Madras High Court
Palanisamy vs State Through on 26 May, 2017
1
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 : 1 4 . 0 6 . 2 0 1 9
C O R AM:
T H E HO N O U R A B L E MR. J U S T I C E M. S AT H YA N A R AYA N A N
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. 2 4 7 o f 2 0 1 7
Palanisamy ... Petitioner/Sole Accused
Vs.
State through
The Inspector of Police,
Viru Veedu Police Station,
Dindigul District.
(In Crime No.51 of 2010) ... Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 of the Criminal Procedure Code,
praying to call for the records connected to the judgment in S.C.No.107 of 2015
on the file of the Fast Track Mahila Judge, Dindigul dated 26.05.2017 and set
aside the conviction and sentence imposed against the appellant.
For Petitioner : Dr.R.Alagumani
For Respondent : Mr.S.Chandrasekar
Additional Public Prosecutor
J U DG ME N T
(Judgment of the Court was delivered by M. S AT H YA N A R AYA N A N , J . )
The appellant is the sole accused in S.C.No.107 of 2015 on the file of
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the Mahila Fast Track Court, Dindigul and he stood charged and tried for the
commission of offence under Section 302 I.P.C. for having committed murder of
his wife Seeniammal. The trial Court vide judgment dated 26.05.2017, has found
him guilty for the commission of offence under Section 302 I.P.C. and imposed
Rigorous Imprisonment for life and a fine of Rs.1,000/- with default sentence of
6 months and set off was granted to the accused under Section 428 Cr.P.C. 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. The deceased, viz., Seeniammal is the wife of the
appellant/accused and mother of P.W.1 – Rajkumar (defato complainant) and
P.W.2 - Rajkumari.
2.2. The appellant/accused had developed suspicion as to the fidelity
of his wife for the reason, without heading to his advice, she used to attend the
menial job outside.
2.3.The appellant/accused also told her not to attend the function of
her brother viz., P.W.4 and despite that she attended the function on 04.04.2010
and after attending the same, she came to the house on the early hours on
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05.04.2010 and has slept.
2.4.P.W.1 – son of the deceased as well as appellant, unable to bear
the castigation of his father for his suspicion about his mother's fidelity, he
started working as JCB operator and used to come to the house once in 10 days
and on one such occasion when he returned to his house he heard the
altercation between his father and mother. The mother of P.W.1 told him that
she wants to attend the function of his brother on 04.04.2010 and the
appellant/accused told her not to do so and since it was refused, there was a
wordy altercation also. The deceased without heading to the advice of her
husband went to attend the function of her brother and returned on 05.04.2010
and was sleeping in her house and P.W.1 went outside and returned at about
11.30 a.m. on 05.04.2010 and he saw the appellant putting grinding stone on
her head and when he tried to prevent him, the appellant/accused put the
stone and ran out.
2.5.P.W.1 proceeded to Viru Veedu Police Station and lodged a
complaint under Ex.P.1 to P.W.9, the Sub-Inspector of Police, who upon receipt
of the same has registered a case in Crime No.51 of 2010 for the commission of
offence under Section 302 I.P.C. and the complaint was registered at about
14.00 hours on 05.04.2010. The printed F.I.R. was marked as Ex.P9.
2.6.P.W.9 despatched the original F.I.R. and original documents to the
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jurisdictional Magistrate. P.W.10, who was the Circle Inspector of Police, at about
14.00 hours received the information about the occurrence and proceeded to
the Police Station and received the F.I.R. from P.W.9 and commenced the
investigation. P.W.10 proceeded to the scene of occurrence and in the presence
of PW6 and another, prepared the Observation Mahazar Ex.P.3 and Rough
Sketch – Ex.P.12. PW10, on 05.04.2010 from 15.00 hours to 17.00 hours
conducted inquest on the body of the deceased at the scene of occurrence in
the presence of witnesses and panchayatdars and the Inquest Report was
marked as Ex.P.13. P.W.10, thereafter made a request for conducting
postmortem on the body of the deceased and sent a requisition letter through
the Head Constable – 1547 to Government Hospital at Batlagundu.
