Bail Slip The Appellant/Accused was directed to release on bail in and by the order of this Court dated.19.2.2007 made in Crl.M.P.No.1/2007 in Crl.A.NO.133/2007 on the file of this High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.06.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.133 OF 2007 Muruganandham .. Appellant/Accused Vs. State represented by Inspector of Police, Pallikona Police Station, Vellore District (Crime No.367 of 2005) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge at Vellore made in S.C.No.81 2006, dated 29.01.2007. For Appellant : Mr.Margabandhu 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 Principal Sessions Judge,Vellore made in S.C.No.81 of 2006, whereby the accused/appellant tried, stood charged and found guilty under Section 302 IPC and awarded life imprisonment. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)P.W.5 is the father of the deceased Manjula. She was given in marriage to the accused/appellant and after the marriage, they lived 7 or 8 months jointly and due to strained relationship, she came to the parental house and on the advice given by her parents, she again https://hcservices.ecourts.gov.in/hcservices/ went to the matrimonial home. Thereafter, they were living happily. On the date of occurrence on 26.9.2005 at about 12.15 hours, PW2, an Auto Driver,when he was returning from Sriramapuram Kollai Kottai after dropping all the passengers, he heard the sound of cry of the deceased and he stopped the vehicle and went inside the house and found the deceased and accused quarrelling with each other and one beating other and thereafter he pacified the situation and left the place. On 26.9.2005 at about 7.30 hours, one Ravi informed to P.W.5 Ramachandran that his daughter Manjula died and immediately he went to the place of occurrence and found the dead body and he informed to P.W.1, the Village Administrative Officer b. PW1, the Village Administrative officer was in his office at about 11'O clock along with his Assistant Soundararajan.The accused/appellant appeared before him and gave extra judicial confession and the same was recorded and which is marked is Ex.P.1. c)Thereafter, P.W.1 proceeded to the respondent police station where PW.9. was on duty. Then he produced the accused and also gave a complaint Ex.P.2 along with the statement given by the accused viz., Ex.P.1 and on the strength of Ex.P.2, a case came to be registered in Crime No.367/2005 under Section 302 IPC. Ex.P.16, the F.I.R. along with the documents were sent to the Court. P.W.9 took up the investigation, went to the place of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.4, the observation mahazar and Ex.P.17, the rough sketch. He also recovered bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. Then, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.18, the inquest report. Then, the dead body was sent for the purpose of post-mortem. d)P.W.6, the Doctor attached to the Government Hospital, Vellore, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.9, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of asphyxia due to strangulation between 30 to 34 hours prior to autopsy. e)Thereafter, a requisition Ex.P.10 was forwarded to the Judicial Magistrate, V,Vellore for sending the viscera for analysis. Ex.P.11 another requisition was also forwarded to the Judicial Magistrate to send the hyoid bone for chemical examination P.W.9 arrested the accused. All the M.Os. are subjected to chemical analysis on a requisition made which is Ex.P.12 given by the Investigating officer through the Judicial Magistrate No.5,Vellore who in turn sent a requisition to the Forensic Department. All the material objects recovered were subjected to chemical analysis by the Forensic Science laboratory, which resulted in Ex.P.14, the Biological report.Ex.P.15, the Serologist's report and P.W.9, the Inspector of Police, took up further investigation and on completion of the investigation, he filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 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 9 witnesses and also relied on 19 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, the accused were 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. No defence witness was examined. 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 found him guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of accused/appellant herein. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution did not prove the case beyond reasonable doubt. The prosecution has examined PW.2, an Auto-Driver, according to him, there was a quarrel and he also pacified the situation and there were no other eye witness to the incident. PW2 was not examined as an eye witness. The extra judicial confession alleged to have been given by the accused to PW1. According to PW1, the Village Administrative Officer, while he was in his office at 11 a.m. the accused came there and gave an extra judicial confession and the same was recorded by him which is marked as Ex.P.1. But, this evidence of PW1 does not relied on by PW5. According to PW5 when he went to the house of Manjula, he found the dead body and the accused/appellant was also present in the place of occurrence. PW1, the Village Administrative Officer, came to the house where the dead body was found and the accused was taken to the Police Station and thus from the evidence of PW5, the claim of PW1 that the accused appeared before the Court and gave a confessional statement, cannot be false. The entire case rests only on that evidence and if a part of evidence is not believed, then the prosecution had no legs to stand. Under such circumstances, the trial court should have acquitted the accused, but had taken an erroneous view. Added further the learned counsel that the other part of the evidence was of no legal consequence and hence it is a fit case where the judgment of the trial Court has got to be set aside. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that Manjula,daughter of PW5 and the wife of the accused was actually done to death following the incident that had taken place at the night hours on 26.9.2005. After the inquest was made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.6 Doctor and the Doctor who has given his categorical opinion that the deceased would appear to have died of asphyxia due to strangulation. The fact that the deceased died out of homicidal violence was never disputed by the appellant before the trial court and hence it has got to be recorded so. https://hcservices.ecourts.gov.in/hcservices/ 7.In order to substantiate the case of the prosecution that it was the accused who caused the death of his wife, the prosecution had no direct evidence at all. It rested entire case on circumstantial evidence and in particular, it rested its entire case on the extra judicial confession which is given by the accused to PW1, the Village Administrative officer of the concerned place. Before accepting the case of the prosecution, in a case like this, if it is rested upon the extra judicial confession, the Court must apply two tests. Firstly, under what circumstances the extra judicial confession was alleged to have been given by the accused and secondly whether the evidence of the person to whom extra judicial confession alleged to have been given inspires confidence of the Court. In the instant case, the occurrence has taken place on the night hours on 25.9.2005. According to PW1, the Village Administrative officer of the concerned place,the accused came to his office at 11 a.m. and he gave a confession statement which is marked under Ex.P.1 and he also recorded the presence of his Assistants. Immediately, when it is recorded, he prepared Ex.P.2 report and took him to the police station and Investigating Officer PW9 has registered the case. In the instant case, the contention put forth by the learned counsel for the appellant that when PW5,Ramachandran came to the house of his daughter and he found the dead body and his son-in-law, the accused/appellant was also present there. It is further to be pointed out that at the time when PW5 came to the place of the occurrence, the accused/appellant was also present. Even from the evidence of Village Administrative officer it is evident that the accused went to the office of the Village Administrative officer and gave a confessional statement and after recording the statement of the accused, the Village Administrative Officer went to the place of occurrence, verified and then he proceeded to the respondent Police Station to give a complaint along with the accused. The Court is unable to see any inconsistency in the evidence of PWs.1 and 5. Merely because PW5 said that his son-in-law, the accused/appellant was present in the house where the occurrence had taken place, it cannot be said that no statement was given to PW1, the Village Administrative Officer. Apart from this, the Court is unable to see any reason or circumstances why PW1, Village Administrative Officer should come before the Court of law and has given a false evidence against the accused/appellant. The evidence of PW1 orally made inspires the confidence of the Court. Under such circumstances, it has got to be accepted. Further, in the instant case, the cause of death has spoken to by the accused in his confessional statement recorded by PW1 under EX.P.1 and also it was spoken to by PW6, Postmortem Doctor. All the material facts found in the confessional statement Ex.P.1 stood fully corroborated by the medical evidence. Under the circumstances, the trial court is perfectly correct in placing the records of Ex.P1, the confessional statement to sustain the conviction. The prosecution has proved that it was the accused/appellant who caused the death of his wife which leaves no doubt in the mind of the court. 8. Insofar as the second line of argument, even assuming it was the act of the accused, this court is able to see force in the contention put forth by the learned counsel for the appellant. The https://hcservices.ecourts.gov.in/hcservices/ occurrence took place in the night hours. According to PW2, there was a quarrel between the spouses and one was beating the other. It was during night hour, when the accused was actually calling for intercourse, the deceased was not willing for the same. Hence, there was a wordy quarrel between them. Being provoked by the circumstances, the accused/appellant has acted so. In view of the circumstances attendant, the court is of the considered opinion that the act of the accused cannot be said to be one premeditated or pre- planned or intentional, but it was due to sudden quarrel and provocation. Hence the act of the accused would attract the penal provision of Section 304(I) IPC and awarding punishment of 7 years R.I. would meet the ends of justice. 9.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 appellant is ordered to be given set off. With the above modification in conviction and sentence, this criminal appeal is disposed of. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar VJY To 1.The Principal Sessions Judge, Vellore. 2.The Judicial Magistrate,No.V, Vellore. 3.-do-Thro'The Chief Judicial Magistrate,Vellore. 4.The Superintendent,Central Prison, Vellore. 5.The Inspector of Police, Pallikona Police Station, Vellore District. 6.The Public Prosecutor,High Court, Madras. 7.The District Collector, Vellore District. 8.The Director General of Police,Chennai. + 1 cc t Mr.R.Margabandhu,Advocate,SR.26212 Copy to : The Section Officer, Criminal Section, High Court, Madras. CRL.A.NO.133 OF 2007 GR(CO) EM/10.7.09 https://hcservices.ecourts.gov.in/hcservices/