IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.09.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.381 OF 2007 Elangovan .. Appellant/Accused Vs. The State of Tamil Nadu rep. by Inspector of Police, Marandahalli Police Station, Dharmapuri District (Crime No.357/2005) .. Respondent/Police This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of conviction and sentence made in S.C.No.192 of 2006, dated 14.03.2007 on the file of the Additional Sessions-cum-Fast Track Court, Dharmapuri. For Appellant : Mr.R.Selvakumar For Respondent : Mr.V.R.Balasubramanian, APP - - - - JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional Sessions Division, Fast Track Court, Dharmapuri made in S.C.No.192 of 2006, by the appellant, who was shown as sole accused and who stood charged under Sections 341 and 302 IPC and on trial, he was found guilty as per the charges and awarded one month R.I. under Section 341 IPC and life imprisonment along with fine of Rs.1000/- in default to undergo 3 months R.I. under Section 302 IPC. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)The accused is the husband of the deceased Jyothi. Three years prior to the occurrence, their marriage took place and they were living peacefully for a period of nearly 2-1/2 years. Then, https://hcservices.ecourts.gov.in/hcservices/ she developed illicit intimacy with one Vimal. There were often quarrels between the spouses and thereafter, she was living apart and was staying in her aunt's house. b)While the matter stood thus, on 01.08.2005 at about 8.30 p.m. near New Ambedkar Colony, Marandahalli, the deceased was throttled by the accused and thus, the accused caused the death of the deceased Jyothi. The same was witnessed by P.W.1. Immediately, the accused also attempted to commit suicide, but that was failed and he ran away from the place of occurrence. P.W.1 informed the same to P.Ws.2 and 3 and both of them rushed to the spot and found the dead body of the deceased. c)P.W.6, the Village Administrative Officer of Marandahalli, when he was in his office, the accused appeared before him and gave a confessional statement, which was marked as Ex.P.3. On the strength of the same, he made a report under Ex.P.4. Then, P.W.6 produced the accused and both the documents before P.W.9, the Inspector of Police of the respondent police station. On the strength of those documents, a case came to be registered in Crime No.357 of 2005 under Section 302 IPC and Ex.P.7, the F.I.R. was despatched to the Court. d)Investigation was taken up by P.W.9. He proceeded to the scene of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.5, the observation mahazar and Ex.P.8, the rough sketch. The scene of occurrence and the dead body were photographed by a photographer. Then, P.W.9 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.9, the inquest report. The dead body was sent to the Government Hospital, Palacode for the purpose of autopsy along with the requisition. e)P.W.5, the Doctor attached to the Government Hospital, Palacode, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased. She has issued Ex.P.2, the post- mortem certificate, wherein she has opined that the deceased would appear to have died of Asphyxia due to throttling. f)The accused was sent for judicial remand. The Investigating Officer examined the witnesses and on completion of the investigation, he filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution marched 9 witnesses and also relied on 9 exhibits and 5 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and looking https://hcservices.ecourts.gov.in/hcservices/ into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and has awarded punishment of life imprisonment, which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution, though examined 9 witnesses, relied on the evidence of P.Ws.1 to 3 as eyewitnesses; that even from the materials available, it would be quite clear that P.Ws.2 and 3 were not actually in the scene of occurrence at the time of occurrence; that they came later on intimation from P.W.1 and hence P.Ws.2 and 3 could not have seen the occurrence at all. 5.Added further the learned counsel that so far as P.W.1 was concerned, she has turned hostile and hence her evidence was not useful to the prosecution case; that in short, it can be stated that the prosecution had no direct evidence to offer; that the prosecution relied on the extra judicial confession alleged to have been made by the accused to P.W.6, V.A.O. at his office, which was marked as Ex.P.3; that there is no reason for the accused to proceed to the V.A.O. either or to give confessional statement to him, as put forth by the prosecution and hence the attendant circumstances would clearly indicate that such a confessional statement could not have been come into existence as put forth by the prosecution. 6.The learned counsel for the appellant would further add that according to P.W.3, he went to the spot and immediately, he took the deceased Jyothi to the hospital, where she was declared dead and thereafter, she was brought back again to the place of occurrence and left there; that the occurrence has taken place at about 8.30 p.m. and the police came to the place at about 9.30 p.m.; that the case has been registered at about 11.30 p.m. and the investigation was taken up; that all would go to show that such an extra judicial confessional statement, as put forth by the prosecution, could not have taken place at all and under these circumstances, the accused is entitled for acquittal. 