nothing was elicited to discredit his testimony. We are satisfied that Ex.P1 Extra-judicial confession is voluntary and is not the result of any inducement, threat or promise or brought about in suspicious circumstances. It is settled position of law that if the extra-judicial confession is true and voluntary, it can be relied upon by the Court to find the accused guilty of the commission of crime. In this context, the recent decision of the Supreme Court in VELAYUDA PULAVAR V. STATE BY SUB-INSPECTOR OF POLICE [2009 (6) SCALE 537] is relevant and for better appreciation it is extracted below -
” 9. In the instant case, the extra judicial confession was made before the Village Administrative Officer who is not a stranger to the first accused and he knew him for quite some time. The evidence on record clearly establishes that Ex.P.1 was recorded by the Village Administrative Officer PW.1 in the Panchayat Office in the presence of many persons. The evidence of PW.3 also corroborates the version of PW.1 that the present appellant made extra judicial confession (Ex.P.1) in the Panchayat Office and he is one of the attestors to Ex.P1. So far as plea relating to corroboration is concerned, if the court looks for such corroboration of a judicial confession or an extra judicial confession, same need not be in material particulars. It can be and will have to be only corroboration in general. Each and every piece of information mentioned in the extra-judicial confession need not be corroborated by independent evidence. It is well settled that conviction can be recorded solely on the basis of the extra judicial confession if it is found to be credible and worthy of acceptance. PW.1’s evidence coupled with that of PW.3 makes the position clear that there was a voluntary extra-judicial confession made by the appellant before the Village Administrative Officer (PW.1). That being so, we find no scope for interference in this appeal. The appeal is, accordingly, dismissed.”
Tested on the touchstone of the above decision, we have no hesitation in concluding that Ex.P1 Extra-judicial confession is voluntary and true and the prosecution has established this circumstance.
20. The case of the prosecution rests on circumstantial evidence and the prosecution has firmly established the circumstances which have a definite tendency unerringly pointing towards the guilt of the accused and taken cumulatively, they form a complete chain to conclude that the crime was committed by the accused. The Trial Court has rightly found the accused guilty of the charge and the sentence imposed is also proper.
21. There are no merits in the appeal and the same is dismissed.
pb/vks
To
1. The Additional District and Sessions Judge (Fast Track Court No.II), Kanchipuram.
2. -do- through the Principal District and Sessions Judge, Chengleput.
3. The Inspector of Police, Baluchettichathiram Police Station, Kanchipuram District.
4. The Superintendent of Prisons, Central Prison, Puzhal, Chennai-600 066.
5. The Director General of Police, Mylapore, Chennai-600 004.
6. The District Collector, Kanchipuram District, Kanchipuram.
7. The Public Prosecutor, High Court, Madras.
8. The Section Officer, Criminal Section, High Court,
Madras 104