Bail Slip The Appellant/ Accused namely Jayalakshmi was directed to release on bail as per order of this Court dated 29.4.2002 and made in Crl.M.P.No.4050/02 in Crl.A.No.583/02 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.12.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.583 of 2002 Jayalakshmi ... Appellant Vs. The State of Tamil Nadu Rep. by the Inspector of Police Yethapur Police Station Salem District (Cr.No.147/2001) ... Respondent This Criminal Appeal has been filed under Section 374 of Criminal Procedure Code as against the judgment and sentence of imprisonment dated 22.03.2002 made in S.C.No.226 of 2001 on the file of the Additional District Judge/Fast Track Court No.2, Salem and to set aside the same. For Appellant : Mr.K.Selvaraj For Respondent : Mr.R.Muniapparaj, Govt Advocate (Crl.Side) J U D G M E N T The accused in S.C.No.226 of 2001, who stood charged for an offence of murder punishable under Section 302 IPC but found guilty and convicted for an offence of culpable homicide not amounting to murder punishable under Section 304(ii) IPC and awarded a sentence of 5 years rigorous imprisonment in the said sessions case by the judgment dated 22.03.2002 of the Additional Sessions Judge, Salem Sessions Division, has come forward with this appeal challenging the conviction recorded against her and the sentence imposed on her. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution, in brief, can be stated as follows:- a) The deceased Ramalingam was the own brother of P.W.1- Subramanian and the husband of Jayalakshmi, the appellant/accused. Both were residing in Aryapalayam, within the jurisdiction of Yethapur police station. The deceased Ramalingam developed suspicion in the character of his wife, namely the appellant/accused, pursuant to which there were frequent quarrels between them. On several occasions during such altercations, the deceased Ramalingam used to beat his wife, the appellant/accused and on such occasions, the appellant/ accused would leave him and go to her parents' place. P.W.1-Subramanian used to pacify them and make them unite. Lastly, a few months prior to the date of occurrence, namely 14.02.2001, similar incident took place pursuant to which the appellant/accused went to her parents place. Thereafter the deceased Ramalingam, promising to mend his ways pleaded with P.W.1 to persuade the appellant/accused to come and live with him. P.W.1 also persuaded the appellant/accused to give the deceased yet another chance to mend his ways and lead a peaceful marital life and consequently four months prior to the date of occurrence, the appellant/accused came and joined with her husband Ramalingam. b) While so, on 14.02.2001 at about 2.00 p.m, the deceased Ramalingam was quarreling with his wife, namely the appellant/ accused, as some of his friends had poisoned his mind over the character of the appellant/accused. P.W.1 pacified them. P.W.2- Valli is the wife of P.W.1. At about 9.00 p.m – 10.00 p.m, she heard noises created by the quarrel between the deceased and the appellant/accused coming from their house in Aryapalayam. Thereafter, both P.W.1 and P.W.2 went to bed. However, at about 12.00 midnight they heard a lot of noise coming from the residential portion of deceased Ramalingam and both of them went to the said residential portion in which the deceased and his wife appellant/accused were residing. When they forced to open the door, they saw the ghastly scene of the appellant/accused cutting the deceased Ramalingam on his neck twice with M.O.1 - Axe and thereby causing the death of Ramalingam instantaneously. At the time of occurrence, P.W.1 and 2 heard the deceased telling the appellant/accused that he would kill her with vegetable cutter (mhpths; kid) consequent to which the appellant/accused cut the deceased with M.O.1 - Axe proclaiming that before ever he would do so she would kill him. The appellant/ accused cut the deceased on his neck twice with M.O.1 - Axe and thereby caused his instantaneous death. P.W.1 and 2 witnessed the occurrence with the help of the illumination caused by the electric bulb in the said house. When the appellant/accused tried to escape from the place of occurrence after throwing the said weapon (Axe) on the ground, P.W.1 and 2 caught hold of her, prevented her from escaping from the said place and made her to sit. As it was the night time, P.W.1 waited till the morning. https://hcservices.ecourts.gov.in/hcservices/ c) P.W.3 - Mathiazhagan, a resident of the said village, upon hearing the news went to the place of occurrence at about 5.30 a.m, on 15.02.2001. He wrote the complaint to the dictation of P.W.1 and handed over the same to P.W.1 to be presented in the police station. At about 6.00 a.m on 15.02.2001 leaving the dead body and the accused to be guarded by the villagers, P.W.1 