Madras High Court
Sudalaimani @ Mani vs State Through on 19 January, 2017
Crl. A. (MD)No.127 of 2018
B E F O R E T H E MADU RAI B E N C H O F MADRA S HIGH C O U RT
DAT E D : 2 9 . 0 1 . 2 0 2 0
C O R AM:
T H E HO N O U R A B L E MR. J U S T I C E T. RA J A
and
T H E HO N O U R A B L E MR. J U S T I C E B . P U G A L E N DHI
C rl. A . (MD)N o. 1 2 7 o f 2 0 1 8
Sudalaimani @ Mani ... Appellant/Sole Accused
Vs.
State through
The Inspector of Police,
Muthaiyapuram Police Station,
Thoothukudi District.
(In Crime No.385 of 2014) ... Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 of the Criminal Procedure Code,
praying to call for the entire records connected to the Judgment in S.C.No.402
of 2015 on the file of the Hon'ble II Additional District and Sessions Court,
Thoothukudi dated 19.01.2017 and set aside the conviction and sentence
imposed against the appellant.
For Petitioner : Mr.R.Alagumani
For Respondent : Mr.R.Anandaraj
Additional Public Prosecutor
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J U DG ME N T
(Judgment of the Court was delivered by T. RA J A , J . )
The appellant is the sole accused in S.C.No.402 of 2015 on the file of
the II Additional District and Sessions Judge, Thoothukudi and he stood charged,
tried and convicted for the commission of offence under Section 302 I.P.C. and
sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- with
default sentence of 1 year Simple Imprisonment vide judgment dated
19.01.2017. The appellant/sole accused, aggrieved by the impugned judgment
of conviction and sentence passed by the Trial Court, came forward with this
Criminal Appeal.
2. Facts leading to the filing of this Criminal Appeal, relevant for the
purpose of disposal of this case, briefly narrated, are as follows:
2.1. It is the case of the prosecution that on 06.12.2014 at about 7.30
a.m., while Sharmila was preparing morning food, wordy quarrel occurred
between her and her husband/appellant/accused Sudalai Mani @ Mani as she
sought money for paying school fees to their children and abused him as if he is
having illegal intimacy with another lady and spending money for her and out
of provocation the accused threatened his wife saying that her life would be
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finished in his hand and poured the boiling water on her and caused burn
injuries in the presence of P.Ws.1 and 2, who are the kids of the accused and the
deceased. Thereafter, the victim was taken to the nearby hospital by both the
appellant and P.W.4. Thereafter, the victim was admitted in the Government
Hospital, Thoothukudi.
2.2.On 06.12.2014 at about 10.20 a.m., P.W.8 – Dr.Praveen examined
her and found that she suffered burn injuries on the face, chest, back and left
thigh and sent her to Burn Injury Ward for treatment. The copy of the Accident
Register recorded by him was marked as Ex.P.5 and the police intimation sent by
him was marked as Ex.P.6.
2.3.P.W.10 – Sankaralingam, the Special Sub Inspector of Police was in
charge of Out Post Police Station at Government Hospital and he received the
intimation from P.W.8 and inform the same to P.W.9 – Manthiram @ Raja, Police
Constable of Muthiahpuram Police Station at about 10.50 a.m. and he in turn
inform the same to P.W.13, Palanisamy, Sub-Inspector of Police, Muthiahpuram
Police Station at about 11.00 a.m. through phone. On receipt of the intimation,
P.W.13 went to the Hospital. Since she was unable to tell anything, he went back
to the police station and returned back to the hospital at 8.00 p.m. and
recorded her statement from 8.30 p.m. to 10.00 p.m. and obtained her thumb
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impression. He also obtained the signature of P.W.3 – Mallika, mother of the
deceased Sarmila in the statement. The said statement was marked as Ex.P.1.
Thereafter, he went back to the police station and based on Ex.P.2, he has
registered a case in Crime No.385 of 2014 under Section 326-A I.P.C. The printed
F.I.R. was marked as Ex.P10.
2.3.P.W.13 despatched the original F.I.R. and original complaint to the
Court of jurisdictional Magistrate and copy of the same to P.W.15 – Raju,
Inspector of Police, Thermal Nagar Police Station and was incharge of
Muthiahpuram Police Station and higher officials. P.W.15 at about 11.30 p.m. on
06.12.2014, received the F.I.R. and proceeded to the scene of crime and since it
was dark he returned back and again on 07.12.2014 at about 6.30 a.m. in the
presence of P.W.5 – Murugan and one Krishnan, he prepared the Observation
Mahazar and the Rough Sketch marked as ExsP.2 and 12 respectively. In the
presence of the same witnesses, he recovered M.O.1 – Aluminium Vessel used
for boiling the water under a cover of mahazar Ex.P.3 and sent the same to the
Court. Then he went to the Government Hospital, Thoothukudi and examined
the injured Sarmila and her mother – P.W.3 and recorded their statements. Then
he examined Krishnan and P.W.5, Ranjini and other witnesses and recorded their
statements. Then on the same day at 10.30 a.m. he arrested the accused near
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Muthiahpuram Ponnandi Nagar Pillaiyar Kovil and sent him to judicial custody.
