IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.3.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.844 of 2007 Durai @ Loganathan .. Appellant vs. State, rep. by Inspector of Police Arakkonam Village Police Station Thakkolam Police Station Vellore District Crime No.206/2006. .. Respondent Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Principal District and Sessions Judge, Vellore District, dated 13.4.2007, in Sessions Case No.284 of 2006. ----- For Appellant : Mr.P.Venkatasubramanian For Respondent : Mr.N.R.Elango Addl. Public Prosecutor JUDGMENT (Delivered by P.D.DINAKARAN,J.) The appellant is the sole accused in Sessions Case No.284 of 2006 on the file of learned Principal and District Sessions Judge, Vellore District. He questions the correctness of the judgment dated 13.4.2007 rendered in the above stated sessions case, whereunder the appellant was convicted for the offence punishable under section 302 I.P.C. and sentenced to undergo imprisonment for life. 2. The allegation in the charge framed against the appellant is that on 24.06.2006 at 2.00 p.m. in his house at Mangattucheri village, the accused, with an intention to commit the murder of his wife Kanaga, forcibly cut her neck with an aruval, and the said Kanaga died on the spot and thereby committed an offence punishable under Section 302 I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 3. When the appellant was initially questioned, he denied the complicity of the commission of the offence and pleaded innocence. Therefore, the trial of the case has been taken up. 4. To prove its case, the prosecution examined 13 witnesses as P.Ws.1 to 13, marked Exhibits P1 to P23 as well as M.Os.1 to 7. 5.1. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows. 5.2. The deceased Kanaga is the wife of the appellant/accused. P.W.4 Anjali and P.W.6 Ammu are the daughters-in-law of the deceased and the accused. The deceased, appellant, P.Ws.4 and 6 are residing under one roof at Mangattucheri village. On 24.6.2006 at about 1.00 p.m., the deceased, P.Ws.4 and 6, returned home after their cooli work. After taking lunch, P.Ws.4 and 6 were sitting on pial and talking with each other and the deceased was sleeping inside the house. At that time, the accused came with an aruval after grassing the cattle and went inside the house with aruval. Within a short span of time, he came out of the house carrying decapitated head of the deceased on one hand and the aruval on the other hand. He kept the decapitated head and the aruval at the entrance of the house and went out of the house. After hearing the hue and cry of P.Ws.4 and 6, crowd gathered there. They went inside and saw the torso. 5.3. While P.W.1, Nagapooshnam, Village Administrative Officer, Mangattucheri Village along with his menial Bharathi was returning to office after completing tax collection, the accused rushed to P.W.1 and confessed that he murdered his wife and is fearing to go to the police station. P.W.3, Arumugam and Venkatesan, residents of the same village, witnessed the confession made by the accused to P.W.1. Thereafter, P.W.1 took the accused and his menial in his motorcycle and went to Thakkolam Police Station and lodged Ex.P.1 complaint. 5.4. P.W.12, the Sub Inspector of Police, Thakkolam Police Station, based on Ex.P1 complaint, registered a case in Crime No.206 of 2006 for the offence punishable under Section 302 I.P.C. on 24.6.2006 at 3.00 p.m. and prepared Ex.P19 FIR and sent the same to the Court as well as to the higher officials through P.W.11, Head Constable. 5.5. P.W.13, the Inspector of Police, on receipt of information from P.W.12, went to the police station at 3.15 p.m. and took up the case for investigation. He examined the accused in the presence of P.W.1 and his menial and recorded a confession statement. Pursuant to the confession statement, P.W.13 recovered M.O.6 bloodstained dhoti and M.O.7 bloodstained towel worn by the accused in the presence of P.W.1 and his menial and lodged the accused to police custody. Thereafter, he reached the scene of occurrence at 4.45 p.m. on the same day and prepared Ex.P9, observation mahazar and Ex.P20, rough sketch in the presence of https://hcservices.ecourts.gov.in/hcservices/ P.W.8 Rajendran and Raman and caused the place of occurrence to be photographed through P.W.9 Photographer. Exs.P13 series are the photographs and negatives. Thereafter, P.W.13 recovered M.Os.2 to 5, viz., bloodstained cement mortar and sample cement mortar in the presence of P.W.8 and Raman under Ex.P11 mahazar. He conducted inquest over the decapitated torso and head separately and prepared inquest reports Exs.P21 and P22 respectively. He also conducted inquest over the whole body and prepared Ex.P23 inquest report and thereafter sent the body for post-mortem with Ex.P2 requisition through Head Constable Thiru Sampath. During the inquest, he examined P.Ws.1, 3, 4, 6 and 8 and other witnesses and recorded their statements. He also recovered M.O.1, aruval, under Ex.P12 mahazar in the presence of P.W.8 and Raman. He remanded the accused to judicial custody on 25.6.2006. He also forwarded the material objects to the Court for sending the same for chemical examination under Ex.P14. 