Madras High Court
Mani vs State Represented By on 5 August, 2003
Author: M.Chockalingam
Bench: M.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05/08/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.366 of 1996
Mani .. Appellant
-Vs-
State represented by
Inspector of Police
Mohanur Police Station
Salem District
(Crime No.195/93) .. Respondent
This appeal is preferred under Sec.374 of The Code of Criminal
Procedure against the judgment of the Principal Sessions Judge, Salem made in
S.C.No.5 of 1996 and dated 9.4.96.
!For Appellant : Mr.Mr.B.Vasudevan
for Mr.P.Thamizh Kumaran
^For Respondent : Mr.V.Jaya Prakash Narayanan
Government Advocate (Crl. Side)
:JUDGMENT
The sole accused in a case of murder, wherein he though not found guilty under Sec.302 of I.P.C. was found guilty under Sec.304(ii) of I.P.C. and sentenced to undergo 5 years R.I. has brought forth this appeal.
2. The necessary facts for the disposal of this appeal are as follows:
(a) The appellant/accused was the husband of the deceased Chellammal.
Their marriage took place before 12 years, and they had two children. While so, the appellant wanted to marry another girl, which resulted in frequent quarrels between them. On 14.4.1993 at about 9.00 P.M. both of them went to a drama. At about 12.00 hours, the deceased was found missing. The accused came in search of her to the house and found the doors locked. He got entry into the house by jumping the compound wall and saw the deceased sharing the bed with another. Immediately he took M.O.1 grinding stone and threw on her head. Then, he took M.O.7 rope, put around her neck, strangulated her and caused instantaneous death. In order to show it as if she committed suicide, he tied the rope on the roof of the house. On 15.4.1993 at 8.00 A. M., when P.W.1 Kadavul, Village Administrative Officer, was in his Office, the appellant/accused made extra judicial confession. The same was recorded by P.W.1. The said extra judicial confession is marked as Ex.P1. P.W.1 took the accused along with Ex.P1 statement of the accused and Ex.P2 complaint and produced before P.W.6 Deivanayagam, Sub Inspector of Police, Mohanur Police Station. On the strength of Exs.P1 and P2, P.W.6 registered a case in Crime No.195/93 under Sec.302 of I.P.C. Ex.P19 printed F.I.R. was prepared and sent to the concerned Judicial Magistrate's Court. M.P.16 banian worn by the accused was recovered under mahazar. On receipt of the copy of the F.I.R., P. W.9 Philips Thomas, Inspector of Police, Paramathi Circle, took up the investigation, proceeded to the site of occurrence, made an inspection of the place and prepared Ex.P3 observation mahazar in front of P.W.1 and other witness and also Ex.P15 rough sketch. Photographs were also taken. P.W.9 Investigating Officer conducted inquest on the dead body of Chellammal in the presence of panchayatars and witnesses and prepared Ex.P16 inquest report. He examined the witnesses and recorded their statements.
(b) Along with the requisition under Ex.P5, the dead body of Chellammal was sent to the Government Hospital, Namakkal for the performance of autopsy through P.W.5 Perumal, Head Constable. P.W.4 Dr. Subramaniam, attached to the Government Hospital, Namakkal conducted autopsy and has found the following injuries:
1) A lacerated wound 1 cm x 0.5 cm x 0.5 cm upper side face in front of right ear.
2) A lacerated wound 2 cm x 0.5 cm x 0.5 cm over centre of the forehead.
3) Rope mark all around the neck.
On dissection blood and blood clots found underneath the above said injuries. Fracture of ramus of mandible between 2.3 and 3 right side present. Hyoid bone present for expert opinion. Stomach contains 30 0 ml of partially digested rice food. Bladder empty. Uterus normal. All the other organs of the body are congested and normal in size and shape.
The Doctor has issued Ex.P6 postmortem certificate and has opined under Ex.P8 that the deceased would appear to have died of asphyxia due to hanging and died about 30 to 48 hour prior to the postmortem.
