Madras High Court Kaliyamurthy-vs-State Rep. By The Inspector Of on 20 September, 2007
Author: D Murugesan
Bench: D Murugesan, K Basha
D. Murugesan, J.
1. The appellant is the sole accused who stands convicted for the offences under Sections 498A, 302, 316 and 210 I.P.C., and sentenced the appellant under Section 498A I.P.C., to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for three months, under Section 302 I.P.C., for imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo one year rigorous imprisonment and under Section 316 I.P.C., to undergo 10 years rigorous imprisonment and to pay fine of Rs. 1000/-, in default, to undergo one year rigorous imprisonment and under Section 201 I.P.C., to undergo 5 years rigorous imprisonment and to pay fine of Rs. 500/-, in default, to undergo 3 months rigorous imprisonment by the judgment of the learned Additional District Sessions Court, Fast Tract Court No. 1. Chengalpattu dated 11.3.2004 made in S.C. No. 585/2002.
2. The appellant/accused was brought for trial by the prosecution on the following evidence:
(a) The accused and the deceased are married just six years prior to the date of occurrence. The accused is deaf and dumb. There was frequent demands of dowry and as the deceased did not like to live with the accused, she left for her parents’ house just six months prior to the occurrence. However, she was pacified and was sent back to the accused house.
(b) On 3.3.2002 at about 4.30 a.m., P.W.6 who is the neighbour of the accused came out of the house as her husband left for job. She smelt burnt smoke from the house of the accused. As she was under the impression there was just burning and therefore she kept quiet. Again, at about 5.30 a.m., when she went outside, she saw the accused coming out of the house and leaving from his house. Thereafter, she saw P.Ws.4 and 7 the brother of the accused as well as some other persons knocking the compound gate of the accused. She witnessed P.W.5 climbing the compound and opening the gate from his side. She saw from inside the house and she returned to her house.
(c) P.W.4., the Milk Vendor came to the accused house around 7.30 a.m., and knocked the compound door. As there was no response she left the place and returned back at about 9.00 a.m., and at that time she saw the brother of the accused by name Veerasamy knocking the compound gate. She also saw P.W.5. She also saw that the doors of the house were open and inside the deceased was found dead with burnt injuries.
(d) P.W.18., the Mazan, under whom the accused was working came to the house of the accused to call him for work at about 5.00 a.m. Even before he reached the house, he smelt the smoke and thereafter, he also knocked the compound gate and called the name of the accused. As there was no response, he jumped over the compound wall and then found the accused running away from the house. He and the other one by name Munusamy were under the impression that the accused had burnt his wife and was running away from his house. He also saw P.W.6 in front of her house. Thereafter, he informed the local Panchayat Board President as to the occurrence. The version of P.W.18 is also spoken to by P.W.19.
(e) On intimation by P.W.3 at about 10.00 a.m., over the phone, P.W.1 came to the scene of occurrence at about 1 o’clock and lodged a complaint-Ex.P.1 to P.W.20 who registered the case in Crime No. 51/02 for the offence under Section 304B I.P.C. He prepared the Express F.I.R. He took up the investigation and inspected at the place of occurrence at about 3.15 a.m., and prepared the observation mahazar-Ex.P.2 in the presence of P.W.7. He also draw rough sketch-Ex.P.13 and recovered M.Os.1 to 9 under observation Mahazar-Ex.P.3. He enquired and recorded the statement of P.Ws.1, 2, 3, 6 and others. As the marriage between the accused and the deceased has taken place within 6 years from the date of occurrence he requested an enquiry by the Revenue Divisional Officer, P.W.17 who conducted the inquest on the same evening. On 4.3.2002, he examined P.Ws.8, 9 and others and recorded their statements. He sent the material objects, Form 95 to the Court and thereafter, he sent the Chemical Report-Ex.P.17. On 5.3.2002 he arrested the accused at about 2.00 p.m. and thereafter, the accused who was deaf and dumb was sent to the Deaf and Dumb School, Santhome on the same day and thereafter, he made arrangement for the accused to be remanded.
(f) Thereafter, the investigation was taken out by P.W.21-Deputy Inspector of Police, Ennore Circle from 12.3.2002. He inspected the scene of occurrence and recorded the statements of some of the witnesses and made enquiries. On 13.3.2002 he enquired and recorded the statement of one Babu and he came to know that there is possibility of the accused who is said to have committed the murder of his wife. Therefore, he took the accused for police custody. On 14.3.2002 and thereafter, he enquired and recorded the statements of P.W.1, 2 and 8. He came to know from the post-mortem report-Ex.P.6, he altered the F.I.R. into one under Section 302 I.P.C., and sent the altered first information report to the Court under Ex.P.18. On 15.3.2002, he enquired the accused in the Deaf and Dump school, Tambaram in the presence of P.W.12 and others and at the time when the confession statement of the accused was given he came out of the room where the accused gave confession. Thereafter, P.W.22 had taken up the further investigation On 18.3.2002 he enquired P.Ws.18, 19 and one Munusamy. On 24.3.2002 he examined, the post-mortem doctor, P.W.16 and obtained Ex.P.6-Post-mortem report and filed a charge sheet against the accused on 23.5.2002 for the offences under Sections 498A, 302, 316 and 401 I.P.C. The Revenue Divisional Officer held inquest and his report is Ex.P.8 and his final report is Ex.P.12.
3. In order substantiate the case, the prosecution had examined P.Ws.1 to 22, marked Exs.P.1 to P.19 and produced M.Os.1 to 11.
