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2002 DIGILAW 1111 (MAD)

Muthusamy v. State by Inspector of Police

2002-09-23

M.CHOCKALINGAM, P.SHANMUGAM

body2002
Judgment :- P. SHANMUGAM, J. The above appeal is directed against the conviction under Section 302 of the Indian Penal Code on three counts and a sentence of life imprisonment on the accused. 2. The case of the prosecution is that the accused married one Rajangam, the deceased in this case, as his second wife in the year 1985. They have two female children, one by name Annakili, aged seven years and another female child (not named) aged six months as on the date of the occurrence. According to the prosecution, the accused often used to quarrel with the deceased for having begotten the children against his wish of not having any children, after his four children through his first wife. After the first child was born, the deceased went away to her parents' house and filed a case for maintenance alleging desertion by her husband, and a sum of Rs.300/- was ordered to be paid by the accused to her. The accused was arrested and kept in prison for failing to pay the maintenance two or three times. Thereafter, the accused executed a deed of gift for one acre of land in favour of the deceased Rajangam. They were living together afterwards and the second child was born and was aged six months at the time of the occurrence. Even then, there were quarrels between them. On 11.11.1993 at 11 am, the accused, with an intention to murder his second wife and her two children, in the house situated near Masapandaram Kadu in Managalapuram Village, hit the deceased Rajangam on her neck, back and forehead with the sharp rear portion of a sickle, M.O.1 and thereafter cut the throats of the two female children, thus murdering all the three of them. He ran away, leaving the weapon, M.O.1. 3. A complaint was received by the Village Administrative Officer at 2 pm on that day. The First Information Report was given at 4.30 pm by P.W.1 and registered as Crime No.462 of 1993 at the Ayilpatti Police Station under Section 302 I.P.C. At 4.30 pm on 11.11.1993. He ran away, leaving the weapon, M.O.1. 3. A complaint was received by the Village Administrative Officer at 2 pm on that day. The First Information Report was given at 4.30 pm by P.W.1 and registered as Crime No.462 of 1993 at the Ayilpatti Police Station under Section 302 I.P.C. At 4.30 pm on 11.11.1993. The F.I.R. was sent to the Magistrate's Court and a message was given to the Inspector of Police through wireless, who, on the same day came to the Ayilpatti Police Station at 5.45 pm and after obtaining the copy of the F.I.R., went to the place of occurrence, inspected the place, prepared the magazar, conducted inquest over the dead bodies of the deceased and prepared the inquest reports, Exs.P.19, P.19 and P.20 and thereafter sent the bodies along with a requisition for post-mortem examination. He seized the sickle M.O.1, the blood stained earth M.O.2 and the sample earth M.O.3 from the place of occurrence under magazar, Ex.P.5. The Inspector conducted investigation, interrogated P.Ws.1, 2, 4, 9 and others and the other material objects were handed over to him. P.W.5 took the photographs of the dead bodies when the same were lying in the house and marked them as Ex.P.5 Series. The post-mortem report was obtained from the doctors, P.Ws.6, 7 and 8. In the meantime, the accused had surrendered before the Salem Judicial Magistrate No.IV on the same day, i.e. on 11.11.1993 at 4 pm and was remanded to judicial custody. The accused was questioned under Section 313 of the Criminal Procedure Code. He had filed two letters alleged to have been received from his deceased wife and he also filed a defence statement. The learned Sessions Judge, after considering the oral evidence of P.Ws.1 to 15 and the documentary evidence, found the accused guilty under Section 302 I.P.C. on three counts and imposed life imprisonment on the accused, directing the sentences to run concurrently. The appeal is against this judgment. 4. Learned counsel for the appellant submitted that there is no eye-witness to the occurrence, that the case rests wholly on circumstantial evidence and that the learned Judge has decided against the probabilities of the case. According to him, there was a cordial relationship between the accused and his wife as evidenced by the two letters produced by the accused. 4. Learned counsel for the appellant submitted that there is no eye-witness to the occurrence, that the case rests wholly on circumstantial evidence and that the learned Judge has decided against the probabilities of the case. According to him, there was a cordial relationship between the accused and his wife as evidenced by the two letters produced by the accused. He submits that the complaint, Ex.P.1 is not corroborated in the evidence and there is serious discrepancy as to the information in reference to the time and the manner in which the occurrence took place, which goes to the root of the case. He justified the accused going to the Salem Judicial Magistrate to surrender himself on the ground that he had been falsely implicated in the case and that he was being sought for in connection with it. This, according to the learned counsel, will not in any way prove the guilt of the accused and it is not inconsistent with the normal human conduct. 