BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06/11/2008
CORAM
THE HONOURABLE MR.JUSTICE R.REGUPATHI
AND
THE HONOURABLE MR.JUSTICE R.SUBBIAH
Crl.A(MD)No.417 of 2002
1.Sudalai
2.Poovammal ... Accused/Appellants
Vs.
The State represented by the
Inspector of Police,
Mukkudal Police Station
Crime No.8/1999 ... Complainant/Respondent
Prayer
Appeal filed under Section 374 of Cr.P.C., against the conviction
and sentence passed by the Ist Additional Sessions Judge-Cum-Chief Judicial
Magistrate, Tirunelveli made in S.C.No.253 of 1999 dated 21.01.2002.
!For Appellants ... M/s.P.Theogaraj
^For Respondent ... Mr.M.Daniel Manoharan
Additional Public Prosecutor
:ORDER
(Judgment of the Court was delivered by R.REGUPATHI, J.)
The second accused is the wife of the 1st accused. P.W.3 is the step-
brother of A-1 and the husband of the deceased. They were living in adjoining
houses having a common courtyard.
It is the case of the prosecution that A-2 suspected that the deceased was
having illicit intimacy with A-1 and under such circumstances, a quarrel arose
between the accused and the deceased in which the first accused with the handle
of a weeding spade beat the deceased on the head and the second accused
strangulated her with Thali string and thereby caused her death, resulting in
registration of the case.
The accused were tried by the learned I Additional District Judge cum
Chief Judicial Magistrate, Tirunelveli in S.C.No.253/1999 on two charges.
As per the first charge, on 03.01.1999 at about 6.30 p.m, there was a
wordy quarrel between the accused and the deceased in which the first accused
assaulted the deceased on head with the handle of a weeding spade, thereby, he
committed the offence punishable under Section 302 read with 34 IPC. As per the
second charge, in the same transaction, after sustaining head injury at the
hands of A-1, on the deceased falling down, A-2 throttled her neck with Thali
string, resulting in her death, thereby, she committed an offence punishable
under Section 302 IPC.
In order to bring home the guilt of the accused, the prosecution examined
P.Ws.1 to 16, marked Exs.P.1 to 19 and produced M.Os.1 to 6. The learned Trial
Judge, on conclusion of the trial, by order dated 21.01.2002 convicted A-1 under
Section 302 read with 34 IPC and A-2 under Section 302 IPC and sentenced them to
undergo life imprisonment and to pay a fine of Rs.1,000/- each, in default, to
undergo Rigorous Imprisonment for six months.
Aggrieved against the said order of conviction and sentence, the
appellants have preferred the present appeal.
2.The prosecution case, as put forth by its witnesses, is concisely
narrated below:-
A) P.W.1 is the brother of the deceased. He deposed that 15 days prior to
the occurrence, the deceased and P.W.3 informed him that A-2 quarrelled with
the deceased as if the deceased was having illicit intimacy with A-1. On
03.01.1999 at about 06.15 p.m., he along with P.W.2 went to the house of the
deceased and found A-1 assaulting the deceased on the head with the handle of a
weeding spade and A-2 strangulating her with the string of Thali. When P.W.1
went near raising alarm, A-1 threatened and drove him by showing the spade
handle. P.W.1 rushed to the nearby garden where P.W.3 was working, informed him
about the occurrence, returned back along with him to the scene place and found
the deceased dead. Leaving P.W.3 at the scene of occurrence, P.W.1 accompanied
by P.W.2 went to the police station by walk covering a distance of 15 kms and
gave a complaint (Ex.P.1) at 10.00 p.m.
P.W.2, sister’s husband of the deceased is another eye witness in the case
and he corroborated the testimony of P.W.1. P.W.3 is the husband of the deceased
and he stated about the frequent quarrels between A-2 and the deceased. On being
informed about the occurrence by P.W.1, he rushed to the occurrence place where
he found the deceased dead.
During the course of trial, P.W.4, examined as an eye witnesses, turned
hostile. P.Ws.5 and 6 who attested the Observation Mahazar; P.Ws.9 and 10,
examined as witnesses for recording the statement from A-2 and P.Ws.8 and 14,
who attested the statement of A-1; did not support the case of the prosecution
and they were treated as hostile.
P.W.12, the Sub Inspector of Police, on 03.01.1999 at 10.00 p.m., reduced
the oral complaint given by P.W.1 into writing under Ex.P.1 and registered a
case in Crime No.8/99 for an offence punishable under Section 302 IPC. Ex.P.11
is the printed First Information Report.
P.W.15, the police constable, on receipt of Ex.P.11, printed First
Information Report at 10.45 p.m., delivered the same to the Investigating
Officer and to the Judicial Magistrate, Cheranmahadevi, at 11.00 p.m.
