Madras High Court
Lakshmi vs State Rep.By on 28 November, 2014
Bench: A.Selvam, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.11.2014 CORAM THE HONOURABLE MR. JUSTICE A.SELVAM and THE HONOURABLE MR. JUSTICE V.S.RAVI Crl.A.(MD)No.250 of 2007 Lakshmi .. Appellant/Single Accused Vs. State rep.by The Inspector of Police, Andipatti Police Station Crime No.392 of 2003. .. Respondent/Complainant Criminal appeal filed under Section 374(1) of Cr.P.C. against the conviction and sentence dated 28.03.2007 passed in Sessions Case No.57 of 2006 by the Principal District and Sessions Court, Theni. For Appellant : Mr.Gopala Krishna Laxmana Raju for Mr.R.Venkateswaran For Respondent : Mr.T.Mohan Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was made by A.SELVAM, J.) An uxorious wife who is said to have committed murder of her husband has challenged the conviction and sentence dated 28.03.2007 passed in Sessions Case No.57 of 2006 by the Principal District and Sessions Court, Theni by way of filing the present Criminal Appeal.
2. The conspectus of the case of the prosecution is that the accused by name Lakshmi is the third wife of the deceased by name Ganesan. The deceased has led a debaucherous life and very often he used to attack the accused. He has also used to send out the accused from house for having cornal copulation with some other ladies and prior to occurrence, the deceased has attacked the accused and due to that she sustained injury on her index finger. On 19.12.2003 at about 1.00 am, in sozzle mood, the deceased has attacked the accused and also tried to throw away Ajith kumar (son of both deceased and accused) from upstairs. Further the deceased has stated that prior to dawn, he would kill father, mother and brother of the accused and having enraged at the conduct of the deceased, on 20.12.2003 at about 06.30 am, the accused has attacked the deceased by using a boulder and due to her attack, the deceased has passed away. After occurrence, the accused has gone to office of the defacto complainant viz., Village Administrative Officer and given a voluntary confession statement and after recording the same, PW1 has gone to Andipatti police station and handed over both the accused as well confession statement given by her. The Sub Inspector of Police (PW12) attached to Anditpatti Police Station has registered the confession statement alleged to have been given by the accused in Crime No.392 of 2003. The confession statement alleged to have been given by the accused has been marked as Ex.P2.
3. On receipt of Ex.P1, the Investigating Officer (PW15) has conducted investigation, examined some connected witnesses and also made arrangements to conduct autopsy on the body of the deceased and PW8, Dr.Saraswathi has conducted autopsy on the body of the deceased and she found the following external and internal injuries:
External Injuries: (1) Lacerated injury cheek right 5cm x 1 cm x BD. O/D sub (nc) collection of blood present. Fracture on axillary bone, fracture size extending to right temporal bone, right parietal eminence upto left parietal eminence and left temporal bone. The fracture size also extending into anterior crocial fossa also. Present posterior crocial fossa. Sub dural laceration present, sub-arachnoid haemorrhage present and brain pale.
Internal examination:
Hyoid bone intact, ribs no fracture. Pleural cavity ? both lungs normal size & pale. Heart ? normal size, pale present empty, stomach empty. Liver/Kidney/Spleen ? normal size ? pale. Bladder empty, skull as injury No.1 Brain ? normal size & pale.
Pelvis bone ? No fracture, spinal card ? intact.
4. The post-mortem report has been marked as Ex.P5. After completing investigation, PW15 has laid a final report on the file of the Judicial Magistrate Court, Andipatti and the same has been taken on file in PRC No.14 of 2004.
5. The Judicial Magistrate Court, Andipatti after perusing relevant records has come to the conclusion to the effect that the offence alleged to have been committed by the accused is triable by Sessions Court, committed the case to the Court of Sessions, Theni Division and the same has been taken on file in Sessions Case No.57 of 2006.
6. The trial court after hearing arguments of both sides and upon perusing relevant records has framed a charge against the accused under Section 302 of the Indian Penal Code and the same has been read over and explained to her. The accused has denied the charge and claimed to be tried.
7. On the side of the prosecution, PWs.1 to 16 have been examined and Exs.P1 to P14 and M.Os.1 to 8 have been marked.
8. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against her, she denied her complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused.