went to Yethapur police station and lodged Ex.P1 complaint. P.W.9 - Sivasamy was the then Inspector of police (in-charge) of Yethapur police station. On the said date at about 7.00 a.m, he received Ex.P1 - complaint from P.W.1, prepared Ex.P11 - First Information Report in the printed format and registered a case in Crime No.147 of 2001 of Yethapur police station against the appellant/accused for an offence punishable under Section 302 IPC. The original complaint and the first information report were sent to the concerned Judicial Magistrate through P.W.7 - Veeramuthu (Head constable). P.W.9 - Inspector of Police, after registering the case and despatching the complaint and first information report to the court, went to the place of occurrence, prepared Ex.P2 - Observation Mahazar and Ex.P12 - Rough sketch. Through P.W.5 - Dinakaran (photographer), he caused photographs of the scene of occurrence to be taken. The photographs taken by P.W.5 are Ex.P4 series and their negatives are M.O.4 series. The Investigating Officer, conducted inquest, prepared Ex.P13 - Inquest Report in the presence of Panchayatdars and sent the dead body for autopsy to Atthur Government Hospital along with Ex.P7 - requisition for autopsy. At about 12.30 p.m, P.W.9 arrested the accused and recorded her confession statement. During the course of investigation P.W.9 also recovered the following material objects under Ex.P3 - Seizure Mahazar. M.O.1 - blood stained Axe, M.O.2 - blood stained earth, M.O.3 - simple earth series, M.O.4 - negatives, M.O.5 - Lungie and M.O.6 - brief. P.W.4 - Ramasamy (Village Administrative Officer) and the village menial Arjunan signed in all the mahazars as attesting witnesses. d) P.W.6 - Dr.Damayanthi conducted autopsy and issued Ex.P6 - Post Mortem examination certificate. The following injuries were noted. i) A horizontal laceration measuring 5 cm x 2 cm x bone deep on the front side of the neck, 4 cm below the adams apple; ii) A horizontal laceration measuring 6 cm x 3 cm x bone deep on the right side of the neck, 6 cm above the right clavicle iii) A horizontal abrasion measuring 3 cm x 5 cm on the anterior aspect of neck; (and) iv) An old cut injury on the left little finger at its base showing signs of healing at the edges of the injury. https://hcservices.ecourts.gov.in/hcservices/ On internal examination at the point of injury nos.1 and 2 neck muscles were found cut, trachea was found lacerated and filled with blood clots. Right carotid arteries and jugular veins were found cut. But Hyoid bone was intact. No fracture of bone was found. On the examination conducted, P.W.6 opined that the deceased appeared to have died of shock and haemorrhage between 12.00 and 18.00 hours prior to autopsy due to the injuries to the great vessels at the neck and the injury to the trachea. e) The material objects recovered during the investigation were sent to the forensic laboratory through court on the requisition of the investigating officer, whereupon the Chemical Analysis Report - Ex.P9 and Serological Report - Ex.P10 were obtained. P.W.9 who continued the investigation, recorded the statements of all the witnesses, completed his investigation and submitted a final report on 15.02.2001 on the file of the Judicial Magistrate No.1, Atthur to the effect that the appellant/accused had voluntarily caused the death of her husband Ramalingam and thus committed an offence of murder punishable under section 302 IPC. The learned Judicial Magistrate took the same as P.R.C.No.2/2001, furnished copies of the documents relied on by the prosecution to the appellant/accused and committed the case for trial to the Principal Sessions Judge, Salem Sessions who took it on file as Sessions Case No.226 of 2001 and made over the same to the Additional Sessions Judge, Fast Track Court No.2, Salem for disposal according to law. 3. In the trial court a charge against the appellant/accused for an offence punishable under Section 302 IPC was framed as the appellant/accused pleaded not guilty the case was tried. In order substantiate the charge, the prosecution examined as many as nine witnesses (P.W.1 to P.W.9), marked fourteen documents (Ex.P1 to P14) and produced six material objects (M.O.1 to 6). On completion of evidence on the side of prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C. as to the incriminating circumstances found in the evidence adduced on the side of the prosecution. The appellant/accused denied them as false. No witness was examined and no document was marked on the side of the respondents. 