BAIL SLIP Criminal Appeal No.668 of 2006 The Appellant/Accused Viz., G. Kumar S/o Govindan was released on bail as per the order of this Court, dated 22.8.2006 in Crl.MP.No.1 of 2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN and THE HONOURABLE MR. JUSTICE K.N.BASHA Criminal Appeal No.668 of 2006 G.Kumar ... Appellant/Accused vs The State of Tamil Nadu rep. by the Inspector of Police, Omalur Police Station, Omalur, Salem District. ... Respondent/Complainant Prayer:- Appeal filed under section 374 of Cr.Pc against the judgment passed in S.C.No.422 of 2005 on the file of the learned Principal Sessions Judge, Salem, dated 15.06.2006. For Appellant : Mr.K.Selvaraj For Respondent : Mr.N.R.Elango, Addl. Public Prosecutor. J U D G M E N T (Judgment of the Court was delivered by K.N.BASHA,J.) The challenge in this appeal is to the judgment of the learned Principal Sessions Judge, Salem, dated 15.06.2006 made in S.C.No.422 of 2005 convicting the sole accused/ appellant for the offence under Section 302 I.P.C. and sentencing him to life imprisonment and also to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2. The accused faced the trial under the following backdrop:- (a) The accused is none else than the husband of the deceased, Rukmani. P.W.1 is the father of the deceased. The deceased and the accused got married 4 years prior to the occurrence. One female child, by name, Nisha, was born out of their wedlock. Every Amavasai, the accused used to come along with his wife to the house of P.W.1, who is a resident of Oo.Maramangalam Village, Omalur Taluk. (b) On 27.01.2004 at 04.45 p.m., P.W.2, who is a resident of the same village, was returning through Motur after going to the Sandhai (market). At that time, he heard the wordy quarrel between the accused and the deceased. P.W.2, on his way, met P.W.1, the father of the deceased, at Ilavamathur and informed him about the wordy quarrel between the deceased and the accused. P.W.1 went to the house of the accused along with P.W.3, who is also a resident of Oo.Maramangalam Village, in a T.V.S. 50 two wheeler and they reached the house of the accused at 5.20 p.m. At that time, P.Ws.1 and 3 found the accused strangulating the deceased with a nylon saree. P.W.1 asked the accused to leave her and caught hold the hand of the accused and in spite of the same, the accused strangulated the deceased. The deceased fell down. P.W.1 sprinkled water on her face and poured it into her mouth. But the water came out and the deceased died instantaneously. The accused ran away from the scene. P.W.1 sent a word to his wife and other relatives through P.W.3 about the occurrence. (c) Thereafter, P.W.1 went to Omalur Police Station and gave a complaint to P.W.10, the Inspector of Police, on 27.01.2004 at 8.30 p.m. On the basis of the complaint, Ex.P-1, P.W.10 registered a case in Crime No.60 of 2004 for the offence under Section 302 IPC. Ex.P-16 is the express First Information Report. (d) P.W.10 went to the scene of occurrence at 10.00 p.m. He prepared an observation mahazar, Ex.P10 and drew a rough sketch, Ex.P-17. He held inquest on the dead body from 11.00 p.m. to 2.00 a.m. Ex.P-18 is the inquest report. During inquest, he examined P.Ws.1, 2, 3 and others. He made arrangements to take photograph of the scene of occurrence. Ex.P-19 series are the photographs and Ex.P- 20 series are the negatives. Thereafter, P.W.10 sent the body for post-mortem. (e) The Doctor, P.W.5, attached to Government Mohan Kumaramangalam Medical College Hospital, Salem, conducted post- mortem, as per the requisition under Ex.P-8, on 28.01.2004 at 1.30 p.m. He found the following injuries:- i.A transversely oblique ligature mark present over the neck measuring 27cm x 2cm. On dissection of neck, a contusion present on the right side of neck measuring 6cm x 3cm x 1cm and over left side of neck measuring 7cm x 4cm x 1cm. Hyoid bone is intact. Fracture of Thyroid cartilage present. The https://hcservices.ecourts.gov.in/hcservices/ base of ligature mark is contused and haemorrhagic. ii.A contusion present over the right fronto-parietal region of the scalp measuring 8cm x 4cm x 1cm; a contusion on the left eye lids measuring 3cm x 2cm x 1cm and 2cm x 1cm x 0.5cm; a contusion on left temporal region of scalp measuring 6cmx 3cm x 1cm. Ex.P-9 is the post-mortem certificate issued by the Doctor, P.W.5, wherein he has opined that the deceased would appear to have died as a result of asphyxia due to strangulation about 28 hours prior to post-mortem. (f) P.W.10, in continuation of his investigation, examined the other witnesses on 28.01.2004 and on 29.01.2004. He has arrested the accused on 31.01.2004 at 2.00 p.m. at Motur. In pursuance of the admissible portion of the confession statement given by the accused, Ex.P-12, P.W.10 recovered M.O.2, a stick, under Ex.P-15. Thereafter, the accused was remanded to judicial custody. On 03.02.2004, P.W.10 examined the doctor, P.W.5, who has conducted the post-mortem and other witnesses. Inside the scene of occurrence, he drew a rough sketch, Ex.P-21. He also recovered M.O.3, an orange colour jacket, M.O.4, a nylon saree, M.O.5, a red colour petticoat, under Form-95, as produced from the body of the deceased. P.W.10, after receiving the post-mortem