Then P.W.16 - Hariharan, Inspector of Police, Muthiah Puram Police Station took
up the case for further investigation on 09.12.2014.
2.4.P.W.7 – Dr.Seenivasan, Assistant Professor, Government Medical
College Hospital, Thoothukudi, treated the deceased and found her breath the
last at 4.00 a.m. on 12.12.2014. The death intimation sent by him to the police
was marked as Ex.P.4.
2.5.P.W.12 – Grade – I Police Constable received the death intimation
of deceased Sarmila and handed over to P.W.16. at. 6.45 a.m. on 12.12.2014.
Then, P.W.16 altered the F.I.R. from Section 326-A to 302 I.P.C. and sent the
Alteration Report (Ex.P.12) to the Judicial Magistrate No.II, Thoothukudi. Then
on the same day between 9.30 a.m. to 12.00 noon conducted inquest on the
body of the deceased at Government Hospital, Thoothukudi in the presence of
Panchayatars. The Inquest Report was marked as Ex.P.14. Then he sent a
requisition for conducting postmortem on the body of the deceased through
P.W.12.
2.6. P.W.14 – Dr.Manokaran was the Associate Professor and H.O.D.,
Department of Forensic Medicine attached to Government Medical College,
Thoothukudi and he conducted postmortem on 12.12.2014 at 1.00 p.m. and
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found the following antemortem injuries:
“Superficial infected scald seen over the entire back of
trunk, gluteal region, both arms, chest, lower abdomen, left thigh and
right side of face. Pus material seen all over the lesions. On removal
of pus, base of the wound red in colour. Hair over the lesion intact.”
The postmortem report was marked as Ex.P.11. He opined that the deceased
died of complications of superficial scald injuries.
2.7. P.W.16 continued the investigation and examined Krishnan, Shiny,
P.W.2, P.W.1, P.W.8, P.W.7, P.W.11, P.W.12, P.W.14, P.W.6 and recorded their
statements. After completing the investigation he had filed the Charge Sheet on
21.02.2015 on the file of the Court of Judicial Magistrate No.II, Thoothukudi,
charging the appellant/accused for the aforesaid offence and the learned
Judicial Magistrate No.2, Thoothukudi took it on file in P.R.C.No.25 of 2015.
2.8. The Committal Court issued summons to the accused and on his
appearance, furnished him copies of documents under Section 207 CrPC and
having found that the case is exclusively triable by the Sessions Court, had
committed the same to the Principal District Court. Thoothukudi, which in turn
made over the same to the II Additional District and Sessions Court,
Thoothukudi, which took it on file in S.C.No.402 of 2015. The appellant/accused
was issued with summons and on his appearance, charge under Section 302 IPC
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has been framed.
2.9.The prosecution, in order to sustain its case, examined PWs.1 to
16, marked Exs.P1 to P14 and also marked M.Os.1 & 2. The appellant/accused
was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating
circumstances made out against him and he denied it as false. The appellant/
accused did not examine any witness or marked any document on his side.
2.10.The Trial Court, on a consideration of oral and documentary
evidence and other materials, had found the appellant/accused guilty of the
offence and sentenced him as stated above, vide impugned judgment dated
19.01.2017 and challenging the same, the present Criminal Appeal is filed.
3.Mr.R.Alagumani, learned counsel appearing for the appellant/
accused would submit that it is the admitted case of the prosecution that there
was an usual wordy altercation between the husband and wife and not able to
tolerate the allegation that he was having illegal intimacy with another lady,
without knowing that her wife has been preparing food by heating the water
and whether it was a boiled water or not, lifted the aluminium vessel – M.O.1
and said to have been poured the water on the victim. However, it could be
seen that if the appellant had any intention to cause the death of the victim, he
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knows very well that there were sharpened knives, usually available in the
kitchen used for cutting vegetables, and the same could be used for killing her.
