IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 10.06.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.1050 OF 2007 V.Dharmalingam .. Appellant/Sole Accused Vs State by Inspector of Police Dharapuram Police Station. [Crime No.698/2006] .. Respondent Appeal filed under section 374[2] Cr.P.C., against the Judgment dated 20.04.2007 in S.C.No.199/2006 on the file of the Fast Track Court No.3, [Additional District and Sessions Judge], Dharapuram. For Appellant : Mr.S.Kalyanaraman For Respondent : Mr.N.R.Elango,APP JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The sole accused Dharmalingam has come forward with this appeal challenging his conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court, No.3, Dharapuram by the Judgment dated 20.04.2007 in S.C.No.1999/2006 convicting him for the offence under section 302 IPC and sentencing him to life imprisonment. 2. The prosecution case in a nutshell is as follows:- [a] The deceased Veeramani is the wife of the accused. The deceased was working at Nallammai Polytechnic, Dharapuram. A male child Karmugilan aged about 9 years was born out of the wedlock of the accused and the deceased. As the accused suspected the fidelity of the deceased there were frequent quarrel between them. P.W.s.1 and 2 pacified both of them during their quarrel on several occasions. https://hcservices.ecourts.gov.in/hcservices/ Therefore, there were strained feelings between the accused and his wife, the deceased. [b] On the fateful day of occurrence, i.e., 17.09.2006, at 5.45 p.m., P.Ws.1 and 3 went to the shop of P.W.2 to discuss about the panchayat election. The house of the accused was just opposite to the shop of P.W.2. P.Ws.1 to 3 were present at the shop of P.W.2 and at that time, they heard the hue and cry and they rushed to the house of the accused and found the accused beating the deceased with wooden log [M.O.1-Karla Kattai] twice on her head. The deceased fell down and again the accused beat her on her head. While P.Ws.1 to 3 questioned, the accused stated to them that he had already complained about the deceased, but they have not listened to his complaint and as such, he had killed his wife and thereafter the accused left the scene along with M.O.1-weapon. The deceased died instanteneously. [c] P.W.1 went to Dharapuram Police Station on 17.09.2006 and gave a report Ex.P.1 at 8.30 p.m. to P.W.16, the Sub-Inspector of Police. P.W.16 registered a case in Crime No.698/2006 for the offence under section 302 IPC. Ex.P.14 is the Express First Information Report [FIR] and he ha sent the same to the higher police officials. [d] P.W.17, the Inspector of Police received the FIR in this case on 17.09.2006 and took up investigation at 9.45 p.m. He went to the scene of occurrence at 10.00 p.m. an made Bandobust arrangements as no witness was available at that time. Again on 18.09.2006 at 6.00 a.m. P.W.17 went to the scene of occurrence. He prepared Ex.P.3- Observation Mahazar and Ex.P.15-Rough sketch in the presence of P.Ws.1 and 2. He also recovered Sample cement earth, M.O.4 and blood-stained cement earth, M.O.5 from the scene under Ex.P.4. He held inquest on the dead body of the deceased from 7.00 a.m. to 10.30 a.m. Ex.P.16 is the Inquest Report. During inquest he has examined P.Ws.1 to 3 and others. He has sent the body for Post-Mortem. [e] Dr.Sivabalan, P.W.9, attached to Government Hospital, Dharapuram, conducted Post-Mortem on the dead body of the deceased on 18.09.2006 at 12.30 Noon. He found the following injuries:- EXTERNAL INJURIES:- 1]Vertical lacerated injury 5cmx1/2cmx1/2cm over the dorsal aspect of the left middle finger. 2]Contusion 5cmx1cm over the dorsal aspect of the left index finger, ring finger and little fingers. 3]Contusion 4cmx1cm over the Right little finger, ring finger and middle finger with [NC] contusion also present. https://hcservices.ecourts.gov.in/hcservices/ 4]8cmx6cm contusion right parieto occipital region with 5cmx1cm lacerated injury obliquely placed over it. 5]6cmx6cm contusion with 4cmx1cmx1cm lacerated horizontal injury over the middle occipital region. 6] 6cmx6cm contusion with 1cmx1cmx1cm lacerated injury over the left occipital region." Ex.P.2 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died of shock and haemorrhage and injury to vital organs between 12 to 24 hours prior to autopsy. [f] P.W.17, the Inspector of Police in continuation of his investigation examined the other witnesses. At 1.15 p.m. on 18.09.2006 he arrested the accused at Best Cotton Mill Bus stand in Dharapuram-Pollachi Main Road. In pursuance of the admissible portion of the confession of the accused under Ex.P.5, P.W.17 recovered M.O.1- Blood-stained wooden log [Karla Kattai]. He also recovered M.O.3- lungi, M.O.2-Blood stained shirt under Ex.P.6. Thereafter the accused was remanded to judicial custody. P.W.17, the Inspector of Police sent the material objects for chemical examination through the Court on 18.09.2006 as per requisition under Ex.P.7. On 28.09.2006 he has examined the doctor, P.W.9 who has conducted Post-Mortem and received the Postmortem Certificate, Ex.P.2. After the receipt of the Chemical examination Report and Serologist Report, Exs.P.9 to 12 and after completing the investigation, filed the charge sheet against the accused on 03.11.2006 under section 302 IPC. 3. The prosecution in order to bring home, the charges against the accused, examined P.Ws.1 to 17, filed Exs.P.1 to 16 beside marking M.Os.1 to 17. 