Madras High Court
T.K.Sathish Kumar vs State Rep. By on 16 July, 2008
Bench: P.D.Dinakaran, K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.7.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.268 of 2005 T.K.Sathish Kumar .. Appellant Vs. State rep. by Inspector of Police D-3, Ice House Police Station Chennai.
(Crime No.1098/2005) .. Respondent Appeal against the judgment dated 25.1.2006 made in S.C.No.439 of 2005 on the file of learned Sessions Judge, (Mahila Court), Chennai.
For Appellant : Mr.T.R.Sivaram for Mr. C.V.Kumar For Respondent : Mr.N.R.Elango Addl. Public Prosecutor
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(Judgement of the Court was delivered by K.N.BASHA,J.) The sole accused, T.K.Sathish Kumar, has come forward with this Appeal challenging the judgement dated 25.1.2006, passed by the leaned Sessions Judge, Mahila Court, Chennai, made in S.C.No:439 of 2005, convicting him for the offence under Section 302 IPC and sentencing him to life imprisonment and also imposing a fine of Rs.1,000/=, in default, to undergo six months rigorous imprisonment.
2. The prosecution version as unfolded during the course of trial, in a nutshell, are as follows:-
(a) The accused is the husband of the deceased, Uma and both of them were residing at No.13/6, Begam Sahib 4th Street, Royapettah, Chennai-14. P.W.1 is the Landlord of the accused. P.W.4 is the wife of P.W.1. P.Ws.2 and 3 are co-tenants of the accused. P.Ws.6 and 10 are the neighbours of the house of the accused.
(b) The accused was residing in the house of P.W.1, as one of the co-tenant, along with his family, namely, the wife (deceased) and two children Aswin and Akash, aged 10 years and 8 years respectively. 2 = months prior to the date of occurrence, the deceased was working in a Company. The accused had been to Malaysia for working and after his return, there were frequent quarrels between the accused and the deceased as spoken to by P.W.1, the landlord of the accused. As P.W.1 thought that, that was a family dispute, he has not taken such quarrels seriously.
(c) On the fateful day of occurrence, i.e., 20.8.2005, P.W.3, a co-tenant of the accused heard a shouting during mid night and at that time, he saw the deceased having an injury on her head and her hairs were found to be dishevelled. P.W.3 thought that there was a family dispute as his wife had already informed him that there were quarrels between the accused and the deceased due to family dispute. On the date of occurrence, i.e.,20.8.2005, at 12.45 mid night, the accused went to the house of P.W.6, a neighbour and told him that a person due to skid fell down in the bathroom and sought for his help to bring down in order to go to the Hospital. The accused also met P.W.10, another neighbour and told him that his wife was not well and sought for his help to bring down her in order to take her to the Hospital. Thereafter, P.Ws 6 and 10 helped the accused to bring the deceased from the third floor and the accused took the deceased in an Auto to the Hospital.
(d) The Doctor, P.W.11, who was working in the Government Hospital, Royapettah, Chennai, examined the deceased by 1.45 a.m., on 21.8.2005, brought by her husband, the accused. The accused informed the Doctor that his wife fell down from the staircase of the house and on examination, the Doctor found that his wife had already dead. He sent the body to the Mortuary. Ex.P.4 is the Accident Register. The accused came to the house and knocked the doors of the house of P.W.1, his landlord at 2.30 a.m., P.W.1 opened the doors and found the accused standing there. The accused told P.W.1 that he came to know through his friend and eldest son that the deceased, his wife was having illicit intimacy with some other person and as such due to provocation he beat the deceased with his hands and dashed her head against the wall and the deceased swooned and fell down. It is further stated by the accused to P.W.1 that thereafter he has taken the deceased, his wife, to the Government Hospital, Royapettah and he has informed the Doctor, P.W.11 that his wife fell down from the staircase and the Doctor on examination, declared that his wife had already dead. The accused requested P.W.1 to save him. P.W.1 then brought the accused to P.W.2 and informed him about the occurrence. Thereafter, P.W.1 took the accused to Ice House Police Station.
