Madras High Court
Priya vs The Inspector Of Police on 13 December, 2013
Author: S.Rajeswaran
Bench: S.Rajeswaran, P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :13.12.2013
CORAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
and
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
Crl.A.No.157/2013
Priya .. Appellant
Vs.
The Inspector of Police
Thookanambakkam Police Station
Cuddalore District. .. Respondent
[Cr.No.108/2012]
Prayer:- Criminal appeal filed under section 374 [2] Cr.P.C., against the conviction and sentence imposed on the appellant in judgment dated 14.02.2013 by the learned 1st Additional Sessions Judge at Cuddalore, in SC.No.312/2012.
For Appellant : Mr.A.Shiv Kumar
For respondent : Mr.V.M.R.Rajendran, APP
JUDGMENT
[Judgment of the Court was made by P.N.PRAKASH, J.,] Priya, the sole accused who was convicted for offences u/s.302, 392 read with 397 IPC, was sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- and in default, to undergo 6 months rigorous imprisonment for the offence u/s.302 IPC and was sentenced to undergo 7 years rigorous imprisonment and to pay a fine amount of Rs.10,000/- and in default, to undergo 6 months rigorous imprisonment for the offence u/s.394 read with 397 IPC in SC.No.312/2012 by the learned I Additional District and Sessions Judge, Cuddalore, on 14.02.2013, is the appellant before us.
2. The prosecution case in brief is as follows:-
[a] The appellant and the deceased Mala were neighbours and were childhood friends. It is alleged that deceased Mala had spoken ill of the appellant on 08.09.2012, aggrieved by which on 09.09.2012 at around 6.30 a.m. when Mala was lying on bed in her house, the appellant entered the house and fatally attacked her with an iron rod [M.O.8] and decamped with the ornaments [M.Os.1 to 7] worn by the deceased Mala. This was witnessed by Mala's daughter Swetha [P.W.2]. P.w.2 started crying and at around that time, when Mala's son Prashanth [P.W.4] came into the house, he was told by Swethat that their mother was assaulted by Priya. Prashanth [P.W.4] informed the other relatives who were living in and around the place and information was conveyed to Suresh [P.W.1], husband of the deceased Mala, a priest in the local temple. By the time Suresh [P.W.1] came home, Mala was taken by her elder brother Rajan [P.W.3] and his wife Revathy [not examined] to the nearby Community Health Centre at Karikalambakkam where she was examined by Dr.Udhayakumar [P.W.10] who recorded in the Accident Register [Ex.P.2] that the patient was unconscious and directed that she be immediately taken to the Indira Gandhi Government General Hospital at Puducherry. Accordingly, Rajan [P.W.3] and his wife took Mala to the Indira Gandhi Government General Hospital at Puducherry where Dr.Aswini [P.W.11] found that the deceased was already dead. This was recorded in the Accident Register [Ex.P.3] and the body was kept in the Mortuary for postmortem.
[b] On information to the police from the hospital, Dharmalingam [P.W.16], Special Sub Inspector of Police attached to Thookanambakkam Police Station, Cuddalore District, came to the hospital and received a written complaint from Suresh [P.W.1] at 10.30 a.m. which is Ex.P.1. He returned to the police station and prepared the FIR [Ex.P.16]. The original complaint and the printed FIR reached the hands of the learned Judicial Magistrate, Cuddalore at 11.40 a.m. on 09.09.2012.
[c] Investigation was taken over by Gurumoorthy [P.W.17], Inspector of Police, who came to the place of occurrence at 12.00 Noon and he observed the blood stains in the pillow and bedsheet. In the presence of witnesses Sekar [P.W.15] and Raj [not examined], he prepared the Observation Mahazar [Ex.P.14] and Rough Sketch [Ex.P.17]. He seized the blood stained pillow and bedsheet [M.Os.10 and 11] under the cover of Mahazar [Ex.P.15]. He summoned the services of Forensic Experts pursuant to which a Fingerprint Expert with Dog Squad came to the place of occurrence. He proceeded to the Mortuary in the Indira Gandhi Government General Hospital where he conducted inquest over the body of Mala and the Inquest Report is marked as Ex.P.18. Thereafter, he sent the dead body for postmortem. Dr.Balaraman [P.W.12], performed autopsy over the body of Mala and the Postmortem Certificate is marked as Ex.P.5, wherein the following injuries were noted by the doctor [P.W.12]:-
"EXTERNAL INJURIES:-
[1]Irregular lacerated injury 4cms x = cm over the helix of left ear. [2]Lacerated injury 10 cms x 1 cm x bone deep over left parietal region of head [Antero-posteriorily placed] [3]Lacerated injury 4 cms x bone deep x 2 cms above and parallel to injury NO.2. [4]Lacerated injury 7 cms x 1 cm x bone deep over left parietal region of head 3 cms posterior to injury No.3. [5]Lacerated injury 3 cms x 1 cm over left index finger on the palmar aspect with frature dislocation of first phalynx. [6]Laceration 2 cms x 1 cm over the thumb with a complete avulsion of the nail."