P.W.16, the Investigating Officer, on receipt of the information, reached
the scene of occurrence along with P.W.11 at 11.45 p.m and prepared Observation
Mahazar and Rough Sketch Exs.P.15 and 16 respectively in the presence of P.Ws.5
and 6. He conducted inquest over the body of the deceased in the presence of
P.Ws.1 to 3. Ex.P.17 is the inquest report. He forwarded the dead body to the
hospital for the purpose of Post Mortem along with his requisition under Ex.P.4.
P.W.7, the Medical Officer, conducted post-mortem on the dead body of the
deceased on 04.01.1999 at 11.45 p.m., and issued post-mortem Certificate Ex.P.5,
wherein, he noticed the following:-
“External Injuries: 1.A ligature mark. Blackish in colour on middle of
neck encircling neck on both sides more to the right horizontalin direction and
interrupted at the back size 30 cms x 1cms. On dissection there was
extravasation of blood on trachea and underlying tissues . A incised wound 4x1x1
cms on lt pauelat region of scalp vertical in direction close to hair line (AM)
3. An incised wound 2x1x1 cms horizontal in direction on middle of scalp (AM)
4.Contusion on RT upper part of thigh on lateral aspect size 8×4 cms on
dissection blood clots seen on wound (AM). Skin deep abrasion 3/4×1/2cms on RT
angle of mouth (AM). Int.exam: Liver, Spleen, Kidneys, Lungs congested. Heart:
RT side chamber contains 30 ml of dark red Blood. LT side chamber empty. Lungs
Qdamatous and exists frothy blood on dissection stomach contains about 300 gms
of partially digested rice particles. Intestine distended C-gas. Bladder empty.
uterus enlarged 12 weeks size contains products of conception: Ovaries studded
follicle of corpus interim on RT side. Both ovaries are enlarged. Vagina
Normal”.
The doctor opined that the deceased would appear to have died of respiratory
arrest due to suffocation.
After Post Mortem, on production of the cloths and Thali of the deceased
(M.Os.3 to 6) by P.W.13 police constable, the Investigating Officer despatched
the same to the Court. In the presence of P.Ws.9 and 10, A-2 was arrested and in
pursuance of the voluntary statement given by her, M.O.1 weeding spade was
recovered under a cover of Mahazar attested by P.Ws.8 and 9. In the presence of
P.Ws.8 and 14, A-1 was arrested and his statement was recorded. The
Investigating Officer after examination of witnesses and receiving medical and
forensic opinions and on conclusion of the investigation, laid the final report
on 20.04.1999 against the first and second accused for an offence punishable
under section 302 read with 34 IPC, 302 IPC respectively.
The learned trial Judge, on the basis of the incriminating materials
produced on the side of the prosecution, questioned the accused Under Section
313 Cr.P.C., for which, the accused pleaded not guilty. On the side of the
defence D.W.1 was examined and a document was marked as Ex.D.1. D.W.1 is the
cousin of the first accused. The deceased is also related to him. He was
residing next to the house of the deceased and the accused. He states that the
deceased committed suicide by hanging. According to him, accompanied by one
Valli, he entered into the room by removing the front door, brought the body
down and thereafter, informed the same to P.Ws.1 & 2 and in that regard, a
complaint was given to the Police. Ex.D.1 is the history of the case given by
the Investigating Officer P.W.16, while giving a requisition to the Medical
Officer along with Ex.P.4 to conduct post-mortem wherein it has been stated that
A-2 caught hold of the deceased while A-1 assaulted her with stick and
thereafter, A-2 tightened the Thali around the neck of the deceased.
The learned Trial Judge, on perusal of the materials placed and
considering the arguments advanced on both sides, convicted and sentenced the
appellants as stated supra; hence, the present appeal.
3.Learned counsel for the appellants submits that P.Ws.1 and 2 are
residing in the neighbouring village and their presence at the time of
occurrence is doubtful and their statement that at the relevant time, they
visited the house of the deceased to see the children, is unbelievable. When
other witnesses including D.W.1, the neighbour of the deceased were very much
available, the prosecution has purposely chosen to examine P.Ws.1 and 2 since
they happen to be closely related to the deceased viz., brother and sister’s
husband respectively of the deceased. P.W.4, though cited as an independent eye
witness, did not support the case of the prosecution. Almost all the other
witnesses, who attested the observation Mahazar and statements of the accused,
turned hostile. The ocular testimony of P.Ws.1 and 2 is not sufficiently
corroborated by the medical evidence through P.W.7. Though the occurrence is
said to have taken place in the court-yard of the houses, the body was found
inside the house and there is no explanation therefor by the prosecution. The
evidence of D.W.1 is natural and in the event of accepting his evidence, the
prosecution case may be discarded and a conclusion can be reached that the
deceased committed suicide. In view of the reason that the deceased committed
suicide, an enquiry under Section 173 Cr.P.C., should have been conducted. At
any rate, even if the evidence of P.Ws.1 and 2 and other materials furnished by
the prosecution are accepted as truthful and genuine, there was no pre-
meditation or intention on the part of the accused to kill the deceased. The
occurrence might have taken place all of a sudden subsequent to the wordy
quarrel that took place between the deceased and the accused just prior to the
occurrence. At any rate, the offence under Section 302 IPC is not made out.
