Madras High Court
Venkatesan vs The State on 11 March, 1997
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. The appellant was tried and convicted for the offence under Section 302, I.P.C. in S.C. No. 93/1987 on the file of District and Session Judge, Chengalput and sentenced to undergo life imprisonment.
2. The gravamen of the indictment against the appellant is that on 16-10-1986 at 10.30 p.m. inside the house of the appellant, situated near the TNEB sub-station, Thirupporur, the appellant on suspecting the fidelity of his wife Malarvizhi (deceased) threw the stone of considerable weight on her head while she was sleeping and as a result, his wife died later in the Government Hospital, Chengleput.
3. The facts that could be discerned from the materials found available in this case could be summarised as follows :
(a) The appellant Venkatesan is working as a watchman in a High School at Thirupporur. His first wife died. Therefore the appellant requested P.W. 1 Thiru Parajabathar, who is a resident of same place, to give his sister Malarvizhi in marriage with him. The said Malarvizhi though got married to one Mr. Kuppan, since there was misunderstanding between the spouses, her marriage was cancelled and so she came back to the house of her brother P.W. 1 and stayed alongwith him.
(b) P.W. 1 initially refused for the marriage alliance. However he agreed for the same since Teachers working in the school in which the appellant was a watchman approached and requested to arrange for the marriage of his sister Malarvizhi with the appellant. Therefore the marriage between the appellant and the deceased Malarvizhi was performed two years prior to this occurrence.
(c) Both husband and wife were living happily in a separate house at Thandalam area situated behind the TNEB Officer at Thirupporur for some time. In course of time, the deceased Malarvizhi developed some illicit intimacy with other persons in the same area. So, due to this, misunderstanding developed between the spouses. Frequently, the appellant used to beat the deceased and sent her to the house of P.W. 1. Six months prior to the occurrence a male baby was born to the spouses. Even thereafter, the appellant suspected the chastity of the deceased and used to send her to the house of P.W. 1 on several occasions. But some days later, the appellant went to the house of P.W. 1 and took her back.
(d) The appellant working as watchman in the school would use to go to school for doing work at 7.00 p.m. and come back to the house at 7.00 a.m. in the morning. Taking advantage of the absence of the appellant, the deceased used to go to other places and come back home before the appellant comes to his house.
(e) The fateful occurrence took place on 16-10-1986 at about 11.00 p.m. The appellant after finishing his work in the school unusually came back home at 11.00 p.m. At that time the deceased was not found available in the house. The house was found open. After a short while, the deceased came home from the neighbouring house. The appellant asked her as to where she had gone in the night hours. She replied "I would go anywhere and come back at anytime, who are you to question Me ?" So saying, she went inside the house and took bed in a mat. The appellant got up and then took out a stone found near the house and threw it on the head. When she cried, the neighbours P.W. 2 Thiru Arumugam and his wife P.W. 3 rushed to her house and found that the victim Malarvizhi gasping for life with bleeding injuries on her head.
(f) Immediately thereafter both P.Ws. 2 and 3 went to P.W. 1's house whose house is situated at a distance of two furlong and woke him up. They informed him that there was a quarrel between the appellant and the deceased, with the result there is an unfortunate incident had occurred. P.W. 1 rushed to the house of the deceased. In the house there was no light. So, P.W. 1 lit the chimney lamp and found the victim Malarvizhi was lying down in a mat with serious injuries on the head. He also found blood scattered on her mouth and nose. She was found unconscious and she only raised a sound indicating that she was gasping for life. At that time the appellant Venkatesan was also found standing nearby P.W. 1 asked the appellant (Vernacular matter omitted) Then the appellant retorted and saying that (Vernacular matter omitted).
(g) Then P.W. 1 and others took the victim and went to Thirupporur Police Station at about 2.00 a.m. P.W. 9, the Sub-Inspector of Police attached to Thirupporur Police Station, received the complaint Ex. P. 1, from P.W. 1 Thiru Rajabathar and registered in Crime No. 339/86 under Section 307, I.P.C. He also prepared the FIR Ex. P-9. He despatched both these documents to the Court as well as to the senior officials. Since the victim who was brought to the police station by P.W. 1 was in serious condition, he immediately arranged her to be taken to the Government Hospital at Chengalput. He recovered M.O. 1 - Stone, M.O. 2 - Mat and M.O. 3 - the Shirt worn by the child which were produced by P.W. 1 at the Police Station under mahazar Ex. P. 10. At that point of time, the appellant alongwith one Chelladurai came and surrendered before the Police and gave a confession statement which was recorded by P.W. 9.