2.7.P.W.8 was the Medical Officer attached to Government Hospital,
Batlagundu and based on the request received from P.W.10/Investigating Officer
at 6.30 p.m. on 05.04.2010, seen the body of the deceased at 10.30 a.m. on
06.04.2010 and noted the following features:
“Its condition then was Rigor mortis seen in all four limbs.”
On postmortem, he noted the following appearances:
“Appearances found at the post-mortem : Body of a female
aged about 45 years, moderately built, lying (NC), Temperature cold.
Hair Black & gray, iris black.”
P.W.8, after concluding the postmortem, opined that the deceased would
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appear to have died of shock and haemorrhage due to the injuries sustained.
He also issued the Postmortem Certificate, marked as Ex.P.10.
2.8.At about 17.15 hours, P.W.10, in the presence of P.W.6 and
another, had seized M.Os.1 to 3 and collected M.Os.4 and 5 under the cover of
Mahazars Exs.P.4 to P.6.
2.9.P.W.10 upon receipt of the information proceeded to
Meenankannipatti – Periyar Main Channel at about 18.30 hours on 05.04.2010
and effected the arrest of the accused and he voluntarily came forward to give
confession statement and as per admissible portion of confession M.Os.6 and 7
were recovered under cover of Mahazar Ex.P.7 in the presence of P.W.6 and
another. Thereafter, P.W.10 had examined P.Ws.1, 2, 3, 6 and other witnesses and
recorded their statements and since the accused has admitted his guilt and
wanted to give a statement, P.W.10 made preparation to record the statement
of the appellant under Section 164 Cr.P.C. and accordingly produced him
before, P.W.7, who was the Judicial Magistrate No.1, Dindigul. P.W.7, after
complying with the formalities and admonishing warning, recorded the
statement of appellant and the same was marked as Ex.P.9.
2.10.P.W.10 also recorded the statement of P.W.5 – Photographer and
P.W.8, the doctor who conducted autopsy and also sent the material objects for
chemical analysis. On receipt of Chemical Analyst Report, Biological Report and
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Serological Report marked as Exs.P.16 to 18, he had filed the Charge Sheet on
21.07.2010 on the file of the Court of Judicial Magistrate No.1, Dindigul
charging the appellant/accused for the aforesaid offence, who took it on file in
P.R.C.No.19/2010.
2.11. The Committal Court issued summons to the accused and on his
appearance, furnished him with 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. Dindigul, which in turn
made over the same to the Mahila Fast Track Court, Dindigul, who took it on
file in S.C.No.107 of 2015. The appellant/accused was issued with summons and
on his appearance, charge under Section 302 IPC has been framed.
2.12.The prosecution, in order to sustain its case, examined PWs.1 to
10, marked Exs.P1 to P18 and also marked M.Os.1 to 7. The appellant/accused
was questioned under Section 313(1)(b) Cr.P.C. with regard to incriminating
circumstances made out against him and he denied it as false. The
appellant/accused did not examine any witness and not marked any document.
2.13.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
26.05.2017 and challenging the same, the present Criminal Appeal is filed.
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3. Dr.R.Alagumani, learned counsel appearing for the
appellant/accused made the following submissions:
(i) The presence of P.W.1 in the scene of occurrence is highly doubtful for the
reason that the maternal uncle of P.W.1, who was examined as P.W.4, did not say
that P.W.1 had attended the ear boring ceremony of his daughter on 04.04.2010.
(ii) The origin and genesis of the occurrence are highly doubtful and even
prior to the registration of the F.I.R., police came to the spot.
(iii) The arrest and recovery of the incriminating articles pursuant to the
admissible portion of the confession given by the appellant/accused is doubtful
for the reason P.Ws.1, 2 and 4 have spoken the presence of the accused when
the police came to the spot.
(iv) The testimony of P.W.6 would also support the defence projected by the
appellant/accused for the reason that he did not note the presence of P.W.1 at
11.30 a.m. on 05.04.2010 in the scene of occurrence and the trial Court has not
properly appreciated the testimony of P.W.6.