5.6. P.W.2 is the Doctor who conducted post-mortem over the body of the deceased and noticed the following injuries: "Nature of the torso and head are physically verified of the same person. Cut edge of the torso was examined. Margin of the cut edge slightly irregular, cut edge contained clotted blood. Cut edge of the neck above the level of glottis anteriorly posteriorly at the level of C2,C3 vertebra, all neck structures are cut. A lacerated injury in the left palm in between thumb and index finger 5cmx3cmx1cm, irregular edge blood clotted at the edge. Decapitated Head: Scalp hair whitish grey, eyelids closed, both lips closed, teeth complete, tongue within the mouth, bleeding from nose present, Hyoid bone intact. External genitalia of female normal." The doctor was of the opinion that the deceased would appear to have died of decapitation and injury to the vital organs spinal cord due to decapitation, 22 to 23 hours prior to post-mortem. He issued Ex.P4 post-mortem certificate. 5.7. P.W.10 is the Magisterial Clerk, who speaks about the receipt of two requisitions Ex.P14 from P.W.13, Inspector of Police, forwarding the material objects to the laboratory under Ex.P15 series Court's letters and receipt of Ex.P.16 Biologist's report, Ex.P.17 Serologist's Report and Ex.P18 Chemical Examiner's Report. 5.8. As per Ex.P5 requisition sent by P.W.13, P.W.5, Judicial Magistrate-cum-Judicial Magistrate, Ambur, recorded statements of P.Ws.4, 6 and Selvam under 164 Cr.P.C. Exs.P6 to P8 are the said statements. 5.9. Thereafter, P.W.13 examined the Post-mortem Constable and Post-mortem Doctor and recorded their statements. https://hcservices.ecourts.gov.in/hcservices/ 5.10. P.W.16, Inspector of Police, narrated the investigation undertaken by him and the filing of the final report in the court against the accused under Section 302 IPC on 03.08.2006. 6. When the accused was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances found in the evidence of prosecution witnesses, the accused denied the same. No oral or documentary evidence was brought forth by the accused before the court. 7. The trial court, on consideration of the oral and documentary evidence placed before it, found the accused guilty and convicted and sentenced him as referred to earlier. 8. The learned counsel for the appellant assails the conviction and sentence as under: (i) P.Ws.4 and 6 were not eye witnesses to the occurrence, but they only heard the hue and cry of the deceased and thereafter, witnessed the accused coming out of the house with the head of the deceased and the weapon used for the commission of the crime. Therefore, their evidence, which forms basis for the case of the prosecution, is unreliable. (ii) Except the extra judicial confession alleged to have been given to P.W.1, there is no other legal material to connect the accused with the crime. If it is rejected, then there is no legal evidence at all to connect the accused with the crime and the same cannot be the basis for convicting the accused. (iii) The prosecution has not proved the motive of the accused to commit the offence and therefore, the case of the prosecution fails and accordingly, the conviction and sentence have to be set aside. (iv) Alternatively, it is contended that the occurrence took place due to sudden provocation due to the illicit intimacy of the deceased with one Kali by which the accused lost the power of self-control and hence, the act of the accused would be culpable homicide not amounting to murder coming under Exception-1 to Section 300 I.P.C. 9. Per contra, learned Additional Public Prosecutor submits that: (i) P.Ws.4 and 6 alone saw the accused entering the house with aruval and coming out of the house with the head of the deceased and aruval and therefore, their evidence cannot be rejected. (ii) In the extra judicial confession made by the accused to the V.A.O., the accused had stated that https://hcservices.ecourts.gov.in/hcservices/ since the deceased was having illicit intimacy with one Kali, he cut the deceased and the same is corroborated with the evidence of P.Ws.4 and 6. Therefore, the prosecution has proved the motive beyond reasonable doubt. (iii) The occurrence cannot be said to be taken place due to sudden provocation, as the alleged quarrel between the deceased and the accused as spoken to by P.Ws.4 and 6 took place four days prior to the occurrence and there is no wordy quarrel between them on the occurrence day. 10. We have perused the entire materials on record and heard the submission of both sides. The question that arises for our consideration in this appeal is whether the prosecution proved the guilt of the accused beyond all reasonable doubt. 11.1. To prove the guilt of the accused, the prosecution examined P.Ws.4 and 6 as eye witnesses. P.Ws.4 and 6 are none other than the daughters-in-law of the deceased and the accused. After returning from the field and taking lunch along with the deceased, they were sitting in the pial of the house and the deceased was sleeping inside the house. At that time, they saw the accused entering into the house with M.O.1 aruval and immediately thereafter, they heard the hue and cry of the deceased and also saw the accused coming out of the house with the decapitated head of the deceased and M.O.1 aruval. P.Ws.4 and 6 along with others went inside the house, where they saw the torso of the deceased. 