BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :12/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.No.19 of 2007 Pechimuthu .. Appellant Vs. State rep by The Inspector of Police, Kayatar Police Station, Tuticorin District (Crime No.342/2005) .. Respondent PRAYER This criminal appeal has been preferred under Section 374 (ii) Cr.P.C against the judgment dated 03.08.2006 made in S.C.No.110 of 2006 by the Additional District Sessions Judge (Fast Track Court No.2) Tuticorin. !For Appellant ... Mr.S.Durairaj ^For Respondent ... Mr.V.Kasinathan Additional Public Prosecutor :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Additional Sessions Division,
Fast Track Court No.2, Tuticorin, made in S.C.No.110 of 2006, whereby the sole
accused/appellant stood charged, tried, found guilty under Section 302 I.P.C.
and awarded life imprisonment along with fine and default sentence.
2. The short facts necessary for the disposal of the appeal could be
stated thus:-
a)P.W.1 is the junior paternal uncle and P.W.2 is the mother of the
deceased. P.W.3 is the daughter of the deceased, and P.Ws.6 and 7 are the
brothers of the deceased. The accused is the husband of the deceased. Eleven
years prior to the occurrence, the marriage took place between the deceased and
the accused. The accused left for Mumbai to eke out livelihood for the family.
He used to visit on intervals. During his stay, he lived with his wife in the
native place at Panneerkulam. Shortly, a few months prior to the occurrence, he
came to the native place and suspected the fidelity of his wife. They had often
quarrel on this issue. On the date of occurrence, i.e., on 18.09.2005, as
usual, the accused was quarreling with his wife suspecting the fidelity. P.W.1
intervened and pacified them and left the house for goat grazing. At about 3.00
p.m. when he came back, the house of the deceased was found locked and P.W.2
went to the house of P.W.3. At about 9.00 p.m, both P.Ws.2 and 3 returned back
to the house. They found that the house was locked and the same was reported to
P.W.1. Then, P.Ws.1 to 3 along with P.W.7 jointly made a search of the
deceased, but in vain. When they returned back at 12.00 midnight, P.W.7 saw
through the side window by using a torch light. They were able to see the dead
body of the deceased in a pool of blood. They broke open the door in the
presence of P.W. 5, who is the Village Assistant, got inside the house and
found the dead body of the deceased.
b) At about 4.30 p.m. on that day, P.W.10 was standing nearby the tea
stall. Accused met him on his way and informed him that he had committed the
murder of his wife. P.W.10, advised him to surrender before the police.
c)Following the occurrence, P.Ws.1 and 5, went to the respondent police on
19.09.2005, at 8.00 a.m, where P.W.18, the Sub-inspector of Police was on duty.
They gave a complaint in oral, which was reduced into writing and marked as
Ex.P.1. On the strength of Ex.P-1, a case came to be registered in Crime No.345
of 2005 under Section 302 IPC. Ex.P.15, the express FIR, along with Ex.P.1, was
sent to the concerned Judicial Magistrate’s Court.
d)On receipt of the copy of FIR, P.W.19, the Inspector of Police, took up
the investigation, proceeded to the place of occurrence and made arrangement to
take photographs through P.W.15. Then, he made an observation in the presence of
respective witnesses and prepared Ex.P.11, the Observation mahazar, and Ex.P.16,
the rough sketch. P.W.19, the Investigating Officer, recovered M.Os.1 to 11 from
the place of occurrence under a cover of mahazar. Further, he enquired and
recorded the statements of the witnesses. He conducted inquest on the dead
body of the deceased in the presence of witnesses and panchayatdars and
prepared an inquest report, marked as Ex.P.17.
e)The dead body of the deceased was sent to the hospital, for the purpose
of autopsy. P.W.12, the Doctor, attached to Kayattar Government Hospital, on
receipt of the requisition, conducted autopsy on the dead body of the deceased
and issued Ex.P.19, the post-mortem certificate, wherein he has opined that the
deceased would appear to have died due to shock and hemorrhage and the injuries
sustained, between 12 to 14 hours prior to autopsy.