4. When the accused was questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied each and every circumstances as contrary to the facts and stated that he has been falsely implicated in the case. He has not chosen to examine any witness or mark any document on his side. 5. Mr.S.Kalyanaraman, learned counsel for the appellant contended that the prosecution has not come forward with the clear and cogent evidence. It is contended that there are contradictions in material particulars between the evidence of the eyewitnesses, P.Ws.1 to 3. The learned counsel would further submit that P.Ws.1 to 3 are chance witnesses and their presence at the scene is highly doubtful as https://hcservices.ecourts.gov.in/hcservices/ they admittedly came to the shop of P.W.2 and at that time claimed to have witnessed the occurrence. It is also contended that there are contradictions in respect of the recovery of M.O.1-Wooden log. The learned counsel for the appellant further contended that even assuming if not admitting that the accused attacked the deceased, his wife, he could not be attributed with the intention to cause her death as there are materials available on record to show that there were frequent quarrel between the accused and the deceased as the accused suspected her fidelity. It is also contended that the occurrence was preceded by the quarrel and the accused should have assaulted the deceased due to grave and sudden provocation. 6. Per contra Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has established the guilt of the accused by adducing clear and consistent evidence through the evidence of the eyewitnesses P.Ws.1 to 3. It is submitted that the evidence of P.Ws.1 to 3 is also corroborated by the medical evidence through the doctor P.W.9 as there are corresponding injuries found on the deceased. The learned Additional Public Prosecutor would further submit that there are no material contradictions between the evidence of P.Ws.1 to 3 and their evidence is quite natural. It is also pointed out by the learned Additional Public Prosecutor that admittedly the shop of P.W.2 is just opposite to the house of the accused and as such, on hearing the hue and cry, P.Ws.1 to 3 who were present at that time, rushed to the scene of occurrence and found the accused attacking the deceased. It is further submitted by the learned Additional Public Prosecutor that the nature of weapon and the injury sustained by the deceased clearly shows that the accused could have attacked the deceased with the intention to cause her death and as such, the accused is not entitled to the benefit of any exception under section 300 I.P.C. 7. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the evidence available on record and perused the impugned Judgment of conviction. 8. The prosecution heavily placed reliance on the evidence of the eyewitnesses P.Ws.1 to 3. It is seen that the accused as well as P.Ws.1 to 3 are residing in the same place and the accused and the deceased were known to P.Ws.1 to 3. The perusal of the their evidence clearly shows that P.Ws.1 to 3 categorically stated about the quarrel between the accused and the deceased and after hearing the hue and cry while P.Ws.1 and 3 were sitting and chatting along with P.W.2 in his shop, rushed to the house of the accused and found the accused attacking the deceased. The perusal of the earliest document, Ex.P.1, the report given given by P.W.1 also clearly shows that there were frequent quarrel between the accused and the deceased and the accused suspected the fidelity of the deceased. It is also seen that in https://hcservices.ecourts.gov.in/hcservices/ Ex.P.1, P.W.1 has mentioned about the presence of P.Ws.2 and 3 at the time of occurrence and they were also witnessing the occurrence. The prosecution also proved the motive put forward against the accused, viz., the frequent quarrel between the accused and the deceased as the accused suspected the fidelity of the deceased. The categorical version of P.Ws.1 to 3 implicating the accused attacking the deceased is also corroborated by the medical evidence through the doctor, P.W.9 as the Postmortem Certificate disclosed corresponding injuries on the deceased. Therefore, we have no hesitation to hold that the deceased died only due to homicidal violence and that too, at the hands of the accused. 9. Now, we are left with the crucial question in respect of the nature of the offence said to have been committed by the accused. 