(c) P.W.5 Head Constable recovered M.Os.10 to 15 dresses and jewels of the deceased and M.O.7 rope from the body of the deceased and handed over the same to P.W.9 Investigating Officer. The Investigating Officer recovered M.O.1 grinding stone, M.O.2 bloodstained earth, M.O.3 sample earth, M.O.4 bloodstained cot, M.O.5 a pair of cheppals and M.O.6 studs under Ex.P7 mahazar in front of P.W.1 and other witnesses. The accused was sent to the Court for judicial custody. A requisition was given to the Court to record Sec.164 Statement of the accused. P.W.10 Chinnappan, Inspector of Police, who succeeded P.W.9 to the Office of the Paramathi Police Station made the further investigation. He examined the other witnesses and recorded their statements. He also examined P.W.4, the postmortem Doctor and recorded his statement. A requisition was forwarded to the Judicial Magistrate's Court concerned for sending the material objects for chemical analysis. Accordingly, they were sent for chemical analysis. P.W.11 Sundaresan, Inspector of Police, Mohanur Police Station took up the further investigation in the case and examined P.W.4. The Chemical Analyst's report under Ex.P12 and the Serologist's report under Ex.P13 were also received by the said Court. On completion of the investigation, P.W.11 filed the charge sheet against the accused under Sec.302 of I.P.C.
3. In order to prove the charge levelled against the appellant/ accused, the prosecution examined 11 witnesses and marked 16 exhibits and 16 material objects. After the completion of the prosecution evidence was over, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. Neither any exhibit nor any material object was marked on the side of the defence. On consideration of the rival submissions and scrutiny of the materials available, the trial Court has found him guilty under Sec.304(ii) of I.P.C. and sentenced to undergo the imprisonment as referred to above. Hence, this appeal.
4. The learned Counsel appearing for the appellant/accused at the time of his arguments raised the following two submissions:
The prosecution did not adduce any evidence except the extra judicial confession alleged to have been given by the accused to P.W.1 V.A. O., and the same was a weakest piece of evidence. The prosecution has not proved the guilt of the accused in any way. According to the prosecution, M.O.16 banian was recovered from the accused. When the said material object along with the other material objects were subjected to chemical analysis, no blood group was detected in M.O.16. In the absence of any evidence and while the extra judicial confession was not corroborated on the material particulars, the lower Court should have rejected the prosecution case outright; that the lower Court should have accepted that the deceased died by committing suicide, and there was sufficient circumstance to indicate the same, and thus, the appellant/accused is entitled for an acquittal.
5. Strongly opposing the above contentions of the appellant's side, the learned Government Advocate (Criminal Side) would submit that it is true that the prosecution was unable to bring forth direct evidence, but it has placed all the circumstances which would clinchingly be pointing to the guilt of the accused; that the extra judicial confession recorded by P.W.1 V.A.O on the statement given by the appellant was corroborated on all material particulars; that it is not also a fact disputed that on the day of occurrence, both are living together; that the medical evidence adduced by the prosecution has thoroughly supported the case of the prosecution that the deceased died out of the injuries that were caused by dashing her with M.O.1 grinding stone and also by strangulating her with a rope; that by the clear medical evidence, the false theory of the defence that she committed suicide was clearly ruled out, and hence, by sufficient circumstantial evidence, the prosecution has proved the guilt of the accused, and therefore, the judgment of the lower Court has got to be confirmed.
6. On careful analysis and appraisement of the evidence available and consideration of the rival submissions, the Court has to necessarily disagree with all the contentions put forth by the appellant's side.