f)Pending investigation, the accused surrendered before the Judicial
Magistrate, Tirunelveli, on 22.09.2005, which came to the knowledge of the
investigator. He applied for Police custody and the same was ordered. He was
taken on 30.09.2005 into police custody. On interrogation, he gave a
confessional statement voluntarily and the same was recorded, the admissible
part of which was marked as Ex.P.13. On the strength of which, the accused
produced M.O 12, the shirt, which was recovered under a cover of mahazar,
Ex.P.14. All these M.Os were sent for the purpose of analysis by the Forensic
Department, which resulted in two reports, namely, Ex.P.4, Chemical analyst’s
report and Ex.P.5, the Serologist’s report. On completion of the investigation,
the Investigating Officer filed the final report before the concerned court,
which, in turn, committed the case to the court of sessions and necessary
charges were framed, and the case was taken up for trial.
g) In order to substantiate the charges, at the time of trial, the
prosecution examined 20 witnesses and relied on 17 exhibits and 12 M.Os. On
completion of the evidence on the side of the prosecution, the accused/appellant
was questioned under Section 313 Cr.P.C. as to the incriminating circumstances
found in the evidence of prosecution witnesses. He denied them as false. No
defence witness was examined. After hearing the arguments of the counsel and
scrutinizing the evidence, the lower court, took the view that the prosecution
has proved the case beyond reasonable doubt and found him guilty and awarded the
punishment as referred to above, which is the subject of challenge before this
Court.
3.Advancing arguments on behalf of the appellant, Mr.D.S.Durairaj, learned
Counsel, made the following submissions:-
a)The prosecution has miserably failed to prove the case before the trial
Court. In the instant case, the prosecution had no direct evidence to offer.
The entire case rested only upon the circumstantial evidence. Prosecution
neither placed sufficient circumstances nor proved its case. But, the trial
Court erroneously took the view and found the accused guilty. The prosecution
relied upon the evidence of P.Ws.1 and 3 for last seen theory. P.W.1 is the
father and P.W.3 is the daughter of the deceased. According to P.W.1, when the
accused/appellant and the deceased were quarreling at about 1.00 p.m., he
pacified. If to be so, there was no reason for the accused/appellant to commit
such offence. Further according to P.W.1, when he came by 3.00 p.m, the house
was kept locked and left again in search of her. Even till 12.00 midnight they
could not trace her. The evidence of P.W.1, was highly improbable. In the
instant case, according to him, they came to know as to the death of Gomu only
at 12.00 midnight, and they have given a complaint on the next day morning at
about 8.00 a.m. There was a delay of 12 hours. Had it been true, they should
have rushed and informed to the police immediately, and that would indicate
they did not entertain suspicion against the accused. Therefore, the last seen
theory is purely nothing but an introduction in order to fasten the criminal
liability on the accused.
b. Added further, in the instant case, medical opinion did not support the
case of the prosecution, and the alleged confession pending the police custody
and the recovery of M.O.12, the shirt is in question, have nothing to do with
the incriminating circumstances pointing to the guilt of the accused. In any
way, the prosecution has not proved the case beyond reasonable doubt.
c.Added further, in the instant case, even if it is true that it was the
accused who smashed her with the stone as put forth by the prosecution, the act
of the accused would not attract the penal provision of murder. Even as per the
prosecution case, he suspected the fidelity of his wife. There was often
quarrel, and P.W.1, now and then, intervened and pacified them. Even just
before the date of occurrence, they were quarreling regarding the fidelity, and
due to sudden provocation, he has acted so. Under such circumstances, the act
of the accused was neither intentional nor premeditated; but, the act of the
accused is only culpable homicide, not amounting to murder. Hence, this legal
aspect has got to be considered by this Court.
4.The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the above submissions made and
also scrutinized the materials available.