9. The trial Court after perpending the available evidence on record has found the accused guilty under Section 302 of the Indian Penal Code and sentenced her to undergo imprisonment for life. The conviction and sentence passed by the trial Court are being challenged in the present Criminal Appeal.
10. The learned counsel appearing for the appellant/accused has raised the following points so as to topsy-turvify the conviction and sentence passed against the appellant/accused.
(a) The prosecution has not absolutely adduced any convincing evidence to the effect that on the date of occurrence both the accused and deceased have resided together in the place of occurrence.
(b) Some of the prosecution witnesses have stated in their evidence that the police have come to the place of occurrence at about 6.00 and 7.00 o' clock in the morning on 20.12.2003 and therefore, the confession alleged to have been made by the accused to PW1 on the same day at about 07.15 am, is false and further PW1 has clearly stated in his evidence that prior to recording Ex.P2, he has not known the accused or her family members.
(c) The prosecution has seized beweltered pillow and stone and the same have not been subjected to chemical examination.
11. In order to controvert the contentions put forth on the side of the appellant/accused, the learned Additional Public Prosecutor has contended that in the instant case, the accused is the third wife of the deceased and the prosecution has adduced plenary of evidence so as to prove that on the date of occurrence, both of them have resided together in the place of occurrence. Under the said circumstances, the trial Court has rightly invited conviction and sentence against the appellant/accused and the same need not be interfered with.
12. It is seen from the records that the prosecution has put forth its case on the following facts:
(a) After occurrence the accused has voluntarily come to the office of PW1 and given confession statement (Ex.P2) wherein it is stated about the torturous attitude of the deceased and also troubles and tribulations meted out by the accused and consequently she attacked the deceased by using a boulder and due to that he passed away.
(b) On the date of occurrence, since the accused is the third wife of the deceased, both of them have resided together in the place of occurrence.
13. The learned counsel appearing for the appellant/accused has relied upon the following decisions with regard to Ex.P2, confession alleged to have been made by the accused to PW1.
(i) In AIR 2006 Supreme Court 2242 [Sunny Kapoor V. State (U.T.of Chandigarh], the Hon'ble Apex Court has observed that ?it is wholly unlikely that the accused would make extra judicial confession to a person whom they never knew. It also appears to be wholly improbable that unknown persons would come to seek his help unless he was known to be close to the police officers. His statements, thus, do not even otherwise inspire confidence.?
(ii) In (1997) 1 Supreme Court Cases 510 [Jaspal Singh @ Pali Vs. State of Punjab], the Hon'ble Apex Court has held that ?confession of offences made to Sarpanch of another village ? in the absence of any reasons to show as to why and how the accused had reposed such a confidence in that Sarpanch as to confess their guilt before him, such confession is improbable.?
(iii) In 2007 ? 1 ? L.W. (Crl) 555 [Ravi @ Ravichandran and another Vs. State Rep.by Inspector of Police, Steel plant police station, Salem], the Division Bench of this Court has held that ?extra judicial confession made to Village Administrative Officer who is not known to the deponent, cannot be relied upon.?
14. As pointed out earlier, the prosecution has set its case on the basis of two factual aspects mentioned supra. The first and foremost factual aspect is that the appellant/accused has voluntarily gone to office of PW1 and given extra judicial confession, marked as Ex.P2. During the course of cross examination, PW1 has clearly admitted to the effect that prior to recording Ex.P2, he has not known the accused as well as her family members. Under the said circumstances, by way of relying upon the decisions referred to supra, it is needless to say that the first factual aspect put forth on the side of the prosecution so as to establish the alleged culpability of the appellant/accused cannot be believed in.
15. Now the Court has to look into the second factual aspect, whereupon the prosecution has based its case. It is an admitted fact that the accused is the third wife of the deceased.
16. The learned counsel appearing for the appellant/accused has contended vehemently to the effect that the prosecution has failed to establish that on the date of occurrence both the accused and deceased have resided together in the place of occurrence.
