BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26/06/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE SELVI JUSTICE R.MALA
Criminal Appeal (MD) No.323 of 2008
Kandasamy alias Kabilan .. Appellant
vs
State rep. by Inspector of Police,
Thenkarai Police Station,
[Cr.No.73/2006] .. Respondent
Appeal under Section 374 (2) of the Code of Criminal Procedure against the
Judgment dated 27.07.2007 made in S.C.No.83/2006 on the file of learned
Principal District Sessions Judge, Theni.
!For Petitioner ... Mr.A.P.Muthupandian
^For Respondent ... Mr.Issac Manuel
Addl. Public Prosecutor
:JUDGMENT
R.MALA,J
This appeal arises out of the Judgment in S.C.No.83/2007 convicting the
appellant/accused U/s.302 IPC for committing murder of his wife Poonagam and
sentencing him to undergo life imprisonment and imposing fine.
2. Briefly stated case of prosecution is as follows:-
(i) The accused Kandasamy and the deceased Poonagam are husband and wife.
P.W.2-Nagajothi is the sister of the deceased and P.W.1-Murugan is the husband
of P.W.1. The accused was always suspecting the fidelity of his wife
Poonagam/deceased. On 16.02.2006/17.02.2006 midnight 1.30 A.M., when the
deceased was in bed, the accused assaulted her with Aruval on her face, neck and
nose and caused cut injuries. At that time, hearing the noise from the
accused's house, one Subramani, who is the opposite resident of the
appellant/accused, intimated the fact that there was a noise in the
accused/appellant's house. Immediately, P.Ws.1 and 2 rushed there and witnessed
the occurrence along with Subramani and one Lakshmi that the accused assaulted
the deceased with MO1-Aruval in his house. P.W.1 questioned the accused as to
the occurrence and the injured Poonagam stated that her husband suspected her
fidelity and assaulted her. P.W.4-Palnichamy, who is none other the brother of
the accused came with an auto and taken the injured to Government Hospital,
Periakulam. P.W.3-Karuppiah is the auto driver.
ii. PW11-Dr.Vanaja, attached to Government hospital, Periyakulam examined
the injured and gave Ex.P15 Accident Register and declared that the injured died
and she noted the following injuries.
1.A lacerated injury over the right side of neck 6x3xcm appearing (nc) of
vessels cut at the back of neck.
2.A lacerated injury over the right side of neck above the 1st wound 6x3x3cm.
3.A lacerated injury in cutting nose and defting the nose 6x5x4cm.
4.A lacerated injury over the upper lip extending to both cheek 10x5x2cm.
5.A lacerated injury right side of cheek just below the right ear 2x1cm
6.A lacerated injury left side cheek 1x 1 cm
7.A lacerated injury left cheek below the 6th wound 1x1cm.
She has also given an intimation Ex.P.16 to the Sub Inspector of Police,
Thenkarai about the death of the injured.
iii. On receipt of the intimation Ex.P16, P.W.13-Paulpandi, Sub Inspector
of Police, Thenkarai went to the Government Hospital, Periyakulam and recorded
the statement (Ex.P1) from P.W.1-Murugan. P.W.4-Palanichamy had attested on the
complaint Ex.P1. On the basis of Ex.P1, complaint, a case was registered in
Cr.No.73 of 2006 U/s.302 IPC. Ex.P17 is the printed FIR.
iv. On receipt of Ex.P17, F.I.R., on 17.02.2006 P.W.15-Ramanathan,
Inspector of Police had taken up the case for investigation. He inspected the
scene of occurrence and prepared Ex.P4-Observation Mahazar and Ex.P18-Rough Plan
in the presence of PW4-Kaliamoorthy and P.W.6-Chandrasekar, Village
Administrative Officer and his Assistant and recovered bloodstain samples under
Ex.P6-Mahazar. He also recovered the woolen blanket(M.O2) under Ex.P5-Mahazar.
