Madras High Court
Rajagopal vs State By Inspector Of Police on 27 June, 2003
Equivalent citations: 2003(3)CTC645, I(2004)DMC749
Author: N. Dhinakar
Bench: N. Dhinakar, T.V. Masilamani
ORDER N. Dhinakar, J.
1. The appellant, who hereinafter will be referred to as the accused for the sake of convenience, was tried before the Second Additional Sessions, Erode, in Sessions Case No. 97 of 1995. The accused was tried under Sections 302 and 201 IPC and the allegation against him is that at 9.30 p.m. on 1.11.1990, he caused the death of his wife Mahapackiam by beating her and after she fell down unconscious, the accused, thinking that she is dead, hanged her to the roof to make it appear that it is a case of suicide. The learned Sessions Judge, after accepting the prosecution version, convicted and sentenced the accused to imprisonment for life for the offence of murder and for the offence under Section 201, IPC, he was sentenced to rigorous imprisonment for one Year and to pay a fine of Rs. 1000 with a default sentence of six months, rigorous imprisonment. Hence, the present appeal.
2. P.W.1 is the father of the deceased and P.W.2 is the neighbour of the deceased. The deceased and the accused got married five years prior to the date of incident. The accused is distantly related to P.W.1 at the time of marriage, the accused was eking his livelihood by selling bangles and his father was selling betel leaves. At the time of marriage, the father of accused was living in Dharapuram and after the marriage, the accused and the deceased were living at Chettikurichi, a village where P.W.1, was living. After some time, they migrated to Dharapuram and started living with the father of the accused. They lived happily for about six months and the deceased become pregnant. The deceased was brought to Chettikurchi and a girl child was born. After the birth of the child, the accused and this father accompanied by the relatives, went to the house of P.W.1 and wanted to take the deceased to Dharapuram. P.W.1 did not agree to the said proposal and the accused and his relatives went away after quarrelling with P.W.1. After six months, the accused returned to the house of P.W.1 and after promising him that he will live peacefully with his wife, took her and the child to Dharapuram and set up a separate residence. Though the accused promised his father-in-law, P.W.1, that he will lead a peaceful life with his wife, he did not do so and started ill-treating her. She was beaten on several occasions and on one occasion her hand and nose were broken. The deceased was complaining about the conduct of her husband to her father, P.W.1. The accused was also drinking and was having illicit relationship with other women. The deceased became pregnant for the second time. P.W.1 brought the deceased to Chittikurichi and she was residing there along with her father. A child was born and six months thereafter, the deceased was sent to the house of the accused, who was by then doing some business. The accused though was doing some business, was not giving sufficient money to manage the affairs of the family and therefore, the deceased had to borrow from several persons. The accused also sold away the jewels gifted by. P.W.1 to her daughter and spent the amount obtained by such sale. He was also quarrelling with his wife and one month prior to the date of incident, the deceased went to Chettikurchi and stayed with her father for the Deepavali festival. After the festival, she left for her husband's house.
3. In the meantime, at Dharapuram, P.W.2, the neighbour of the deceased, while he was sleeping in his house, was woken up by the accused. He questioned the accused and the accused told him that his wife has committed suicide. The accused took P.W.2 to his house and P.W.2 found the deceased hanging from the roof of the house, P.W.2 left the house and went away. The accused, thereafter, proceeded to Dharapuram Police Station where he gave a complaint, Ex. P-7, to P.W.6, the Sub-Inspector of Police, at 9.00 a.m., which was registered as a case in Crime No. 576 of 1990 under Section 174 Cr.P.C. Investigation in the Crime was taken up by P.W.7, the Deputy Superintendent of Police.
4. P.W.1, meanwhile, came to know that the deceased is not well and therefore, wanted to visit his daughter. He, accompanied by his wife and the second child of the deceased, proceeded towards Dharapuram and when they reached the road, the cousin of accused met him and handed over a telegram and they came to know that Mahapackiam is dead. P.W.1 and his wife went to Dharapuram and reached it at 4.30 p.m. When they went to the house, they found the body of Mahapackiam on the floor and found a ligature mark on the neck. The accused was also present.
5. On taking up investigation in the Crime, P.W.7 gave a requisition to the Revenue Divisional Officer, Dharapuram to go over to the scene of occurrence, as the death had taken place within seven years of the marriage of the deceased. At the scene of occurrence, the R.D.O prepared an observation mahazar and also conducted inquest. The inquest report is Ex.P-9. After the inquest, the body was sent to the hospital for conducting autopsy.
6. On receipt of the requisition, P.W.4, Civil Assistant Surgeon, Government Hospital, Dharapuram, conducted autopsy on the body of Mahapackiam and found the following appearances:
A dead body of a female lying on its back; eyes closed; blood-strains discharged from the nostrils; tongue within the mouth; a ligature mark 0.75 cm in breadth running around the neck below the level of thyroid cartilage extending to the nape of the neck, it stops just below the right ear lobe, transverse in direction and the rope mark more prominent on the left side, on deep dissection: The base of the ligature mark is soft and read; Subcutaneous tissue ecchymosed.
