Bail Slip Crl.Appeal No.521 of 2006 The Appellant/Accused viz, Chokkalingam, S/o. Kiddappa was released on bail as per the order of the court dated 3.1.2007 in M.P.No.1/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12-06-2008 THE HON'BLE MR.JUSTICE P.D.DINAKARAN AND THE HON'BLE MR.JUSTICE K.N.BASHA CRIMINAL APPEAL NO: 521 OF 2006 Chokkalingam .. Appellant/Accused Vs State rep.by Inspector of Police, Kelamangalam Police Station, Kelamangalam. Dharmapuri District. (Crime No.67 of 2002) .. Respondent/Complainant Appeal filed under Section 374 (2) Cr.P.C against the judgment dated 19.4.2005 made in S.C.No.366 of 2002 on the file of the learned I-Additional District and Sessions Judge, Dharmapuri at Krishnagiri. For appellant : Mr.B.Rajamani For respondent : Mr.N.R.Elango, Addl.Public Prosecutor JUDGMENT (Judgement of the Court was delivered by P.D.DINAKARAN,J.,) The appellant was put up for trial in S.C.No. 366 of 2002 before the learned I-Additional District and Sessions Judge, Dharmapuri District at Krishnagiri for uxoricide and was found guilty, convicted and sentenced under Section 302 IPC to undergo imprisonment for life and also to pay a fine of Rs.1000/-, in default to undergo rigorous https://hcservices.ecourts.gov.in/hcservices/ imprisonment for one year. The conviction and sentence is under challenge in the present appeal. 2. The Inspector of Police, Kelamangalam Police Station, laid a charge sheet stating that between 5.30 pm., on 16.2.2002 and by 2.30 a.m., on 17.2.2002, the appellant Chokkalingam suspecting the fidelity of his wife Prema, with the intention to kill, assaulted her indiscriminately with his hands and kicked her with his legs on the abdomen and dashed her head in the wall and caused injuries to head, abdomen, cheek and right shoulder, thereby the said Prema died of effects of multiple injuries on 17.2.2002 at 7.00 a.m., and thus, committed the offence punishable under Section 302 IPC. 3. When the accused was initially questioned with regard to the charges levelled against him, the accused denied them and requested for trial. To sustain the charge levelled against the accused, the prosecution relied upon the ocular version of P.Ws.1 to 16 and adduced Exs.P1 to P.13. 4. The case of the prosecution, as unfolded by the prosecution witnesses, is as under:- (a) P.W.1 Venkatammal alias Saroja is the mother of the deceased. She deposed that her deceased daughter Prema was working as a Supervisor in a Primary School at Kelamangalam and the accused was working in a Bank at Kelamangalam. The children of the deceased and the accused were put up in the Hostel since there were frequent quarrels between the father and mother which was not conducive for their studies. It is her evidence that her daughter very often used to come to her residence complaining about the picking up of quarrel and beating by the accused after consuming liquor. On one such occasion, the deceased sustained severe head injury and every time, P.W.1 and her husband used to pacify them. According to her, one day prior to the death, she had seen the deceased doing normal activities, and on the next day she was informed by one Watchman about the death of her daughter. When she went to the place of occurrence, she saw injuries on the chest and fore head of the deceased and foam was discharging fromh er mouth and nose. Thereafter her husband went to the Kelamangalam Police Station and gave Ex.P.7 complaint. (b) P.W.2, Sarojini is sister of the deceased residing at Krishnagiri. P.W.2 deposed that the deceased often complained of the harassment and beating by the accused and once he had broken her hands and P.W.2 gave treatment to the deceased at Krishnagiri and sent back. It is also stated by her that Panchayat was held twice. She also saw the deceased with injuries on her chest, abdomen and fore head. https://hcservices.ecourts.gov.in/hcservices/ (c) P.W.4, a nearby resident, though later turned hostile, deposed in the chief examination that he had seen the deceased washing the cloths at 5.00 pm., one day prior to her death and at that time, the accused was also present. Thereafter he had not seen the deceased and only on the next day at 3.00 pm., he came to know about the death of the deceased. P.W.5, who is having her residence three houses from the house of the deceased also stated that on 16.2.2002 (Saturday) she had seen the deceased in her house at 5.30 p.m., and at that time the deceased was screaming unable to bear the beating by the accused. (d) P.W.6, brother of the deceased, deposed about the frequent quarrel between the accused and the deceased and Panchayats done by the parents of the accused. He also stated that the accused is addicted to drink and whenever he drinks he used to pick up quarrel with the deceased. It is only P.W.6 who had first seen the dead body of the deceased on 18.2.2002 at 3.30 pm., when he went there to get some money. (e) P.W.7 is the daughter of the deceased and accused. P.W.7 stated that her father used to beat her mother whenever he drinks and her mother would go to the grandmother's house. She had also seen the deceased mother with injuries on her head and chest. (f) P.W.8 is another independent witness who is residing 40 feet away from the place of occurrence. According to this witness, he has seen the deceased both in the morning and evening on 17.2.2002. He heard the heated wordy quarrel between the accused and the deceased between 7.00 p.m., to 12.00 p.m., and thereafter he did not hear anything. Only on the next day at about 3.30 pm., he came to know about