certificate, Ex.P-9 and after completing the investigation, filed the charge sheet against the accused on 29.04.2004 for the offence under Section 302 IPC. 3. When the accused was questioned under Section 313 of the Code of Criminal Procedure in respect of the incriminating materials appearing against him, the accused has come forward with a version of total denial and stated that he was not at all present at the time of occurrence at the scene. On the side of the prosecution, 10 witnesses were examined as P.Ws.1 to 10, 21 documents were marked as Exs.P-1 to P-21 and 5 materials objects were produced as M.Os.1 to 5. On the side of the defence, the accused has examined D.W.1, who, in his evidence, has stated that on 27.01.2004 at 5.30 p.m., the accused came to his house and at 7.30 p.m., D.W.1 received a phone call from one Murugesan that the wife of the accused has committed suicide at the house of the accused. 4. Mr.K.Selvaraj, learned counsel appearing for the appellant, contended that the prosecution has not come forward with a clear and cogent version and the prosecution failed to prove its case against the accused beyond all reasonable doubts. It is further submitted that there is absolutely no motive for the accused to attack the deceased. It is contended by the learned counsel that there are contradictions in material particulars between the evidence of the eye witnesses, P.Ws.1 and 3. According to the learned counsel, though P.W.1 claimed, in his evidence, that soon after he went to the scene of occurrence, he found the accused strangulating the deceased, in his report, Ex.P-1, it is stated by P.W.1 that when he went to the scene of occurrence, he found the accused and the deceased https://hcservices.ecourts.gov.in/hcservices/ quarrelling with each other in respect of inviting him and others for the Kaliamman temple festival. The learned counsel would contend that P.W.3 could not have witnessed the occurrence, as it is P.W.1, who made attempts to prevent the accused from strangulating the deceased and only on hearing the noise of P.W.1, P.W.3 entered the house of the accused and saw him running away from the scene. It is further contended that P.W.3 has not mentioned about the registration number of the TVS 50 two wheeler, by which, he has taken P.W.1 to the scene of occurrence. It is further pointed out that P.W.3 admitted, in his cross examination, that though he saw P.W.2 while he was going to the tea shop, P.W.2 has not told anything about the quarrel between the accused and the deceased to him. Therefore, it is submitted that the accused could not be convicted only on the basis of the interested witness of P.W.1, who is the father of the deceased. The learned counsel, without prejudice to his earlier contention, submitted that even assuming that the accused is responsible for the death of the deceased, the entire occurrence took place only due to a wordy quarrel in respect of a petty dispute between the accused and the deceased and as such, the accused could not be attributed with the intention of causing the death of the deceased and hence, the conviction and sentence imposed on the accused for the offence under Section 302 I.P.C. are liable to be set aside. 5. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor, contended that the prosecution has proved its case by adducing clear and cogent evidence through the eye witnesses, P.Ws.1 and 3. It is submitted that the prosecution also proved the motive, as the same is mentioned in Ex.P-1, report, itself. The learned Additional Public Prosecutor would further contend that the evidence of the eye witnesses, P.Ws.1 and 3, is also corroborated by the evidence of P.W.2, as he has spoken about the wordy quarrel between the accused and the deceased. It is pointed out that the evidence of the eye witnesses, P.Ws.1 and 3, is also corroborated by the medical evidence through the doctor, P.W.5, as it is opined by the Doctor that the deceased died as a result of asphyxia due to strangulation. Therefore, it is submitted that the prosecution has proved its case in all aspects beyond reasonable doubt against the accused. 6. We have given our careful and anxious consideration to the rival contentions put forth by either side and also thoroughly scrutinised the materials available on record and perused the impugned judgment of conviction. 7. The prosecution heavily placed reliance on the evidence of P.Ws.1 and 3, who are the eye witnesses in this case. P.W.2 speaks about witnessing the quarrel between the accused and the deceased and thereafter informing P.W.1, the father of the deceased, about the quarrel. Subsequently, P.W.1 went to the scene, viz., the house of the accused with P.W.3 and both P.Ws.1 and 3 witnessed the actual occurrence, in which, the accused strangulated the deceased with nylon saree. It is pertinent to be noted that even in the earliest https://hcservices.ecourts.gov.in/hcservices/ report, Ex.P-1, P.W.1 specifically mentioned about the motive, viz., the quarrel between the accused and the deceased regarding the invitation of P.W.1 and his family members for the Kaliamman temple festival. It is seen from the perusal of Ex.P-1, report, that the names of P.W.1 as well as P.W.3, the eye witnesses, were mentioned. We are unable