IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.4.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.611 OF 2007 Murugan .. Appellant Vs. State of Tamil Nadu rep. by Inspector of Police Omerbad Police Station Crime No.297 of 2006. .. Respondent ----- Appeal against the judgment dated 16.3.2007 made in Sessions Case No.227 of 2006 on the file of Principal Sessions Judge, Vellore. ----- For Appellant : Mr.T.R.Radhakrishnan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- J U D G M E N T (Delivered by R.REGUPATHI,J.) The appeal is directed against the judgment dated 16.3.2007 made in Sessions Case No.227 of 2006 on the file of the learned Principal Sessions Judge, Vellore, whereunder the appellant was convicted for the offence punishable under Section 302 I.P.C. and sentenced him to undergo imprisonment for life. Aggrieved against the conviction and sentence, the present appeal has been preferred before this Hon'ble Court. 2. As per the charge, the accused on 18.5.2006 at about 12 noon quarrelled with the deceased/wife, gagged her mouth and forcibly pressed her neck and caused the death of the deceased, thereby committed an offence punishable under Section 302 I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 3. When the accused was initially questioned, he denied the complicity of committing such offence and therefore, trial of the case was taken up. 4. To prove its case, the prosecution has examined P.Ws.1 to 12, marked Exs.P1 to P11 and produced Material Objects 1 to 8. 5.1. The case of the prosecution is that the accused married the deceased as his second wife. The first wife after delivery of a child left him and thereafter, the accused married the deceased as second wife. Till the delivery of a child by the deceased, the accused was living at the residence of the deceased and thereafter, started living in the joint family along with his brother. There was frequent quarrel between the accused and the deceased since the deceased objected to the illicit intimacy of the accused with the wife of his brother. On the occurrence day also, such quarrel ensued in which it is alleged that the accused caused the death of the deceased by throttling. 5.2. P.W.1 Chinnammal is the mother of the deceased. As per her evidence, the accused and the deceased were living with her and after the delivery of the child, the accused went to his residence at Chinnapallikuppam and was living with his brother as joint family. Under such circumstances, the accused developed illicit intimacy with the wife of his brother and after coming to know about that, the deceased was quarrelling with the accused. Under such circumstances, the deceased returned back to her residence and a compromise was effected in which the accused agreed that he would behave properly. Two weeks thereafter, quarrel again started and when enquired, it was stated that the accused was not regularly visiting his residence and was not paying money to the deceased for maintenance. Under such circumstances, she came to know through P.W.4, who is a neighbour of the accused, about the death of the deceased at her residence. She went there and found the deceased died with the injuries found on the neck. Bleeding was oozing out from mouth and nasal. There was nobody at the residence of the deceased. Therefore, P.W.1 went to the police station and lodged a complaint Ex.P1. 5.3. P.W.2 Panneerselvam is the brother of the deceased and the son of P.W.1. P.W.3 Rajendran is the junior paternal uncle of the deceased. P.Ws.2 and 3 corroborated the evidence put forth by P.W.1. 5.4. P.W.4 Sudhakar is a neighbour living near the residence of the accused. It is his evidence that the accused and the deceased were living along with his brother as joint family. He came to know about the death of the deceased at her residence and went to the village of P.W.1 and informed about this. 5.5. P.W.5 is also a resident living at Chinnapallikuppam and it is his evidence that both the accused and the deceased were living https://hcservices.ecourts.gov.in/hcservices/ together after returning from the residence of P.W.1. However, he denied the presence of the accused and quarrel on the date of the occurrence. 5.6. P.W.10, Sub Inspector of Police, who on receipt of Ex.P1 complaint lodged by P.W.1, on 19.5.2006 at 3.00 p.m., registered a case in Crime No.297 of 2006 for an offence punishable under Section 302 I.P.C. Ex.P8 is the printed FIR and the same was despatched to the learned Judicial Magistrate as well as to the superior officials. 5.7. P.W.11, Inspector of Police, on receipt of copy of the FIR, reached the scene of occurrence at 4.00 p.m. on the same day and prepared Ex.P9 observation mahazar and Ex.P10 rough sketch in the presence of P.Ws.6 and 7, conducted inquest over the body of the deceased between 4.30 and 6.30 p.m. and prepared Ex.P11 inquest report and examined the witnesses present during the inquest and despatched the dead body for postmortem with Ex.P6 requisition. 