6. The fact that one Gomu was done to death in an incident that took place
inside the house on 18.09.2005 is not in controversy. Following the inquest made
by the investigator, the dead body was subjected to post-mortem by P.W.12, the
doctor. He has categorically stated during the evidence and also opined through
his post-mortem certificate, marked as Ex.P.7, that the deceased died out of
shock and haemorrhage. The fact that she died out of homicidal violence was
never disputed by the accused/appellant, and hence, without any impediment, it
could be safely recorded so. It is true that the prosecution had no direct
evidence to offer. But the prosecution has sufficient circumstances to place
and to prove the complicity of the offender, namely, the accused/appellant. On
the date of occurrence, namely 18.09.2005, P.W.1 has seen the accused and the
deceased quarreling at about 1.00 p.m, pacified and left. When he came back
to the house at 3.00 p.m, he found the house of the deceased locked. It is
pertinent to point out that at about 12.00 midnight, when the house was broken
open, the deceased was found in a pool of blood. Therefore, the occurrence
should have been taken place between 1.00 and 3.00. Just 15 minutes prior to
the visit of P.W.1, the accused was only present in the company of the
deceased. The accused had no explanation to offer how the death occurred to
his wife. It is pertinent to point out that he has also made a confessional
statement. P.W.10 is an independent witness. There is no reason for a person
like P.W.10 to come before a Court of law to implicate the accused, if he was
not offered with the confessional statement. The evidence of P.Ws.1 and 3, the
last seen theory and also the evidence of P.W.10 to whom the extra judicial
confession was given fully supported the case of the prosecution. Thus, all
would indicate the guilt of the accused. Apart from that, medical opinion
canvassed through the post-mortem certificate, was also in favour of the
prosecution.
7.It is true that an occurrence took place at 2.45 p.m on the previous
day, and the report was given on the next day at 8.00 clock by P.W.1, i.e., on
19.09.2005. At this juncture, it is pertinent to point out that they came to
know about the occurrence only after they broke open the door at 12.00 midnight
i.e., On 18.09.2005 and also they had to go to the Police Station from their
village, which is situated 5 Kms away. Added further, in the instant case,
they have clear knowledge that it was the accused, who committed the crime.
Admittedly there was a delay; but this delay would in no way cause any
prejudice to the case of the prosecution and for the mere delay, it cannot be
rejected. Apart from this, even in the First Information Report, they have
narrated the entire incident as to the search of the deceased and on the face of
confessional statement, there was recovery from him. Thus, all would go to show
that the prosecution has proved the fact that it was the accused who was in the
company of the deceased and after smashing her with stone, the accused/appellant
fled away from the house after locking the door.
7.Now, insofar as the second line of argument, the Court is able to see
force in the contention put forth by the counsel that all along in the past,
they had been quarreling, since the accused entertained suspicion over her
fidelity. Even as per the evidence of P.W.1, on the date of occurrence at
about 1.00 p.m, they were quarreling. P.W.1 has also given a report to the
effect that in view of quarreling between them and also suspension over the
fidelity of his wife, he has committed the crime. It would be quite clear that
there was a wordy altercation, as a result of which, he has committed so.
Thus, it would be indicative of the fact that the act of the accused was
neither intentional nor premeditated, but due to the sudden quarrel that arose
between them, the occurrence took place Hence, this is a fit case where a
finding can be recorded that the accused/appellant was not guilty of the offence
of murder, but his act was only culpable homicide not amounting to murder which
would attract the penal provision of Section 304(1) IPC and awarding a
punishment of seven years would meet the ends of justice.
8.Accordingly, the conviction and sentence awarded under Section 302 IPC
are set aside and instead the accused/appellant is convicted under Section
304(1) IPC and sentenced to undergo seven years R.I. The fine amount imposed
under Section 302 IPC shall be treated as fine amount under Section 304 (1) IPC.
The period of imprisonment already undergone by the accused/appellant, shall be
given set off.
With the above modification in conviction and sentence, this appeal is
dismissed.
ssm
To
1.The Additional Sessions Judge
(Fast Track Court No.2) Tuticorin.
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.