(v) The deceased would not have died at the time projected by the
prosecution for the reason that the postmortem doctor, who was examined as
P.W.8 has stated that the deceased died 24 – 30 hours prior to autopsy, which
means, she would have died between 5.30 a.m. to 10.30 a.m. on 05.04.2010,
whereas according to the prosecution, the commission of murder took place
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only at 11.30 on 05.04.2010 and it also creates a doubt as to the time of death
and the manner of death of the deceased.
In sum and substance, it is the submission of the learned counsel appearing for
the appellant/accused that the above said discrepancies go deep into the
prosecution case and the foundation laid by the prosecution is shaken and
therefore, the Trial Court ought to have awarded benefit of doubt and
acquitted the appellant/accused. Alternatively, it is the submission of the
learned counsel appearing for the appellant/accused that the appellant had
became mentally imbalanced and he was incarcerated for more than 9 years
and in the prison he was given treatment for psychotic ailments also and taking
into consideration the said fact, this Court may alter the conviction and modify
the sentence accordingly.
4.Per contra, Mr.S.Chandrasekar, learned Additional Public Prosecutor
appearing for the respondent/State would submit that the eyewitness is none
other than the son of the accused as well as the deceased and he has no axe to
grind his own father and his oral testimony is in conformity with Ex.P.1
complaint lodged by him and that apart motivation aspect as to the suspicion
of the fidelity of his wife by the appellant/accused has been spoken to by P.Ws.2
and 4 also. It is the further submission of the learned Additional Public
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Prosecutor that though there is some discrepancies as to whether P.Ws.1 and 2
also accompanied their mother to the ear boring ceremony conducted by P.W.4,
the fact remains that on the early morning hours the deceased had returned
and was sleeping and the appellant infuriated by the fact that despite his advice
to his wife not to attend the said function had got infuriated and put the
grinding stone on her head and she died.
5.Insofar as the presence of the police even prior to the registration
of the F.I.R. is concerned, the police is bound to act only on the
information/knowledge as to the commission of the offence and therefore, the
origin and genesis of the occurrence cannot be suspected. It is also pointed by
the learned Additional Public Prosecutor, upon registration of the case, F.I.R.
and relevant documents have been forwarded to the jurisdictional Judicial
Magistrate without any loss of time and would submit that the points urged by
the learned counsel appearing for the appellant only pointing out certain trivial
discrepancies, which did not affect the core of the prosecution and the Trial
Court has rightly reached the conclusion to convict and sentence the accused
accordingly and prays for dismissal of this appeal.
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6.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.
7.The following questions arise for consideration:-
[i] Whether the prosecution through oral and documentary
evidence or other materials has proved its case beyond any reasonable doubt?
[ii] Whether the conviction recorded by the Trial Court and the
sentence awarded by it is sustainable? and
[iii] Alternatively, whether the appellant/accused deserves
modification of the conviction and sentence?
Question No. [i] :
8. The testimonies of P.Ws.1, 2 and 4 would reveal that the appellant
had developed suspicion with regard to the fidelity of his wife for the reason
that she used to attend the job and despite repeated admonished warning, she
used to attend the same. A day prior to the commission of offence i.e., on
04.04.2010, the deceased intimated her intention to attend the function
conducted by her brother – P.W.4 and the appellant/accused advised her not to
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attend the same and despite that he went to attend the function and returned
on the early morning hours on 05.04.2010. The said aspect has been spoken by
P.Ws.1 and 2. P.W.1 would depose that agitated by the attitude of his father for
having suspicion about his mother, he started attending his work as JCB driver
by residing away from his house and once in 10 days he used to visit his house
and on one such occasion he also witnessed wordy altercation between his
father and mother with regard to the suspicion developed by his father as to
the fidelity of his mother. It is the categorical submission of P.W.1 that at about
11.30 a.m. on 05.04.2010, he had heard the alarm and went inside the house
and he saw his father putting the grinding stone upon her mother and as a
consequence she died. Immediately, P.W.1 proceeded to the police station and
lodged a complaint under Ex.P.1 and P.W.9 upon receipt of the same has
registered a case for the commission of offence under Section 302 I.P.C. at
about 2.00 p.m. on 05.04.2010 and forwarded the original F.I.R. to the
jurisdictional Magistrate and informed P.W.10 – investigating officer, who
commenced the investigation.