The doctor was of the opinion that the deceased would appear to have died of head injuries.
[d] P.W.17 continued the investigation by examining various witnesses and ultimately, on 11.09.2012, he arrested the appellant and took her to the police station where he recorded her confession statement, the admissible portion of which is marked as Ex.P.10 in the presence of witnesses Kumar [not examined] and Kandavel [P.w.14]. In the presence of the same witnesses, he recovered the ornaments [M.Os.1 to 7] under the cover of Mahazar [Ex.P.12] ; recovered the iron rod [M.O.8] under the cover of Mahazar [Ex.P.11] and the blood stained Nighty [M.O.9] alleged to have been worn by the appellant at the time of the incident ,under the cover of Mahazar [Ex.P.13]. Based on the recoveries, he sent an alteration report to the Court [Ex.P.21] on 12.09.2012 for including the section u/s.392 IPC to the original case. He requested the services of Photographer Dhanush [not examined] and organised to take photographs of the place of occurrence. The photographs and the CD were marked as Ex.P.23. After his transfer from the Police Station, further investigation was taken over by Jawaharlal [P.W.18] who examined a few witnesses and ultimately, filed the final report on 22.10.2012 before the learned Judicial Magistrate No.1, Cuddalore who took the same on file in PRC.No.12/2012.
3. On appearance of the appellant, papers u/s.207 Cr.P.C., were served on her and the case was committed to Court of Sessions and later, transfered to the learned I Additional District and Sessions Judge, Cuddalore who framed two charges as aforesaid.
4. The prosecution examined 18 witnesses, marked 23 exhibits and 15 material objects. When the appellant was questioned u/s.313 Cr.P.c., she denied her involvement and further submitted a detailed written submission. Ultimately, the trial court convicted and sentenced the appellant as aforesaid and now, she is before us in this appeal.
5. The learned counsel for the appellant meticulously took through the evidence of important witnesses in this case and submitted that the entire case has been foisted on the appellant.
6. Per contra, the learned Additional Public Prosecutor submitted that the prosecution has proved the case beyond all reasonable doubts.
7. There is only one eyewitness to the occurrence and that is Swetha [P.W.2], the daughter of the deceased Mala. At the time of occurrence, Swethat was 7 years old. The trial court while recording the evidence of Swetha [PW2] had put sufficient number of questions to satisfy about the capability of the child to give evidence. We also perused the court questions and the answers given by the child. We are satisfied that the child was well-oriented and was capable of giving evidence. It is in the evidence of Swetha that she knows the appellant as a neighbour. In her evidence, she stated that, she was lying with her mother on the bed when the appellant came into the room and started attacking her mother. After beating the deceased indiscriminately on her head, the appellant took away the ornaments worn by her mother and left the place. Swetha started weeping and when her brother Prashanth [PW4], a boy of 9 years old, came into the house, Swetha [PW2] told him that Priya had beaten their mother. PW4 informed the grandparents and other elders in the family following which Rajan [PW3] carried Mala to the Community Health Centre and from there, he took her to Indira Gandhi Government General Hospital, by which time, Mala had died.
8. Learned counsel for the appellant vehemently contended that in the complaint [Ex.P.1] lodged by Suresh [PW1], there is absolutely no reference to the taking away of ornaments by the appellant. It is the admitted fact that Suresh [PW1],husband of the deceased Mala, was not an eyewitness. In the complaint [Ex.P.1], he has stated that he was informed by his daughter Swetha [PW2] that when Mala was lying on the bed, the appellant had entered the house and had asssaulted her. Had the appellant taken away the ornaments, the child would have informed that fact also to her father and that would have found place in the complaint [Ex.P.1]. Learned counsel also contended that the police had recorded the statement of Swetha only on 10.09.2012 and therefore, the evidence of Swetha [PW2] could not be relied upon to fasten criminal liability on the appellant.