P.W.15 in the presence of panchayatdars and witnesses conducted Inquest on the
body of deceased Poonagam in Periyakulam Government hospital. Ex.P19 is the
Inquest Report. After Inquest, body was sent to autopsy. P..W.15 examined the
witnesses.
v. On receipt of Ex.P2, requisition, on 17.02.2006, at 12.05 P.M., P.W.5-
Dr.K.S.Kumar conducted post-mortem on the body of deceased Poonagam and noted
the following injuries:
1.A large cut injury on Right side of neck, middle of neck 7x3x3cm exposing
deeper structures cut end of cartoid artery of Jugular veins seen.
2.A cut injury seen 3 cms below of parallel to 1st one 7x2x5 cm with cut ends of
major vessels-cartoid artery of Jugular vein.
3.A cut injury starting from tip of nose extending via right angle of mouth
10x1x3 cms exposing deep structures. Nasal septum is cut.
4.Cut injury on left side of cheek 6x3x2 cms
5.Cut injury 2x1 cms x 3cms below 4th injury mentioned.
P.W.5 opined that the deceased died of haemorrhage shock doe to major vessels
injury 10 hours to 12 hours prior to autopsy. Ex.P3 is the postmortem
certificate. After postmortem, P.W7, Head Constable Manikandan recovered
bloodstained saree (M.O4), bloodstained blouse (M.O5) and Petticoat (M.O6) from
the body of the deceased and handed over the body to the relatives.
vi. On 17.02.2006 at 14.00 P.M., P.W.15 searched the accused and arrested
him near Kailasapatti bus stop situated at Periyakulam-Theni main road in the
presence of P.W6-Chandrasekaran and his Assistant. The accused gave a
confession voluntarily. The admissible portion of the confession statement is
Ex.P8. In pursuance of the same, P.W.15-IO recovered bloodstained lungi (M.O3)
and M.O.1 Aruval under Ex.P7 mahazar and the accused was remanded to judicial
custody. Then, he handed over the investigation to P.W14 Prabhakaran, who took
charge of Thenkarai Police Station.
vii. PW14-Prabhakaran, Inspector of Police [IO] proceeded with further
investigation. He made arrangements for taking photographs at the scene of
occurrence and the body of the deceased. P.W.12-Kumaravel, Photographer had
taken photos in the scene of occurrence and body of the deceased and the same
was marked as M.O7 series. He examined P.W.8-Anandhan, Assistant Engineer, Tamil
Nadu Electricity Board, who gave a report Ex.P9, stating that there was no power
failure in scene of occurrence at the time of occurrence. After examination of
witnesses and after completion of due investigation, PW14 filed final report
against the accused on 08.03.2006 U/s.302 IPC.
3. To substantiate the Charges against the accused in the trial court,
prosecution examined PWs.1 to 15 and Exs.P1 to 19 and MOs.1 and 7 were marked.
Accused was questioned U/s.313 Cr.P.C. about the incriminating evidence and
circumstances. Accused denied all of them and pleaded that a false case has
been foisted against him.
4. The Trial Court after considering the oral evidence and documents came
to the conclusion that the death of the deceased is a homicidal and the accused
alone assaulted the deceased due to his suspicion of her fidelity and held that
the charge has been proved against the accused beyond reasonable doubt and
convicted the accused under Section 302 I.P.C and sentenced him to undergo life
imprisonment and also imposed fine of Rs.1000/-.
5. Challenging the verdict of conviction, Mr.A.P.Muthupandian, learned
counsel for the appellant/accused submitted that even though One Subramani and
Lakshmi were cited as witnesses in the charge sheet, but, they were not examined
before the trial Court; as per prosecution, after hearing the noise from the
accused/appellant's house, Subramani alone had gone to P.Ws.1 and 2's house and
intimated the fact that there was a quarrel in the appellant/accused's house and
then only, P.Ws.1 and 2 rushed to the place of occurrence. So, non examination
of Subramani and Lakshmi is fatal to the case of prosecution.
6. The learned counsel for the appellant has further contended that P.W.1
has given Ex.P1 complaint, but scribe of the complaint has not been examined.
He would also urge that P.Ws.1 and 2 are not eye witnesses, P.Ws.1 and 2
themselves stated that the appellant/accused has assaulted the deceased with
knife, but M.O.1 is Aruval. He further contended that the bloodstained dress of
P.W.1 has not been recovered and presence of P.W.1 in the place of occurrence is
doubtful. He lastly contended that medical evidence of P.Ws.5 and 11 is
contradictory and hence benefit of doubt to be given in favour of the appellant
and prayed for the allowing of appeal and acquittal of the appellant.
