IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-1-2011 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.666 of 2010 Manickam .. Appellant/Accused vs State represented by: Inspector of Police Palacode, Dharmapuri District. (Crime No.1195/2008) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Dharmapuri, made in S.C.No.111/2009 dated 26.7.2010. For Appellant : Mr.Sankaran for Ms.S.Shanthakumari For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Dharmapuri, made in S.C.No.111/2009 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty of murder and awarded the punishment of life imprisonment along with a fine of Rs.2000/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the brother of the deceased Saroja. The accused/appellant is the husband of the deceased. The accused borrowed Rs.40000/- from the father of P.W.1. On all the times whenever there were demands, he was giving evasive answer. Subsequently, he was quarrelling with his wife, the deceased. On one occasion just 1 ½ years prior to the occurrence, he insisted his wife to sell the immovable property which was with her. But, she refused, and at that time, he attacked her with a koduval which resulted in the registration of a case by the respondent police in Crime No.465/2002, and the same was actually pending. Because of the same, they were living separately. (b) On the day prior to the occurrence that was on 27.11.2008, the puberty ceremony of the daughter of the deceased was scheduled to take place, and at that time, the accused also went over there. But, https://hcservices.ecourts.gov.in/hcservices/ he was not allowed to attend the function. Then, there was a wordy altercation between the accused and the deceased. He also took a vow that one day or the other, he would finish her off and so doing, went away. On the next day that was on 28.11.2008, when the deceased along with P.Ws.2 to 4 was proceeding to the sister's house situated at the place nearby Palacode Main Road at Madhiyan Thottam, the accused attacked her with a billhook as a result of which she died at the spot. Immediately, P.W.1 was informed about the occurrence. Then he rushed to the spot, and thereafter, he proceeded to the respondent police station. At about 10.30 A.M., he gave Ex.P1, the report, on the strength of which, P.W.13, the Sub Inspector of Police of the Station, registered a case in Crime No.1195/2008 under Sec.302 of IPC. Ex.P8, the printed FIR, was despatched to the Court. (c) On receipt of the copy of the FIR, P.W.14, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared Ex.P4, the observation mahazar, and also Ex.P9, the rough sketch. Then he recovered the material objects from the place of occurrence including the bloodstained earth and also the sample earth. Thereafter, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P10. Then the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (d) P.W.6, the Civil Assistant Surgeon, attached to the Government Hospital, Palacode, on receipt of the said requisition, has conducted autopsy on the dead body of Saroja and has given her opinion in the postmortem certificate, Ex.P3, that the deceased would appear to have died of shock and haemorrhage 8 to 14 hours prior to autopsy and injury to vital organ spleen and multiple stab injuries. (e) Pending investigation, the accused was arrested on 29.11.2008, and he came forward to give a confessional statement, which was recorded. The admissible part is marked as Ex.P6, pursuant to which he produced M.O.1, knife, M.O.4, shirt, and M.O.5, lunghi, which were recovered under a cover of mahazar. He was sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body, and also the material objects recovered from the accused pursuant to the confessional statement, were sent to the Forensic Sciences Department for the purpose of analysis, which brought forth two reports namely Ex.P13, the chemical analyst's report, and Ex.P14, the serologist's report. (f) P.W.15, the Inspector of Police, took up further investigation, and on completion of the same, filed the final report. 3.The case was committed to Court of Sessions, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 15 witnesses and also relied on 14 exhibits and 13 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the accused guilty and awarded the above punishment which is the subject matter of this appeal. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.Sankaran would submit that in the instant case, the prosecution has miserably failed to prove its case though it examined three witnesses; that P.W.2 is the sister and P.W.3 is the minor son of the deceased, while P.W.4 is the nephew of the deceased; that it is an admitted position that previously there was a quarrel between the spouses pursuant to which the appellant attacked his wife, and already a case was registered and also pending against the appellant/accused; that all these witnesses who are all family members of the deceased, have actually been aggrieved and under the circumstances, they have come forward to give false evidence. 5.The learned Counsel would further add that in the instant case, the medical opinion canvassed was actually against the prosecution case; that there are number of injuries on the dead body which were noticed by the Doctor, P.W.6, who conducted autopsy; that according to him, when there was a first cut made on her, it would have put an end to her life and thereafter, there could not have been any resistance from the side of the deceased; that under the circumstances, those injuries could not have happened thereafter; and that it would make it clear that P.Ws.2, 3 and 4 who have deposed that the first cut was fatal, could not have seen the occurrence at all. 6.Added further the learned Counsel that the alleged arrest, confession and recovery of M.Os.1, 4 and 5 were all only planted for the purpose of strengthening the prosecution case; that the evidence of the prosecution witnesses in that regard if carefully scrutinized, has got to be necessarily rejected; and that under the circumstances, the prosecution has miserably failed to prove its case; but the learned trial Judge has taken an erroneous view. 7.Added further the learned Counsel in the second line of his argument that there was actually a quarrel between the accused and the deceased on 27.11.2008 when the puberty ceremony was going on; that it is also admitted by all the witnesses that it was the puberty ceremony of the daughter of the accused/appellant; that quite natural he being the father, would have gone there to attend the function; but at that time, he was not allowed, and then there was a wordy altercation; that when he was not allowed to get in, it was highly shameful to him and that too in the presence of the relatives; that the same was actually lingering in his mind; that on the next day, the occurrence has taken place; that it is a case where the doctrine of sustained provocation has got to be applied; that if the Court takes a view that it was the accused/appellant who attacked his wife and caused her death as put forth by the prosecution, then it is a case where it cannot be termed as murder, but could be a culpable homicide not amounting to murder, and under the circumstances, this has got to be considered by the Court. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 9.It is not in controversy that one Saroja, the wife of the appellant, was done to death in an incident that had taken place at about 9.30 A.M. on 28.11.2008, at the place as put forth by the prosecution. Following the inquest made by P.W.14, the Inspector of Police, the dead body was subjected to postmortem by P.W.6, the Doctor, who has given a categorical opinion that she died out of shock and haemorrhage due to the injuries sustained by her. The cause of death that she died out of homicidal violence was never disputed by the appellant before the trial Court. Under the circumstances, no impediment was felt by the trial Judge in recording so and rightly too. 10.In order to substantiate that it was the accused who attacked his wife with a billhook at the time and place, the prosecution to its advantage, had three witnesses who were ranked as P.Ws.2 to 4 before the trial Court. It is true that all the three were sister, minor son and also the nephew of the deceased respectively. It is settled principle of law that merely because of the relationship of the witnesses, their evidence cannot be rejected, but before acceptance, the theory of careful scrutiny must be applied. Even after the application of this test, this Court is thoroughly satisfied that it is a case where the evidence has got to be accepted. All the three witnesses have spoken in one voice that there was a puberty ceremony of the daughter of the deceased on 27.11.2008; that when the function was going on, the accused/appellant came over there, but he was not allowed to get in, and then there was a wordy altercation between the accused and the deceased; that at that time, he made a vow and went away; and that on the next morning, when they were all proceeding near Madhiyan Thottam, he waylaid and attacked her with the billhook and caused her death instantaneously. It is pertinent to point out that all these witnesses were consistent in their version, and hence the trial Judge was perfectly correct in accepting their evidence. Further, despite the cross-examination, their evidence remained unshaken. 11.It remains to be stated that after the incident, a message was given to P.W.1, who rushed to the spot. Immediately he proceeded to the respondent police station and gave Ex.P1, the report, at about 10.30 A.M., and the case was registered within a short span of about 45 minutes. It is quite evident that there was a clear narrative of the entire incident by the witnesses. That apart, the medical opinion canvassed by the prosecution through the Doctor, who conducted autopsy, was in favour of the prosecution since it actually corroborates the ocular testimony. The contention put forth by the learned Counsel for the appellant that all the witnesses have spoken that the first cut was actually made which was fatal according to the medical opinion, and hence there could not have been any resistance thereafter, and the other injuries that were noticed, could not have been caused by the accused/appellant, and under the circumstances, P.Ws.2 to 4 could not have seen the occurrence at all cannot be countenanced for the simple reason that even after giving the first cut which was fatal, and despite the non-resistance, he was go on cutting her. In such circumstances, the medical opinion was to be taken as one in favour of the prosecution. https://hcservices.ecourts.gov.in/hcservices/ 12.Yet another circumstance noticed by the Court, is the arrest, confession and recovery of the material objects. Pursuant to the confessional statement voluntarily made by the accused, M.O.1, the weapon of crime, was actually recovered along with M.O.4, shirt, and M.O.5, lunghi, and they were all subjected to chemical analysis. Now the recovery of the weapon of crime from the accused pursuant to the confessional statement, was a strong piece of evidence which also stood in favour of the prosecution. Under the circumstances, the contentions put forth by the appellant's Counsel contra and recorded above, have got to be rejected. Thus the prosecution has proved that it was the accused who cut her with the billhook and caused her death instantaneously at the spot. 13.As far as the second line of argument is concerned, this Court is able to see force in the same. Admittedly, on 27.11.2008, the puberty ceremony of the daughter of the accused/appellant and also the deceased was taking place during which he made an attempt to attend the function. Accordingly, he went to the house, but he was not allowed. When the appellant father came to know about the puberty ceremony of his daughter, one would expect him to go. He has actually attended; but, he was not permitted to get inside the house. At that time, there was a wordy altercation between the husband and wife. At that place, it was actually shameful to him and that too, in the presence of the relatives, and hence it was lingering in his mind. Next morning, he has attacked her. In such circumstances, it is a case where actually sustained provocation is noticed. Therefore, the act of the accused could not be termed as murder, but be a culpable homicide not amounting to murder. He has got to be found guilty under Sec.304 (Part I) of IPC, and awarding a punishment of 10 years Rigorous Imprisonment under the above circumstances, would meet the ends of justice. 14.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant/accused under Sec.302 IPC, are set aside, and instead, he is convicted under Sec.304 (Part I) of IPC and is directed to suffer 10 years Rigorous Imprisonment. The sentence already undergone by him, shall be given set off. The fine amount imposed by the trial Court, will hold good. 15.In the result, this criminal appeal is, accordingly, disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Principal Sessions Judge Dharmapuri 2.The Inspector of Police Palacode, Dharmapuri District. (Crime No.1195/2008) 3.The Public Prosecutor High Court, Madras. 4. The Superintendent, Central Prison, Vellore. (In duplicate for communication to the accused) 5. The Public Prosecutor, High Court, Madras. 6. The Director General of Police, Mylapore, Chennai. -4. 7. The District Collector, Dharmapuri District. CRL.A.No.666 of 2010 NG(CO) RVL 28.01.2011 https://hcservices.ecourts.gov.in/hcservices/