9. Now, we are proposed to deal with this case under two heads, viz., [1]causing death of Mala ; and [2]robbing her ornaments.
CAUSING DEATH OF MALA:-
10. Now we have to analyse the evidence of Swetha [PW2] and see whether it inspires our confidence. As stated above, there is no material placed on record before us to show that the child was not capable of giving evidence in the Court. The fact remains that the incident took place around 6.30 a.m. when the husband of the deceased, a priest in the local temple had gone to work. It is but natural that the temple should have to be opened for devotees to worship and therefore, the absence of Suresh [PW1] is quite plausible. Prashanth [PW4] in his evidence stated that he was in grandmother's house on that day and when he came to his house, he found Swetha [PW2] weeping and when questioned, Swetha said that the appellant had assaulted their mother. This statement of Swetha to Prashanth is res gestae and his admissible in evidence u/s.6 of the Indian Evidence Act though it is hearsay from the point of view of Prashanth [PW4]. From another angle if it is seen, this statement is a former statement of Swetha given around that time to her brother [PW4] and it can be used for corroborating her testimony under section 157 of the Indian Evidence Act. Prashanth [PW4] was also extensively questioned by the Trial Judge in order to find out about his capability to give evidence and we hold tht there are sufficient materials to show that the boy Prashanth [PW4] was capable of giving evidence.In the cross-examination, both children have stated that they used to play with the children of the appellant. Ironically, the appellant also has a child of same age by name Swetha, with whom both P.Ws.2 and 4 would play. Therefore, from a reading of the entire evidence of P.W.s2 and 4, we have no reasons to disbelieve them and say that they are falsely implicated the appellant. The argument of the learned counsel for the appellant that Swetha could not have been present in the house because the appellant had examined her only on 10.09.2012 and therefore, she could not have witnessed the occurrence as deposed by her, does not find acceptance with us because the complaint [Ex.P.1] clearly states that it was Swetha who had informed everyone about the assault by the appellant. The incident took place around 6.30 a.m. in Cuddalore District and Rajan, maternal uncle [PW3] and auntRevathy of Swetha had carried Mala to the Community Health Centre and from there, they have taken her to Indira Gandhi Government General Hospital, Puducherry, where she was declared dead. The police arrived at around 9.45 a.m. and collected the complaint [Ex.P.1] from Suresh [PW1]. This complaint has reached the jurisdictional Magistrate by 11.40 a.m. on 09.09.2012 itself. The fact that Swetha had seen the occurrence is embodied in the complaint [Ex.P.1] which has reached the judicial hands within a short time. Therefore, the examination of Swetha by the police on the next day cannot be a reason to disbelieve her testimony for the murder charges.
11. Learned counsel for the appellant contended that when Mala was taken to the nearby Community Health Centre, Dr.Udayakumar [PW10] has not recorded anything in the Accident Register [Ex.P.2] as to how Mala sustained injuries. In the Accident Register [Ex.|P.3] given by Dr.Aswini [PW11], it is stated that Rajan [brother of the deceased] had brought the patient and it is recorded "unknown cause of injury". Therefore, the learned counsel for the appellant submitted that, had the appellant caused injury, then in the Accident Register [Ex.P.3], it would have been stated that the injury was caused by a "known person". This argument does not cut much ice with us for the reason that Rajan [PW3] comes into the scene only after he was informed that his sister was assaulted. He was not an eyewitness. The fact that he has been carrying his sister from one hospital to another, would itself show the amount of tension they all would have been at that juncture. Mala was not conscious when she was taken to the Community Health Centre and she died by the time she was taken to Indira Gandhi Government Hospital. Just because the person who had taken her to the hospital had not given the name of the appellant, we cannot discredit the testimony of Swetha [PW2] and Prashanth [PW4]. In the following cases, viz., [a]P.VENKAIAH Vs. STATE OF ANDHRA PRADESH [1986 MLJ [Crl.] 23 SC] ; [2]P.BADRAIYA Vs. STATE OF ANDHRA PRADESH [1995 SCC [Crl.] 370] and [3]P.BABU Vs. STATE OF ANDHRA PRADESH [1994 SCC [Crl.] 424], the Hon'ble Apex Court has clearly held that even if the injured witness had not stated anything about the accused to the doctor, that has no significance at all. Therefore, from the evidence of Swetha [PW2] and Prashanth [PW4], we hold that the prosecution has proved the case beyond reasonable doubt that it was the appellant who had caused the death of Mala.
