Madras High Court Janakiraman-vs-State Through on 19 November, 2008
DATED : 19.11.2008
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
CRIMINAL APPEAL NO.968 OF 2007
2.Subramani .. Appellants
the Superintendent of Police,
Kondapalayam Police Station
(Crime No.367/2006) .. Respondent
This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court-II, Ranipettai, Vellore District made in S.C.No.231 of 2007, dated 05.10.2007. For Appellants : Mr.K.S.Rajagopalan
For Respondent : Mr.P.Kumaresan, APP
– – – –
(The judgment of the court was delivered by
This appeal challenges the judgment of the Additional District and Sessions Division, Fast Track Court No.2, Ranipet made in S.C.No.231 of 2007, whereby these two appellants/Accused Nos.1 and 2 stood charged under Sections 498(A), 302 and 201 IPC, tried, found guilty as per the charges and awarded life imprisonment each and to pay a fine of Rs.5000/-, in default to undergo one month R.I. under Section 302 IPC, 3 years R.I. each and to pay a fine of Rs.1000/-, in default to undergo one month R.I. under section 201 IPC and 3 years R.I. each and to pay a fine of Rs.1000/-, in default to undergo one month R.I. under Section 498A IPC and the sentences were ordered to run concurrently.
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the elder brother of the deceased Sampurnam. P.Ws.2 and 3 are the parents of the deceased. The deceased was aged about 22 years and she is the wife of the first accused. The second accused is the father of the first accused. P.Ws.2 and 3 were living in a village situated about 4 Kms. away from the place where the deceased Sampurnam was living with her husband. Three years prior to the occurrence, the marriage of the deceased and first accused took place following customary rites and they were living together at Kodaikal village. The second accused attempted to outrage the modesty of the deceased and apart from that, there was dowry demand. Hence she came back to the house of her parents and was living with them. Thereafter, a panchayat was convened, in which P.Ws.2,3 and 9 and others were members, as a result of which the situation was pacified. Thereafter, the deceased was asked to go and live with the husband. Accordingly, she went with the husband and they were living together. b)On the date of occurrence, i.e. on 12.11.2006, since the child of the deceased was ill, the deceased took her to the Government Hospital, Solinghur, where P.W.13 issued outpatient chit, which was marked as Ex.P.9. After getting treatment, she returned with the child. At about 12.30 p.m., she reached home, but she was standing outside with the child, since the door was found locked and this was witnessed by P.W.7. The deceased was waiting for the accused. Thereafter, both the accused took the deceased inside the house. c)On the very day at about 6.30 p.m., P.Ws.1 to 6 and 21 were informed that the deceased died by hanging in the ceiling fan. Immediately, on hearing the same, they went there, entered into the house and found the dead body of the deceased lying in the cot. Thereafter, it was informed to P.Ws.1 to 3 and they came there and witnessed the same. P.W.1 immediately proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.24, the Sub Inspector of Police, on the strength of which, a case came to be registered in Crime No.367 of 2006 under Section 174 Cr.P.C.. Ex.P.18, the F.I.R. was despatched to the Court. d)Since the deceased died within 7 years from the time of marriage, the copy of the F.I.R. was sent to the R.D.O. and the Deputy Superintendent of Police. P.W.26, the Deputy Superintendent of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.22, the rough sketch. He gave a requisition to the R.D.O. concerned to conduct inquest. The scene of occurrence was photographed through P.W.17, the photographer. M.O.2 (series) and M.O.3 (series) photos and negatives were marked. Finger print experts were called for. P.W.15, the Finger Print Expert took the finger prints from the ceiling fan, which were tallied with the finger prints of A-1. Ex.P.11 is the report of finger print expert. e)P.W.25, the R.D.O., on receipt of the requisition, went to the spot and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.20, the inquest report. He examined the witnesses and recorded their statements. Then, the dead body was sent to the Government Hospital, Sholingur for the purpose of autopsy. f)P.W.12, the Doctor attached to the Government Hospital, Sholingur, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.7, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of asphyxia due to strangulation 36 to 48 hours prior to autopsy. g)When P.W.20, V.A.O. was in his office on 13.11.2006 at about 12.15 p.m, the first accused appeared before him and gave confessional statement orally. P.W.20 took the first accused to the respondent police station and produced him before the Investigating Officer, who has also recorded the confessional statement of the first accused in the presence of the witnesses. Following the same, the case was converted to Sections 302 and 201 IPC and Ex.P.23, the amended report was despatched to the Court. The first accused produced M.O.1, broken spectacles, which was recovered under a cover of mahazar. A-2 was also arrested and he came forward to give confessional statement, which was recorded in the presence of the witnesses. Ex.P.16 is the admissible part of the confessional statement of A-2. A-2 also produced M.O.4, nylon rope, which was recovered under a cover of mahazar. Then, the accused were sent for judicial remand. The material objects recovered were sent for chemical analysis. On completion of the investigation, the Investigator has filed the final report.