However, the accused without knowing that whether it was a boiled water or
not, lifted the vessel and poured the water on the deceased out of provocation
and immediately after finding that his wife has sustained burn injuries, he took
her to hospital. This has been proved by Ex.P.5 – copy of accident register,
wherein it has been specifically mentioned that the appellant/husband has
brought the victim Sarmila with burn injuries. P.W.8 Dr.Praveen also clearly
deposed about the admission of the deceased in Government Hospital by her
husband. This was corroborated by P.W.4 – Ranjini, who accompanied the
deceased to the hospital. Therefore, when the appellant/accused after noticing
that her wife suffered burn injuries because of pouring hot water, immediately
without even running to escape from the police arrest, has taken his wife to
hospital with the assistance of P.W.4, an independent witness, who is also their
neighbour. The deceased took treatment for quite long time i.e., 7 days. P.W.7 –
Dr.Seenivasan also deposed before the trial Court that there is a chance of
infection from one patient to another in burn injury ward and there is chance
for burn injury patients to die on account of secondary infection. Therefore,
pouring of hot water cannot be the sole reason for the death of the accused.
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4.He would further submit that the accused/appellant has established
and even the prosecution also made it clear that the accused/appellant did not
carry any weapon although sharpened weapons like knife etc., were available in
the kitchen. Hence, the prosecution cannot register the case against the
accused for the offence under Section 302 I.P.C. and the trial Court cannot
convict the appellant for the offence under Section 302 I.P.C. Although the
prosecution pleaded before the trial Court that on the basis of the statement of
the victim a case was registered in Crime No.385 of 2014 for the offence under
Section 362-A on 06.12.2014 at about 10.00 p.m. and consequent to her death it
was altered into one under Section 302 I.P.C. on 14.12.2014, the said statement
was not even attested by a doctor. Therefore, on a mere statement given by the
victim, it is not open to the prosecution to rope in the accused/appellant for
the commission of offence under Section 302 I.P.C. Even the Special Sub-
Inspector of Police, who spoke before the trial Court as P.W.10 also deposed
that the deceased was not in a speaking condition. That shows that the
statement, said to have been recorded from the victim was recorded when she
was unable to speak. The trial Court overlooking this false document wrongly
convicted the appellant/accused, father of P.W.1 and P.W.2 to undergo life
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imprisonment for offence under Section 302 I.P.C., which is solely unreasonable,
as a result of which, the poor children are rendered orphan.
5.Mr.R.Alagumani, learned counsel appearing for the appellant prays
this Court to bring the gravamen charge 302 I.P.C. to 326 I.P.C., by drawing our
attention to P.W.11 – Postmortem Certificate, wherein it is stated that the
deceased would appear to have died of complications of superficial scald
injuries. Hence, during the treatment for 7 days as inpatient, due to some
carelessness of the Government Hospital doctors the deceased had died.
6.Further, the learned counsel appearing for the appellant would
submit that when there was no intention to kill his wife viz., the deceased
Sarmila and there was no evidence adduced by the prosecution except the
evidence of P.Ws.1 and 2, who are all touted witnesses, it is not a case of
conviction for offence under Section 302 I.P.C. Therefore, it has to be modified
to one under Section 326 I.P.C., failing which P.W.1 and P.W.2, who had already
lost their mother would also become orphan as the accused/appellant is also
sentenced to life. In support of his submission, learned counsel appearing for
the appellant relied on the decision of the Hon'ble Apex Court in C h o w a
M a n d a l v. S t at e o f B i h a r [AI R 2 0 0 4 S C 1 6 0 3].
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7.On the other hand, Mr.R.Anandaraj, learned Additional Public
Prosecutor appearing for the respondent/State would submit that there was
frequent quarrel between the appellant and his wife deceased Sarmila. The very
fact that the appellant has taken out the boiling hot water and poured over his
wife in the presence of his children P.W.1 and P.W.2, clearly indicates that he has
intention to kill his wife. Secondly, the evidence of P.W.1 and P.W.2, who are
eyewitnesses and children of the appellant and the deceased, cannot be
disbelieved. P.W.1 and P.W.2 spoken consistently against their own father that he
has poured boiled water over the body of their mother, who was preparing
morning food at 7.30 a.m. Hence, it is not open to the accused to claim that he
was not having any intention and the trial Court has rightly come to the
conclusion that the prosecution has proved the case beyond all reasonable
doubts. Therefore, such a finding cannot be disbelieved.
8.This Court paid its anxious consideration to the rival submissions
made and also perused the oral and documentary evidences and other materials
placed on record, including the impugned Judgment as well as the original
records.
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9.The question arises for consideration is whether the prosecution has
proved the guilty of the accused beyond any reasonable doubt in the light of
the evidence let in?
10.The quarrel between the husband/accused and wife/deceased has
landed the husband/accused in the net of Section 302 I.P.C. Consequently, his
two small children viz., P.W.1 and P.W.2 have lost their parents. The reason being
their mother had died and their father has been convicted by the trial Court to
undergo life imprisonment.