(e) P.W.12, Sub Inspector of Police, attached to the Ice House Police Station, on 21.8.2005, at 2.00 a.m., received the message from the Head Constable about the occurrence, and went to the Government Hospital, Royapettah, saw the body of the deceased and also found injuries on her forehead and neck and thereafter he sent message to the Inspector of Police, P.W.13 at 2.45 a.m.,
(f) P.W.13, Inspector of Police, on receipt of message came to the Police Station by 3.15 a.m., on 21.8.2005. While he was enquiring P.W.12, the Sub Inspector of Police, P.W.1 appeared before him at 3.30 a.m., along with the accused and case report, Ex.P.1. P.W.13, registered a case in Crime No:1098 of 2005 for the offence punishable under Section 302 IPC. Ex.P.15 is the Express FIR. He arrested the accused at 4.00 a.m., He informed the brother of the accused and thereafter remanded him to judicial custody through the court. He also sent the FIR to the higher police officials and to the Court.
(g) P.W.13, thereafter went to the Government Hospital, Royapettah and saw the body at the mortuary. He held inquest from 6.15 a.m., to 8.15 a.m., Ex.P.6 is the Inquest Report. During inquest, he examined P.W.1, P.W.2 and others and recorded their statements. Thereafter, he sent the body for postmortem through P.W.8 constable.
(h) P.W.7, Doctor, attached to the Government Hospital, Royapettah Hospital, conducted postmortem on the dead body of the deceased on 21.8.2005 and found the following injuries:-
"I-Contusions:-
Right eye black eye Dark red contusion over right side of forehead measuring 7 x 3 cms Dark red contusion over left forehead 8 x 5 cms.
Dark red contusion over outer aspect of right elbow 3 x 3 cms. Dark red contusion over right iliac fossa 8x7 cms.
Dark red contusion over outer aspect of left arm 4 x 3 cms. Dark Red contusion over back of left shoulder 8 x 6 cms.
Three small dark red contusions each measuring .5 x .5 cm over an area of 6 x 2 cms on the outer aspect of left arm. Two dark red contusions over back of left arm each measuring 2 x 1 cm, 4 x 2 cms. Dark red contusion over inner aspect of left arm measuring 4 x 1 cm. Dark red contusion over back of middle of left forearm measuring 4 x 3 cms. Dark red contusion over back of left wrist joint measuring 3 x 2 cms. Dark red contusion over back of left hand measuring 5 x 2 cms Dark red contusion over back of left Index finger 2 x 1 cm. Dark red contusion over back of left middle finger 3 x 2 cms Dark red contusion over left scapular area two in number each measuring 5 x 3 cm and 8 x 3 cms respectively. Dark red contusion over left gluteal area 5 x 2 cms.
Dark red contusion over outer aspect of upper part of left thigh 2 x 1 cm. Dark red contusion over outer aspect of upper part of left leg 5 x 2 cms. On dissection of above said injuries extravasation of blood noted. II-A small scratch linear abrasion on the upper part of right side of neck just below the right pinna .2 x .2 cms.
On Dissection of Head:-
Sub scalpal bruising over left frontal area 6 x 3 cms, 2 x 1 cm over right temporal region, sub scalpal bruising extending from the posterior aspect of parietal areas to the occipital area of both sides 12 x 10 cms. Brain oedematous. Sub dural and sub arachnoid haemorrhage seen over both cerebral hemispheres. Neck structures, hyoid bone and thoracic cage-intact".
(i) P.W.7, Doctor, who conducted the Postmortem also opined that the deceased appeared to have died of Head Injuries.
(j) P.W.13, in continuation of his investigation, went to the scene of occurrence at 8.45 a.m., and prepared Observation Mahsazar Ex.P.2 in the presence of P.W.5 and another. He also prepared the Rough Sketch Ex.P.7. He examined P.Ws 4 and 5 and recorded their statements. He made arrangements to take photographs through, P.W.9, Photographer. M.O.4 series are the photographs and M.O.5 series are the negatives taken in respect of the body of the deceased, as well as the scene of occurrence. He examined P.W.6 and P.W.10, the neighbours of the accused and recorded their statements. He examined the Doctor, P.W.11 and Doctor, P.W.7 and recorded their statements. He received postmortem certificate Ex.P.3. He also recovered M.O.1 Saree, M.O.2 Petticoat, and M.O.3 Jacket, worn by the deceased, which were produced by the Constable, P.W.8, after postmortem, in Form No.95 under Ex.P.8. After completion of the investigation, he has filed the charge sheet against the accused for the offence punishable under Section 302 IPC on 22.8.2005.