3.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 26 witnesses and also relied on 23 exhibits and 5 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced on either side and looking into the materials available, took the view that the prosecution has proved the case and found them guilty as stated above and awarded punishments as referred to above. Hence this appeal has arisen at the instance of the appellants.
4.Advancing arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove any one of the three charges, which were levelled against the appellants; that admittedly, the second appellant at the time of the incident, was aged 74 years; that according to the prosecution, he made an attempt of outraging the modesty of his daughter-in-law, who was aged 22 years, but this was not spoken to by anybody, except P.W.3; that P.W.3 has actually exaggerated the same; that it is pertinent to point out that pursuant to the quarrel, admittedly she came to the house of P.Ws.2 and 3 and was living with them; that even thereafter, she left for the house of the first accused and was living with him, where A-2 was also living; that had such a situation arisen in the past, she would not have agreed to go with A-1 and live with him in the very same house where A-2 was also living and thus, this was nothing, but a false story.
5.Added further the learned counsel that so far as A-2 was concerned, what was available for the trial court was only the extra judicial confessional alleged to have been given by A-1 to P.W.20, V.A.O.; that the statement made by A-1 against A-2 cannot be taken as material to act against A-2; that so far as A-2 was concerned, pursuant to the confessional statement, nylon rope was recovered, but these were all nothing but an introduction by the investigating agency and thus, insofar as A-2, there was no material available at all; and that so far as the charge under Section 498-A IPC was concerned, no evidence is adduced to sustain conviction and hence there was no case at all in respect of Section 498-A IPC.
6.Added further the learned counsel that so far as A-1 is concerned, the prosecution had no evidence at all; that according to the prosecution, the only available evidence was the extra judicial confession alleged to have been given by A-1 orally to P.W.20, V.A.O.; that P.W.20 was the V.A.O. of the same place and there was no impediment felt to record the same in writing, but he has not done so; that he has produced the first accused before the respondent police; that it would be quite clear that the document was created as if there was extra judicial confession alleged to have been given by A-1 to P.W.20, V.A.O. orally and thus, it canot be believed at all; that in the instant case, what was recovered was the broken spectacles; that as could be seen, it was also available in the house; that if to be so, when observation was made by the Investigating Officer, he would have naturally recovered the same and there was nothing secrecy, but the prosecution came forward as if it has been recovered by the Investigating Officer thereafter the arrest of A-1 and hence it cannot also be believed; and that in the instant cae, the prosecution had no evidence at all and under these circumstances, even the case against A-1 also was not proved and hence the appellants are entitled for acquittal in the hands of this court.
7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
8.It is not in controversy that the dead body of Sampurnam, aged 22 years, was found in her house and following the inquest made by the R.D.O., the dead body was subjected to post-mortem by P.W.12, the Doctor, who has given his opinion as a witness before the court and has also recorded the same in Ex.P.7, the post-mortem certificate, that the deceased would appear to have died of asphyxia due to strangulation. Thus, the defence plea before the trial court that she has committed suicide by hanging is thoroughly ruled out. Thus, the prosecution has proved that it was the homicidal violence.
9.Admittedly A-1 married the deceased three years prior to the occurrence and they were living together. A-2 was also living along with them. So far as the charge under Section 498-A IPC dowry demand is concerned, this court is unable to notice anything in this regard either in evidence or through materials pointing out that A-1 and A-2 have committed the crime under Section 498-A IPC and hence the appellants are entitled for acquittal in respect of the said charge.
