BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/03/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRIMINAL APPEAL NO.607 OF 2003 Pandi .. Appellant Vs. State by the Inspector of Police, Kovilpatti East Police Station, Crime No.314 of 1999 .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C. against the judgment of the learned Principal Sessions Judge, Tuticorin made in S.C.No.157 of 2000, dated 7.11.2002. !For Appellant : Mrs.S.Vengalakshmi ^For Respondent : Mr.A.Balaguru, APP :JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
The sole accused/appellant in S.C.No.157 of 2000 on the file of the
learned Principal Sessions Judge, Tuticorin, on being found guilty as per the
charges under Sections 449 and 302 IPC and awarded one year RI and to pay a fine
of Rs.100/-, in default to undergo one month RI under section 449 IPC and also
to undergo life imprisonment and to pay a fine of Rs.100/-, in default to
undergo one month RI under Section 302 IPC, has brought forth this appeal,
challenging the judgment of conviction and sentence.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
a)P.W.1, Muthuveeran, is the resident of Jothi Nagar Stalin Colony at
Kovilpatti and is doing Cooli work. He had three sisters, out of whom, the
second sister Rani was given in marriage to the appellant/accused. As a result
of the said wedlock, they had a boy. Thereafter, there was a strained
relationship between them and they were living separately. There was again a
reunion and she was living with him for the past 2 years. Often, the accused
quarreled with her in a drunken mood and treated her cruelly and also used
filthy language. On one occasion, following an incident, a case was registered
by Kovilpatti East Police Station on a complaint given by the deceased. When
the case was registered at Kovilpatti East Police Station, on number of
occasions, the accused came to the house of P.W.1 and threatened the said Rani
as to why she gave evidence against him in a criminal case.
b)On 23.6.1999 at about 4.00 p.m., P.W.1 was taking food and his sister
P.W.2, Shanmugathai was serving food to him. The deceased Rani and the other
sister Shenbagavalli, who was deaf and dumb, were engaged in the work of
arranging the match sticks. At that time, the accused came with knife uttering
filthy words and stabbed the said Rani on her chest twice and also attacked on
her stomach. The occurrence was witnessed by P.Ws.1 and 2 and also by
Shenbagavalli. The accused threatened them also and fled away from the place of
occurrence. The said Rani ran outside the house and fell down on the road with
the bleeding injuries.
c)Immediately, P.W.1 proceeded to Kovilpatti East Police Station and gave
Ex.P.2, the complaint to P.W.14, the Sub Inspector of Police, who was on duty at
that time. On the strength of Ex.P.2, a case came to be registered in Crime
No.314 of 1999 under Section 302 IPC. Ex.P.17, the FIR was despatched to the
Court.
d)P.W.15, the Inspector of Police, on receipt of the copy of the FIR, took
up the investigation, proceeded to the scene of occurrence and made an
inspection in the presence of the witnesses. He prepared Ex.P.5, the
observation mahazar and Ex.P.18, the rough sketch. He has conducted inquest on
the dead body of the deceased in the presence of the witnesses and panchayatdars
and prepared Ex.P.19, the inquest report. After the inquest was over, the dead
body was sent for the purpose of post-mortem along with a requisition.
e)P.W.3, the Doctor attached to the Government Hospital, Kovilpatti, on
receipt of the requisition, has conducted post-mortem on the dead body of the
deceased and he gave opinion in Ex.P.4, the post-mortem certificate, that the
deceased would appear to have died of shock and haemorrhage due to the injuries
sustained.
f)Pending investigation, the accused was arrested on 25.6.1999. He came
forward to give a confessional statement voluntarily, which was recorded in the
presence of the witnesses, the admissible part of which was marked as Ex.P.7.
Pursuant to the same, he produced M.O.1, knife, which was recovered under
Ex.P.8, mahazar. The accused was sent for judicial remand. The Investigator
examined the other witnesses and also recorded their statements. All the M.Os
recovered from the scene of occurrence, from the dead body of the deceased and
also M.O.1, knife recovered from the accused pursuant to the confessional
statement, were subjected to chemical analysis by the Forensic Sciences
Department, which resulted in two reports, namely Ex.P.12, the Chemical Report
and Ex.P.14, 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. The prosecution, in order to establish the case, has marched 15
witnesses and relied on 20 exhibits and 10 M.Os. On completion of the evidence
on the side of the prosecution, the accused was questioned under Section 313
Cr.P.C. procedurally, as to the incriminating circumstances found in the
evidence of prosecution witnesses. He denied them as false. No defence witness
was examined. The Court heard the arguments advanced on either side and took the
view that the prosecution has proved the case beyond reasonable doubt and found
the accused guilty as per the charges and awarded imprisonment as referred to
above. Hence, this appeal at the instance of the appellant.