9.The primordial submission made by the learned counsel appearing
for the appellant is as to the presence of P.W.1 in the scene for the reason,
according to P.W.4, P.Ws.1 and 2 did not attend the ear boring ceremony. It is to
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be noted at this juncture that the deceased, according to the prosecution, has
returned back to the home at the early morning hours on 05.04.2010 and even
for the sake of convenience if the Court accepts that P.Ws.1 and 2 did not
attend the function it cannot be said that P.W.1 would not have witnessed the
occurrence, which has taken place only at 11.30 a.m. and as such presence of
P.W.1 in the scene of occurrence cannot be doubted at all. Though the
prosecution examined P.W.2 as an eye-witness, a perusal of her testimony would
disclose that she did not witness the commission of offence, however, she had
seen her father standing near the body. P.W.2 also spoken about the suspicion
developed by her father against her mother for the reason that she might be
having relationship with somebody else.
10.It is also the submission of the learned counsel appearing for the
appellant that even prior to the registration of the F.I.R., police has come to the
spot and as such, the earliest information has been totally burked by the
prosecution. P.W.9, who registered the F.I.R. was specifically questioned in the
cross-examination she would depose that as to the murder of Seeniammal,
somebody would have telephoned the information, but she could not exactly
remember. This Court has also noted one thing, on receipt of information or
intimation for the commission of cognizable offence especially murder, the
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police should have rushed to the spot and it is not settled law that police should
go to the scene only on registration of F.I.R. Therefore, it cannot be the said
that the earliest information as to the commission has been burked by the
prosecution.
11.The learned counsel for the appellant placed heavy reliance on the
testimony of P.W.6, who was the then Panchayat Board Member. P.W.6 in the
chief-examination deposed among other things that he received the
information at about 11.30 a.m. on 05.04.2010 and immediately he rushed to
the spot and some persons from the place has lodged a complaint to the police
and at about 2.30 p.m. police came to the spot and commenced the
investigation and the appellant/accused fled away from the scene after the
commission of offence and when he went to the scene of occurrence, he found
M.O.1 grinding stone in the scene of occurrence. In the cross-examination, he
would depose among other things that when P.W.3 has told him that it was the
appellant/accused, who has put the grinding stone upon the head of his wife
and he did not know who has given the information to the son of the appellant
viz., P.W.1 and only after police came to the spot P.W.1 came. The learned
counsel appearing for the appellant placing heavy reliance on the said portion
of the testimony would submit that P.W.1, only after arriving at 2.30 p.m. on
05.04.2010, would have gone to the police station and lodged the complaint.
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12.In the considered opinion of the Court, the said submission cannot
be accepted for the reason that it appears to be a snap answer and that apart
presence of P.W.1 in the scene of occurrence has been corroborated through
P.W.2 as well as P.W.4 and it has also been pointed that P.W.1 – defacto
complainant is none other than the son of the appellant and the deceased and
on going through his testimony, this Court is of the considered view that he has
spoken about the commission of offence and also in consonance with Ex.P.1 –
complaint.
13.It is also pointed by the learned counsel appearing for the
appellant that since the appellant/accused was present after the commission of
offence, he would not have committed the offence for the reason, normally the
person who have committed the offence should have fled away from the scene
of occurrence.
14.In the considered opinion of this Court, the said submission is also
liable to be rejected for the reason that immediately after hearing the alarm
P.W.1 went and saw his father putting grinding stone upon her mother and
according to P.W.6, immediately on the commission of offence some time
thereafter, he fled away from the scene of crime. Further, certain material
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objects have been found on the spot and those materials also been recovered in
the presence of P.W.6 under the cover of Mahazar Exs.P.4 to 6.
15.It is also pointed by the learned counsel appearing for the
appellant that recovery of M.Os.6 and 7 blood stained cloth said to have been
recovered from the appellant/accused cannot be believed for the reason that
when the police came to the spot he was present in the spot and therefore, the
case projected by the prosecution that he was arrested at a later point of time
and pursuant to the admissible portion of confession marked as Ex.P.14 the said
articles were recovered, cannot be believed.