(h) P.W. 6 Dr. Jayaramachandran, attached to the Chengalput Medical College Hospital at Chengalput, admitted the victim at 2.30 a.m. on 17-10-1986 in ward No. 3 and gave treatment.
(i) At 6.00 a.m. P.W. 9 the Sub-Inspector of Police went to the spot and he prepared observation mahazar Ex. P-11 and drew a rough sketch Ex. P-12. He arranged for taking photographs. Then, he examined witnesses and sent the appellant to the Court for the judicial remand. At 2.30 p.m. P.W. 9 recovered M.O. 9 Blood stained sand and M.O. 10 - sample of sand without Blood stains, under mahazar, Ex. P. 13. At 6.30 p.m., P.W. 9 received the death intimation sent by P.W. 6 stating that the victim Malarvizhi died at 2.45 p.m. in the Hospital. On receipt of this intimation, P.W. 9 altered the case into Section 302, I.P.C. and sent express report Ex. P-14 to the Court, he also sent the message to the Inspector of Police, Tirukazukundram P.W. 10.
(j) The Inspector of Police, on receipt of the express report handed over by Thirupporur Police Constable took up investigation and went to the spot at 8 a.m. on 18-10-1986. He examined some witnesses there. Then, he went to the Hospital along with P.W. 9 the Sub-Inspector of Police at 10.00 a.m. In the presence of Panchayathars between 11.00 and 1.00 p.m., he held inquest on the dead body of the deceased Ex. P-15 is the inquest report. During that time he examined P.W. 1 to P.W. 4 and others. Then he sent a Constable along with requisition Ex. P-4 for taking the body for postmortem. At about 9.00 p.m., he recovered M.O. 4 to M.O. 8, the clothings of the deceased produced by P.W. 1 under form No. 95.
(k) P.W. 7 Dr. Divakar, attached to the Chegalput Medical College Hospital, received the requisition Ex. P. 4, from the Inspector of Police, to conduct the autopsy on the deadbody and he commenced the same, at 2.00 p.m. on 18-6-1986. He found the following injuries :
(1) Two abrasions of 6 cms. x 3 cms. above and outer aspect of right eye brow.
(2) An abrasion of 5 cms. x 2 cms. over the right upper eye lid with bruising in beneath.
(3) An inverted 'L' shapped lacerated sutured wound of 8 cms. x 6 cms. over the left tempero-parietal area of the scalp.
On dissection :- An inverted 'L' shaped fissured fracture of 6 cms. x 6 cms. over the left temporal and parietal bones with disjointment of a 6 cms. over the tempero-parietal sutured.
Diffuse bruising present over the over lying scalp.
Diffuse epidural haemotoma of 12 cms. x 10 cms. x 4 cms. beneath the fracture area.
A contused laceration of 10 cms. x 8 cms. x cms. over the right frontal, temporal and parietal area of the brain.
Other findings :-
He also found 80 cc of dark coloured fluid with rice particles in the stomach. He gave the postmortem Certificate Ex. P-5 in which he opined that the deceased would have died of head injuries.
(1) P.W. 8, Court Clerk, on receipt of the M.Os. sent by P.W. 10 Inspector of Police, sent the same for the forensic examination alongwith covering letter of the message Ex. P-6. Ex. P-7 is the Chemical Report and Ex. P-8 is the Blood Test Report.
(m) After finishing investigation, P.W. 10 filed the charge-sheet against the appellant for the offence under Section 302. I.P.C. on 29-4-1987 before the Committal Court.
4. On committal, the trial Court framed the charge against the appellant for above referred offence and questioned him.
5. The appellant pleaded not guilty and wanted to face trial. During the course of trial, the prosecution, in proof of the charge framed against the appellant, examined P.Ws. 1 to 10, filed Exs. P-1 to 16 and marked M.Os. 1 to 11.
6. After the evidence was over, the appellant was questioned under Section 313. Cr.P.C. with reference to incriminating materials appearing against him in the evidence brought on record. The appellant choose to deny his complicity in the commission of crime and stated that the entire case was falsely foisted on him.
7. On termination of trial, after considering the evidence (oral and documentary) adduced by prosecution, the trial Court found the appellant guilty for the offence under Section 302, I.P.C. and sentenced to undergo life imprisonment, holding that the prosecution has proved its case beyond reasonable doubt.