4.Per contra, learned Additional Public Prosecutor submits that the
occurrence took place at 6.30 p.m. and P.W.1 accompanied with P.W.2 by walk
reached the police station covering a distance of about 15 kms and lodged the
complaint Ex.P.1 at 10.00 P.M., hence, there was no delay. Ex.P.1 reached the
Court situated 10 kms away at 11.00 p.m., therefore, there was no possibility at
all to concoct or improve the case against the accused. P.W.12 reduced into
writing the information furnished by P.W.1 under Ex.P.1 and the same was also
attested by P.W.2, therefore, the First Information Report coming into existence
at the relevant point of time cannot be doubted. The suicide theory as projected
by D.W.1 is falsified when the evidence of the Medical Officer P.W.7 is
appreciated in the proper perspective. P.W.7 has positively opined that in a
case of suicide, ligature mark would be slanting on the neck and further opined
that injury Nos.2 and 4 would have been caused in the manner as put forth by the
prosecution and that the 5th injury would have been sustained due to fall and
thereby the ocular testimony of P.Ws.1 and 2 is corroborated by the medical
evidence. It was the further opinion of the Medical Officer that the death was
occurred only due to injury Nos.1 to 4. It is pointed out that the Investigating
Officer, in his evidence, has explained the reason for removal of the front door
viz., it was under repair. In Ex.P.1 itself, it is clearly stated that the body
of the deceased was removed from the court-yard to the residence for the purpose
of giving first aid and water to the deceased. It is also stated therein that
the deceased and the accused indulged in a wordy quarrel, exchanging filthy
language, and only thereafter, the occurrence had taken place. According to him,
the trial Court has assigned sound reasonings for convicting the accused and its
order does not call for any interference.
5.We have perused the materials available on record and considered the
submissions made on both sides.
6.A-1 and P.W.3 are brothers through different mothers. They were living
in adjacent houses having common court yard. The marriage between the accused
took place only six months prior to the occurrence. After marriage, there used
to be frequent quarrels between the second accused and the deceased since the
second accused suspected that the deceased was having illicit intimacy with her
husband. P.Ws.1 and 3 speak about the frequent quarrels between them prior to
the occurrence. Even on the date of occurrence, the quarrel started in a
similar manner. Such aspect is cogently narrated by P.Ws.1 and 2. Though P.W.4,
an independent eye witness, and other witnesses who attested the mahazar as well
as the statement of the accused turned hostile, we are of the considered opinion
that the case of the prosecution has been substantiated through the ocular
testimony of P.Ws.1 and 2 corroborated by P.W.7 and other contemporaneous
materials. P.W.12 is the Sub Inspector of Police, who recorded the First
Information Report, which came into existence without delay at 10.00 p.m., and
it reached the Court within an hour. In the First Information Report, the motive
part of the prosecution case as well as the occurrence have been narrated in
detail. When P.W.1 was nearing the house of the deceased, he could witness the
quarrel between the accused and the deceased and it has been specifically stated
that they were exchanging vulgar language against each other and under such
circumstances, on the provocation given by A-2, A-1 is said to have assaulted
the deceased with stick and A-2 tightened the neck with Thali. Since there used
to be frequent quarrels between the second accused and the deceased, P.W.3,
husband of the deceased, used to compromise between them, as they are closely
related. On that date also, such quarrel ensued, resulting in the occurrence.
7.On a careful scrutiny of Ex.P.1 and the evidence of P.W.1, we could see
that there was no intention and premeditation to cause the death of the
deceased. The deceased was also quarreling with the accused by using filthy
language. Under such circumstances, the occurrence had taken place suddenly. On
noticing the nature of injuries described in the Post Mortem Certificate, we
could infer that there was no intention on the part of the accused. Therefore,
we hold that the offence under Section 302 IPC is not made out.
The opinion of the Medical Officer is that injury Nos.1 to 4 are
sufficient in the ordinary course to cause death and in the light of the
evidence available, it is clear that those injuries were caused only by A-1 and
A-2. While disbelieving the suicide theory as put forth through D.W.1, we hold
that the accused have committed culpable homicide not amounting to murder and
they are liable to be convicted under Section 304 (i) IPC. The accused 1 and
2/appellants are aged about 27 and 20 respectively and it is reported that they
are recently married. Under such circumstances, while convicting them under
Section 304(i) IPC, they are sentenced to undergo imprisonment for 4 years. The
period they have already undergone shall be set off. The fine amount of
Rs.1000/- with default clause imposed by the court below is retained.
8.The criminal appeal is partly allowed subject to the above modification.
It is reported that the accused are on bail. The Sessions Judge concerned is
directed to take steps to secure the presence of the accused and commit them to
Prison to undergo the remaining period of sentence, if any.
sms
To:
The Inspector of Police,
Mukkudal Police Station