16.This Court even without accepting the said argument as to the
suspicion as to the arrest of accused even by excluding the recovery of M.Os.6
and 7, still is of the considered opinion in the light of materials objects M.Os.1
to 5, which were found in the scene of occurrence, coupled with chemical
analysis report, biological report and serological report marked as Exs.P.16 to 18
is of the considered opinion that M.O.1 was used for the commission of the
offence. The postmortem certificate marked as Ex.P.10 coupled with the
testimony of P.W.8 would also disclose that the deceased died on account of the
homicidal violence.
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17.The learned counsel appearing for the appellant made a
submission that admittedly it was a tiled house and therefore one of the broken
tiles, which would have accidentally fallen upon the deceased and consequently
she could have died.
18.A specific suggestion has not been put to P.W.8 and only a
suggestion was put in the cross-examination to him that some heavy objects
could have fallen on the deceased and as a consequence she could have died.
However, the scientific evidence produced by the prosecution had specified the
case that the deceased died on account of homicidal violence and on account
of grinding stone put up on his head. This Court also pleased with the
testimony of P.W.1 as to the commission of offence.
19.The statement of appellant/accused was also recorded under
Section 164 Cr.P.C. by P.W.7 and the proceedings marked as Ex.P.6 also disclose
the prescribed formalities have been followed for recording the statement
under Section 164 Cr.P.C. However, in the light of the testimony of P.W.1, it is
not necessary on the part of the Court to go into the statement under Section
164 Cr.P.C. given by the accused and this Court on going through his statement
under Section 164 Cr.P.C. found that the appellant/accused had taken a
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different version that he caused her death due to the instigation of two other
persons.
20.In the considered opinion of this Court, the prosecution through
the testimony of P.W.1, coupled with corroborating testimonies of P.Ws.2 and 4
and also through scientific evidence has proved the guilt of appellant/accused
beyond reasonable doubt.
Question Nos. [ii] and [iii] :
21.Now, coming to the alternative plea made as to the modification
of conviction and sentence awarded by the trial Court, this Court finds some
considerable force in the submission of the learned counsel appearing for the
appellant. The appellant/accused has developed suspicion as to the fidelity of
his wife, for the reason despite his advise she used to go for menial job and
repeated warnings have been admonished and on the day prior to the
commission of offence ie., on 04.04.2010, the deceased informed his husband
that she is going to attend the function of her brother and once again an
warning has been admonished not to attend the function but she went to the
function on 04.04.2010 and came back on 05.04.2010 early morning and the
said aspect has also been spoken by P.Ws.1 and 2 as well as P.W.4. Therefore,
flash point has been reached and appellant/accused had sustained provocation.
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22.Therefore, in the considered opinion of the Court, it comes within
the ambit of exception (4) to Section 300 I.P.C. It is also brought to the
knowledge of the Court that the appellant/accused was not on bail throughout
and even though after 7 years his sentence was suspended by this Court vide
order dated 07.08.2017 in Crl.M.P.(MD) No.6226 of 2017, he is still in custody
since he has not executed the sureties.
23.In the result, this Criminal Appeal is partly allowed and the
conviction under Section 302 I.P.C. and sentence of life imprisonment awarded
by the trial Court is modified to one under Section 304(i) I.P.C. and the sentence
imposed is modified to 10 Years R.I. and the sentence of fine and default
sentence are sustained. The appellant/accused is also granted set off under
Section 428 Cr.P.C., for the period of incarceration undergone by him during
trial and pendency of the appeal.
[M. S . N. , J .] [ B. P. , J . ]
1 4.0 6.2 0 1 9
Index : Yes / No
Internet : Yes / No
sj
To
1.The Sessions Judge,
Mahila Fast Track Court,
Dindigul.
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2.The Judicial Magistrate,
Nilakottai.
3.The Inspector of Police,
Viru Veedu Police Station,
Dindigul District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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M. S AT H YA N A R AYA N A N , J .
and B . P U G A L E N DHI , J .
sj C rl. A . (MD)N o. 2 4 7 o f 2 0 1 7 1 4.0 6.2 0 1 9 http://www.judis.nic.in