8. Challenging the conviction and the sentence, the appellant has approached this Court by filing this appeal.
9. Mr. Rajagopal representing Mr. Krishnan appearing for the appellant took us through the entire evidence and contended that the evidence adduced by the prosecution against the appellant would not suffice to hold that the appellant had committed the offence of murdering his wife. He would also further contend that in this case except the evidence of P.W. 1, there is no other evidence available to this case. According to the counsel, even this statement alleged to have been made by P.W. 1 could not be said to be admissible under Section 6 of the Evidence Act and as such there is no material whatsoever available to fasten the criminal liability against the appellant. He would also submit that even if this portion of the evidence is accepted to be admissible that would not be sufficient to convict the appellant on the basis of the said evidence alone. Further, he contended that in the event of this Court coming to the conclusion that the accused could be convicted for the offence of causing the death of his wife, in view of the contents of the statement made by the appellant, before the police at the time of surrender the accused/appellant could not be convicted for the offence under Section 302, I.P.C. and if at all, the act attributed to the appellant would fall under Section 304(II) I.P.C. since the act was committed by the appellant in a sudden and grave provocation.
10. Per contra the learned Govt. Advocate representing the Public Prosecutor for the State would appeal such submission.
11. We have carefully considered the divergent contentions urged by the counsel on either side. At the outset, we may discuss with reference to the question pointed out by the learned Counsel for the appellant as to whether the statement made by accused to P.W. 1 that he caused injuries on the head of deceased immediately after the occurrence would come within the purview of Section 6 of the Evidence Act.
12. Section 6 of the Evidence Act provides thus -
"Relevancy of fact forming part of same transaction - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."
Illustration (a) to Section 6 reads thus - "whatever was said or done either by the victim or the accused or the by standers at the time of occurrence, or so shortly before or after iyt as to form part of the transaction, is a relevant fact."
13. So the question as to whether the statement made by the appellant to P.W. 1, brother of the deceased relating to his motive and commission of offence after-half-an-hour would be considered to be res gestae evidence as contemplated under Section 6 of the Evidence Act is to be canvassed before considering this question, it is quite relevant to take note of the facts of this case.
14. It is the case of prosecution through P.W. 1 and Ex. P-1 that the victim deceased used to come to the house of P.W. 1 since the appellant on suspecting her fidelity used to drive her out. On the date of occurrence, according to P.W. 1 at about 12 mid night P.Ws. 2 and 3 and others came to his house and informed about the quarrel between the appellant and the deceased and about the serious condition of the deceased. Immediately thereafter P.W. 1 went to the house of the appellant and found the victim lying down with bleeding injuries on the head and the face. He also found the blood stained stone nearby. When the questioned the accused about this, the accused said that he only committed the said act since the victim did not mend her ways and continued to have illicit intimacy with so many persons in the village. Thereafter, the victim was taken to the Police Station by P.W. 1 where he gave the F.I.R. in which he referred to about the statement made by she accused. It is also relevant to point out thereafter the accused along with one Chelladurai came and appeared before the Police Officer and gave a confession statement which was record by P.W. 9. After the registration of complaint Ex. P. 1 which was given by P.W. 1, it has to be noticed, as to whether the statement made by the appellant to P.W. 1 could be considered to be statement made in the course of the same transaction.
15. In the commentary in Sir John Woodroffee & Ayed Amir Ali's Law of Evidence, after making of elaborate discussion about several authorities it has been stated as follows :
"Where the transaction consists of different acts, in order that the chain of such acts may constitute same transaction, they must be connected together by -
(a) proximity of time, (b) proximity of unity of place, (c) continuity of action, and (d) community purpose or design.
Where the incidents consist of declarations accompanying an act they are subject to three important qualifications :
(1) They must not be made at such an interval as to allow of fabrication or to reduce them to the mere narrative of a past event;
(2) They must relate to, and can only be used to explain, the act they accompany and not independent facts prior or subsequent thereto; evidence as to other offences would be relevant and admissible, if there is a nexus between the offence charged with the other offences of the two acts forming part of the same transaction, so as to fall within this section.
(3) Though admissible to explain, they are not always taken as proof of the truth of the matter stated, that is, as hearsay.
Declaration to be admissible as res gestae should be contemporaneous with the transactions in issue, that is, the interval should not be such as to give time or opportunity for fabrication, and they should not amount to a mere narrative of a past occurrence.