17. For the purpose of proving the said aspect, on the side of the prosecution, the witnesses namely Vijayalakshmi, Palraj, Murugesan, Selvam and Vijaya have been examined as PWs.3 to 6 and 9. The neighbours namely Vijayalakshmi, Palraj, Murugesan viz., PWs.3 to 5 have been treated as hostile witnesses. Even though they have been treated as hostile witnesses, to certain extent they supported the case of the prosecution and their specific evidence is that both the accused and deceased have resided together in a nearby house. In fact, no cross examination has been put to them with regard to the aforesaid limb of evidence given by them. Therefore, the evidence given by them to the effect that both the accused and deceased have resided together remains uncontroverted and also unchallenged. Therefore, it goes without saying that on the date of occurrence, both the accused and deceased have resided together in the place of occurrence. As animadverted to earlier, no cross examination has been put to PWs.3 to 5 with regard to the said piece of evidence adduced by them and no motive has also been suggested to them. The defence put forth on the side of the appellant/accused is that 15 days prior to occurrence, due to vulnerable attitude of the deceased, the accused has left marital abode and therefore, on the date of occurrence, she has not resided with the deceased. If really such thing would have happened, definitely the same can be put to PWs.3 to 5 by way of making effective cross examination. In fact, absolutely there is no cross examination with regard to the said piece of evidence adduced by PWs.3 to 5. Therefore, it is easily discernible that on the date of occurrence, both the accused and deceased have resided together and since PWs.3 to 5 are the neighbours of both the accused and deceased, the evidence given by them cannot be belittled.
18. Apart from the evidence given by PWs.3 to 5, PW6 Selvam and PW9, sister of the deceased by name Vijaya have also given clear evidence to the effect that in between the accused and deceased frequent strifes have had happened and both of them have resided together. Therefore, from the conjoint reading of the evidence given by the witnesses referred to supra, there is no incertitude in coming to a conclusion that on the date of occurrence, both the accused and deceased have resided together.
19. The learned counsel appearing for the appellant/accused has drawn the attention of the Court to the decision reported in AIR 2004 Supreme Court 4383 [Dasari Siva Prasad Reddy V. Public Prosecutor, High Court of A.P.], wherein the Hon'ble Apex Court has held that ?testimony of an alleged neighbour who lived 4 or 5 houses away from the house of the accused, cannot be believed in for the purpose of ascertaining that both the accused and deceased are seen together.?
20. In the instant case, such factual situation has not arisen. As pointed out earlier, PWs.3 to 5, claimed to be neighbours of both the accused and deceased have stated in their evidence that both of them have resided together. But as taunted earlier, no cross examination has been put to them with regard to situation of their houses and also the factum of evidence given by them. Therefore, it is quite clear that the factual aspects available in the present case are totally alien to the facts of the case mentioned in the decision referred to supra. Under the said circumstances, it is not possible to attune the same.
21. It is a settled principle of law that as per Section 106 of the Indian Evidence Act, 1872, if a fact lies especially within the knowledge of a person, entire burden lies upon him about the said fact.
22. In order to peer the said legal position further, it would be condign to look into the following decisions:
(i) In (2000) 8 SCC 382 [State of West Bengal Vs. MIR Mohammed Omar and others], the Hon'ble Apex Court has held that ?under Section 106 of the Indian Evidence Act, 1872, inference can be drawn against a person who is having knowledge about particular case.?
(ii) In 2013 8 SCC 60 [Babu @ Balasubramanian and another V. State of Tamilnadu] it is held that ?an incident especially within the knowledge of accused, burden of proof upon the accused ? failure to prove, he must be held liable.?
(iii) In AIR 2014 SC 2936 [Paramasivam and others V. State through Inspector of Police] it is held that ?it is for the abductors to explain how they dealt with abducted victim. In the absence of explanation, Court is to draw inference that abductors are the murderers. In the present case, the prosecution has brought on record the evidences that accused persons had abducted the deceased. Therefore, it is accused person alone knew what had happened to him as the deceased was found murdered within a short time after abduction. The accused persons have failed to give any explanation and the Court rightly drawn presumption that the accused have murdered the deceased.?