10. In order to find out the nature of offence committed by the accused, we have to scrutinise the evidence available on record with great care and caution. It is the admtited version of the prosecution through the evidence of P.Ws.1 to 3, the eyewitnesses and as well as the evidence of P.W.4, the mother of the deceased that there were strained feelings between the accused and the deceased as there were frequent quarrel between them. P.W.4, the mother of the deceased categorically stated that after the marriage, both the accused and the deceased were leading a happy married life and thereafter, their relationship was strained and she was informed by her daughter, the deceased that she was cruelly treated by the accused. As already pointed out, even in Ex.P.1 it is specifically mentioned by P.W.1 that the accused suspected the fidelity of the deceased. 11. The version of the prosecution as per Ex.P.1, the earliest document in respect of the accused suspecting the fidelity of the deceased is also further strengthened and probablised by the version of the accused in his confession recorded under section 27 of the Indian Evidence Act and the admissible portion is marked as Ex.P.5 and in pursuance of the same, the weapon M.O.1-wooden log was recovered at the instance of the accused. 12. It is well settled by a catena of decisions that in the interest of justice it is permissible to look into the confession recorded under Section 27 of the Indian Evidence Act from the accused in order to decide the nature of offence committed by the accused. This Court in Ganesan, In re (1973 L.W.(Cri.) 42) has held as follows : "3. The evidence shows that the appellant went straight to the police station at 9.15 a.m. and made a statement. In fact, that is the first information report in the case. It contains the confession that the appellant inflected cuts on his wife. The learned Sessions Judge has excluded https://hcservices.ecourts.gov.in/hcservices/ this portion and marked the rest of the statement, as Ex.P.6. This, however, is not correct. In Aghnoo Nagesia V. State of Bihar (AIR 1966 SC 119) it has been observed :- “Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement, partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession”. …………… Little substance and content would be left in Ss.24, 25 and 26, if proof of admissions of incriminating facts in a confessional statement is permitted. “Some of the decided cases took the view that if a part of the report is properly severable from the strict confessional part, then the severable part could be tendered in evidence. We think that the separability test is misleading, and the entire confessional statement is hit by S.25, and save and except as provided by S.27, and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.” The above decision has been followed in Khatri Hemraj Amulkah V. State of Gujarat (AIR 1972 SC 929). According to these decisions (of this Court and the Hon'ble Apex Court), the only portion of the statement, which could be admitted is the initial portion that he was making the statement, which would not be of any use to the prosecution. But there is no bar to the appellant using https://hcservices.ecourts.gov.in/hcservices/ the statement in his favour – see also Mottai Theva, In re [(1951) 2 M.L.J. 605]. We are referring to this at this stage itself, because Ex.P.6 contains statements favourable to the appellant. It is a long statement, but for our purpose, it is enough to give a brief summary. Ever since the marriage, the wife has been refusing to have conjugal relationship with him. On the other hands, he had good reason to believe that she had been carrying on with P.W.6, her elder sister’s husband. On one night, Kamala and P.W.6 had gone out for the ostensible purpose of answering calls of nature, but evidently for having sexual relationship. On the night previous to the day of occurrence also she refused him conjugal felicity. On the morning of the day of occurrence according to Ex.P.6, the appellant gave ten paise to P.W.1 and asked her to get onions. But his wife, Kamala said that she should not go out. He pointed out that P.W.1 was rendering service for all, and sundry in the village, but why not for them. In reply to that, Kamala abused him, ……. (you silly-fellow, you run away) and buried a vegatable-cutter (….) on him. He warded it off with his left hand. It fell down. But she threw it on him again with force. He warded it off with his right hand. This time it caused an injury on the palmer aspect of his right little finger. It was about 8-30 a.m. He could not control his anger. He therefore took cut the koduval and inflicted cuts on her. He came out with a rope with the idea of hanging himself that day. But on nearing Manonmani’s house he thought that it was not proper to do so and threw it aside. There used to be frequent quarrels between him and his wife, and Andalammal (P.W.2) and Devaraja Pillai (P.W.7) knew about it. So runs Ex.P-6. ……… Taking all these circumstances together we hold that Kamala threw the vegetable cutter on the appellant and caused injury on the right little finger. In our opinion, this cannot afford a ground for self defence under Exception II because after throwing it at her husband, Kamala, did not try to attack him with it and it was not justifiable for the appellant to inflict cuts on Kamala. But at the same time it seems to us that her act in throwing the vegetable cutter at him constituted grave and sudden provocation which deprived him of the power of self-control within the meaning of Exception I.” (Emphasis supplied." 