10.So far A-2 is concerned, the specific case of the prosecution was that prior to the occurrence, he has attempted to outrage the modesty of the deceased, and for that, she was not amenable, but no one except P.W.3 has spoken about the said fact. Even P.W.2, the father and P.W.1, the elder brother of the deceased did not speak about the said fact. Had it been true, the deceased Sampurnam would not have agreed to live with A-1 in the same house where A-2 was also living. Under these circumstances, the allegation made against A-2 was to be rejected. Apart from that, what was available against A-2 was only the extra judicial confession, which was given by A-1 to P.W.20, V.A.O. But, that extra judicial confession of A-1 cannot be applied to A-2. There was recovery of nylon rope from A-2 pursuant to his confessional statement, but the evidence in this regard remained shaky. Hence it cannot be stated that the prosecution has brought home the guilt of A-2 beyond reasonable doubt and therefore, A-2 is entitled for acquittal.
11.So far as A-1 is concerned, this court has to agree with the case of the prosecution and the contentions put forth by the learned counsel for the appellants are liable to be rejected. A-1, A-2 and the deceased Sampurnam were living together and within three years of the marriage, the occurrence has taken place. As recorded above, it was not the commission of suicide, but it was the case of homicidal death. When both A-1 and the deceased were living together, a duty was cast upon A-1, as a responsible husband, to explain the reasons as to how the deceased died. The defence plea was that it was the commission of suicide, but the evidence was contrary. The medical evidence would indicate that the death has occurred out of asphyxia due to strangulation. The dead body was actually found inside the house and A-1 claimed that she was hanging in the ceiling fan. P.W.15, the finger print expert was called for and he has also taken finger prints from the fan and the finger prints of A-1 was also taken and they were found tallying.
12.Added circumstance was that the first accused appeared before P.W.20, V.A.O. and gave confessional statement orally. P.W.20 belonged to the same place and he is also acquainted with A-1. Hence there was no reason for the V.A.O. to come to the police station or before the court to give false statement or evidence. According to P.W.20, the first accused appeared before him and informed that it was he who caused the death of his wife and when he called the deceased for intercourse, she refused to come and share the bed. Further, it has got to be pointed out that only on the confessional statement given by A-1 to P.W.20 and when he was produced before the Investigator, the case came to be altered to Section 302 IPC. Thus, the circumstances, namely (i)non explanation as to how the death of Sampurnam happened, (ii)suppression of fact that she died out of homicidal violence and made it appear as if she committed suicide by hanging, (iii)finger prints were found to be tallied, (iv)the extra judicial confession alleged to have been given by A-1 to P.W.20, V.A.O. and (v)the conduct of A-1, would clearly indicate that it was the first accused who has committed the crime and killed his wife.
13.The second line of argument put forth by the learned counsel for the appellants is that when A-1 called his wife, namely the deceased, for intercourse, she refused to share bed with him and further, she kicked him on his private part as could be seen from the confessional statement and hence the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder. This contention of the learned counsel for the appellants, though attractive at the first instance, has got to be rejected for more reasons than one. The occurrence has taken place at about 4.30 p.m. or 5.00 p.m. in the evening hours and even assuming that the first accused called her wife for intercourse, that was not the time to do so and apart from that, even if she refused to share bed with him, there cannot be any justification for the husband, namely A-1 to cause death. Hence without any justification, he caused the death of the deceased by strangulation and then, he enacted a drama as if it was by hanging. Under these circumstances, the contentions put forth by the learned counsel for the appellants in this regard has got to be rejected. Hence the first accused has committed murder and also screened the evidence. Thus, the lower court was perfectly correct in finding A-1 guilty under Sections 302 and 201 IPC.
14.Therefore, the conviction and sentence imposed on A-1 by the trial court under Sections 302 and 201 IPC are confirmed. The conviction and sentence imposed on A-1 under Section 498A IPC and the conviction and sentence imposed on A-2 under Sections 498A, 302 and 201 IPC are set aside. A-1 is acquitted of the charge under Section 498A IPC and A-2 is acquitted of the charges levelled against him. The bail bond if any executed by A-2 shall stand terminated and the fine amount if any paid by A-1 under Section 498A IPC and the fine amount if any paid by A-2 shall be refunded to them. Accordingly, this criminal appeal is partly allowed.
1.The Additional District and
Fast Track Court No.2,
2.The Superintendent of Police,
Kondapalayam Police Station.
3.The Additional Public Prosecutor,