4.Advancing her arguments on behalf of the appellant, the learned counsel
has made the following submissions:
a)The prosecution relied on the evidence of P.Ws.1 and 2, as eyewitnesses
and also P.W.4, who saw the accused running with knife. P.Ws.1 and 2 could not
have seen the occurrence at all. According to P.W.1, the accused stabbed the
deceased twice, but according to post-mortem Doctor, there were 3 injuries
found. According to P.W.2, she heard the distressing cry and she came
thereafter and therefore, she could not have seen the occurrence at all.
According to one witness, the occurrence has taken place inside the house and
thereafter, the deceased ran outside, while the other witness has deposed that
the occurrence has taken place partly inside and partly outside of the house and
therefore, there is vital discrepancy as to the scene of occurrence. In the
instant case, according to the prosecution, the occurrence has commenced inside
the house and it ended in a public street. There was profuse of blood from the
body of the deceased. If to be so, there should have been blood drops all along
the place from inside the house till the dead body was found. But, no
bloodstains were found either, or they were not recovered. Immediately after the
occurrence was over, according to P.W.1, the dead body was placed in the lap. If
to be so, the cloth of P.W.1 would have been trenched with the blood and the
bloodstained cloths should have been recovered, but not done so by the
Investigator. The evidence of P.W.1 was falsified by the evidence of P.W.2, who
has deposed that the dead body was actually not touched by either of them. This
would clearly indicate that P.Ws.1 and 2 could not have seen the occurrence at
all.
b)The learned counsel would further submit that Shenbagavalli, who was
deaf and dumb, was also inside the house at the time of occurrence. The non
examination of the said Shenbagavalli was fatal to the prosecution case. Insofar
as P.W.4, he has actually seen the accused running in his street, which is
situated apart and therefore, his evidence could not in any way connect the
accused with the crime. Thus, P.Ws.1 and 2 could not have seen the occurrence at
all and the evidence of P.W.4 was not useful to the prosecution case.
c)In the instant case, according to the prosecution, the accused was
arrested on 25.6.1999 and he came forward to give a confessional statement
voluntarily, which was recorded in the presence of the witnesses and pursuant to
the same, M.O.1, knife was recovered. But, P.Ws.1 and 2 and also 6 have
categorically admitted that the accused was taken to the police station within
an hour from the time of occurrence. If to be so, the alleged arrest,
confessional statement and recovery of M.O.1, knife were nothing, but a
falsehood and thus, the evidence in this regard should be rejected. Further,
P.Ws.1 and 2 could not give proper accounting for the injuries sustained and
thus, it can be well stated that the ocular testimony was not in corroboration
with the medical evidence through the post-mortem Doctor. Hence, there was no
evidence available for prosecution to sustain conviction.
d)Even assuming that the prosecution has proved the case that it was the
accused, who stabbed the said Rani and caused her death, the act of the accused
would not attract the penal provisions of murder for the simple reason that
according to P.W.1, there was quarrel between the deceased and accused for 5
minutes, which resulted in sudden provocation and due to exchange of words and
beyond his control, he has acted so. Under these circumstances, the act of the
accused would be one culpable homicide not amounting to murder and it has got to
be considered by this Court.
5.The Court heard the learned Additional Public Prosecutor on the above
contentions.
6.The Court paid its anxious consideration on the submissions made.
7.It is not in controversy that Rani, the wife of the accused, was stabbed
to death at the time and place of occurrence as put forth by the prosecution.
Following the inquest made by the Investigating Officer, the dead body of the
deceased was subjected to post-mortem by P.W.3, the Doctor and he has issued
Ex.P.4, the post-mortem certificate, wherein he has opined that the deceased
would appear to have died of shock and haemorrhage due to the injuries
sustained. The fact that the deceased died out of homicidal violence was never
questioned by the appellant/accused at any stage of proceedings. Hence, it has
got to be factually recorded so without any impediment whatsoever.
