IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.92 of 2010 Saminathan @ Ayyasamy .. Appellant/Single accused Vs. State by the Inspector of Police, Vadavalli Police Station, Coimbatore (Crime No.151 of 2005) .. Respondent /Complainant The criminal appeal has been preferred under Section 374(2) of Cr.P.C. against the judgment of the Principal Sessions Judge, Coimbatore Division, Coimbatore made in S.C.No.396 of 2006 dated 5.1.2008. For Appellants : Mr.V.Paarthiban For Respondent : Mr.V.R.Balasubramanian, A.P.P. J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Division, Coimbatore made in S.C.No.396 of 2006 whereby the accused/appellant stood charged, tried and found guilty of murder and awarded life imprisonment along with a fine of Rs.1000/-, in default, to undergo three months rigorous imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (i) P.W.2 is the daughter of the deceased Lakshmi. The deceased is the daughter of P.W.1 and P.W.4. The accused married Lakshmi and due to the wedlock, they have three children. P.W.2 is the first child. The accused often used to quarrel with his wife and P.W.1 used to take her daughter to his house and thereafter, he used to pacify her and sent her daughter back to matrimonial home. On the date of occurrence i.e., on 13.3.2005 at 3.30 p.m. the accused came to his https://hcservices.ecourts.gov.in/hcservices/ house and asked his wife whether she had prepared mutton for lunch. She answered in the negative. Immediately, the accused caught her tuft and dashed her head on the wall. The deceased Lakshmi fell down. This was witnessed by P.W.2 and Arumugam, the brother of the accused. The deceased Lakshmi was taken to the hospital in an auto. She was examined by a doctor and was declared dead. Thereafter, the deceased was taken back to her house. An information was given to P.W.1 and P.W.4, father and mother of the deceased. They came to the house of the deceased and found their daughter dead. (ii) P.W.1 proceeded to the respondent Police station and gave a complaint Ex.P.1. On the strength of Ex.P.1, a case came to be registered by P.W.10, Sub Inspector of Police in Crime No.15 of 2005 under section 174 Cr.P.C. Following the same, Ex.P.6 First Information Report along with Ex.P1 complaint was dispatched to Court. (iii) P.W.12, Inspector of Police took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P5 and also drew a rough sketch Ex.P7. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchatdars and prepared Ex.P8, inquest report. He also recovered the material objects from the place of occurrence. The dead body was subjected to post mortem. (iv) P.W.3 doctor attached to the Coimbatore Medical College and Hospital, on receipt of the requisition, conducted autopsy on the dead body of the deceased Lakshmi and found the following ante mortem injuries. "Horizontally oblique incomplete ligature abrasion seen encircling the upper part of neck 22x3 cms with a gap of 17 cms seen in the back of neck where it merges with the hair line. The anatomical location of the ligature mark are as follows: - 2 cms below right ear, - 6cms below chin and - 6 cms below left ear." The said doctor gave his opinion as a witness before the Court and also through the contents in the post mortem certificate Ex.P.3 that the deceased would appear to have died of violent compression over the neck. (v) Pending investigation, the investigating officer arrested the accused on 17.3.2005. He gave confessional statement and the same was recorded. Thereafter, he was sent for judicial remand. On completion of the investigation, the investigating officer filed a https://hcservices.ecourts.gov.in/hcservices/ final report. (vi) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and relied on 9 exhibits. No material object was marked. On completion of the evidence on the side of the prosecution, the accused was question under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution and the accused denied them 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 found the accused/appellant guilty of murder and awarded life imprisonment along with fine and default sentence as referred to above. Hence, this appeal at the instance of the appellant. 3. Advancing the arguments on behalf of the appellant Mr.V.Paarthiban, the learned counsel would submit that the occurrence has taken place on 13.3.2005 at about 3.45 p.m. The case of the prosecution was that the accused/appellant came to his house and asked his wife whether she had prepared mutton for lunch. She answered in the negative. Hence, he strangulated her and caused her death. As could be seen from the list of witnesses P.W.2 and one Arumugam brother of the accused are the two eye witnesses. P.W.2 is the child witness and she has been examined but for the reason best known to the prosecution, the other eye-witness Arumugam was not examined. Insofar as P.W.2 is concerned, her evidence was the sole piece of evidence available to the prosecution. But her evidence should have been rejected since she was a child. Further, P.W.2 has stated in her evidence that her father came to the house and quarrelled with her mother and caught the tuft of her mother and dashed her head on the wall, but she has never whispered that her father strangulated her mother. But the medical opinion canvassed through the post mortem doctor was to the effect that she died out of asphyxia due to strangulation. Hence, the ocular testimony projected through P.W.2 never corroborates with the medical evidence. In the instant case, the prosecution had no evidence to offer. Under such circumstances, the trial court should have rejected the case of the prosecution disbelieving its case. On the contrary, the trial court found the appellant guilty and has rendered the judgment of conviction. Hence, the judgment of the trial Court has got to be set aside and the accused is entitled for acquittal. 4. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 5. It is not in controversy that one Lakshmi wife of the accused following the incident that took place in her residence on 13.3.2005, was taken to the Hospital, where she was declared dead. P.W.1 gave a complaint to the police and after registration of the case by P.W.10 Sub Inspector of Police, investigation was taken up by P.W.12, Inspector of Police and following the inquest made, the dead body was subjected to post mortem. P.W.3, doctor attached to the Coimbatore Medical College and Hospital has given his categoric opinion that the https://hcservices.ecourts.gov.in/hcservices/ deceased died out of asphyxia due to strangulation. An attempt made before the trial court and equally here also was that the deceased died of hanging and it was not the case of death due to homicidal violence. This contention cannot be accepted for the simple reason that at the time of cross examination, the same suggestion and question were put to the medical person who has categorically given opinion that death has caused out of asphyxia due to strangulation and it was not the case of commission of suicide or hanging. Further, after application of medical test, the doctor has given his opinion. The Court is unable to see any reason to make any deviation to the opinion given by the competent medical person. Therefore, the plea that the deceased Lakshmi committed suicide has to be rejected. Accordingly, it was rejected. 6. A plea that was taken by the accused/appellant before the trial court and equally here also is that, at the time of occurrence, the accused was away from the house and not in the house. This statement has to be rejected in view of the evidence of P.W.2 though she was a child witness. The Court must test the maturity of mind of the child and also exercise care and caution before accepting the child evidence. In the instant case, the child was 12 years and she was fully matured, apart from that, her evidence was consistence. Therefore, there is no reason to disbelieve or discard her evidence. She has categorically stated that her father came to the house and asked her mother whether she had prepared mutton for lunch but her mother told that she did not do. Hence, her father got angry and caught her mother's tuft and dashed her head on the wall and her mother sustained injuries. The corresponding injuries were also noticed by the medial person and they were also mentioned in the post mortem certificate. This part of the evidence would clearly indicate, not only the availability of the accused at the time of occurrence, but also would indicate that the evidence of P.W.2 was believable. Therefore, the plea putforth by the accused that Lakshmi committed suicide has to be ruled out and the medical opinion canvassed was that the deceased died out of asphyxia due to strangulation. On the face of the evidence of P.W.2, it is seen that the accused was available in the house at the time of occurrence. Therefore, it is for him to explain how death was caused to his wife but the accused has no answer in this regard. 7. As far as the contention putforth by the learned counsel for the appellant that the child P.W.2 has not spoken anything about the strangulation is concerned, it is pertinent to point out that P.W.2 has seen part of the occurrence. Once death was caused on the very same incident, it is for the accused to explain how death was caused. So long as as P.W.2 has spoken about the availability of the accused at the time of occurrence, the other part has to be explained by the accused but he has no explanation to offer. On the contrary, he has come forward with a false statement that he was away from the house . All put together would indicate that it was the accused who actually strangulated his wife and caused her death. 8. The comment made by the learned counsel for the appellant that the non-examination of Arumugam, brother of the accused was fatal to the prosecution, cannot be countenanced. On the face of the evidence of P.W.2, the Court is of the considered opinion that the https://hcservices.ecourts.gov.in/hcservices/ prosecution has brought home the guilt of the accused that it is the accused who had caused the death of his wife. 9. Insofar as the second line of argument that the accused was actually provoked by the act of the wife and has committed the offence is concerned, it could be seen from the available materials that the accused came to the house at about 3.30 p.m. and when he asked his wife whether she had prepared the mutton, she said she did not prepare. Enraged over the same, he started quarrelling with his wife. Under these circumstances, it would be quite clear that the act of the accused was neither intentional nor premeditated nor planned, but it was done due to sudden quarrel, which arose between the deceased and the accused. Hence the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder and therefore, 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. 10. Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are modified and instead the appellant is convicted under Section 304(I) IPC and sentenced to undergo 7 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and default sentence imposed by the trial court will hold good. 11.With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar vsi To 1. The Principal Sessions Judge, Coimbatore Division, Coimbatore. 2. The Inspector of Police, Vadavalli Police Station, Coimbatore 3. The Public Prosecutor, High Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 4 The Additional Superintendent Central Prison, Coimbatore 5 The District Collector Coimbatore 6 The Director General of Police Chennai +1 C.C to Mr.V. Parthiban Advocate Sr.No. 20461 CRL.A.No.92 of 2010 29.03.2010 TRM – CO KV-09/04/2010 https://hcservices.ecourts.gov.in/hcservices/