16. In the above referred book, there is a reference at Page No. 429 in the case of State of Bihar v. Paramhans (AIR 1984 (SC)(sic) 207), wherein it is as follows :
"The accused apprehended immediately after the murder without any time lag made endorsement before the prosecution witness that the killed the deceased at the behest of this Guru and that the bomb was supplied to him by One M, through his sister's husband. It was held that the statement made by the accused was sponteneous and formed part of res gestae and admissible under Section 6 of the Evidence Act."
17. The above proposition of law has been laid down by the Apex Court and the same followed by other Courts. We have to see whether there is an interval or time lag between the act committed by the accused and the time of statement given to the witnesses and was it a long one so as to give time or opportunity for fabrication. In the instant case the occurrence took place at 11.30 p.m., and the statement made by the appellant to P.W. 1 at 12 mid night i.e. half-an-hour later. In the light of the facts of this case, it cannot be stated that there is a long interval so as to given opportunity for any fabrication. After the occurrence was over, P.W. 2 and P.W. 3 informed to P.W. 1 and immediately on receipt of the information rushed to the house of the appellant where the appellant was found standing near the victim. Therefore, as per illustration (a) Section 6 of the Evidence Act -
"Whatever was said by the accused to the witness shortly after the occurrence also would form part of the transaction and so it has to be considered to be the relevant facts and circumstances of the case."
18. Therefore we hold that the statement made by appellant to P.W. 1 immediately after the occurrence without any long time lag would admissible under Section 6 of the Evidence Act".
19. The next question that calls for consideration is whether on the basis of this piece of evidence we have discussed, conviction could be passed. On perusal of the records of the case, we find apart from this piece of evidence, we have got other materials also. The conduct of the accused immediately after the occurrence would also be relevant under Section 8 of the Evidence Act. Admittedly in the applicant's house only the occurrence had taken place. Appellant and the deceased were alone staying in the house.
20. To the last question in 313 statement, the accused stated that at about 6.00 a.m., Thirupporur Sub-Inspector came to his school where he was working as watchman and took him to the Police Station and only at that time he came to know about the occurrence. Of course, criminal jurisdiction does not contemplate the proof of fact by the accused. It is only for the prosecution to establish the case beyond reasonable doubt. However, in the case of circumstantial evidence, the Court could take into consideration the reply of the accused made in the statement under Section 313, Cr.P.C. also. During the course of cross examination a suggestion was put to P.W. 1 by the accused that Police went to his school next day at 6.00 a.m. and only from there was taken to Police Station. But stangely this suggestion was neither put to P.W. 9, the Sub-Inspector of Police, nor put to P.W. 10, the Inspector of Police. Suppose if the occurrence had taken place at 11.30 p.m. in the absence of accused when the accused working in the school as Watchman as he claims, P.W. 1 the brother of the deceased. P.Ws. 2 and 3 who are neighbours would have certainly intimated the same either to the accused or to the school authorities.
21. Furthermore, according to the prosecution, the F.I.R. was registered by P.W. 9 at 2.00 a.m. itself in the early morning of 17-10-1986. It is the evidence of P.Ws. 1 and 9 that when the complaint was given by P.W. 1 the accused was pressed at the Police Station. Therefore the conduct of the accused in going to the Police Station and surrendering immediately after 2.30 a.m. on 17-6-1986 could itself show that the appellant had participated in the commission of crime especially when we do not accept the statement made by the accused under Section 313, Cr.P.C. to the effect that he was taken by P.W. 9 from this school only at 6.00 a.m. next day.
22. In Rajammal v. State. 1993 Cri LJ 3029 a Division Bench of this Court had an occasion to deal with similar facts of the case. It referred about the conduct and the responsibility of the accused to explain certain facts, and it is as follows (Para 46) :
"Since the incident had taken place inside the house of the appellants at a time when these three alone were present, they alone knew what exactly had happened. Section 106 of Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is true that this Section cannot be used to shift the onus of proving the offence from the prosecution to the accused. But in the present case there is satisfactory evidence which fastens or conclusively fixes the liability for the death of Porkodi on the images of the house present there at the relevant time. So in the absence of any other explanation the only possible inference is that all the three had participated in the act. If any one of them claims contrary under Section 106 of the Evidence Act the burden of proving that facts is upon him since that is within his special knowledge."
23. In the light of the above observation, we have no hesitation to conclude that in the absence of any explanation by the accused as to how the occurrence took place inside his house in which deceased sustained injuries, we could possibly infer that the accused had participated in the Commission of Crime.
