IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.243 of 2008 Sudalaimani .. Appellant/Accused vs State rep. By The Inspector of Police Ambattur Police Station Chennai (Cr.No.905 of 2004) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Thiruvallur, in S.C.No.20 of 2006 dated 1.11.2007. For Appellant : Mr.S.Swamidoss Manokaran For Respondent : Mr.P.Kumaresan 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, Tiruvallur, made in S.C.No.20 of 2006 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty as per the charge and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.The short facts necessary for the disposal of this appeal can be stated thus: (a) The accused is the husband of the deceased Thirumaniselvi. P.W.1 is the son and P.W.2 is the brother of the deceased while P.W.8 is her younger sister. P.W.3 is the wife of P.W.2. Suspecting the fidelity of his wife, the accused was often quarrelling with her and even tortured her. On the date of occurrence i.e., 8.11.2004, as usual, there was a quarrel between the deceased and the accused at about 9.00 P.M. Following the same, the accused dashed her head against the wall and caused her death. P.W.1 was the sole eyewitness https://hcservices.ecourts.gov.in/hcservices/ to the occurrence. At the time of occurrence, the deceased asked P.W.1 to go and inform to the uncle. When P.W.1 came out of the house, the accused bolted the house and left the place. P.W.5 is the neighbour of the accused, and he was able to hear the noise coming from the house of the accused at the time of occurrence. He also witnessed the accused leaving the house after bolting outside. Next morning also, it was found locked. (b) On 9.11.2004, the deceased did not come to the house of P.W.3, and hence P.W.3 as usual came to visit the house of the deceased. She opened the door and found the dead body of the deceased. One Jayaraman, the brother of the deceased proceeded to the respondent police station and gave a complaint to P.W.12, the Inspector of Police, which is marked as Ex.P7. On the strength of Ex.P7, a case came to be registered in Crime No.905 of 2004 under Sec.302 of IPC. The printed FIR Ex.P8, was despatched to the Court. (c) P.W.12 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P1, and also a rough sketch, E.P10. He also conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P9. Then, the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (d) P.W.11, the Professor, Department of Forensic Medicine, Kilpauk Medical College, on receipt of the requisition, conducted autopsy on the dead body of Thirumaniselvi and has issued a postmortem certificate, Ex.P4, with his opinion that the deceased would appear to have died of asphyxia due to ligature strangulation about 30 to 36 hours prior to postmortem. (e) Pending the investigation, the accused was arrested on 15.11.2004 at 5.30 P.M. when he volunteered to give a confessional statement which was recorded. No incriminating material was found, and he was sent for judicial remand. On completion of investigation, the Investigating Officer filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to establish the charge, the prosecution examined 12 witnesses and also relied on 10 exhibits. 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 Court heard the arguments advanced and after scrutinizing the materials, took the view that the prosecution has proved the case beyond reasonable doubt and hence, found him guilty and awarded the punishment which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel made the following submissions: (i) The specific case of the prosecution was that the occurrence has taken place on 8.11.2004 between 9.00 P.M. and 10.00 P.M. The prosecution had only one eyewitness namely P.W.1, a child aged 3 at the time of the occurrence. Before accepting the evidence of a child, the maturity of the child has got to be tested. Since the child was only 3 years old, it could not have the maturity, and further, it could not speak about the occurrence as one narrated https://hcservices.ecourts.gov.in/hcservices/ before the trial Court. It would be indicative of the fact that it was due to the tutoring made to the child, and except the evidence of the child, no evidence is available to the prosecution. (ii) According to P.W.5, he found the accused going out of the house after bolting it at about 10.00 P.M. and thereafter, he did not come, and the dead body was found on the next morning at about 9.00 A.M. On 9.11.2004, by P.W.3 and others. Thus, it would be quite clear that from 10.00 P.M. on 8.11.2004 to 9.00 A.M. on 9.11.2004 there was a long interval of 11 hours during which anything could have happened; and that merely because the accused bolted the house and went outside, it cannot be stated that it was he who committed the crime. 5.The learned Counsel would further add that the medical opinion canvassed also did not support the prosecution; that according to the postmortem Doctor, the death would have been caused between 30 and 36 hours prior to autopsy; and that if to be so, the occurrence should have taken place in the day hours of 8.11.2004 and could not have been between 9.00 P.M. and 10.00 P.M. as alleged by the prosecution. 6.The learned Counsel would further submit that in the case on hand, the prosecution had no further evidence to offer; that the trial Court has believed the evidence of the child aged 3 and has made a judgment of conviction, and thus the lower Court has taken an erroneous view which has got to be set aside. 7.Added further the learned Counsel in the second line of argument that even as per the prosecution case, there were often quarrels between the accused and the deceased since he suspected her fidelity; that even on the date of occurrence, P.W.5 a neighbour, has heard the noise inside the house; that it would be quite clear even from the evidence of P.W.1 that there was a quarrel between the spouses, and therefore due to the sudden quarrel, he has acted so; that it is not a fit case where it could be termed as murder since he had no intention or premeditation, and hence, it has got to be considered by this Court. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that the wife of the accused Thirumaniselvi died in an incident that had taken place inside the house of the accused on 8.11.2004. Following the inquest made by the Investigator P.W.12, the dead body was subjected to postmortem by P.W.11, the Doctor, who has given his opinion that the deceased would appear to have died of asphyxia due to ligature strangulation between 30 and 36 hours prior to postmortem. The fact that she died out of homicidal violence was not a subject matter of controversy before the trial Court. Hence it has got to be recorded so. 10.True it is, in the instant case, the prosecution had only one occurrence witness namely a child of tender age. It is well settled proposition of law that a child can be a witness, and the evidence of the child could be relied upon by the Court to base a conviction, provided after testing the maturity of the child, the Court is https://hcservices.ecourts.gov.in/hcservices/ satisfied that the evidence of the child though of tender age, inspired the confidence of the Court. In the instant case, the child was only three years old. But, before recording his evidence, the maturity of the child has actually been tested by the trial Court, and it was satisfied. Apart from that, the child has clearly narrated the incident, and despite the cross-examination in full, the evidence of the child remained unshaken. The child has clearly spoken to the fact that it was his father who dashed his mother on the wall and thus caused her death; that at the time of the incident, the mother asked the child to go and inform to the uncle, and then the child was coming out, and the father also came out and went after bolting the house outside. This part of the evidence projected by the prosecution through P.W.1, in the considered opinion of the Court, would be pointing to the guilt of the accused. Though it was a child of tender age, its maturity was tested and found to be satisfactory, and its evidence also remained unshaken. 11.Added circumstance is the evidence of P.W.5, a neighbour. According to P.W.5, he heard the noise inside the house just before the occurrence, and thereafter, he found the appellant/accused bolting outside and leaving the place. On the next morning, the dead body was found. At this juncture, it is pertinent to point out that after the occurrence has taken place, the accused did not come back to the house. Added circumstance was that the incident had taken place and the dead body was found inside the house of the accused. Hence, the appellant/accused as a responsible husband is expected to give a convincing answer how she happened to die inside the house. He had no answer at all. The conduct of the accused that he left the place immediately by bolting outside, and he did not come back at all would be the additional circumstance. In a given case like this, when a particular circumstance is missing, and it was within the special knowledge of the accused, it is for him to explain, and if he does not explain or he comes with the false explanation or suppresses the fact, it could be well inferred that he is the person concerned with that circumstance. The dead body was found inside the house. He had no explanation to offer; but, he has bolted the house and gone out, and he did not come back at all. Coupled with the evidence of P.W.1 and P.W.5 who has seen the accused going away, all the above would be pointing to the guilt of the accused, and hence, in view of the above evidence available, the contentions put forth by the learned Counsel do not carry any merit whatsoever, and they are to be rejected and accordingly, rejected. Thus it can be well stated that the prosecution has brought home the guilt of the accused that it was he who caused the death of his wife by ligature strangulation and dashing her head on the wall. 12.As far as the second line of argument is concerned, this Court is able to see force in the same. Even according to the prosecution, there were quarrels between the spouses since the accused was suspecting her fidelity all along. Even on the date of occurrence, P.W.5 was able to hear the noise raised at the time of the quarrel between the spouses just prior to the occurrence. Even according to P.W.1, they were quarrelling with each other, and in that quarrel, he has actually caused asphyxia by strangulation and caused her death. It is neither premeditated, and there is nothing to infer that it was intentional, but was due to the quarrel. Taking https://hcservices.ecourts.gov.in/hcservices/ into consideration the cumulative facts and circumstances, this Court is of the considered opinion that it is a case where though the act of the accused could not be termed as murder, it would attract the penal provisions of Sec.304 (Part I) of IPC. This Court is of the view that the imposition of a punishment of 8 years Rigorous Imprisonment would meet the ends of justice. 13.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant under Sec.302 of IPC are set aside, and instead, he is convicted under Sec.304 (Part I) of IPC, for which he is directed to suffer 8 years Rigorous Imprisonment. The fine and default sentence imposed by the trial Court will hold good. The sentence already undergone by him shall be given set off. 14.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1. THE PRINCIPAL SESSIONS JUDGE, TIRUVALLUR. 2. THE DISTRICT COLLECTOR, TIRUVALLUR. 3. THE DIRECTOR GENERAL OF POLICE, MYLAPORE, CHENNAI -4. 4. THE SUPERINTENDENT CENTRAL PRISON, PUZHAL, CHENNAI. 5. THE JUDICIAL MAGISTRATE, AMBATTUR. 6. -do- thro THE CHIEF JUDICIAL MAGISTRATE, TIRUVALLUR. 7.THE INSPECTOR OF POLICE, AMBATTUR POLICE STATION, CHENNAI. CR.905/2004 https://hcservices.ecourts.gov.in/hcservices/ 8. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. +1cc to Mr.S.Swamidoss Manokaran,Advocate SR 70714 RSM (CO) km/23.12. CRL.A.No.243 of 2008 https://hcservices.ecourts.gov.in/hcservices/