3. The prosecution, in order to bring home the charges against the accused, examined P.Ws.1 to 13, marked Exs.P.1 to P.8 and M.Os.1 to 5.
4. When the accused was questioned under Section 313 of the Code of Criminal Procedure as to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, the accused denied each and every circumstances put against him as contrary to the facts and he has denied his complicity with the crime. The accused further stated that on the date of occurrence at 10.00 pm., his wife, the deceased was washing the cloths as he was to leave for Malaysia on the next day morning. He had taken the cloths washed by the deceased and put the same in the upstairs for drying the same. At that time, the two sons were sleeping. After putting the cloths in the upstairs, while he came down, he saw the deceased was sitting and on enquiry, she has informed that she fell down in the bathroom and as a result she sustained an injury on the head. At that time, she also suffered from fits and as he was frightened, he informed his brother over phone, and went out of the house and called for an Auto and in the Auto, he found patrol police were sitting. The patrol police asked the Auto driver to attend his call immediately. P.W.6 another person helped him to take the deceased to the hospital. The Doctor on examination, declared that the deceased was already dead. He had stated to the Doctor that the deceased fell down in the bathroom. His brother arrived at the Hospital. Thereafter he along with his brother returned to the house. Within three minutes thereafter, the Police came there and he has informed about the occurrence and the police took him to the Police Station. The Police also obtained his signature in a written paper and also obtained signatures in three blank papers. The accused has not chosen to examine any witness on his side.
5. Mr.T.R.Sivaram, learned counsel appearing for the appellant/accused contended that the prosecution has not proved its case by adducing clear and cogent evidence. It is submitted that the prosecution has examined P.W.3 to speak about the actual occurrence. But, P.W.3 has turned hostile and as such the entire prosecution case rests on circumstantial evidence. It is contended by the learned counsel that the prosecution has not put forward any clear and cogent circumstances to connect the accused with the alleged crime and there are several missing links in the circumstances put forward by the prosecution. The learned counsel further submits that the alleged extra judicial confession said to have been made by the accused to P.W.1 is unbelievable as the accused was not close to P.W.1 to repose confidence on him to give such an extra judicial confession. It is contended that except the extra judicial confession said to have been given to P.W.1, there is no other material to connect the accused with the alleged offence.
6. The learned counsel would further submit that even as per the version of P.W.7, Doctor, who conducted the postmortem, the deceased could have sustained injuries on her head due to fall on the ground and the opinion of the Doctor is to the effect that the deceased died due to head injuries.
7. The learned counsel without prejudice to the above contentions also contended that even assuming that the accused is responsible for causing the death of the deceased, he could not have been imputed with the intention of causing the death, and he has assaulted the deceased only due to grave and sudden provocation, as the accused heard through his friend and his eldest son that the deceased was having illicit intimacy with some other person.
8. We heard Mr.N.R.Elango, learned Additional Public Prosecutor on the submissions made by the learned counsel for the appellant/accused.
9. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinised the materials available on record and perused the impugned judgement of conviction.
10. The prosecution heavily placed reliance on the evidence of the eye witness P.W.3 to speak about the actual occurrence. But, P.W.3 has not supported the prosecution case to the extent of witnessing the actual occurrence and as such he has been treated hostile by the prosecution. But the fact remains that, according to P.W.3, on the date of occurrence, during midnight, he heard the noise and shouting from the upstairs and thereafter he went and found the deceased was having an injury on her head and her hairs were dishevelled. Therefore, it is crystal clear that at the time of occurrence, P.W.3 heard the shouting and added to that, he also found the deceased immediately with head injury and with dishevelled hairs. The presence of the accused at the time of the occurrence is also not disputed by the defence. It is well settled that the evidence of hostile witnesses cannot be rejected in toto and any portion of evidence, either in favour of the accused, or in favour of the prosecution, could very well be placed reliance by the court.