5.8. P.W.6 Dr.Deivasigamani, Medical Officer attached to Government Hospital, Ambur, on receipt of Ex.P6 requisition from P.W.11, conducted post-mortem on the body of the deceased on 19.5.2006 and noticed the following injuries: Face congested cyanosed external signs of asphyxia present petichiae present. Eyes are prominent and protruding. Sub conjunctival age present. Lips are blue. Bloody froth oozes out from nostrils and mouth. Tongue is swollen bitten protruded. Bruises over neck present. Hands are clenched. Neck Dissection External: Bruises seen over either side of trachea on the right side bruise of 2cm x 2½ cm above and below it two bruises of 1½ x 1½ cm found crescentic bruises seen. On the left side, four bruises of 1½ x 1½ cm each seen and two crescentic bruises of 1cm seen. All these injuries appear to be ante mortem wounds in nature. Neck Dissection Internal: Extravasation blood into subcutaneous tissue below and around the neck bruises seen. Neck vessels show contused appearance and veins above the level of neck bruises show intense congestion. Larynx and trachea congested and contain blood frothy mucus. There is fracture of cartilage of trachea. Internal Examination: On Opening Head: Meninges congested. Brain necrosed (liquefaction) petichiae seen over menimer surface. https://hcservices.ecourts.gov.in/hcservices/ Thorax: Lungs are markedly congested dark haemorrhagic patches seen all over surface. On cut section bloody frothy mucus oozes out. Heart is cyanosed right chambers contain dark blood left chambers empty. Abdomen: On opening abdomen all organs are congested. Stomach empty. Uterus N/S C/S empty. He issued Ex.P7 post-mortem certificate. He has opined that the deceased would appear to have died of asphyxia due to violent force applied over neck about 24-36 hours prior to post-mortem examination. 5.9. The prosecution has cited P.Ws.6 and 7 as mahazar witnesses. Though they have admitted their signatures in Ex.P9 observation mahazar, marked as Exs.P2 and P3 respectively, they denied the contents of the mahazar. 5.10. P.W.8 is the Village Administrative Officer of Melsanakuppam village and in-charge of Chinnapallikuppam village. It is his evidence that on 22.5.2006 at about 11.15 a.m. the accused appeared before him and gave Ex.P4 extra judicial confession. He took the accused along with his report Ex.P5 and produced before P.W.11. 5.11. P.W.11, on production of the accused, recorded his confession statement from the accused. P.W.12 took over the investigation of the case on 30.7.2006 and examined the Doctor, recorded his statement and received his opinion. After collecting all the other materials, he filed the final report on 10.8.2006 against the accused for the offence punishable under Section 302 I.P.C. 6. When the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, he denied the same. Neither oral nor documentary evidence was adduced on the side of the defence. 7. The learned Principal Sessions Judge, Vellore, on perusal of the materials oral and documentary produced before the Court and after hearing the arguments advanced by both the sides, convicted and sentenced the appellant as aforesaid. Aggrieved by the same, the appellant has filed the present appeal. 8.1. The learned counsel for the appellant submits that though the occurrence took place within the residence of the accused, there was no direct witness to substantiate the case of the prosecution. The case has been projected through circumstantial evidence and the alleged extra judicial confession given to P.W.8. The extra judicial confession cannot be accepted since prima facie it appears the same has been concocted at the instruction of the Investigating Officer. https://hcservices.ecourts.gov.in/hcservices/ 8.2. In the alternative, it is submitted that on perusal of the extra judicial confession, admittedly, there is quarrel between the accused and the deceased. It is also the version put forth in the confession that during such quarrel, the deceased was repeatedly quoting the illicit intimacy of the accused with the wife of his brother and in spite of the request made by him, she was continuously quarrelling and only for the purpose of stopping such noise, he closed her mouth and under such circumstances, she became unconscious, resulting in her death. Even if such extra judicial confession allegedly given by the accused is taken into account, the offence under Section 302 I.P.C. is not substantiated since the deceased became unconscious in the result of quarrel and subsequent closing her mouth by the accused. 9.1. Per contra, the learned Additional Public Prosecutor submits that there were frequent quarrels between the accused and the deceased. The motive part of the prosecution has been established. The accused was having illicit intimacy with the wife of his brother. A panchayat was also convened on that account. The accused was reprimanded and the deceased was brought back only after giving assurance to the family members of the deceased. In spite of that, the accused was continuously quarrelling and did not even provide maintenance for the deceased. Only under such circumstances, the occurrence had taken place. The extra judicial confession given by the accused is a reliable piece of evidence and the same has been corroborated through the evidence of P.Ws.1 to 5. 