ROBBING HER ORNAMENTS:-
12. Now, coming to the aspect of the offence u/s.392 read with 397 IPC, we find from the evidence of Prashanth [PW4] that there is no reference to Swetha telling him about the alleged robbery committed by the appellant. That is why perhaps, even the complaint [Ex.P.1] makes no refrence to this aspect. Initially, the FIR was registered only for the offence u/s.302 IPC and the same was altered only after the arrest of the appellant. In this context, the recording of the statement of Swetha [Pw2] only on 10.09.2012 and sending the same to the Court only on 12.09.2012 assumes little amount of importance from the stand point of the defence. Had the 161 Cr.P.c. statement of Swetha had gone to the Court ahead of the arrest of the , like the complaint had gone contemporaneously, then we would not have doubted the prosecution case relating to robbery. Our doubt is not only based on this, but from other factors as well which we will enumerate below. The investigating officer was thoroughly cross-examined by the defence and he was not able to give any satisfactory explanantion as to why the house of the appellant which is located very near to the house of the deceased, was not searched till the arrest of the appellant two days later, especially in the light of the fact that the complaint discloses the name of the appellant as the perpetrator of the offence of murder. Kandavel [PW14], the independent witness to the recovery of the ornaments, MO1 to MO7, in his evidence, has given the description of the ornaments as found in the Mahazar [Ex.P.11]. But, unfortunately, he has not identified the material objects in the Court. The Investigating Officer [PW17] in the cross-examination has stated that the recovered ornaments are jerwellery commonly worn by married Tamil Women. The Mahazar [Ex.P.11] gives the description of the ornaments and also its weight in Milligrams. When questioned by the defence, Kandavel [PW14] stated that the ornaments were weighed with a weighing machine in the house of the appellant from where it was recovered. Whereas the investigating officer [PW17] in the cross-examination, stated that he had put the weight of the ornaments in the Mahazar based on the information provided by the relatives of the deceased. We find from the Mahazar [Ex.P.12] that there are corrections in the weight of some of the ornaments. Surprisingly, the same corrections are found in Form 95 that was sent by the police to the Court. The Mahazars are first prepared at the place of recovery and then then properties seized under the Mahazar are brought to the police station. Only in the Police Station, Form 95 is prepared based on the Mahazar for sending the properties to the Court. In this case, had the Mahazars been prepared at the place of seizures as contended by the police, the corrections should have been made then and there. Therefore, when Form 95 is prepared, it cannot contain any corrections. PW17, the Investigating Officer, in his cross-examination has further admitted that there are corrections in Form 95 sent to the Court which are not reflected in the carbon copy of Form 95 in his Case Diary. The ornaments are not of any special designs but are regular ornaments worn by women in that locality. There is nothing special about the ornaments [MOs 1 to 7] so as to say that it belongs to the deceased. It is the prosecution case that the appellant was wearing a Nighty [MO9] when she committed the offence. This goes to show that the appellant had not come into the house of the deceased with the intention of committing robbery and murder. Therefore, we are unable to pursuade ourselves to believe the evidence of Swetha [PW2] relating to the charge of robbery. Applying the Chaff and Grain theory, we are convinced that it was the appellant who had caused the death of the deceased Mala, but, we are not convinced with the evidence relating to the charge of robbery.
13. In fine, the conviction and sentence imposed on the appellant by the trial court for the offence u/s.302 IPC is confirmed and the conviction and sentence imposed on the appellant for the offence u/s.392 read with 397 IPC is set aside and she is acquitted of that charge.
14. With the above modification, the criminal appeal is partly allowed.
[S.R.,J.] [P.N.P.,J.]
13.12.2013
Index : Yes
Internet : Yes
AP
To
1.The I Additional Sessions Judge,
Cuddalore.
2.The Inspector of Police,
Thookanambakkam Police Station
Cuddalore.
3.The Public Prosecutor,
High Court, Madras.
S.RAJESWARAN,J.
AND
P.N.PRAKASH, J.
AP
Judgment in
Crl.A.No.157/2013
13.12.2013