7. Per Contra, the learned Additional Public Prosecutor Mr.Issac Manuel
would contend that M.O.1 Aruval can be called by Kathi/Knife and hence there is
no discrepancy in M.O.1 and the non examination of Subramani and Lakshmi is not
fatal to the case of prosecution, because, P.Ws.1 and 2 are eye witnesses and
they have spoken about the motive. He further contended that the examination of
witnesses to prove the prosecution case is the discretion of the Public
Prosecutor and hence the non examination of certain witnesses is not fatal to
the case of prosecution. He would also submit that P.W.4-Palanichamy is the
brother of the appellant/accused; he took the auto of P.W.3-Karuppiah and taken
the injured to the hospital along with P.W.1 and also attested in Ex.P1
complaint. There is no contradiction in the medical evidence of P.Ws.5 and 11.
He would also urge that the learned Sessions Judge has considered all the
aspects in a proper prospective and came to the correct conclusion and the
accused was found guilty under Section 302 I.P.C and sentence him to undergo
life imprisonment; there is no infirmity in the conviction and sentence passed
by the learned Sessions Judge and thus, he prayed for dismissal of appeal.
8. Taking us through the evidence, Mr.A.P.Muthupandian, the learned
counsel appearing for the appellant submitted that P.Ws.1 and 2 are relatives
and they are not eye witnesses. Because, they are residing three streets away
from the house of appellant/accused. On the day of occurrence, i.e. on
16.02.2006/17.02.2006 midnight, one Subramainan, who heard the noise from the
house of accused, he intimated the fact to P.Ws.1 and 2 and then only, they came
to the place of occurrence. Considering the evidence of P.Ws.1 and 2, even
though they are relative of the deceased, nothing against has been extracted in
cross examination shaking their credibility. Moreover their evidence are
cogent, natural and it is trustworthy. It has been admitted that Subramani
alone intimated the fact to P.Ws.1 and 2 and taken them to the deceased house.
So it is true that the name of Subramani has been found place in the charge
sheet, but he was not examined before the trial Court. Since it is the case
based on eye witnesses, two eye witnesses were examined before the Trial Court,
it is the discretion of the Public Prosecutor to examine the witnesses. Since
Public Prosecutor felt that the examination of two eye witnesses is sufficient
and to avoid the multiplicity of evidence, Public Prosecutor did not choose to
examine the other witnesses. In the above circumstances, we are of the
considered view that non examination of Subramani is not a fatal to the case of
prosecution and the argument of the learned counsel appearing for the appellant
does not merit acceptance.
MOTIVE:
9. P.Ws.1 and 2 have clearly stated in their evidence that the
appellant/accused always suspected the fidelity of his wife/deceased. In the
chief examination of P.W.1, he has clearly deposed that one week before prior to
the occurrence also, the accused was suspecting the fidelity of his wife and had
a quarrel with her and P.W.1 pacified them. P.W.1 is the resident of same
village, but away from three streets of the appellant/accused house. In his
cross examination, he fairly conceded that past two years there was a difference
of opinion between accused and deceased due to the suspicion of the fidelity of
the deceased. P.W.2, who is none other than the sister of the deceased also had
corroborated his evidence. Hence, we are of the view that the motive has been
clearly proved by the prosecution. Proof of motive heightens the probability of
prosecution version. Where prosecution case is based upon evidence of eye-
witness, sufficiency or insufficiency of motive will not play a major role and
proof of motive is only a corroborative piece of evidence. So the argument of
the learned appellant counsel that motive has not been proved falls to ground.
Whether P.Ws.1 and 2 are eye witnesses:
10. The learned counsel for the appellant would contend that as per
Ex.P18-Rough Plan, Subramani, who is the resident of the opposite house of
appellant/accused, intimated the fact to P.Ws.1 and 2 but he was not examined
before the trial Court. Admittedly, P.Ws.1 and 2 are residing three streets
away from the scene of occurrence. P.W.1 himself admitted that his house is in
Muthiah street and the distance between his house and the appellant's house is
half a furlong.