4. The trial court, after hearing the arguments advanced on either side took the view that the prosecution had proved its case that the appellant/accused voluntarily caused the death of her husband Ramalingam. However, it also held that though the act of causing death of Ramalingam was voluntary, the said act would come under the first exception to Section 300 and hence the appellant/accused was guilty of an offence of culpable homicide not amounting to murder punishable under Section 304 part II and not an offence punishable under Section 302 IPC. Accordingly the trial court convicted the accused for the said offence and awarded the punishment as stated above. https://hcservices.ecourts.gov.in/hcservices/ 5. As against the conviction recorded and the sentence of imprisonment awarded by the trial court, the appellant/accused has preferred this Criminal Appeal on various grounds enumerated in the appeal petition. 6. Advancing arguments on behalf of the appellant/accused, Mr.K.Selvaraj, learned counsel for the appellant made the following submissions:- The trial court committed an error in convicting the appellant for the offence punishable under Section 304(ii) IPC merely on the basis of the interested testimonies of P.W.1 and 2 who are non other than the brother and sister-in-law of the deceased . Though one Ayyavu had also been cited as an eye witness to corroborate the evidence of P.W.1, the prosecution failed to examine the above said independent witness and the non-examination of such independent eye witness was not properly considered by the court below. There was an unexplained delay of 7 hours in lodging the complaint and court below should have held that the unexplained delay of 7 hours was fatal to the prosecution case and acquitted the appellant/accused giving benefit of doubt. There were material contradictions between P.W.1, P.W.3 and P.W.9 regarding the lodging of Ex.P1 - complaint. P.W.1 would state that the police recorded his statement and obtained his signature, whereas P.W.3 would state that the complaint was written by him to the dictation of P.W.1 at the place of occurrence itself and P.W.9 also would state that written complaint was presented by P.W.1, based on which he registered the case. The said contradiction was not properly adverted by the court below. The said contradiction as to how the complaint was lodged, if considered in proper perspective, would lead to the inevitable conclusion that there was some kind of deliberation before lodging of the complaint. The contradictions between evidence of P.W.2 and P.W.6 were not properly considered by the court below. According to P.W.1 and 2, the appellant/accused cut twice on the neck of the deceased Ramalingam with an Axe, whereas four injuries, three on the neck and one on the little finger were noted by P.W.6. The Medical officer who conducted autopsy, namely P.W.6, was of the view that there was possibility of causing incised wound rather than laceration when one is attacked with the sharp edge of an axe. As such the court below has not properly considered the possibility of the injuries found on the deceased could have been caused by M.O.1 - axe. If all the above said aspects were taken into consideration, the trial court ought to have held the appellant/accused not guilty of any offence and it should have acquitted her giving the benefit of doubt. 7. The learned counsel for the appellant/accused, in addition to and without prejudice to the above said contentions, also argued that the trial court having found that the deceased who was under the influence of alcohol attempted to kill the appellant/accused with a vegetable cutter (mhpths; kid), should have also held that the act of causing the death of the deceased was in lawful exercise https://hcservices.ecourts.gov.in/hcservices/ of private defence and hence no offence was committed by the appellant/accused. The learned counsel contended further that, even if it is assumed that the appellant/ accused had either exceeded the limit in lawful exercise of private defence or that she committed the act of causing the death of the deceased out of provocation, the same would amount to culpable homicide not amounting to murder, the trial court should have imposed a lesser sentence than what was imposed by the trial court; that considering the fact that the appellant/ accused is having two minor children to be looked after by her, the punishment of five years rigorous imprisonment was highly excessive and that hence the same should be reduced considerably, preferably to the extent of imprisonment already undergone. 