7.The learned counsel would further submit that during matrimony, there was often quarrel between the spouses, since the deceased developed illicit intimacy with one Vimal and even at the time of occurrence, the quarrel preceded and the extra judicial confession relied on by the prosecution would clearly indicate the said fact. All would go to show that the quarrel preceded the occurrence and it could be seen that he called the deceased to live with him, but she refused and in that quarrel, he has acted so and therefore, the act of the accused was neither intentional nor premeditated and under these circumstances, the act of the accused cannot be taken as murder, but it would be one culpable homicide not amounting to murder and hence it has got to be considered by this court. https://hcservices.ecourts.gov.in/hcservices/ 8.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its full attention over the submissions made and also looked into the materials available. 9.It is not in controversy that one Jyothi, the wife of the accused, was done to death by throttling at the place and time of occurrence, as put forth by the prosecution. Following the inquest made by P.W.9, the Investigating Officer, the dead body was subjected to post-mortem by P.W.5, the Doctor, who has opined that the deceased would appear to have died of Asphyxia due to throttling. She has issued Ex.P.2, the post-mortem certificate to that effect. The deceased died out of the said cause was never questioned by the appellant at the time of trial or at any stage of proceedings. Under these circumstances, without any impediment, it has got to be recorded so. 10.In order to substantiate the fact that it was the accused, who strangulated and caused the death of the deceased, the prosecution relied on the evidence of three witnesses. P.W.1 was shown as eyewitness, but P.W.1 has turned hostile and thus, as rightly pointed out by the learned counsel for the appellant, the evidence of P.W.1 was not useful to the prosecution. So far as the evidence of P.Ws.2 and 3 are concerned, from the evidence it would be quite clear that they were intimated about the occurrence and they went to the spot and found that the accused also was standing nearby and he was attempting to commit suicide, but it was failed. This particular part of the evidence of P.Ws.2 and 3 is a strong circumstance against the accused that he was at the place of occurrence and was also near the dead body. But, he had no explanation to offer either for his presence or how the death of the deceased wife happened and thus, in the opinion of the court, this is the strong circumstance, which is against the accused. 11.Added further, in the instant case, extra judicial confessional statement was given by the accused to P.W.6, V.A.O. According to P.W.6, when he was in his office, the accused appeared before him and gave a confessional statement at 9.30 p.m. and he narrated the entire affairs and the same was reduced into writing, which was marked as Ex.P.3. On the strength of the same, he prepared a report under Ex.P.4. It was he who produced the accused before the police station along with Exs.P.3 and P.4 and a case came to be registered within a short time. At this juncture, the conviction could be sustained on the extra judicial confession, if the court is satisfied under the circumstances, in which such extra judicial confession was made and secondly, the evidence of the person to whom extra judicial confession is given has inspired the confidence of the court. In the instant case, P.W.6 was the V.A.O of the said place. Immediately, the accused was proceeding to him and narrated the circumstances which led him to commit the offence. Immediately, he was produced before the police along with Exs.P.3 and P.4. All would go to show that Ex.P.3, the extra judicial confession has come into existence as https://hcservices.ecourts.gov.in/hcservices/ put forth by P.W.6 and his evidence has inspired the confidence of the Court. Under these circumstances, this strong piece of evidence against the accused, in the opinion of the Court, would be sufficient to indicate that it was the accused who has strangulated the deceased and caused the death of his wife. 12.Insofar as the findings of the trial court in respect of the charge of murder, the contention of the learned counsel for the appellant, in the opinion of the court, has got force. In the instant case, even as per the evidence adduced, the deceased developed illicit intimacy with one Vimal, pursuant to which there arose quarrel between the spouses. After their marriage, they were living together for a period of 2-1/2 years and after the quarrel, she was living apart. On the date of occurrence, the accused called her to live with him, but she refused. Under these circumstances, there arose a quarrel, which provoked the accused to act so. Hence the act of the accused was neither intentional nor deliberate, but he was provoked by the said situation. Therefore, the court is of the considered opinion that the act of the accused would not attract the penal provision of murder, but it would attract the penal provision of Section 304(I) IPC and taking into consideration the totality of circumstances, awarding punishment of 10 years R.I. would meet the ends of justice. 13.Accordingly, the judgment of conviction and sentence imposed on the appellant under Section 302 IPC is modified and instead, the appellant is convicted under Section 304(I) IPC and is sentenced to undergo 10 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount imposed under Section 302 IPC shall be treated as fine amount imposed under Section 304(I) IPC. In other respects, the judgment of the trial court will hold good. 14.With the above modification in conviction and sentence, this criminal appeal is dismissed. vvk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1.The Additional Sessions Judge, Fast Track Court, Dharmapuri. https://hcservices.ecourts.gov.in/hcservices/ 2.-do- Through The Principal Sessions Judge, Dharmapuri. 3. The Inspector of Police, Marandahalli Police Station, Dharmapuri District. 4.The Additional Public Prosecutor, High Court, Madras. 5.The Superintendent, Central Prison, Vellore. 1 cc to Mr.R.Selvakumar, Advocate, SR.52045 vsv (co) dv/25.9. CRL.A.NO.381 OF 2007 https://hcservices.ecourts.gov.in/hcservices/