4. When the accused were questioned under Section 313 of the Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution the accused denied the total charges levelled against him and also stated that at 5.30 a.m., on 3.3.2002 he left the house to answer the nature call.
5. Dr. Mr. Krishnamurthy, learned Counsel for the appellant submitted that the entire case of the prosecution rests only on circumstantial evidence.
(i) He would draw exclusively our attention to the evidence of P.W.6, 18 and 19 as to the vital contradictions. He would also submit that by their conduct in having seen the accused leaving the house at 5.00 or 5.30 a.m., and also saw the deceased inside the house with burnt injuries it is quiet unnatural for them not to inform anybody, much less, to the police till a message was given over phone by P.W.3 to P.W.1 at 10.00 a.m.
(ii) He would submit that except the above three witnesses, there is no other incriminating circumstances to implicate the accused for the offence. He would also submit that the prosecution has miserably failed to explain as to the presence of one Veerasamy who is the brother of the accused even at 7.30 a.m., on that day which throws serious doubt about the prosecution case. In fact, before the Revenue Divisional Officer, the mother of the deceased had also specifically deposed that the said Veerasamy had tried to misbehave with her daughter. As the prosecution has not come up with the true version of the case and has only falsely implicated the accused, the evidence of P.W.6, 18 and 19 are highly unreliable.
(iii) He would further submit that even according to the Investigating Officer P.W.21, the alleged involvement of the accused in the offence, came to know only through one Babu. But, he has been withheld from the Court for the reasons best known to the prosecution. The non-examination of the said Babu is not only fatal but also transpires the incriminating circumstances to implicate the accused. Hence, for all the above reasons, the accused is entitled to the benefit of doubt and consequently, the appeal should be allowed.
6. (i) The learned Additional Public Prosecutor, on the other hand had submitted that the conduct of the accused is relevant in this case to establish his involvement in the offence. Even according to the accused when he answered the questions under Section 313 Cr.P.C., he admitted that he left the house at 5.30 a.m., on the fateful day. Admittedly, both the accused and the deceased alone were residing in the house. There was no third person in the house on the fateful day.
(ii) He would also submit that the evidence of P.Ws.6, 18 and 19 are natural and they are not interested witnesses and there is no reason to discard their evidence solely on some minor discrepancies.
(iii) He would further submit initially the case was registered only for the offence under Section 304B I.P.C. But, only on coming to know of the case of murder on receipt of post-mortem report and that the further investigation over P.Ws.18 and 19, the involvement of the accused came to light.
(iv) The medical evidence supports the case of the prosecution and the doctor P.W.16 has opined that the deceased was first strangulated and after she was set fire. The above incriminating circumstances would certainly establish the case against the accused/appellant.
7. Before we go into the rival contentions, we must state that it has been repeatedly held by the Apex Court that whenever circumstantial evidence are considered for sustaining conviction and sentence, the Court must take great care and caution to scrutinise the evidence.
8. Again before we consider the incriminating circumstances as pointed out by the learned Additional Public Prosecutor against the accused, namely, medical evidence, it would be appropriate to deal with the evidence of P.Ws.6, 18 and 19.
9. P.W.6 is a neighbour of the accused. According to her she came out of her house around at 4.30 a.m., to send of her husband who left for his job. Even at that time she smelt burnt smell from the house of the accused. Unfortunately, she did not care even to verify the smell except by explaining that she was under the impression that the smoke was due to the burning of the thrash. Again, she came out from the house at 5.30 a.m., for putting kolam. She saw the accused leaving his house. Again at 9.00 a.m., she also saw some persons including P.W.4, the brother of the accused knocking the compound gate and P.W.5 climbing the compound wall and opening the compound gate and all of them went inside the house. She also saw the dead body of the deceased burnt inside the house through the window and simply left the place.
10. A careful reading of the evidence of P.W.6 appears to us to be highly artificial. She claimed to be the neighbour of the accused as well as the deceased. She smelt the burnt smell even at 4.30 a.m., and she did not care to inform when her husband came out who was leaving for his work. Secondly, when she came out at 5.30 a.m., she saw the accused coming out of the house and she has not even asked as to the smoke from the house and kept quiet. According to her only at 9.00 a.m., when she came out of her house she went inside the compound and saw the dead body through window along with others. Even then she did not care to inform the other witnesses about the fact that she saw the accused leaving the house at 5.30 a.m., on the same day. It is in the normal course a neighbour who has seen the woman dying with burnt injuries immediately response to the same and inform her relatives or atleast to other neighbours. She had kept quiet till the police came to enquire her after the complaint was lodged at 1.30 p.m., on the same day.
11. According to the evidence of P.W.18 he claims to be a Mason under whom the accused was working as his Assistant. Again on our careful consideration of the evidence, it appears to be highly artificial. He came to the house of the accused at 5.00 a.m., on the fateful day and even before he reached the house he smelt the burnt smell from the house and thereafter, he jumped over the compound wall along with P.W.19 and as the door was opened, he saw the deceased lying with burnt injuries. Whether the presence of P.W.18 as spoken to by him is highly doubtful as admittedly, the door was opened by P.W.5 only at about 9.00 a.m., as could be seen from the evidence of P.W.4. That means after P.W.18 had jumped the compound wall and went inside the house, he should have come out of the premises again after jumping the compound. Without even making an attempt to open the gate which was locked inside, it is not necessary to expect a person to come out after jumping the compound wall when he could open the compound gate and come