THANGARASU v. STATE OF MADRAS — 1993 DIGILAW 149 (MAD)

Judgment :- K.M. NATARAJAN, J. ( 1 ) THE accused in S. C. No. 76 of 1983 on the file of the Second Additional Sessions Judge, Tiruchirapalli, has preferred this appeal from jail, challenging the legality and correctness of his conviction under Section 302 Indian Penal Code and the sentence to undergo imprisonment for life. The appellant-accused was tried for the offence of murder on the allegation that on 6. 5. 1983 at about 10 P. M. he strangulated his wife Susila and caused her death. To substantiate the above charge, the prosecution examined P. Ws. I to 11, filed Exs. P. lto 7 and maked M. Os. 1 to 16. ( 2 ) THE case of the prosecution as disclosed from the oral and documentary evidence is briefly as follows:the accused married the deceased about 14 days prior to the occurrence. P. W. 1 is the Thalayari of Nagayanallur village. He would state that he is the Thalayari of the village for 14 years, that he knows the accused and the deceased and their parents and they belonged to his village Nagayanallur. 14 days prior to the occurrence, the accused married the deceased and subsequently a week later the deceased came and reported to him that the accused was having illicit intimacy with his brothers wife, namely, P. W. 4 and that they have spoiled her life by giving her in marriage to a person who was already having connection with his brothers wife whose husband died a year prior to that. P. W. 1 did not know about the illicit connection. Thereupon he and his wife warned the accused. The accused told them that he would not repeat the mistake and he would reform. ( 3 ) ON the day of occurrence, P. W. 1 had been to Yanaikalpatti in connection with distribution of clothes to poor people by the Government. At about 10 P. M. his son Subramaniam came and informed him that the accused strangulated his wife Susila and killed her. Hearing the information P. W. 1 came to Nagayanallur. He saw the body of the deceased near the tank at kokkikal, about 2 furlongs east of the village. By the side of the body, the parents of the accused as well as his wife were weeping. Hearing the information P. W. 1 came to Nagayanallur. He saw the body of the deceased near the tank at kokkikal, about 2 furlongs east of the village. By the side of the body, the parents of the accused as well as his wife were weeping. We went to Kattupudur police station and reported the matter to police at about 7 A. M. His complaint was reduced, into writing. It is marked as Ex. P. 1. P. W. 10, the then Sub-Inspector, recorded the statement and registered a case in Crime No. 5. 4 of 1983 under Section 302 Indian Penal Code. He prepared first information report with copies thereof and sent them to the higher officials and court. He informed the same to the Inspector, P. W. 11. P. W. 11 got a copy of the first information report at 8. 30 A. M. and he reached the scene at about 9. 10 A. M. He inspected the scene, prepared the observation mahazar Ex. P. 4 and drew the rough sketch Ex. P. 6 in the presence of witnesses. He seized M. O. 1 ribbon, M. O. 2 broken pieces of bangles and M. O. 3 broken pieces of bangles in the presence of witnesses under cover of mahazar. Between 10 A. M. and 11. 30 A. M. he held inquest over the, dead body and prepared the inquest report Ex. P. 7, After completing the inquest, he handed over the dead body with a requisition, to P. W. 9 for being taken to the medical officer for post-mortem examination. He caused photos of the scene place to be taken through the photographer P. W. 8. M. O. 7 series are the negatives and M. O. 8 series arc the photos. It is the evidence of P. W. 8 that on 6. 5. 1983 at 7 P. M. the accused and the deceased came to his photo studio and they jointly took photo. The photo is marked as M. O. 6. ( 4 ) P. W. 11 continued further investigation and on 7. 5. 1983 at 4 P. M. he arrested the accused at the bus stand. Thereupon he sent the seized articles along with the accused to the judicial remand. On 13. 5. 1983 he gave a requisition to record the 164statement from P. Ws. 1 to 3, to the Judicial Magistrate, Musuri. 5. 1983 at 4 P. M. he arrested the accused at the bus stand. Thereupon he sent the seized articles along with the accused to the judicial remand. On 13. 5. 1983 he gave a requisition to record the 164statement from P. Ws. 1 to 3, to the Judicial Magistrate, Musuri. ( 5 ) IN the meantime, P. W. 5, Medical Officer, Government Hospital, Kattuputhur, in pursuance of the requisition received from P. W. 11, conducted autopsy on the body of Susila at about 3 P. M. on 7. 5. 1983. He found on her the following Injuries:1. A horizontal contusion brown in color 4 x 3-1/2 across the upper part of the front of the neck. 2. Multiple cresentric and irregular abrasion over the left side neck near the left border of the contusion i. e. injury No. 1. 3. Multiple cresentric and irregular abrasion over the right side Neck near right border of the contusion i. e. injury No. 1. 