11. P.W.2 has also corroborated the evidence of P.W.1. On the date of
occurrence, there was a quarrel between the accused and deceased. Subramani is
the resident of opposite house of the accused, heard the noise and immediately,
he had gone to P.W.2's house, who is none other than the sister of the deceased
and intimated the fact that he heard a noise from the house of accused.
Normally, in village, if any quarrel had taken place, first the people would
intimate the fact to their relatives and then only they enter into the issue and
in this case also, as soon as Subramani heard the noise at midnight, he
intimated the fact to P.Ws.1 and 2 and then they came to the place of
occurrence. At that time only, they witnessed that the accused had assaulted
his wife/deceased on her right side cheek, face and mouth. P.W.4-Palanichamy,
who is none other than the brother of accused, has not stated in his evidence
that he had seen P.Ws.1 and 2 in the place of occurrence. More over, P.W.3-
Karuppiah, auto driver, who had taken the deceased to hospital, also had stated
that only P.W.1 made a call to him and then only he had gone to the place of
occurrence and taken the deceased to hospital. Ex.P15-Accident Register copy
has disclosed that the deceased was brought by Palanichamy (P.W.4) husband's
brother (brother of the accused) and Murugan, Sister's husband P.W.1).
Therefore, taking cumulative effect of all these documents and oral evidence,
has clearly proved that P.Ws.1 and 2 are eye witnesses and thus, the argument of
the learned counsel for the appellant that P.Ws.1 and 2 are not eye witnesses is
unacceptable one.
12. Merely because P.Ws.1 and 2 are close relatives of the deceased, their
evidence cannot be eschewed. While considering the evidence of P.Ws.1 and 2
with great care and caution. Even though they are facing lengthy cross
examination, nothing against them has been culled out and their evidence are not
shattered. Hence their evidence is natural, cogent, trustworthy and it is
reliable. There is no force in the argument of the learned appellant counsel
that the P.Ws.1 and 2 are not eye witnesses and their evidence cannot be looked.
Whether recovery of M.O.1 Aruval has been proved:
13. P.W.1-Murugan has given the complaint and the same has been marked as
Ex.P1. In Ex.P1, it has been stated that the appellant/accused had assaulted
the deceased with M.O1, Aruval. In his evidence also, he has deposed that the
deceased was assaulted by the accused with M.O1 Aruval. On the basis of
confession given by the accused in presence of P.W.6, Chandrasekaran, Village
Administrative Officer and his Assistant Chinnamuthu, M.O1 is Aruval was seized
under Ex.P7, Mahazaar. In that also it has been stated as follows:
"ifg;gw;wpa brhj;jpd; tptuk; --- Rkhh; 40 brkP ePsKk; Rkhh; 14 brkP
Kd;gf;fk; tise;Jk; kuf;ifg;gpoa[ld; Toa uj;jk; goe;j mUths; xd;W.
kuf;ifg;gpoapd; fPH; Rkhh; 1 brkP mfyj;jpy; ,Uk;g[ g{z; nghlg;gl;Ls;sJ. kuf;
ifg;gpo Rkhh; 10 brkP ePsk; ,Uf;fpwJ. ic kuf;ifg;gpof;Fk; mUthspd; ,Uk;g[
ghfj;jpw;Fk; ,ilapy; Rkhh; 1-1/2 brkP mfyj;jpy; ,Uk;g[ g{z; nghlg;gl;Ls;sJ.
mUthspd; ika ,Uk;g[ ghfj;jpd; mfyk; Rkhh; 5 brkP cs;sJ."
Moreover, M.O1 was sent to chemical examination and Ex.P14, chemical report
contains the fact that bloodstain found in M.O1 is a human blood and result of
grouping test inconclusive and that has been clearly proved that M.O1 has been
used for the commission of offence. So, there is no merits in the argument
advanced by the learned counsel for the appellant.
Whether there is a contradiction between medical evidence P.W.11 and P.W.5.