8.In order to substantiate the case of prosecution that it was the
accused, who stabbed the deceased with knife at the place of occurrence, the
prosecution rested its case through the direct evidence by examining P.Ws.1,2
and 4. It is an admitted position that the accused is the husband of Rani, the
deceased. There was originally, an incident that took place in the past and the
case came to be registered by the respondent police station at the instance of
the deceased and there was also a trial, in which the accused was found guilty.
The deceased has given evidence against her husband, namely the accused. On many
occasions, the accused threatened the deceased and uttered that since she has
given evidence against him, he was convicted. This part was clearly spoken to by
the witnesses and the same was found placed in the FIR. According to the
prosecution, this would go to speak about the motive part. At the time of
occurrence, according to P.Ws.1 and 2, P.W.1 was taking food and P.W.2 was
serving food and Rani and the other sister Shenbagavalli were arranging the
match sticks. At that time, the accused suddenly appeared with knife and stabbed
the deceased twice on her chest and when the deceased ran and came outside, the
accused chased and also attacked her. According to P.W.1, he stabbed the
deceased twice inside and according to P.W.2, the deceased ran outside, where
the occurrence has taken place. From the evidence of P.Ws.1 and 2 it would be
quite clear that the occurrence has actually commenced inside the house and the
deceased, after sustaining injuries, was running outside and fell down on the
road. P.Ws.1 and 2 have given a clear narration of the entire incident. The
discrepancies now brought before the Court were minor most. According to P.Ws.1
and 2, it was the accused, who attacked the deceased and caused her death. The
Court is of the considered opinion that the evidence of P.Ws.1 and 2 has
inspired the confidence of the Court, though they were closely related to the
deceased. The lower court was perfectly correct in accepting their evidence,
since it was natural, cogent and convincing. This Court is unable to see any
reason to cast a doubt on their evidence. Insofar as the medical opinion, the
court is fully satisfied that it was in corroboration with the ocular testimony.
9.The Court is able to see force in the contention of the learned counsel
for the appellant in respect of the alleged arrest, confessional statement and
recovery of M.O.1. According to the prosecution, the accused was arrested by the
Investigator, pending investigation, on 25.6.1999. But, according to P.Ws.1,2
and 6, the accused was taken to the police station within an hour from the time
of occurrence. Thus, the evidence in respect of the alleged arrest, confessional
statement and the recovery of M.O.1 was prepared in order to strengthen the
prosecution case. Hence, the evidence in this regard has got to be rejected.
Even then, the Court is of the considered opinion that the prosecution case that
it was the accused, who stabbed the deceased and caused her death will stand in
view of the evidence available and narrated above. Hence, the prosecution has
proved that part of the case.
10.Coming to the second line of argument advanced by the learned counsel
for the appellant, the Court has to necessarily disagree with her. In the
instant case, admittedly, Rani was the wife of the accused. There was a
complaint given by her and the criminal case was registered against the accused,
which ended in conviction. In that case, the said Rani has given evidence
against the accused. On many occasions, the accused threatened her. On the date
of occurrence, when P.Ws.1 and 2 along with Rani and another sister
Shenbagavalli, who was deaf and dumb, were inside the house, the accused
suddenly came with knife and stabbed the deceased. The learned counsel, relying
on
the evidence of P.W.1, would submit that there was quarrel for 5 minutes prior
to the occurrence. The Court is of the considered opinion that the said quarrel
is not sufficient to state that the consequences should be in such a way was
thoroughly uncontrollable and in a heat of passion, the accused has acted. But,
no such circumstance is noticed by the Court. The accused came to the place of
occurrence with knife and attacked her, which would be clearly indicative of the
fact that the accused has come with a plan of attacking her and accordingly, he
has caused instantaneous death.
Thus, the act of the accused would attract the penal provisions of murder, which
has been rightly done by the lower court. The judgment of the lower court does
not require disturbance either factually or legally.
11.In the result, the criminal appeal must fail and fails. Accordingly,
the same is dismissed.
To
1.The Principal Sessions Judge,
Tuticorin.
2.The Inspector of Police,
Kovilpatti East Police Station.
3.The Addl. Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.