to see any inconsistency between the evidence of P.W.1 and the report, Ex.P-1, given by him. The evidence of P.W.1 is also corroborated by the evidence of P.W.3, as both of them categorically stated about the actual occurrence, in which, the accused strangulated the deceased with nylon saree. The evidence of P.W.2 is also quite clear and natural, as he has not exaggerated his version and he has simply stated that on his way, he witnessed the quarrel between the accused and the deceased and informed P.W.1 about the same, as both of them met on their way and thereafter, P.W.1 has taken P.W.3 to the house of the accused and witnessed the occurrence proper. It is pertinent to be noted that the evidence of the eye witnesses, P.Ws.1 and 3, is also corroborated by the medical evidence through the Doctor, P.W.5, as the Doctor has opined, as per the post- mortem certificate, Ex.P-9, that the deceased died as a result of asphyxia due to strangulation. Therefore, we have no hesitation to hold that the deceased died due to homicidal violence and that too at the hands of the accused. 8. Now the remaining question, to be considered by us, is the nature of the offence said to have been committed by the accused. 9. As already pointed out that the motive put forward by the prosecution is too flimsy. Admittedly, the accused attacked the deceased due to petty quarrel, as the deceased questioned the accused about inviting her father, P.W.1, for the Kaliamman temple festival. P.W.1, the father of the deceased, has also not stated any other strong motive for the accused to cause the death of the deceased. As a matter of fact, P.W.1 has categorically admitted, in cross- examination, that till the date of the occurrence, both the accused and the deceased were leading a happy married life and they used to visit the house of P.W.1 frequently. P.W.2 has categorically stated that there was a wordy quarrel between the accused and the deceased and thereafter, he has informed P.W.1 about the same on his way. P.W.3, the yet another eye witness, has also categorically stated that even at the time of reaching the scene of occurrence with P.W.1, both the accused and the deceased were quarrelling with each other and only thereafter, the accused strangulated the deceased with a nylon saree. This version of P.W.3 is further strengthened by the report, Ex.P-1, given by P.W.1, as it is categorically stated that even at the time of reaching the house of the accused, both P.Ws.1 and 3 found that the accused and the deceased were quarrelling with each other in respect of inviting P.W.1 for the Kaliamman temple festival. The materials available on record, as stated above, make it crystal clear that there was a wordy quarrel for a long time right from P.W.2 witnessing the quarrel and thereafter, P.W.2 informing P.W.1 and P.W.1 in turn, requesting P.W.3 and subsequently, P.W.1 https://hcservices.ecourts.gov.in/hcservices/ went along with P.W.3 in his TVS 50 two wheeler to the scene of occurrence, viz., the house of the accused, which is situated in a different place, viz., Motur and even till such time, as pointed out earlier, both the accused and the deceased were quarrelling with each other. Therefore, the occurrence is preceded by a continuous wordy quarrel. The accused has also not fetched any weapon from outside and he has used the nylon saree, which was taken from the house. Therefore, we are of the considered view that the accused could not be imputed with the intention of causing the death of the deceased. The above said sequence of events right from the wordy quarrel and culminating into the act of strangulating the deceased clearly shows that there is absolutely no time gap and the entire occurrence took place in a spur of the moment. It is also pertinent to be noted that the accused has taken the nylon saree of the deceased and strangulated the deceased and as such, he could be attributed with the intention of causing such bodily injury as is likely to cause death. Hence, we are of the considered view that the accused is liable to be convicted only under Section 304 Part-I IPC. 10. For the aforesaid reasons, the conviction imposed on the accused for the offence under Section 302 IPC. by the learned Principal Sessions Judge, Salem, in S.C.No.422 of 2005, is set aside and instead, the accused has been convicted for the offence under Section 304 Part-I I.P.C. and sentenced to undergo 7 years rigorous imprisonment. With the above modification in conviction and sentence, the appeal is disposed of. It is reported that the appellant is on bail. The learned Principal Sessions Judge, Salem District, shall take steps to commit the appellant to prison to undergo the remaining period of sentence. Bs/ Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Judicial Magistrate, Omalur. 2.-do- through the Chief Judicial Magistrate, Salem. 3.The Principal Sessions Judge, Salem. 4.The Inspector of Police, Omalur Police Station, Salem. 5.The Superintendent, Central Prison, Coimbatore. 6.The District Collector, Madras. 7.The Director General of Police, Madras. 8.The Public Prosecutor, High Court, Madras. + 1 cc to M/s. K. Selvaraj, Advocate SR No. 29406 KSK(CO)SR/25.6.2008 Crl.A.No.668 of 2006 https://hcservices.ecourts.gov.in/hcservices/