4. A small oval shaped contusion brown in colour at the root of the neck. 5. Multiple irregular abrasions over both side face. 6. A small semi circular abrasion over the upper part of the right side neck below the right external ear. 7. Dried stains of blood seen from the left angle of the mouth and across the cheek. 8. Dried stains of blood seen from the left nostril and cheek. 9. Multiple irregular abrasion over he back of the both elbows. 10. A small abrasion over the middle third of the left forearm. 11. A small abrasion over the lower third of the right forearm. Internal examination: On opening the abdomen, coils of intestines are found stained with blood. On dissecting the neck, extravasations of blood seen in the subcutaneous area corresponding to external injury No. 1. The larynx and trachea are congested. Thyroid cartilage is fractured. Both the cornua of the hyoid bone are fractured. Stomach contains semi-digested rice particles. Liver, spleen, and kidneys were congested. Brain was also congested. he was of the opinion that death would appear to have occurred about less than 24 hours prior to post-mortem examination and about 2 hours prior to p-post- mortem examination and about 2 hours after her last meal. He was of the further opinion that the deceased would appear to have died of asphyxia due to throttling. Internal injury Nos. he was of the opinion that death would appear to have occurred about less than 24 hours prior to post-mortem examination and about 2 hours prior to p-post- mortem examination and about 2 hours after her last meal. He was of the further opinion that the deceased would appear to have died of asphyxia due to throttling. Internal injury Nos. 6, 8 and 9 with their corresponding external injury No. 1 could have been caused by throttling of the neck. Abrasions over both the sides of the neck and face could have been caused by nail mark. External injury Nos. 7 and 8 could have been caused by the mechanic pressure applied over the neck. Internal injury Nos. 6,7 and 9 and the external injury No. 1 are necessarily fatal. ( 6 ) THE evidence of P. W. 2 is that he knew both the accused and the deceased and that he was employed in the licensed arrack shop of one Periasami at Nagayanallur. On the day of occurrence at about 9 P. M. he was proceeding from Nagayanallur to Kavaraputti along the scene place to his masters house. At that time he saw the accused beating his wife Susila. He asked the accused as to why he was beating his wife when their marriage took place only 10 days ago, to which the accused said that he would not beat her again and that he would take her to his house. Thereupon he proceeded to his masters house. Half-an-hour later he was returning along the pathway and at that time he saw the deceased lying there. When he went near, he found her dead. Thereupon he was proceeding to report the matter to the parents of the accused. On the way, he met the parents of the accused, P. W. 3, wife of P. W. 1 and her son. While they were coming Opposile to him along with hurricane light, he narrated to them as to what he witnessed in respect of the quarrel between the accused and the deceased and that the accused had murdered his wife. Thereupon they asked him to point out the place and accordingly he took them to the place where they found the deceased lying with conclusions around the neck and her hair was found disheveled. Thereupon he proceeded to his house. P. W 3 Marilthakali is a native of Nagayanallur. Thereupon they asked him to point out the place and accordingly he took them to the place where they found the deceased lying with conclusions around the neck and her hair was found disheveled. Thereupon he proceeded to his house. P. W 3 Marilthakali is a native of Nagayanallur. It is his evidence that at about 10 P. M. he and the parents of the accused were conversing in the house of the father of the accused. P. W. ITs son Mani was also there. At that time the accused (Came there and told them that he beat his wife twice and she fell unconscious, west of Kuruvikkal and that he was proceeding to Kattupudur in order to bring a taxi. He asked them to go and see Susila. Thereupon they all took a hurricane light and went to the scene place. On the way they met P. W. 2 and, he too told them about his witnessing the quarre between the accused and the deceased and also seeing the deceased lying dead at the scene place some time later. They all went and saw Susila and there was, swelling in the neck. After completing the investigation, P. W. 11 laid charge-sheet against the accused on 15. 6. 1983. ( 7 ) WHEN the accused was examined with reference to the incriminating piece of evidence, he totally denied the prosecution evidence. Two witnesses were examined on his side. D. W. 1 was examined to prove that there was enmity between P. W. 1 and the father of the accused on account of ridge dispute and grazing of cattle. D. W. I further gave evidence that on the day of occurrence the deceased, her mother-in-law and their neighbours had been to cinema. D. W. 2 was examined for the purpose of proving that the accused was with him at about 6. 