The doctor issued Ex.P-2, the post-mortem certificate, reserving her opinion as to the cause of death. She sent the hyoid bone to the chemical analyst and the chemical analyst issued Ex-P-4, the report, with his opinion that he found a fracture on the hyoid bone and it is post-mortem in nature.
7. P.W.7, continuing with his investigation, questioned the witnesses including P.W.1, P.W.2 and others and recorded their statements. He arrested the accused at 4.00 p.m. on 5.11.1990. He perused the statement given by the accused to the R.D.O. The accused was sent to Court for remand. He gave a requisition to the R.D.O. to forward the records to the Court. Later, the crime was altered to one under Section 302 IPC and the printed first information report in the altered crime is Ex.P-13. On 6.11.1990, he went to the house of P.W.1 and prepared a list regarding the properties given by the parents at the time of the marriage of the deceased with the accused. After the completion of investigation, the final report was filed against the accused on 16.11.1991 under Sections 304-B, 302 and 201 IPC.
8. The accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him and he denied all the incriminating circumstances. He did not examine any witness on his side.
9. The learned counsel appearing for the appellant/accused submits that there is absolutely no evidence against the accused to find him guilty and the learned Sessions Judge has erred in convicting the accused without any legal evidence. We have heard the learned Government Advocate (Criminal Side) on the above contention and perused the materials.
10. As stated earlier, the occurrence was not witnessed by anyone and the prosecution had to rely upon the circumstantial evidence to establish that the accused caused the death of his wife Mahapackiam by hanging her to the roof. According to P.W.2, while he was sleeping in the house, the accused woke him up and told him that his wife has committed suicide. He has further stated that he went to the house of the accused and found the dead body of Mahapackiam hanging from the roof. He returned to the house, thereafter. Though P.W.2 in chief examination, stated that he saw the legs of the deceased touching the grounds, he did not say so when he was examined by the investigating officer. The height of the roof is 6 1/2 feet and the height of the deceased is 5 feet and 2 inches, as could be seen from the observation mahazars, Exs.P-5 and P-6. Therefore, it is difficult to accept the prosecution version brought out through P.W.2 that when he went to the house of the accused, he saw the legs of the deceased touching the ground. Therefore, we reject his evidence. It is to be remembered at this stage that it is the accused who went to the police station and gave a complaint, Ex.P-7, to P.W.6, the Sub-Inspector of Police, who registered a crime on the basis of the complaint. In the said complaint, Ex.P-7, the accused has only stated that his wife has committed suicide while he was away from the house and that he brought down the body from the roof with the help of the villagers. The doctor, who conducted autopsy, also did not give any certificate opining that Mahapackiam died on account of homicidal violence, though she issued Ex.P-2, the Post-mortem certificate. In the said certificate, she did not give any opinion and she sent the hyoid bone to the chemical analyst, who, on examining the said hyoid bone, issued Ex-P-4, the report, opining that the fracture found on the hyoid bone is post-mortem in nature, which means that the hyoid bone was broken after the death of Mahapackiam and Ex-P-3, the report of the scientific officer, also does not disclose that the deceased has consumed any poisonous substance. The evidence of the doctor is of no use to the prosecution and at best, it would only go to show that Mahapackiam died on account of asphyxia due to strangulation.
11. The only question that is to be decided by us is whether the accused is responsible for strangling his wife to death. We have to say that the prosecution has miserably failed to let in any evidence to connect the accused with the crime as the facts, which we have extracted in the earlier part of the judgment, go to show that though it is true that the accused and the deceased were not happy, there is no evidence to show that the accused hanged his wife to death. The evidence of P.W.2, at best indicates that the accused informed him that his wife has committed suicide and the conduct of the accused in going to the police station and giving a complaint is in consonance with his innocence and not with his guilty. In fact, P.W.1, in Chief examination, has stated that when he went to the house of the deceased, he found his son-in-law inside the house. If the accused had committed the murder of his wife, then he would have absconded; but, he did not do so as stated earlier, there is absolutely no legal evidence connecting the accused with the crime and in the absence of any evidence, we find it difficult to uphold the conviction of the deceased.
12. We are also unable to understand as to the materials on which the learned Sessions Judge has framed the charge alleging that the accused has beaten his wife and after she became unconscious, she was hanged to the roof and that on account of the said hanging, she died.
13. On the discussion made above, we are of the view that the appellant/accused is entitled for an acquittal and therefore, he is acquitted. The appeal is allowed. It is reported that the appellant/accused is in jail. If so, he is directed to be released forwith unless he is wanted in connection with any other case.