8. This court heard the learned Government Advocate (Criminal Side) on the above said contentions made on behalf of the appellant/accused and paid its anxious considerations to the same. 9. The deceased was the husband of the appellant/accused. The two witnesses examined as eye witnesses, namely P.W.1 and 2 are the brother and brother's wife, respectively, of the deceased. The appellant/accused did not dispute before the trial court the cause of death of the deceased Ramalingam. After his death was reported to the police and the case was registered, P.W.9 - the inspector of police took up investigation, went to the place of occurrence, conducted inquest over the dead body of the deceased and prepared Ex.P13 - Inquest Report in the presence of witnesses and panchayatdars. The body was also sent to the hospital with a requisition for autopsy. P.W.6, who conducted autopsy and issued Ex.P6 - Post Mortem certificate, has expressed a clear opinion that the deceased appeared to have died of shock and haemorrhage due to the injuries 1 and 2 found on the neck causing damage to the great vessels and the injury to trachea. According to her opinion, the death could have occurred between 12.00 to 18.00 hours prior to autopsy. Autopsy was conducted at 4.00 p.m on 15.02.2001. Therefore the death should have occurred between 10.00 p.m on 14.02.2001 and 4.00 a.m on 15.02.2001. The death occurred, according to the evidence of P.W.1 and 2 at about 12.00 midnight on 14.02.2001/15.02.2001. From the evidence of P.W.6 and the Post mortem certificate - Ex.P6 it is quite obvious that the deceased Ramalingam had died due to the injuries 1 and 2 found on the neck as noted in the post mortem certificate. The medical evidence discussed above conclusively establish that the death of deceased Ramalingam was the result of an act of homicidal violence. Besides the fact that the deceased died of shock and haemorrhage due to the injuries found on the neck, which were the result of an act of homicidal violence, was not disputed by the appellant/accused at any stage of the proceedings. The said injuries were not suggested to be either accidental or self-inflicted. As such, without any impediment, whatsoever, the finding of the trial court in this regard to the effect that the death was the result of homicidal violence deserves to be confirmed. https://hcservices.ecourts.gov.in/hcservices/ 10. In the instant case, the story of the prosecution is that due to the quarrel between the husband and wife, the appellant/accused inflicted injuries on the neck of the deceased using M.O.1 - axe and caused his instantaneous death. Ofcourse it is true that three witnesses were cited in the final report (charge sheet) as eye witnesses to the occurrence and out of them only two witnesses were examined and the third witness by name Ayyavu was not examined before the trial court on the side of the prosecution. It is not necessary for the prosecution to examine all the witnesses and it shall be the prerogative of the prosecution to decide by what evidence and by examining which witness, the prosecution case should be sought to be proved. The accused cannot compel the prosecution to examine any witness which the prosecution might have decided not to examine. Now the law has been clearly laid down in many of the recent judgments of the Hon'ble Supreme Court (citing such judgments is not necessary) that the court should adopt the process of elimination and after eliminating the evidence of untrustworthy witnesses if there remains the evidence of a single witness which can be believed and the law does not require corroboration, conviction can be made based on the evidence of such a single witness. If at all the accused is of the view that the examination of a particular witness cited in the memorandum of evidence annexed to the charge-sheet will either disprove the prosecution case or prove the innocence of the accused, then the accused shall take steps to examine him/her as a witness on his/her side. If it is not done so, arguments advanced on the side of the accused that the non-examination of a particular witness will impair the case of the prosecution, cannot be accepted. 11. Above all, in this case, it is the contention of the appellant that the two eye witnesses examined by the prosecution being the close relatives of the deceased, their evidence should not have been accepted and acted upon. It is pertinent to note that P.W.1 and 2 are close relatives not only to the deceased but also the appellant/accused. The appellant/ accused is none other than the wife of the deceased. The eye witnesses are none other than the brother and brother's wife of the deceased. Though an attempt was made to show that there was strained relationship between the deceased and his brother-P.W.1 and that he could have caused the death of deceased and implicated the appellant/accused, excepting a bald suggestion which was promptly denied, there is no other material in support of such suggestion. The said attempt made by the accused hopelessly failed. There is no evidence to impute motive on the part of P.W.1 to falsely implicate the appellant/accused. Even assuming that P.W.1 and 2 being the brother and brother's wife of the deceased are interested witnesses, the legal consequence is that their evidence cannot be straight away rejected but should be accepted or rejected after putting them to the test of careful scrutiny. After applying the above test to the evidence of P.W.1 and 2, this court is of the https://hcservices.ecourts.gov.in/hcservices/ view that their evidence cannot be rejected as unreliable. The alleged contradictions between the evidences of P.W.1 and 2 are in fact no contradiction at all and even assuming if there are a few, they shall be trivial and immaterial, which will not affect their veracity in any manner. 