11. With the background of the above scenario and admitted case of the prosecution, let us now scrutinise the remaining evidence adduced by the prosecution. The prosecution also examined P.Ws.6 and 10, neighbours of the accused. It is the version of P.Ws.6 and 10 that the accused on 20.8.2005 came and met them at 12.45 pm., midnight and sought for their help to take his wife to the Hospital and thereafter they helped the accused to took the deceased to the Hospital.
12. It is seen from the evidence of P.W.11, Doctor, that the accused brought his wife to the Hospital on 21.8.2005 at 1.45 a.m., and on examination, he found the his wife was already dead. At that time, the Doctor was told by the accused that the deceased had fallen down from the staircase. After confirming the death of the deceased, the accused came back to the house and knocked the doors of the house of P.W.1, Landlord, at 2.30 a.m., P.W.1, landlord of the accused, has categorically stated that the accused knocked the doors of the house at 2.30 a.m., on the date of occurrence and thereafter he opened the doors and saw the accused was standing. At that time, the accused stated to him that he came to know through his friend and eldest son, that the deceased was having illicit intimacy with some other person, and as such, due to provocation, he beat the deceased and dashed her head against the wall and the deceased swooned and fell down and he has taken the deceased to the Hospital and the Doctor declared the death of the deceased. It is also stated to P.W.1 by the accused that he has informed the Doctor that the deceased fell down from the staircase. The version of P.W.1 has also been corroborated by the version of P.W.4 wife of P.W.1. P.W.4 also categorically stated that the accused informed her husband, P.W.1 that the deceased died as the accused had assaulted her. We are unable to see any infirmity or inconsistency in the evidence of P.W.1 and P.W.4. Their evidence is quite clear and natural. It is pertinent to be noted that P.W.1 is not a stranger to the accused and as a matter of fact, P.W.1 was the landlord of the accused. Therefore, it is quite natural for the accused to repose confidence on P.W.1 and as such he had sought for the help of P.W.1 to save him from the crisis, after making the extra judicial confession to him. The version of P.W.1 is further strengthened by his conduct of taking the accused along with him and producing him before the Police, namely P.W.13, Inspector of Police.
13. P.W.13, Inspector of Police corroborated the version of P.W.1 to the effect that P.W.1 appeared before him at 3.15 a.m., on 21.8.2005 with case report, Ex.P.1. It is seen that only thereafter, the accused was arrested by P.W.13. The perusal of Ex.P.1 also discloses that there is no inconsistency between the evidence of P.W.1 and his report, Ex.P.1. The extra judicial confession said to have been made by the accused to P.W.1 was clearly mentioned in Ex.P.1. Added to such categorical version of P.W.1 in respect of the extra judicial confession made by the accused, it is also pertinent to note that even in Ex.P.1, it is clearly mentioned by P.W.1 about the accused informing him to the effect that he has stated to the Doctor that the deceased fell down from the staircase. Therefore, we are of the considered opinion that there is no infirmity or inconsistency in the evidence of P.W.1 and the evidence of P.W.1, who is an independent witness, inspires our confidence.
14. The prosecution version is further strengthened by the medical evidence. The Doctor, P.W.7, who has conducted the postmortem, found the injuries on the head and also on the body of the deceased. The Doctor has found two contusions on the right forehead and on the left forehead and also found several other contusions on the body of the deceased. It is opined by the Doctor that all the injuries are ante-mortem in nature and opined that the deceased would appear to have died of head injuries. Therefore, we have no hesitation to hold that the deceased died only due to homicidal violence and that too at the hands of the accused.
15. Now, we are left with the consideration of the crucial question of nature of offence said to have been committed by the accused, namely, whether the accused is entitled to invoke Exception 1 to Section 300 IPC.
16. The motive put forward by the prosecution is to the effect that the accused suspected the fidelity of the deceased. The materials available on record does not disclose any other motive. The fact remains that the accused was away from the house for some time as he was employed at Malaysia. It is the categorical version of P.Ws 1, 3 and 4 that there were frequent quarrels and shouting heard from the house of the accused after the accused returned from abroad. As already pointed out, the evidence of P.W.1 clearly shows that as per the extra judicial confession made by the accused to P.W.1, the accused suspected the fidelity of the deceased. It is the categorical version of P.W.1 that the accused stated to him that he was informed by his friend and his eldest son that the deceased was having illicit intimacy with some other person. The frequent quarrels and shouting came from the house of the accused makes it crystal clear that due to such suspicion of fidelity, the accused might have had frequent quarrels with the deceased and the accused was nurturing sustained provocation.