24. Motive becomes insignificant in the case where direct evidence is available. But in the case of circumstantial evidence, the motive for the occurrence lends assurance to the other pieces of circumstantial evidence P.W. 1 who is the brother of the deceased would say that after the marriage, though initially both appellant and the deceased were happily living together for sometime, but due to the behaviour of the deceased the appellant suspected the fidelity of the deceased on several occasions. This was the reasons as to why more often the deceased would be driven out by the accused, only two days prior to the occurrence, the appellant sent his son one Kannan, born through his first wife, to fetch the deceased. Therefore the contents of Ex. P-1 and the evidence of P.W. 1 would conclusively establish that the deceased had illegal affairs with some other persons and that has provoked the appellant to send her out on various occasions. So, in the light of the said motive, it has been established by P.W. 1 who is none other then the brother of the deceased. We could possibly infer that the crime has been committed by the appellant only due to this motive. Therefore, in the light of the circumstances discussed above we have no hesitation to hold that the appellant alone has caused the death of the deceased.
25. Alternatively, Mr. P. Rajagopal appearing for the appellant would contend that the act of the appellant in causing the death of the deceased would not attract S. 302, IPC and if at all, on the basis of the confession statement made by the accused before the Police Officer, it would fall under S. 304(II), IPC. Of course, as rightly pointed out by the counsel for the appellant, the statement made by the accused before the Police Officer cannot be used against the accused and it is not admissible under S. 25 of the Evidence Act. But however there is no impediment for the Court to consider the relevant portion of the statement made by the accused if it is in favour of the accused.
26. So in the light of the above legal situation, we have considered the question whether this case would fall under S. 304 Part I, IPC. As per the confession statement, as pointed out earlier, the appellant came to the house in advance even at 11.00 p.m. though the working hours are between 6.00 p.m. in the evening and 6.00 a.m. in the morning. At that point of the time the deceased was not available. She went out without even closing the door of the house. He waited for sometime and after sometime he found the deceased coming out of the house situated nearby. Immediately, the appellant asked the deceased (vernacular matter omitted). The deceased retorted that "she would go anywhere and come back at any time, and who he was to question her". So saying without waiting for the response of the appellant, she went inside and took bed on a mat. Then on getting provoked, at the insulting words uttered by the deceased, the appellant removed a stone found nearby and threw it on her head. Exception 1 to S. 300, IPC would provide as follows :
"Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
27. While interpreting the section, various salient features were taken into consideration for deciding this question by the Apex Court while dealing with the case in K. M. Nanavati v. State of Maharashtra, . The relevant portion reads as follows (para 85):
"The Indian law, relevant to the present enquiry, may be stated thus :
(1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control.
(2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to S. 300, IPC.
(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."
28. If these observations have been taken into consideration, we can very well conclude that the watchman wanted to give a life to the deceased who was divorced by her first husband but she developed illicit intimacy with other persons after the marriage. Whenever she went to the house of P.W. 1, the appellant used to go house and take her back for leading a family life. But despite that the deceased did not mend her ways on the date of occurrence at about 11.00 p.m. in the night, she was not available in the house. When she came home after sometime, he questioned as to why she should go to other places in the night hours. For this she replied "I would go anywhere else who are you to ask ? and so saying, immediately she went inside the house and laid down on a mat. Having got infuriated over this insult, the appellant lost his self-control and resorted to take a stone found nearby and threw the same on the head of the deceased. Therefore the words, gestures uttered and shown by the deceased at the relevant time would certainly give rise to the grave and sudden provocation in the mind of the appellant due to which the appellant having lost his control and committed the act of causing injuries. Further more, it is seen from the evidence of P.W. 1 and P.W. 9 that immediately after the occurrence he did not try to escape from the place, but he went to the Police Station voluntarily along with one Chelladurai, surrendered and gave statement. Therefore, we are to conclude that the act committed by the appellant in the facts and circumstances of the case definitely attract Exception 1 of S. 300, IPC, thereby he is liable to be convicted under S. 304, Part II, IPC.
29. In view of the foregoing discussion, the conviction for the offence under S. 302, IPC imposed upon the appellant by the trial court is set aside, instead he is convicted under S. 304 II, IPC and sentenced to undergo rigorous imprisonment for five years. With these observations, the appeal is partly allowed.
30. Appeal partly allowed.