the death of the deceased. He also went along with others and saw the body with injuries on the head and chest. (g) P.W.9, who is a friend to the father of the deceased deposed that after marriage, there were frequent quarrels between the accused and the deceased and many times he used to pacify them. On the fateful day, when he was standing in the Morappur Bus stand at 1.00 pm., along with one Krishnan to go to Pallikonda, the deceased in an inebriated mood came near them and told that he had killed his wife after beating her severely. As he was in a drunken mood, P.W.9 did not believe his statement and left for Pallikonda. (h) P.W.14 is the Police Constable who registered the complaint of Thimmarayan, father of the deceased in Crime No: 67 of 2002 under Section 174 Cr.P.C., as a suspicious death and forwarded the FIR Ex.P.8 to the Inspector of Police, Rayakkottai Police Station. P.W.16 is the Investigating Officer. On receipt of the FIR copy on 18.2.2002 at about 6.15 a.m., P.W.16 visited the place of https://hcservices.ecourts.gov.in/hcservices/ occurrence at 7.00 a.m., and prepared Observation Mahazar Ex.P.3 and Rough Sketch Ex.P.11 in the presence of witnesses. He conducted an inquest on the body of the deceased in the presence of the witnesses and obtained statements from them. Ex.P.12 is the inquest report. Thereafter he arranged to send the body for autopsy to the Government Hospital, Denkanikottai through Head Constable, P.W.12. (i) P.W.15, Doctor who conducted post-mortem over the dead body of the deceased found the following external and internal injuries:- External Injuries:- 1. A bluish contusion 4 cm dia over the right cheek below eye. 2. A bluish contusion 30 x 20 cm on the right temporal parietal region 3. A bluish contusion of 10 cms dia on the left and lateral side of abdomen. 4. Abnormal mobility of the right shoulder joint felt. Dislocation of right shoulder joint c/s. Right shoulder dislocated. Internal Injuries: 1. There is collection of clotted blood 10 ml diameter seen on the peritoneal cavity of the (n.c) of the small intestine in the abdomen. 2. Heart – 225 gms c/s. Empty 3. Lungs: Right 350 gms. Left – 300 gms c/s congested. 4. Hyoid Bone: Intact 5. Stomach: contain 250 ml of brownish fluid with rice particles. 6. Liver: 1000 gms c/s. Congested 7. Spleen: 90 gms c/s. Congested 8. Kidneys: 100 gms c/s congested 9. Uterus: Normal in size. Not Pregnant. On opening Skull: On opening the vault of skull collection of blood clot present from frontal to occipital region. Membranes intact. Brain: Right hemisphere smeared with blood. Collection of clotted blood on the posterior cranical fossa of right side. Weight 1000 gms. (j) P.W.15, issued Ex.P.10 Post-mortem certificate and also opined that the deceased would have died of shock and haemorrhage due https://hcservices.ecourts.gov.in/hcservices/ to injuries to vital organs like brain, peritoneum. (k) P.W.16, Investigating Officer, while continuing his investigation obtained statements from the witnesses including the Doctor who conducted Post-mortem and also the Post-mortem certificate Ex.P.10 from him. Thereafter altered the crime from Section 174 Cr.P.C.,into Section 302 I.P.C., and sent report to the concerned Judicial Magistrate's Court. He also enquired the father of the deceased Thimmarayan and other witnesses. On receiving information he arrested the accused on 22.2.2002 at 9.30 a.m., near Kelamangalam- Uthanappalli Koot Road in the presence of witnesses who volunteered to give confession statement. He sent the Viscera of the deceased for chemical examination. After completing his investigation, P.W.16 laid the final report on 15.3.2002 for the offence punishable under Section 302 IPC. 5. After conclusion of the prosecution evidence, the appellant was questioned under Section 313 Cr.P.C., with regard to the incriminating materials adduced by the prosecution against him, for which, the appellant denied complicity of the commission of the offence. Neither oral, nor documentary material has been produced on the side of the defence. The learned Sessions Judge after hearing the oral arguments of both sides, documentary evidence and material object, convicted and sentenced the appellant as mentioned earlier. Aggrieved against the same, the present appeal is preferred. 6. Learned counsel for the appellant contended that this case being purely based on circumstantial evidence alone, no one speaks about the motive and thus the very charge of fidelity being the cause for the frequent quarrel is not supported by any evidence. Further, there is no external injuries on the deceased to conclude that the accused had caused the death of the deceased. He also contended that P.Ws 3,5 and 6 have turned hostile and there is contradiction with regard to time in obtaining the statement from P.W.8. 7. However, the learned Additional Public Prosecutor, contended that the motive as well as the commission of the offence by the accused has been established beyond all reasonable doubts by the prosecution. He has placed reliance on the oral evidence of the prosecution witnesses and also the medical evidence. 8. We have given our careful and anxious consideration to the rival contentions put forward by either side and also perused the entire materials available on record and considered each and every circumstance put forward by the prosecution. 