30 P. M. , that the deceased and her mother-in-law had been to cinema, that the deceased did not return, that the accused asked him (D. W. 2) to go and see in the house of P. W. 1 and that he told him that he was not on talking terms with P. W. 1. Thus, D. Ws. 1 and 2 were examined to prove alibi. Thus, D. Ws. 1 and 2 were examined to prove alibi. ( 8 ) THE trial Judge after taking into consideration the oral and documentary evidence, came to the conclusion that the prosecution has proved the guilt of the accused for the reasons stated in the judgment and convicted and sentenced the accused as stated above. Hence the convicted accused has preferred this appeal from jail. ( 9 ) MR. P. Venkatasubramaniam, Advocate, was appointed by the High Court Legal Aid Centre to defend the accused. The learned counsel vehemently argued that the only evidence available in this case is that of P. Ws. 2 and 3, that the said evidence is not acceptable and trustworthy and that the accused is entitled to acquittal. He also elaborately argued that even if the evidence of the witnesses is accepted, the offence would not fall under Section 302 I. P. C. but would fall only under Section 323 I. P. C. ( 10 ) THE learned Additional Public Prosecutor fairly submitted that in this case the whole case rests on the evidence of P. Ws. 2 and 3. There is absolutely nothing to disbelieve their evidence. However, P. W. 2 would only say that the accused was beating the deceased. The evidence of P. W. 3 would only show that when he was in the house of thy accuseds father conversing with the parents of the accused, the accused came there and told them that he beat Susila twice and she fell unconscious. P. W. 5, the Medical Officer, would state that the death is due to asphyxia due to throttling. According to him injury Nos. 6, 8 and 9 with their corresponding external injury No. 1 could have been caused by throttling. However, we have no material to show that it was the accused who throttled her neck. Thus if at all the accused is liable for any offence, he is not liable for the offence of murder but he is liable for the lesser offence viz, for causing hurt. ( 11 ) THE point for consideration is, whether the prosecution has proved the guilt of the accused and if so what is the nature of the offence committed by him. ( 12 ) IN this case as already stated in the narrative portion of the judgment, the accused married the deceased 14 days prior to the occurrence. ( 11 ) THE point for consideration is, whether the prosecution has proved the guilt of the accused and if so what is the nature of the offence committed by him. ( 12 ) IN this case as already stated in the narrative portion of the judgment, the accused married the deceased 14 days prior to the occurrence. According to P. W. 1, the Thalayari of the village, he arranged for their marriage. About a week after marriage, the deceased came and complained to him that the accused was having illicit intimacy with his brothers wife, P. W. 4, and that they have spoiled her life by giving her in marriage to a person who was already having connection with his brothers wife, to which P. W. 1 replied that he did not know about the same. Thereupon P. W. 1 and his wife found fault with the accused. According to P. W. 1, the accused told them that he would behave properly in future. P. W. 4 is the wife of the brother of the accused. It is in evidence that the husband of P. W. 4 died. P. W. 4 is treated as hostile as she has now stated in court that she has no connection with the accused. The evidence of P. W. 1 is to the effect that the deceased Susila complained to him that the accused is having illicit intimacy with his brothers wife and on hearing this, he and his wife found fault with the accused and the accused also told them that he would behave properly in future. There is nothing to hold that the evidence of P. W. 1 on this aspect is false. It is seen that on account of the illicit intimacy between the accused and his brothers wife, there was quarrel between the accused and the deceased. ( 13 ) AS regards the actual occurrence, we have got the extra-judicial confession of the accused said to have been made to P. W. 3. Some time prior to the actual murder, P. W. 2 has seen the accused beating the deceased. Later P. W. 2, on his return on seeing the deceased lying dead, went and informed P. W. 1. There is absolutely nothing to reject their evidence. Some time prior to the actual murder, P. W. 2 has seen the accused beating the deceased. Later P. W. 2, on his return on seeing the deceased lying dead, went and informed P. W. 1. There is absolutely nothing to reject their evidence. Even though P. W. 6 has stated that the accused and his wife the deceased were living happily and he was treated as hostile to the prosecution, since he has told in his 161 statement that there were frequent quarrels between the accused and the deceased as the accused was having illicit connection with P. W. 4. It is the evidence of P. W. 2 that he was employed in the arrack shop of the Periasami of Nagayanallur. On the day of occurrence at about 