14. The learned counsel for the appellant would contend that there is a
contradiction between the medical evidence of P.W11 and P.W5. As soon as
P.Ws.1,3 and 4 had taken the deceased to hospital, P.W.11 examined the deceased
and on examination, declared the deceased was already dead and then she noted
the following injuries on the body of the deceased.
1.A lacerated injury over the right side of neck 6x3xcm appearing (nc) of
vessels cut at the back of neck.
2.A lacerated injury over the right side of neck above the 1st wound 6x3x3cm.
3.A lacerated injury in cutting nose and defting the nose 6x5x4cm.
4.A lacerated injury over the upper lip extending to both cheek 10x5x2cm.
5.A lacerated injury right side of cheek just below the right ear 2x1cm
6.A lacerated injury left side cheek 1x 1 cm
7.A lacerated injury left cheek below the 6th wound 1x1cm.
P.W.11 gave Ex.P15 Accident Register copy to the deceased. All the injuries are
lacerated injuries. But, P.W5 Dr.K.S.Kumar, who conducted postmortem and gave
Ex.P3 post mortem certificate, where it was found cut injuries only.
1.A large cut injury on Right side of neck, middle of neck 7x3x3cm exposing
deeper structures cut end of cartoid artery of Jugular veins seen.
2.A cut injury seen 3 cms below of parallel to 1st one 7x2x5 cm with cut ends of
major vessels-cartoid artery of Jugular vein.
3.A cut injury starting from tip of nose extending via right angle of mouth
10x1x3 cms exposing deep structures. Nasal septum is cut.
4.Cut injury on left side of cheek 6x3x2 cms
5.Cut injury 2x1 cms x 3cms below 4th injury mentioned.
15.The learned counsel for the appellant mainly focussed upon the
contradiction between the nature of injuries mentioned in Ex.P15 and Ex.P3.
But, in our considered opinion the above argument of the learned counsel for the
appellant does not hold good. Because, P.Ws.1 and 4 had taken the deceased to
the hospital, wherein P.Ws.11 Dr.Vanaja gave Ex.P15 A.R.Copy stating that the
injured died and immediately the body was kept in mortuary. After inquest
conducted by P.W.15, Inspector of Police, the same was sent to autopsy and P.W.5
conducted postmortem and gave Ex.P3 postmortem certificate. Therefore, there is
no merits in the arguments advanced by the learned counsel appearing for the
appellant that there are contradictions in the nature of injuries sustained by
the deceased.
16. The learned counsel for the appellant would contend that bloodstained
dress of P.W1 was not seized and produced before the Court. It is true that
P.Ws.1 and 2 had witnessed the incident and immediately, they had gone there and
P.W.1 questioned the deceased and she was taken to hospital, where she was
declared dead. Even his dress was stained with blood of the deceased. Merely
because there was no recovery of the bloodstained dress of P.W.1 it would not
materially affect the case of prosecution. However, P.W.3-Karuppiah, auto
driver in his evidence stated that the deceased was taken with mat(gha;). His
evidence is as follows:
" g{ehfj;ij gha[ld; Jhf;fp te;jhh;fs;;"
In the above said circumstances, non recovery of bloodstained clothes of P.W1
is not materially affect the case of prosecution and hence the argument of the
learned counsel for the appellant does not merit acceptance.
17. The learned counsel appearing for the appellant would contend that
from the time of occurrence till the arrest of the accused, the accused has been
present in the place of occurrence and hence it is clear that the accused is not
a culprit. He relied upon the document in Ex.P5, seizure mahazar and advanced
his argument that as per the evidence of P.W.6 and P.W15, M.O2 bloodstained
woolen blanket has been seized at 6.45 A.M and in that mahazar the accused has
put his signature as a witness and if he had committed the offence, definitely,
he would not have been there and hence, the benefit of doubt to be given in
favour of the accused. Considering Ex.P5-Mahazar, signature of the accused has
been found place in Ex.P5, seizure mahazar. When P.W.15, Inspector of Police
was examined before the trial Court, in his cross examination, he has admitted
that Ex.P5 contains the signature of accused, but he denied the suggesstion that
the accused was present at the time of seizure of M.O2. As per prosecution,
M.O2 was seized by P.W.15 in presence of P.W.6 Chandrasekaran, Village
Administrative Officer and his Assistant Chinnamuthu. But, no suggestion was
posed to P.W.6 about the presence of the accused at the time of seizure of M.O.2
In the above circumstances, mere signature of the accused found place in Ex.P5
will not lead to the conclusion that the accused was present at the time of
seizure of M.O2 under Ex.P5 and in any event the same is not fatal to the case
of prosecution.
