BAIL SLIP CA NO.342/08 The Appellant / Accused was directed to be released on bail by the order of the Court dated 12.6.08 and made in Crl.MP.No.1/08. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.06.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.342 OF 2008 P.Rajendran .. Appellant/Accused Vs. State represented by Inspector of Police, Chinna Salem Police Station, Villupuram District (Crime No.103 of 2006 ) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District Sessions Judge(Fast Track), Kallakurichi made in S.C.No.74 of 2007 dated 30.11.2007. For Appellant : Mr.R.Sankara Subbu For Mr.P.Vijendran For Respondent: Mr.N.R.Elango, APP - - - - JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District Sessions Judge (Fast Track), Kallakurichi made in S.C.No.74 of 2007,whereby the sole accused/appellant stood charged for the offence https://hcservices.ecourts.gov.in/hcservices/ under Sections 302 and 506(2) IPC and on trial he was found guilty and life imprisonment was awarded to him under Section 302 IPC, while he was acquitted of the other charge. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)PW1 is the Village Administrative Officer.P.Ws.2 and 3 are the Village Assistants. When PW1 was in his office on 11.3.2006 at about 10 a.m. he was informed by PW2 that the accused /appellant had caused death of his wife at night hours on 10.3.2006. On receipt of information, he immediately proceeded to the house of the accused where the dead body was found. The accused also made an oral statement that due to family quarrel, he murdered his wife. The said extra judicial confession statement was made in the presence of PWs.2 and 3. PW1 immediately took the accused/appellant to the respondent police Station. b) PW17, Sub Inspector of Police, Chinna Salem Police Station at about 11.15 hours when he was in the Police station took the complaint given by PW1 which is marked as Ex.P.1 and on the strength of which a case has been registered in Crime No.103 of 2006 under Section 302 IPC. Ex.P.10, the Printed F.I.R. despatched to the Court. c) The investigation was taken by P.W.23 Inspector of Police, Chinnasalem Police Station. On receipt of the copy of First Information report, he proceeded to the scene of occurrence and examined the witnesses. He made Observation Mahazar Ex.P.2 and also prepared Rough Sketch Ex.P.14. He has also prepared rough sketch, where the dead body was kept which is marked as Ex.P.15. He conducted inquest on the dead body in the presence of panchayators and prepared Ex.P.16. Then, the dead body was sent for the purpose of post-mortem. d) P.W.16,the Doctor attached to the Government Hospital, Kallakurichi, on receipt of the requisition, has conducted post- mortem on the body of the deceased and has issued Ex.P.7, the post- mortem certificate wherein he has opined that the deceased would appear to have died of Asphyxia due to strangulation between 15 to 19 hours prior to autopsy. e) The Investigating Officer examined PWs4 and 5. P.W.5, the brother of the deceased has given a statement to the effect that he was present at the time of occurrence when the accused gave a blow on her head and also stabbed her and caused injury below her eyes and at that time, due to fear, he ran away from the place of occurrence. f) Pending investigation, P.W.23 arrested the accused and he has come forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible portion of confessional statement of the accused was marked as Ex.P.4. Pursuant to the confessional statement, the accused produced M.O.1 knife and M.O.2 stick which were recovered under a cover of Mahazar Ex.P.5.The other witnesses were examined. The witnesses were produced before https://hcservices.ecourts.gov.in/hcservices/ P.W.22, the Judicial Magistrate, Sankarapuram. who recorded the statement of the witnesses under Section 164 Cr.P.C. g) Thereafter a requisition Ex.P.17 was forwarded to the concerned Judicial Magistrate for sending the viscera for analysis. Ex.P.8 another requisition was also forwarded to the Judicial Magistrate to send the Material objects for chemical analysis. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department. Accordingly, the Viscera report Ex.P.7 and Hyoid Bone report Ex.P.9 were obtained. . The accused was sent for judicial remand. P.W.16,after further investigation and on completion of the investigation, 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 examined 23 witnesses and also relied on 18 exhibits and 4 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. The accused flatly denied the same as false. On the defence side, one Sundaramoorthy, Village Administrative Officer was examined and through whom two documents were marked Ex.D1 and D2. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the accused/appellant herein. 4. Advancing the argument on behalf of the appellant, learned counsel for the appellant would submit that in the instant case, the gist of the case of the prosecution was that on the night hours of 10.3.2006, the accused/appellant murdered his wife. The prosecution has examined PW5, the only eye witness to the occurrence. According to PW5, he was present at the time of occurrence. He saw the accused attacking the deceased on her head with stick and caused injuries below her eyes. The evidence of PW5 had been rightly rejected by the trial Court, in view of the medical opinion canvassed, since no corresponding injury was found elsewhere. On the contrary, the postmortem doctor has given a categorical opinion that she died out of Asphyxia due to strangulation. No corresponding evidence was available for the prosecution. The prosecution further made much reliance on the extra Judicial confession alleged to have been given by the accused to PW1, the Village Administrative Officer in the presence of Pws.2 and 3. Learned counsel would further add that, had it been true that PW1 should have recorded such a confessional statement, PW1 would claim that such an extra judicial statement though made should have been reduced into writing, but he had orally heard and informed to the police officer and the police officer who in turn after registering the case recorded the confessional statement of the accused and thus the evidence adduced by the prosecution through PW1 was the weakest piece of evidence and on that ground the conviction should not be sustained. Added further the learned counsel that in the instant case the alleged recovery of https://hcservices.ecourts.gov.in/hcservices/ knife and stick viz.,Mos.1 and 2 respectively, pursuant to the confessional statement were nothing but cooked up for the purpose of strengthening the prosecution case. Under such circumstances, all those records have been created to suit the convenient of the prosecution case. The ocular testimony projected by the prosecution through the above witnesses stood fully corroborated by the medical evidence. Barring this, the police officer has recorded the confession statement by reducing the same into writing. The prosecution had bereft of evidence. The prosecution had no direct evidence at all. But the lower court has taken an erroneous view and found the evidence recorded and hence the accused is entitled for acquittal. 