9 P. M. while he was proceeding through the scene place, to his masters place he happened to see the accused beating his wife. When he found fault with the accused by saying that not even 10 days have elapsed from the date of their marriage and as to why he was beating her like that, the accused replied that he would not beat her again and that he would take her to his house. Thereupon he went to his masters house. It is his further evidence that half an hour later when he was returning through the scene place, he found the deceased lying dead with injuries. Thereupon he proceeded to the village to inform the matter to the parents of the accused. On the way, he met the parents of the accused, P. W. 3, P. W. ls son and another. He narrated the incident to them. They wanted him to point out the place. He accompanied them to the place and showed the dead body. They found contusions on the neck and her hair was found dishevelled. His evidence is also corroborated by the evidence of P. W. 3 who was with, the parents of the accused on the date of occurrence. They wanted him to point out the place. He accompanied them to the place and showed the dead body. They found contusions on the neck and her hair was found dishevelled. His evidence is also corroborated by the evidence of P. W. 3 who was with, the parents of the accused on the date of occurrence. It is his evidence that at about 10 P. M. on the date of occurrence when he was in the house of, the parents of the accused along with P. W. ls son Mani and the parents of the accused, the accused came and informed his parents that he Mat his wife twice and she fell unconscious and that he was proceeding to Kattupudu to bring a taxi. He asked his parents to go and see her. Thereafter taking a hurricane light they were all proceeding to the place, namely, west of Kuruvikal. On the way they met P. W. 2 who also reported about his witnessing the occurrence of beating the deceased by the accused and sometime later when he was returning, he say the deceased lying dead. When they went and saw, there was swelling in the neck. The evidence of P. Ws. 2 and 3 would thus show that the accused beat his wife at about 9 P. M. with hand. The evidence or P. W. 3 is that the accused made an extra-judicial confession to his parents that he beat his wife twice. P. W. 2 did not say as to how the accused beat his wife. He would only say that the accused was beating his wife, meaning thereby that he was beating his wife with hand and not with any weapon. Beyond, that, there is absolutely nothing to show in the evidence of the prosecution witnesses that the accused strangulated his wifes neck or caused her death. It is the evidence of the Medical Officer P. W. 5 who conducted autopsy that the deceased died of asphyxia due to throttling. According to him, internal injury Nos. 6, 7, 8 and 9 and external injury No. 1, namely, horizontal contusion brown in color 4 x 31/2 across the upper part of the front of the neck alone is responsible for her death. It is his further evidence that the abrasions over both the sides of the neck and face could have been caused by nail mark. 6, 7, 8 and 9 and external injury No. 1, namely, horizontal contusion brown in color 4 x 31/2 across the upper part of the front of the neck alone is responsible for her death. It is his further evidence that the abrasions over both the sides of the neck and face could have been caused by nail mark. Therefore, it is clear from the evidence of the Medical Officer P. W. 5 that the death is due to asphyxia due to throttling. In this case, we do not have any material to show that it was the accused who throttled the neck and on account of the throttling the deceased died. Hence, even accepting the entire case of the prosecution, we are of the view that the offence cannot be one under Section 302 I. P. C. and it would be only under Section 323 I. P. C. for causing simple injuries viz, beating with his hands. As already observed, we have got the testimony of P. Ws. 2 and 3 to show that the accused beat his wife by his hands. Among them, P. W. 2 actually witnessed the beating. P. W. 3 only speaks to the extrajudicial confession made by the accused to his parents immediately after the occurrence. There is absolutely nothing to disbelieve their evidence. On a careful consideration of their evidence, we are of the view that their evidence is cogent, convincing and trustworthy and it can be acted upon. On a consideration of the totality of the circumstances we are of the view that the accused is liable for the offence under Section 323 I. P. C. and not Section 302 I. P. C. as found by the trial Judge. ( 14 ) IN the result, the conviction and sentence of the accused under Section 302. I. P. C. are set aside and instead the accused is convicted under Section 323 I. P. C. and sentenced to undergo rigorous imprisonment for one year. With the above modification, the appeal is dismissed. Appeal dismissed with modification in nature of offence committed. Conviction recorded u/s. 302 I. P. C. set aside. Accused convicted u/s. 323 I. P. C.