18. The learned Public Prosecutor relied on the decision in (2007) 1
Supreme Court Cases (Cri) 80 (Trimukh Maroti Kirkan Vs. State of Maharastra) and
contending that these crimes are generally committed in complete secrecy inside
the house and it becomes very difficult for the prosecution to lead evidence.
If an offence takes place inside the privacy of a house and in such
circumstances where the assailants have all the opportunity to plan and commit
the offence at the time and in circumstances of their choice, it would be
extremely difficult for the prosecution to lead evidence to establish the guilt
of the accused, if the strict principle of circumstantial evidence is insisted
upon by the Courts. Here in this case, since during the night time, the
appellant/accused and deceased alone were inside the house, but the deceased
alone was sustained injury. Observing that the appellant must offer his
explanation how the deceased sustained injury and the crime was committed
Supreme court held as follows:
"Where an offence like number is committed in secrecy inside a house, the
initial burden to establish the case would undoubtedly be upon the prosecution,
but the nature and amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases of circumstantial
evidence. The burden would be of a comparatively lighter character. In view of
Section 106 of the Evidence Act, there will be a corresponding burden on the
inmates of the house to give a cogent explanation as to how the crime was
committed. The inmates of the house cannot get away by simply keeping quiet and
offering no explanation on the supposed premise that the burden to establish its
case lies entirely upon the prosecution and there is duty at all on an accused
to offer any explanation."
Here, in this case, the appellant has not given any explanation as to the
injuries sustained by the deceased.
19. The learned Additional Public Prosecutor has further relied on the
decision reported in 2001 Supreme Court Cases (Cri) 1546 (Ram Gulam Chaudhary
and others V. State of Bihar) and culled out the following portion:
"When the abductors withheld that information from the court, there is
every justification for drawing the inference that they had murdered the boy.
Even though Section 106 of the Evidence Act may not be intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable
doubt, but the section would apply to cases like the present, where the
prosecution has succeeded in proving facts from which a reasonable inference can
be drawn regarding death. The appellants by virtue of their special knowledge
must offer an explanation which might lead the Court to draw a different
inference.
In the present case, the appellant who is lastly seen with the deceased in his
house; except appellant, no one was there. While so, it is for the appellant to
prove how the offence has been committed. But, no explanation is given by the
accused.
20. In the case in State of West Bengal V. Mir Mohammed Omar and others
reported in (2001) M.L.J. (Crl.) 34, the Apex Court has held that the
prosecution establishing certain circumstances, the Court has to presume
existence of certain facts from those circumstances. Considering the above all
citations, we are of the considered opinion that the appellant/accused having
suspected the fidelity of his wife and assaulted her with M.O1 Aruval and caused
injuries to the deceased/wife, which lead to her death.
21. Considering upon the above decisions along with the facts of this
case, it is clear that the appellant herein was suspecting the fidelity of his
wife and when both were along in the house during midnight, the appellant made a
quarrel with his wife/deceased and then only he committed the offence which was
witnessed by P.Ws.1 and 2. No explanation has been offered by the
appellant/accused in his 313 Cr.P.C questioning also. In such circumstances and
as per the citations, the appellant/accused guilt is to be held to be proved.
22. Having gone through the evidence and judgment of the trial Court, we
are satisfied that the appellant/accused was rightly convicted and there is no
infirmity in the conviction and sentence passed by the trial Court. Hence, we
do not find any reason for interference and this appeal is liable to be
dismissed.
19. In the result, the Criminal Appeal is dismissed and the judgment of
the trial Court in S.C.No.83 of 2006 passed by the learned Principal District
Sessions Judge, Theni, is confirmed.
arul
To
1.The Principal District Sessions Judge,
Theni.
2.The Judicial Magistrate, Periyakulam
3.The Inspector of Police,
Thenkarai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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