7. Admittedly, the appellant husband and the deceased wife along with their children were living under the same roof. The marriage between them has taken place 12 years back. P.W.2 the brother-in-law, has clearly spoken to the fact that there was frequent quarrel between them, since the accused was making out his desire for a bigamous marriage; that on the day of occurrence namely 14.4.1993 9.00 P.M. both of them went to a drama; that finding his wife missing, the accused has come to the house and found her sharing her bed with another man; that suddenly provoked by the same, he took M.O.1 grinding stone and dashed it on her head, and apart from that, he has also strangulated her with a rope and caused instantaneous death. It is true that in the instant case there was no direct evidence adduced by the prosecution. But, the available materials would indicate that the prosecution has proved the guilt of the accused by adducing sufficient and satisfactory circumstantial evidence. P.W.1 V.A.O. of the place has categorically deposed that the accused came to him the next morning at 8'O Clock and gave a confessional statement voluntarily, and the same has been recorded by him and marked as Ex.P1. All the material particulars found in the said extra judicial confession are clearly proved by the prosecution that they were living together; that they were in the house on the previous day; and that they went to the drama. The accused has clearly stated in his confessional statement that he dashed her with M.O.1 grinding stone. At the time of investigation, M.O.1 grinding stone was seized, and it was subjected to chemical examination. A perusal of the Serologist's report would clearly indicate that M.O.1 contained human blood. A rope has also been recovered from the dead body of Chellammal. P.W.4 Doctor who conducted the autopsy on the request of the Investigating Officer, has categorically described the external injuries as follows:
"1) A lacerated wound 1 cm x 0.5 cm x 0.5 cm upper side face in front of right ear.
2) A lacerated wound 2 cm x 0.5 cm x 0.5 cm over centre of the forehead.
3) Rope mark all around the neck."
P.W.4 Doctor has clearly deposed that the injuries found in the neck and the fracture of the hyoid bone could have been caused by strangulation, and apart from that, the injury Nos.1 and 2 could have been caused by throwing M.O.1 grinding stone on the face. The Doctor has given opinion that the deceased would have died of asphyxia due to hanging. This would be a strong piece of corroboration to the confessional statement voluntarily made by the appellant/accused. At the time of arrest, M.O.16 banian worn by the accused was also recovered. The same was also subjected to chemical examination. The Serologist's report would indicate that it also contained human blood, but the group was inconclusive. Hence, all these factors would indicate that the accused had got the nexus to the crime.
8. It is pertinent to point out that on the relevant date, the accused was staying with her in that house. The occurrence has taken place at the witch hour. He came out with the false story stating that his wife committed suicide. The theory of suicide was thoroughly ruled out by the evidence of P.W.4 Doctor who conducted the autopsy. This would clearly indicate that it was the accused who caused the instantaneous death of his wife by throwing M.O.1 grinding stone on her and strangulating her, and none else. Thus, the trial Court only on proper appreciation of the evidence available has come to the conclusion that it was the accused who has caused the death of his wife and rightly too. The appellant husband has acted in sudden provocation on seeing the deceased wife bedding with a third person. Taking into consideration the facts and circumstances of the case, the lower Court was perfectly correct in finding him guilty under Sec.304(ii) of I.P.C. The Court is unable to notice any reason to interfere in the finding recorded by the Court below as to the conviction.
9. Coming to the question of punishment, the lower Court has sentenced the appellant/accused to undergo R.I. for 5 years. In the circumstances of the case, the Court is of the firm view that awarding the punishment of 4 years R.I. would meet the ends of justice. Accordingly, the judgment of sentence passed by the lower Court has got to be modified.
10. In the result, the sentence of 5 years R.I. imposed by the lower Court on the appellant/accused under Sec.304(ii) of I.P.C. is modified, and the appellant/accused shall undergo 4 (four) years R.I. In other respects, the judgment of the lower Court is confirmed. With the above modification, this criminal appeal is dismissed. The Sessions Judge shall take steps to commit the appellant/accused to prison, if he is on bail, to undergo the remaining period of sentence.
Index: Yes Internet: Yes To:
1) The Judicial Magistrate No.II, Namakkal.
2) The Judicial Magistrate No.II, Namakkal, Thro' The Chief Judicial Magistrate, Salem.
3) The Principal Sessions Judge, Salem.
4) The Superintendent, Central Prison, Coimbatore.
5) The Public Prosecutor, High Court, Madras.
6) The D.I.G. of Police, Chennai 4.
7) Mr.V.Jaya Prakash Narayanan, Government Advocate (Crl. Side), High Court, Madras.
8) The Inspector of Police, Mohanur Police Station, Salem District.