11.It is the admitted case of the prosecution that there was frequent
quarrel between the accused and the deceased. On the fateful day, i.e., on
06.12.2014 at 7.30 a.m., when the deceased was boiling water for preparing
food, it was at that time, the accused/appellant came into the kitchen.
Immediately thereafter, the deceased/wife quarrelled with the appellant/
accused demanding tuition fees to be paid to their children and made some
allegations against him that he is having illegal intimacy with another lady and
he has been spending money for that lady. Immediately, the accused got
provoked and without knowing the fact there was boiled water in the vessel, he
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has lifted the aluminium vessel and poured the hot water on her. Immediately
after knowing the fact that his wife had fallen down due to pouring of the
boiled water on her body, he arranged an hire auto, without running out from
the situation, and taking the assistance of P.W.4, who is also a neighbour, an
independent witness, rushed to a nearby private hospital and after finding that
his wife has suffered 45% burn injuries and as advised without wasting any time
taken her to the Government Hospital at Thoothukudi. That shows that he had
no intention to kill her.
12.Secondly, as rightly pointed out by the learned counsel appearing
for the appellant/accused, if the accused had any intention or plan to cause the
death of the deceased, he would have definitely used better weapons, which are
always available in the kitchen. The postmortem certificate Ex.P.11 also shows
that when the deceased was getting treatment for 7 days in Government
Hospital, Thoothukudi, she got infected, due to which, she succumbed to the
injuries. Therefore, we cannot put the entire blame on the accused.
13.In C h o w a M a n d a l (supra), cited by the learned counsel
appearing for the appellant, it is stated as follows:
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“The incident in question occurred on the spur of the
moment without there being any intention of causing death or of
causing such injury as they knew was likely to cause death, and was an
act arising out of the enmity they had with the nephew of the
deceased and aggravated by the unwanted questioning by the
deceased. From the evidence it is clear that the act of the appellant
cannot construed as an act other than causing grievous hurt. In this
background, we agree with the learned counsel for the appellants
that in the absence of any motive, intention or knowledge as to their
act which led to the death of the deceased the appellants can only be
held guilty for an offence punishable under Section 326 read with 34,
IPC since there is material to show that these 2 appellants did wield
their lathis out of which at least one blow, if not both, struck the head
of the deceased causing him grievous injury which ultimately led to
his death.”
A perusal of the said judgment would clearly show that if an incident occurred
on a spur of the moment without there being any intention of causing death or
of causing such injury as they knew was likely to cause death, it cannot be
brought under Section 302 I.P.C. and the said ratio clearly shows that it is not
justifiable to convict the accused under Section 302 I.P.C. and he has to be
convicted for the offence under Section 326 I.P.C. On the fateful day, when the
accused/appellant came into the picture, the deceased was boiling water for
preparing food and she picked up a quarrel with him demanding tuition fees to
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be paid to their children's school with the further allegation that he is having
illicit intimacy with another lady. Therefore, he is not taking care of the
household expenses. Immediately, the accused got provoked and without
knowing the fact that there was a boiled water in the vessel, took the same and
threw on her. Secondly, he did not carry any weapon, although sharpened
weapons like, knife were available in the kitchen. Thirdly, the moment she fell
down, the accused immediately took her to a nearby hospital by hiring an auto
taking his neighbour for assistance. The deceased was also taking treatment for
about seven days. Dr.Srinivasan, P.W.7 deposed before the trial Court that there
is a chance of infection from one patient to another in burn injury ward and
that may also be a cause of death. Finally there are children to be taken care of
by him. All these mitigating circumstances clearly bring home the
accused/appellant only under Section 326 IPC. Hence, this Court is inclined to
modify the conviction and sentence imposed on the accused.
14.The learned Additional Public Prosecutor on instructions from the
Jail authorities would submit that the deceased has already undergone
incarceration for 3 years 5 months and 6 days.
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15.In the result, the Criminal Appeal is partly allowed by modifying
the conviction under Section 302 I.P.C. to one under Section 326 I.P.C. and the
sentence is modified to the period of imprisonment already undergone and the
fine amount paid already. The bail bonds executed by the accused shall stand
cancelled.
[T.R. , J . ] [B. P. , J . ]
2 9. 0 1. 2 0 2 0
Index : Yes / No
Internet : Yes / No
sj
To
1.The II Additional District and Sessions Judge,
Thoothukudi.
2.The Judicial Magistrate No.II,
Thoothukudi.
3.The Inspector of Police,
Muthaiyapuram Police Station,
Thoothukudi District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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T.R A J A , J .
and B . P U G A L E N DHI , J .
sj C rl. A . (MD)N o. 1 2 7 o f 2 0 1 8 2 9.0 1.2 0 2 0 17/17 http://www.judis.nic.in