(iv) In AIR 2014 SC 3202 [Alber Oraon V. State of Jharkhand] ?it is held that accused who started living with deceased as her husband - no convincing explanation has been preferred by him as to why he has not reported prolonged absence of the accused to police. Under the said circumstances, the Court can very well invoke Section 106 of the Indian Evidence At, 1872.?
23. From conjoint reading of the decisions referred to supra, it is pellucid that if a fact is especially within the knowledge of a particular person, entire burden lies upon him with regard to the said fact and if there is any failure on his part, the Court can very well draw inference against him.
24. In the present case, it has already been pointed out to the effect that PWs.3 to 5 are neighbours and no motive is in existence between them and accused so as to adduce evidence to the effect that both the accused and deceased have resided together. Further their evidence remains unshattered, even without making any attempt to cross examine them. Since no attempt has been made on the side of the accused to cross examine them with regard to the said aspect, it is needless to say that on the side of the accused, the said portion of evidence given by PWs.2 to 5 has been tacitly consented.
25. As noted down in many places that if a fact is especially within the knowledge of a particular person, as per section 106 of the Indian Evidence Act, 1872, entire burden lies upon him. Otherwise, inference can be drawn. In the instant case, replete evidence is available so as to come to a conclusion that both the accused and deceased have resided together in the place of occurrence. Even an inert attempt has not been made on the side of the accused to the effect that on the date of occurrence, both of them have not resided together by way of making proper cross examination to PWs.3 to 5. Therefore, viewing from any angle, the Court can unflinchingly come to a conclusion that on the date of occurrence, both the accused and deceased have resided together and no explanation has been given on the side of the accused with regard to occurrence. Under the said circumstances, the accused can very well be mulcted with liability.
26. It is seen from the records that some of the prosecution witnesses have stated in their evidence that the police have come to the place of occurrence on 20.12.2003 at about 6.00 and 7.00 o' clock. It is true that Ex.P2 has been recorded by PW1 on the same day at about 07.15 am. Even though such a contradiction is available, the same would not affect the case of the prosecution. Further this Court has already rejected Ex.P2, extra judicial confession alleged to have been made by the accused to PW1.
27. It is an admitted fact that from the place of occurrence, the Investigating Officer has seized some beweltered material objects and the same have not been subjected to chemical examination. Under the said circumstances, the Court has to look into as to whether failure on the part of Investigating Officer to send material objects for chemical examination would be fatal to the case of the prosecution.
28. In AIR 2014 SC 2587 [Md.Jamiluddin Nasir V. State of West Bengal], the Hon'ble Apex court has held that ?non production of weapon used in attack by accused, is neither fatal to prosecution nor any adverse inference can be drawn on that score.?
29. It is also a well settled principle of law that failure on the part of prosecuting agency to send material objects for chemical examination would not affect case of the prosecution. It is also equally an archaic principle of law that a faulty investigation would not be a sole ground for exculpating the accused from charge(s). Therefore, viewing from any angle, rest of the aspects, except the first aspect urged on the side of the appellant/accused cannot be accepted.
30. Before parting with this case, the Court would like to point out the stupendous mistake committed on the side of the defence to the effect that PWs.3 to 5 have not at all been cross examined to the vital aspect of evidence adduced by them and their uncontroverted evidence would be sufficient to invoke Section 106 of the Indian Evidence Act, 1872 and since the accused has failed to explain as to how death has occurred to her husband, inference can be drawn to the effect that she murdered him.
31. The trial Court after considering the available evidence on record has rightly found the appellant/accused guilty under Section 302 of the Indian Penal Code. In view of the foregoing elucidation of both the factual and legal aspects, this Court has not found any force in the contentions put forth on the side of the appellant/accused and therefore, this appeal deserves to be dismissed.
32. In fine, this Criminal Appeal is dismissed. The conviction and sentence passed in Sessions Case No.57 of 2006 by the Principal District and Sessions Court, Theni are confirmed.
(A.S., J) (V.S.R., J) 28.11.2014 Index :Yes Internet:Yes mj To
1.The Principal District and Sessions Court, Theni
2.The Inspector of Police, Andipatti Police Station
3.The Addl. Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
A.SELVAM, J.
and V.S.RAVI, J.
mj Pre delivery Judgment in Crl.A.(MD)No.250 of 2007 28.11.2014