11.2. In their chief examination, P.Ws.4 and 6 had clearly stated that they saw the accused going inside the house with M.O.1 aruval and coming back within five minutes with the decapitated head of the deceased on the one hand and M.O.1 aruval on the other hand. They had stated that except the accused, no one went inside the house and they also denied the suggestion as to the possibility of third party going into the house through the back side of the house. They had also narrated the same evidence even in the statements recorded under Section 164 Cr.P.C. by P.W.10, Judicial Magistrate, Ambur. One Selvam, relative of the deceased and the accused, who was not examined as prosecution witness, had corroborated the evidence of P.Ws.4 and 6 with regard to the occurrence that took place four days prior to the occurrence and also the accused coming outside the house with decapitated head of the deceased and M.O.1 aruval. 11.3. A conjoint reading of the evidence of P.Ws.4 and 6 shows that the accused alone attacked and caused injuries on the deceased resulting in her death. We therefore have no hesitation to conclude that the accused caused the injuries on the deceased which caused her death. 11.4. Their further evidence is that there was a wordy altercation between the accused and the deceased four days prior to https://hcservices.ecourts.gov.in/hcservices/ the occurrence with regard to the relationship of the deceased with Kali and the accused had stated that he would do away with the deceased. As per the case of the prosecution, the accused was doubting the morality of the deceased and was repeatedly warning her not to talk with Kali. But, P.Ws.4 and 6 had stated that there was no such relationship between the deceased and Kali and even P.Ws.1 and 3 had also stated that they do not know anything about the alleged relationship. The prosecution has proved the motive for the occurrence through the evidence of P.Ws.4 and 6. 11.5. According to P.W.1, he is the Village Administrative Officer of Mangattucheri Village. On 24.6.2006 at 3.00 p.m., while he was returning to his office after collecting tax along with his menial, the accused came and informed him that he murdered his wife and he was afraid to go to police station. Therefore, he took him in his motor-cycle along with his menial to the police station, where he lodged Ex.P1 complaint to P.W.12. The evidence of P.W.3 also corroborates the evidence of P.W.1 that he saw the accused rushing to P.W.1 and confessing about the occurrence and P.W.1 took him to the police station. The further evidence of P.W.1 shows that he went to the scene of occurrence along with the police, where he saw the decapitated head of the deceased and M.O.1 aruval at the entrance of the house and the torso of the deceased inside the house. In his cross examination, he had clearly stated that he knows the accused even prior to the occurrence. 11.6. The evidence of P.Ws.1 and 3 is clear and cogent and corroborates with each other with regard to Ex.P1, extra judicial confession. Therefore, the contention of the learned counsel for the appellant that the extra judicial confession given to P.W.1 cannot be relied upon to convict the accused is rejected, as it is supported with the ocular evidence of P.Ws.4 and 6. 12.1. The alternative contention of the learned counsel is that the occurrence took place due to the altercation preceding the occurrence and hence, the act committed by the accused is not murder, but culpable homicide coming under Exception-1 to section 300 I.P.C. 12.2. In K.M.Nanavati v. State of Maharashtra (AIR 1962 SC 605), the Supreme Court, while dealing with grave and sudden provocation and Exception I to Section 300 I.P.C., held as follows: "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 Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of https://hcservices.ecourts.gov.in/hcservices/ the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled downed by lapse of time, or otherwise giving room and scope for premeditation and calculation." 12.3. In the instant case, there was a wordy quarrel between the accused and the deceased four days prior to the occurrence i.e. on 20.6.2006 with regard to the alleged relationship between the deceased and Kali and the accused stated that he would do away with the deceased. Though P.Ws.4 and 6, their respective husbands and the neighbours, who witnessed the said quarrel, tried to pacify them, the accused did not give up his intention and committed the crime on 24.6.2006. There is no evidence to show that there was quarrel on the fateful day. Therefore, there was sufficient time for the accused to cool himself. Hence, the conduct of the accused clearly shows that the murder was a deliberate and calculated one. Therefore, the contention of the learned counsel for the appellant that the occurrence took place due to sudden provocation is rejected. 12.4. Under such circumstances, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubts. We do not find any reason to interfere with the conclusion reached by the trial Court and therefore, the conviction and sentence recorded by the trial Court are confirmed and the appeal stands dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ATR https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal District and Sessions Judge Vellore District. 2. The Superintendent, Central Prison, Vellore. 3. The District Collector, Vellore District. 4. The Director General of Police, Mylapore, Chennai 4. 5. The Public Prosecutor High Court Madras. 6. The Inspector of Police Arakkonam Village Police Station Thakkolam Police Station Vellore District. Criminal Appeal No.844 of 2007 mdr[co] gp/29.4 https://hcservices.ecourts.gov.in/hcservices/