5. The Court heard the Additional Public prosecutor on the above contentions and the Court paid its anxious consideration. 6. It is not in controversy that Valarmathi, wife of the accused made a homicidal death. Following the inquest made, the Investigating officer PW23 subjected the dead body to post mortem and the doctor opined that the deceased died due to strangulation and apart from this, the accused made homicidal violence which was never questioned by the appellant/accused before the trial Court. Under such circumstances, it has to be recorded so. True it is, the prosecution in order to substantiate that it was the accused/appellant who caused her death had no direct evidence to offer. The prosecution rested its case entirely on circumstantial evidence. First of all, on the date of occurrence, both the accused and the deceased were stayed together. The fact that she died due to homicidal death was never disputed by the trial court. Under such circumstances, the responsible answer would be expected from the husband who stayed with her,while she died due to homicidal violence. In the instant case, PW5 was the eye witness. The mere relationship of the eye witness with the deceased cannot by itself be a reason to reject the testimony. But, it must be subjected to criminal test. In the instant case, according to PW5, he was at the field work along with PW4 and also the deceased and the appellant and at that time they were actually quarrelling due to which he attacked his wife with a stick on the head and also attacked her with a knife below both the eyes and at that juncture, when he was about to intervene, it was the deceased who asked him not to come nearby and to escape. Immediately, accompanied by PW4, Pw5 ran away from the place of occurrence. Now at this juncture, the evidence of PW5 has got to be tested from the post mortem certificate. Now a perusal of the postmortem certificate would clearly reveal that there is a simple injury found on the head and contusions found both in the eyes. Even the evidence of PW5 is found to be exaggerating. Falsus in uno falsus in omnibus has no application under Indian Legal Criminal jurisprudence. From this, the evidence of PW5 and the injuries found and noticed by the post mortem doctor as shown in the postmortem certificate would clearly reveal that such an occurrence had taken place. It is pertinent to point out that PW5 was not available till the death was caused. In the middle, when the occurrence was going on, PW5 ran away from the place of the occurrence. Therefore, no one spoke about the strangulation of the deceased by the accused. The prosecution has taken advantage of the https://hcservices.ecourts.gov.in/hcservices/ evidence taken out by the Village Administrative Officer of the said place, which is fully corroborated by Pws2 and 3. It was Pws2 and 3 who met the accused first to whom he has informed about the occurrence. Thereafter, he in turn informed PW1 and PW1 went to the scene of occurrence, found the accused near the dead body. At that time, he made a oral confession that it was he who caused the death of his wife due to the quarrel and it is true that PW1 has not reduced the confessional statement into writing and this by itself cannot be a reason to reject the testimony. It is settled principle of law in a case like this that before accepting the extra judicial confession, the Court must apply two tests. Firstly, when and under what circumstances the accused gave extra judicial confession and secondly whether the evidence of the person to whom extra judicial confession is given inspires confidence of the Court. In the instant case, PW1, the Village Administrative Officer of the said place, Pws2 and 3 the assistants of Village Administrative Officer belonged to the same place. From the evidence they are acquainted with the deceased and accused who made oral confessional statement within a short span of few hours and immediately PW1 on the confession statement made by the accused took him to the police station and a case has been registered immediately for the offence of murder and thereafter, the accused has come forward to give confessional statement voluntarily which was reduced into writing. The witnesses have also spoken to that effect. Pursuant to the confessional statement, the accused produced stick and knife. They have also been recovered under Ex.P5 Mahazar. Now all would go to show that in the instant case, the accused who was found near the dead body, that too, after the occurrence did not give explanation as to how the death was caused to his wife and also extra judicial confession made to PW1 in the presence of Pws2 and 3 and following the recovery of Mos, pursuant to the confessional statement recorded by the police officer that it was the accused who has committed the crime of causing the death of his wife and none else. In the face of the such circumstances, the contention put forth by the learned counsel for the appellant and recorded above, do not carry merit any merit whatsoever. They are liable to be rejected and accordingly rejected. 7. In so far as the second line of argument is heard, the accused has acted due to the quarrel between the spouses is spoken to even by PW5 eye witness and the witnesses examined by the prosecution. Even in the extra judicial confession statement it has been categorically stated that there was a quarrel between the spouses at the time of occurrence and following which he has acted. Thus, it would be quite clear that the act of the accused not pre- medicated or intention, but was due to the sudden provocation due to the quarrel between the accused. Under the circumstances, the act of the deceased cannot attract penal provision of murder, but penal provision under Section 304(1) IPC of the Code and awarding 7 years RI would meet the ends of justice. 8.Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are set aside and instead, the appellant is convicted under Section 304(I) IPC and is directed to undergo 7 years R.I. The period of sentence already undergone by the https://hcservices.ecourts.gov.in/hcservices/ appellant is ordered to be given set off. With the above modification in conviction and sentence, this criminal appeal is disposed off. VJY Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar To 1.The Additional District Sessions Judge, Fast track, Kallakurichi 2.Do Through The Principal Sessions Judge, Kallakurichi. 3. Inspector of of Police, Chinna Salem Police Station, Villupuram District 4.The Additional Public Prosecutor, High Court, Madras. 5. The Judicial Magistrate, Kallakurichi. 6. The Chief Judicial Magistrate, Villupuram. 7. The Superintendent, Central Prison, Cuddalore. CRL.A.NO.342 OF 2008 BV(CO) GS/3/7/09 https://hcservices.ecourts.gov.in/hcservices/