9. A perusal of Ex.P.10, Post-mortem certificate would show that the deceased had contusions in her cheek,right temporal parietal region, left and lateral side of abdomen and dislocation of right shoulder. There was collection of blood clot present from frontal to https://hcservices.ecourts.gov.in/hcservices/ occipital region and the Right hemisphere smeared with blood. There was also collection of clotted blood on the posterior cranical fossa of right side. P.W.15, the Doctor who conducted the post-mortem also opined that the deceased would have died of effects of multiple injuries to vital organs like brain and intestine. Thus, the external and internal injuries found on the body of the deceased would lead to the inescapable conclusion that it is a homicidal death. 10. Now, the point that arises for consideration in this appeal is whether the prosecution has brought home the guilt of the accused beyond all reasonable doubts? 11. The entire prosecution case rests on the circumstantial evidence. The law on the circumstantial evidence is now well settled by the Apex Court in a number of judgments. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Apex Court has held that while dealing with circumstantial evidence, before arriving at the finding that the accused is guilty of the offence, the following circumstances must be established:- (i) the circumstances from which the conclusion of the guilt is to be drawn should be fully established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and could not be explainable on any other hypothesis except that accused is guilty; (iii)the circumstances should be of conclusive in nature; and (iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance of probability. 12. In Padala Veera Reddy v. State of Andhra Pradesh (1989 Supp (2) SCC 706), the Apex Court has laid down the following tests for consideration in a case of circumstantial evidence: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." https://hcservices.ecourts.gov.in/hcservices/ 13. Thus, it is well settled by the decisions of the Hon'ble Supreme Court that the circumstances from which the conclusion of guilt has to be drawn should be fully proved and circumstances must be conclusive in nature to connect the accused with the crime. 14. In the light of the above well settled principle of law regarding the circumstantial evidence, let us now consider the circumstances put forward by the prosecution against the accused. 15. The prosecution placed reliance on the following circumstances : (a) there were frequent quarrel between the accused and the deceased which is substantiated by the version of the prosecution witnesses; (b) the last seen theory spoken by P.W.4 and P.W.8 in respect of the presence of the accused in the company of the deceased ; and (c) giving extra judicial confession to an independent witness and arrest after four days and voluntary confession. 16. Though in the charge it is alleged that the accused had been quarrelling with the deceased suspecting her fidelity, none of the prosecution witnesses speak about the motive of the accused with reference to fidelity. In fact, there is also no reference as to suspecting the fidelity in the FIR also. But, all the witnesses speak about the frequent quarrels between the accused and deceased that ensued whenever the accused consumes alcohol. P.W.1 is the mother of the deceased. P.W.2 is the sister of the deceased. They depose about the frequent quarrel between the accused and the deceased and in fact the accused on the earlier occasions had broken the hands and caused severe injury on the head of the deceased, for which, she had taken treatment from her mother and sister. P.W.9, an independent witness also speaks about the frequent quarrel and Panchayats done by him. In Ex.P.8, complaint also there is a mention about the frequent quarrel. P.Ws 3 to 6 and 8 being neighbours also depose about the frequent quarrel between the accused and the deceased. Above all, P.W.7, the daughter of the deceased also stated that whenever she comes to the house from the hostel on holidays, she had seen the accused-father beating the deceased-mother very often. It is the prosecution evidence that the two female children were left in the Hostel only due to the frequent quarrels which may not be conducive for their studies. Therefore, it cannot be said that there is no motive for the accused to kill the deceased. Though the complainant, namely the father of the deceased could not be examined, since he was not alive at the time of trial, the non examination of the complainant is not fatal to the case, when there are other incriminating evidence against the accused. https://hcservices.ecourts.gov.in/hcservices/ 17. As regards the last seen theory, it is the evidence of P.W.4, a neighbour, that on 16.2.2002 i.e., one day prior to the date of occurrence at 5.00 p.m., he had seen the deceased washing the cloths in her house and at that time, the accused was also present. P.W.8, who is also a neighbour, stated that he had seen the deceased on 16.2.2002 both in the morning and in the evening and that between 7.00 p.m., to 12.00 p.m., there was a quarrel between the accused and the deceased and he heard the screaming voice for some time. Both, P.W.4 and P.W.8 saw the dead body of the deceased on the next day at 3.30 pm., with multiple injuries. 