9.2. On perusal of the medical evidence, it is positively stated that the death of the deceased is due to asphyxia due to violent force applied over neck. Though in the extra judicial confession, it has been stated that the accused closed the mouth of the deceased and nothing has been stated about the pressing of the neck, it is substantiated through the medical evidence and therefore, under such circumstances, the offence under Section 302 I.P.C. is substantiated and prayed for dismissal of the appeal. 10. We have perused the materials available on record and the oral submissions made by both sides. 11.1. It is a case of circumstantial evidence. However, the fact remains that the accused is no other than the husband of the deceased. Further, it has been substantiated from the evidence that they were living together under one roof. Previously, the accused was living with the deceased at the residence of P.W.1. Subsequently, after the birth of the child, they had shifted their residence and started living in the joint family with his brother. It is alleged that there was illicit intimacy between the accused and the wife of his brother and the same has been spoken to by the prosecution witnesses. Because of such intimacy, there were frequent quarrels between the accused and the deceased and in the panchayat, https://hcservices.ecourts.gov.in/hcservices/ the accused was reprimanded. Though the deceased returned back to P.W.1's house, on promise, the accused took her back and during the time of occurrence, they were living together. The prosecution witnesses have spoken about their living together on the date of occurrence. 11.2. To substantiate the actual occurrence which took place inside the residence, the accused has given extra judicial confession to P.W.8, Village Administrative Officer. On perusal of the evidence of P.W.8 and the statement given by the accused, we do not find any material to discredit the evidence of P.W.8 and the statement of the accused. In Ex.P4 extra judicial confession, it has been admitted that there were frequent quarrels between the accused and the deceased. Though such quarrel was in existence in the past on account of the illicit intimacy of the accused with his brother's wife, on the day of occurrence also, the issue was debated and quarrel ensued. It is the version of the accused in the extra judicial confession that he made all attempts to control the deceased, but in spite of that, the deceased was rising her voice. Unable to control her, it is stated that the accused closed her mouth, which resulted in the death of the deceased. 11.3. Though we are unable to accept the version of the accused, the fact remains that only because of the act of the accused, the death ensued. The occurrence took place within the residence of the accused and soon after the occurrence, he absconded and only after four days i.e. on 22.5.2006 he appeared before the Village Administrative Officer and gave Ex.P4 extra judicial confession. On perusal of the medical evidence, we could see that the accused pressed the neck of the deceased and only under such circumstances, the death ensued. However, prima facie we can see that there is no pre-meditation on the part of the accused to commit such an act. Admittedly, the occurrence had taken place on the spur of moment. Though the occurrence took place within the residence of the accused, he never took any deadly weapon to cause injury on the deceased. In a fit of anger, the accused losing, his self control, has committed the act and on perusal of the injuries sustained by the deceased, we can see that the accused had not taken any undue advantage of the prevailing situation at the time of occurrence. Therefore, we are of the considered opinion that the act committed by the accused will fall within the four corners of Exception 4 to Section 300 I.P.C. and under such circumstances, the accused has committed culpable homicide not amounting to murder. 11.4. For all the reasons stated above, the conviction of the accused under Section 302 I.P.C. cannot be legally sustained. Accordingly, while acquitting the accused of the offence under Section 302 I.P.C., we hold him guilty under Section 304 Part I https://hcservices.ecourts.gov.in/hcservices/ I.P.C. for which he would stand sentenced to undergo rigorous imprisonment for seven years. Accordingly, the appeal is partly allowed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ATR To 1. The Principal Sessions Judge Vellore. 2. The Inspector of Police Omerbad Police Station Crime No.297 of 2006. 3. The Public Prosecutor High Court Madras. 4. The District Collector, vellore District. 5. The Director General of Police, Mylapore, Chennai -4 6. The Superintendent, Central Prison, Vellore + 1 CC to Mr.T.R.Radhakrishnan, Advocate, S.R.No.20294 Crl.A.No.611 of 2007 MDR(CO) SRA (16/5/2008) https://hcservices.ecourts.gov.in/hcservices/