12. The next contention of the learned counsel for the appellant is that the evidence of P.W.1 on the one hand and P.W.3 and 9 on the other hand contradict with each order regarding where and how Ex.P1 - complaint was prepared. According to him when the complaint forming the very basis of the prosecution was lodged itself is in doubt, the entire prosecution theory should be disbelieved. It is the further contention of the learned counsel for the appellant that there was an unexplained delay of 7 hours in lodging complaint which shall be fatal to the prosecution cases. Both the contentions, according to the considered view of this court, do not merit acceptance. Of course, it is true that P.W.1 stated that his statement was recorded and his signature was obtained in the police station. However, P.W.3 would state that he was the scribe of the complaint and the same was scribed by him to the dictation of P.W.1 in the place of occurrence itself. His evidence is corroborated by P.W.9 who has stated that P.W.1 gave a written complaint and on receipt of the written complaint he registered the case. The endorsement found in Ex.P1 - Complaint also confirms the same. Under such circumstances, the slight variation in this regard in the evidence of P.W.1, in chief examination, which may be even due to lose of memory caused by the lapse of time, shall not affect his veracity in any way. Though such a memory lose was exhibited in the answer given in the chief examination of P.W.1, in the cross-examination he has clearly stated that he got the complaint written by P.W.3 - Mathiazhagan to his dictation, took it to the police station and lodged it with the police. In the light of the same, The above said contradiction pointed out by the learned counsel for the appellant is not a material contradiction affecting the veracity of the above said witnesses or the prosecution case as such. 13. So far as the delay in lodging the complaint is concerned, proper explanation has been offered by P.W.1 which cannot be brushed aside or rejected as untenable. Occurrence is said to have taken place in a remote village at midnight. Hence P.W.1 waited till the morning and at 6.00 a.m after asking the persons collected in the place of occurrence to look after the dead body and the accused who had been detained there, went to the police station and lodged the complaint. Only an unexplained delay can be said to be a factor affecting the prosecution case. Mere delay alone shall not be enough to throw out the prosecution case. Such a delay, to be fatal to the prosecution case, should lead to an inference or atleast a reasonable suspicion that there had been concoction or embellishment. In this case apart from the fact that there is no scope for coming to the conclusion that the delay was utilised for concoction or embellishment, there is a proper explanation for the https://hcservices.ecourts.gov.in/hcservices/ delay. Therefore, the submission made by the learned counsel for the appellant that the prosecution case should have been rejected on the ground that there was a delay of 7.00 hours in lodging the complaint, has got to be discountenanced. 14. A weak attempt has been made on the part of the appellant to show that the injuries found on the deceased could not have been caused by M.O.1 - axe. According to the submissions made by the learned counsel for the appellant, the evidence of P.W.6 - Medical Officer would indicate that an incised wound rather than lacerated wound could have been caused if M.O.1 - axe was used and that since the injuries 1 and 2 noted in the post mortem certificate found on the neck of the deceased were lacerated wounds, they could not have been caused with M.O.1 - axe. This court is unable to accept the above said contention for the simple reason that P.W.6 - Medical Officer has simply answered, "when a sharp edge weapon like axe comes into contact, it may cause an incised wound". However, the Medical Officer has clearly asserted that the above said injuries found on the neck of the deceased could have been caused by M.O.1 - axe. Pointing out the fact that the third injury, namely an abrasion found on the neck and the fourth injury found on the left hand little finger, the learned counsel for the appellant argued that the same would falsify the case of the prosecution