18. It has been clearly established that the accused and the deceased were residing in the occurrence house at the time when the occurrence took place. Though they had two children they were in the Hostel at the occurrence time. It is not the case of the prosecution or the defence that some third person was living with them. So only they two were living in the house. The dead body of the deceased-wife was found with multiple injuries inside the house where the accused- husband and deceased-wife alone were residing there. P.W.4 and P.W.8 have last seen both the accused and deceased on the previous day evening i.e., Saturday. In such a circumstance, it is for the accused to explain as to how the body of Kannammal was buried inside the house where only they two were living. Ordinarily, if the wife was found missing, the husband would search for her. However, in this case, the husband after commission of the crime, absconded till his arrest after three days by the police. Therefore, it is for the husband to offer explanation as to how the dead body of his wife came to be found inside the house. Lack of such explanation on the part of the appellant itself would be an additional link in the chain of circumstances put against him. 19. In Trimukh Maroti Kirkan Vs. State of Maharashtra, reported in (2006) 10 SCC 681, it was observed:- "21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. 22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received https://hcservices.ecourts.gov.in/hcservices/ injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime". 20. Admittedly, in the case on hand, when the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, he has baldly denied the same except stating "untrue" and "do not know". Since no explanation being offered by the accused, it is a strong circumstance against the accused by drawing adverse inference against him and in favour of the prosecution case. 21. As regards the extra judicial confession, it is the evidence of P.W.9, an independent witness, that after marriage, there were frequent quarrels between the accused and the deceased and many times he used to pacify them. When he was standing on 17.2.2002 at 1.00 p.m., in the Morappur Bus stand along with one Krishnan to go to Pallikonda, the deceased in an drunken mood came near them and told that he had killed his wife after beating her. As he was in an intoxicated condition, P.W.9 did not believe his statement and left for Pallikonda. P.W.16 is the Investigating Officer who also deposed that on 22.2.2002 at 9.30 a.m., the accused was arrested in the Kelamangalam-Uthanapalli Koot Road and he gave the confessional statement voluntarily in the presence of witnesses. P.W.11, Village Administrative Officer, who stood as a mahazar witness for the same corroborates the voluntary confession statement given by the accused. There is no necessity for the independent witnesses, who have no axe to grind, to falsely implicate the accused. 22. As regards the contention that no external injuries were found even as seen from the postmortem certificate, particularly hyoid bone was also found to be intact, it is to be seen that there were three contusions and the nose and mouth of the deceased were filled with foam due to internal injuries sustained in the small intestine and brain. According to P.W.15, Doctor, there was blood clotting present from the frontal to occipital region and the right hemisphere smeared with blood. Clotted blood found on the posterior cranical fossa of right side of the brain. The Doctor opined that the deceased died of shock and haemorrhage due to bleeding injuries to vital organs like brain and peritoneum. Therefore, it cannot be concluded that merely because there is no severe external injury found on the body, the death is not probable. As regards the contention that hyoid bone was intact, it is not the case of the prosecution that the deceased was strangulated by the accused to cause her death. Further it is not necessary that fracture of hyoid bone is a must in all the cases of strangulation as held by the Apex Court in Ponnusamy Vs. State of Tamil Nadu reported in 2008 AIR SCW 3184. The prosecution case that the accused had severely beaten the deceased with his hands and legs on the abdomen, chest, face and https://hcservices.ecourts.gov.in/hcservices/ thrashed her head in the wall has been corroborated by medical evidence. 23. With regard to the contention that there are contradictions in the evidence of the Investigating Officer and P.W.8 as to the date of examination of P.W.8 by the Investigating Officer, it must be taken into consideration that depositions in the trial were taken after three years of the date of occurrence and further this trivial contradiction will not tilt the prosecution case in any manner as there are ample corroborative materials available against the accused to convict the accused. It is well settled principle of law that the courts should not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses. 24. Therefore, we are of the firm opinion that the prosecution has established beyond any reasonable doubt that the accused and the deceased were living together, there were frequent quarrels between them, which is spoken to by the neighbours and prosecution witnesses; and on the date of occurrence i.e., between 5.30 pm., on 16.2.2002 and 2.00 a.m., on 17.2.2002, there was a quarrel and P.W.4 and P.W.8, have last seen the deceased in the company of the accused on 16.2.2002 at about 5.30 p.m., on the date of occurrence itself the accused gave extra judicial confession before P.W.9, an independent witness; thereafter the deceased was not seen alive by anyone and on the next day when P.W.6, brother of the deceased, went inside the house, found the deceased with injuries on her abdomen, head and chest, and three days later accused was arrested who confessed the truth which was reduced into writing under Ex.P.12. Therefore, the prosecution has proved