17. As already pointed out, P.W.3 has categorically stated in his evidence that he was informed by his wife that there were frequent quarrels between the accused and the deceased for the last 5 days prior to the date of occurrence. It was also elicited by the defence during cross examination from P.W.3 to the effect that only on hearing the shouting he came out from his house and again went back to his house, thinking that, as usual, there was a family dispute between the accused and deceased. Therefore, it is quite clear from the sequence and events and from the materials available on record that even at the fateful time of occurrence, there was a wordy quarrel between the deceased and the accused. As already pointed out, it is pertinent to be noted that the accused was nurturing sustained provocation as he was suspecting that the deceased was having illicit intimacy with some other person, more particularly, through his eldest son, who is aged about 10 years. The version of P.W.1 in respect of the accused making extra judicial confession to the effect that he was suspecting the fidelity of the deceased/wife as he was informed by none else than his eldest son aged about 10 years, was not disputed by the defence, by putting any specific suggestion. Therefore, we have no hesitation to hold that the accused who was already nurturing sustained provocation, must have lost his self control, due to the quarrel between himself and the deceased, and the conduct of the deceased could have very well resulted in the grave and sudden provocation, culminating into the act of accused assaulting her with his hands and thereafter dashing her head against the wall, resulting in her death.
18. In a landmark decision in K.M.NANAVATI VS. STATE OF MAHARASHTRA reported in A.I.R. 1962 S.C. 605, the Hon'ble Supreme Court of India has laid down the following principles regarding invocation of Exception 1 to Section 300 I.P.C.:-
"1. The test of grave sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in situation in which the accused was placed would be provoked as to lose his self-control.
2. In India, words and gestures may also, under certain circumstances, cause gave and sudden provocation to an accused so as to bring his act within the first Exception of Section 300 I.P.C.
3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion has cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
19. The above landmark decision of the Apex Court in respect of grave and sudden provocation is squarely applicable to the facts of the instant case, as in this case also, while the accused was away at Malaysia, the deceased was having illicit intimacy with some other person, as said to have been informed by his friend and his eldest son, and subsequent conduct of the deceased by quarrelling with the accused, could have added fuel into the fire, resulted in loss of self control by the accused and thereafter attacking the deceased, causing her death. Thus, the manner in which the occurrence had taken place will not give any room for any premeditation or calculation on the part of the accused in committing the crime. The very conduct of the deceased in quarrelling with the accused, who was already nurturing sustained provocation, since he was suspecting the fidelity of the deceased, discloses that the accused was influenced by the passion due to sustained provocation and committed the offence due to grave and sudden provocation.
20. In the above facts and circumstances of the case, we are of the considered opinion that the accused is entitled to invoke Exception 1 to Section 300 IPC, and accordingly, the conviction and sentence imposed on the appellant/accused by judgement dated 25.1.2006, made in S.C.No.439 of 2005, on the file of learned Sessions Judge (Mahla Court), Chennai, are hereby set aside. Instead, the appellant is convicted under Section 304 (1) IPC and sentenced to undergo 7 years rigorous imprisonment. The bail bonds executed by the appellant/accused shall stand cancelled and the learned Sessions Judge shall take steps to secure the presence of the accused, to commit him to prison, to undergo the remaining period of sentence.
Index : yes (P.D.D.,J.) (K.N.B.,J.)
Internet: yes 16.07.2008
gkv
To
1. The Sessions Judge, (Mahila Court), Chennai.
2. The Metropolitan Magistrate No.13, Egmore, Chennai
3. -do- thru' the Chief Metropolitan Magistrate, Chennai.
4. The Superintendent, Central Prison, Vellore.
5. The Public Prosecutor, High Court, Madras
6. The District Collector, Chennai
7. The Director General of Police, Chennai
8. The Inspector of Police, Ice House Police Station.
P.D.DINAKARAN, J.,
and
K.N.BASHA, J.,
Judgment in
Crl.A.No. 268 of 2006
Dated 16.07.2008