13. The perusal of the entire statement of the accused including https://hcservices.ecourts.gov.in/hcservices/ the admissible as well as the inadmissible portion recorded under section 27 of the Evidence Act clearly shows that the accused attacked the deceased only due to grave and sudden provocation. It is stated by the accused in that statement that the deceased was having illicit intimacy with one Moorthy, S/o.Rajamanickam and the accused condemned and warned her for several times. But the deceased did not listened to him. Thereafter, the accused was compelled to shift his house and even thereafter, the deceased continued the illicit intimacy with the said Moorthy which resulted in frequent quarrel between them. It is seen that the accused further stated that the deceased fixed a house nearer to the house of Moorthy for rent which was objected by the accused which resulted in a wordy quarrel between them. Added to such versions, it is further specifically stated by the accused that the deceased informed that she has already spoken to the said Moorthy and he would finish of the accused within a week. Thereafter, the accused took the wooden log [karla kattai] purchased for his son and beat the deceased on her head. Therefore, it is crystal clear that the accused attacked the deceased only due to grave and sudden provocation. The fact remains as per the evidence of P.Ws.1 to 4 and coupled with the entire statement of the accused recorded under section 27 of the Evidence Act clearly shows that the deceased only caused provocation to the accused by continuing her illicit intimacy with the said Moorthy and the ultimate conduct of the deceased by fetching a house for rent nearer to the house of Moorthy and further threatening the accused to the effect that she has already spoken to the said Moorthy and the said Moorthy informed her that he would finish the accused within a week which added fuel into fire which was sufficiently grave as to deprive him of the power of self-control culminating into the act of attacking the deceased with a wooden log resulting her death. 14. In a landmark decision in K.M.NANAVATI VS. STATE OF MAHARASHTRA reported in A.I.R. 1962 S.C. 605, the Hon'ble Supreme Court of India has laid down the following principles regarding the Exception 1 to Section 300 I.P.C. : "1. The test of grave sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in situation in which the accused was placed would be provoked as to lose his self-control. 2. In India, words and gestures may also, under certain circumstances, cause gave and sudden provocation to an accused so as to bring his act with the first Exception of Section 300 I.P.C. 3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. https://hcservices.ecourts.gov.in/hcservices/ 4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion has cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation." 15. If the evidence of P.Ws.1 to 3 and 4 and coupled with the version of the accused in his statement recorded under section 27 of the Evidence Act is considered in the light of the above said well settled principles of law laid down by the Honourable Apex Court as well as this Court, the inevitable conclusion of this Court is that the accused is entitled to the benefit of Exception [1] to Section 300 I.P.C., and as such, he is liable to be convicted under section 304 [Part I] IPC. 16. Accordingly, the appeal is allowed in part and the conviction and sentence imposed on the appellant for the offence under section 302 IPC by the learned Additional District and Sessions Judge, Fast Track Court No.3, Dharapuram, in S.C.No.199/2006 is hereby set aside and instead, the appellant is convicted under section 304[I] IPC and sentenced to undergo 7 years rigorous imprisonment. Any sentence already undergone by the appellant pursuant to his original conviction would be set off against him. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT NO.3, DHARAPURAM. 2. -do- Thro'THE PRINCIPAL SESSIONS JUDGE, ERODE. 3. THE JUDICIAL MAGISTRATE, DHARAPURAM. https://hcservices.ecourts.gov.in/hcservices/ 4. -do- Thro' THE CHIEF JUDICIAL MAGISTRATE, ERODE. 5. THE SUPERINTENDENT, CENTRAL PRISON, COIMBATORE. 6. THE DISTRICT COLLECTOR, ERODE. 7. THE DIRECTOR GENERAL OF POLICE MYLAPORE, CHENNAI 4. 8. THE INSPECTOR OF POLICE DHARAPURAM POLICE STATION. 9. THE Public Prosecutor, HIGH COURT, CHENNAI. +1cc to Mr.S.Kalyanaraman, Advocate Sr 28215 CK (CO) km/17.6. Crl.A.No.1050/2007 https://hcservices.ecourts.gov.in/hcservices/