5. Learned Additional Public Prosecutor strongly relied on the surrender application of the accused even before the registration of the F.I.R., which establishes the guilty mind of the accused and which is totally opposed to normal human conduct. According to him, the accused, even after learning that his wife and two children had been butchered, did not think it proper to go and see them or to give a complaint to the police against the alleged murder. That apart, he relies on the previous enmity as evidenced by the maintenance case filed by the deceased wife, the arrest of the accused two or three times and the continuing quarrels between the deceased and the accused even after the birth of the second child, as a motive for the heinous crime. According to him, the alleged gift of the land was a make-belief affair in order to avoid payment of maintenance and he had schemed to get it back by the disposal of the three victims. He accordingly prayed for confirmation of the judgment of the court below. 6. We have heard the counsel for the appellant and the learned Additional Public Prosecutor and considered the matter carefully. 7. This is a case of triple murder of a second wife aged 27 years, a daughter aged seven years and another daughter aged six months. He accordingly prayed for confirmation of the judgment of the court below. 6. We have heard the counsel for the appellant and the learned Additional Public Prosecutor and considered the matter carefully. 7. This is a case of triple murder of a second wife aged 27 years, a daughter aged seven years and another daughter aged six months. The injuries found and the opinion of the doctors for the cause of the death of the victims as per the Post-Mortem Reports are extracted below : I Victim - Mrs. Rajangam aged 27 years : "External injuries : 1) Contusion of 3 c.m. Over the left side of fore head at the level of hair line. 2) Bluish discoloration of the skin 6 c.m. Horizontally and 4 c.m. Vertically covering the front and sides of middle and lower third of neck with multiple linear scratch marks over it. 3) Three punctured wounds of 0.5 c.m. diameter on the left side of neck above the level of thyroid cartilage. On probing the wound extends for 5 c.m. inwards, medially and upwards. 4) Three punctured wounds of 0.5 c.m. diameter over the right side of neck just below the angle of right lower jaw. On probing the wound extends for 5 c.m. inwards, medially and upwards. 5) Two punctured wounds of 0.5 c.m. diameter over the back of left side at the level of the lower end of scapula. On probing the wound extends for 6 c.m. inwards and forwards. 6) Two punctured wounds of 1 c.m. diameter over the left side of back of 10th intercostal space and on probing the wound extends for 8 c.m. inwards and forwards. 7) Three lacerated injuries present 1 x 0.5 c.m. Over lower 1/3 of left upper arm. 8) Contusion of 4 c.m. diameter over the lateral side of left half of chest at the level of 7th rib. O/D injury No.2. Sub cutaneous echymosis and oedema present underlying muscles normal. Opinion : Shock and haemorrhage due to the cumulative effect of all the injuries 24 to 36 hours prior to post-mortem examination." II victim - female child, Annakili aged 7 years : "External injuries : 1) A lacerated injury in front of neck 8 x 2 c.m. And upto the vertebra, cutting (severing) Trachea completely below the thyroid bone, Octophagus completely and greater vessels completely on both sides. Sub cutaneous echymosis and blood clots are present on the cut surfaces. Opinion : The deceased would appear to have died of shock and haemorrhage due to injury to great vessels 24-30 hours prior to autopsy." III Victim - female child not named aged 6 months : "External injuries : 1) A lacerated injury on the front aspect of neck from right side to left side 10 c.m. Length x 2 c.m. Breadth x depth up to the vertebra. 2) Trachea is cut completely at the level below the thyroid cartilage. 3) (N.C.) is cut completely at the same level. 4) Great vessels jugular and carotid artery cut on both sides. Opinion : Appear to have died of shock and haemorrhage due to severing of the great vessels in the neck and injuries to trachea about 24-30 hours prior to the post-mortem examination." Considering the nature of injuries caused to the deceased, it is clear that the assailant has acted ruthlessly and with a vengeance to murder them, leaving no scope for their survival. 8. Even though in Ex.P.3 report, P.W.1 has stated that the deceased was cutting the last child when she saw the occurrence and that the remaining two were struggling for life in the pool of blood and that she raised an alarm that the wife and the children were being murdered, she says differently in her deposition and goes back, but was not treated hostile. P.W.1 is the sister of the deceased Rajangam. She categorically says that there was serious enmity between the accused and his second wife, the deceased. According to her, the deceased had four children through his first wife and after his second marriage with the deceased, there used to be frequent quarrels between them on the issue that there should be no more children. The accused used to say that if more children are born, the property has to be given to them. Even before the first child Annakili was born, the deceased used to give tablets to the deceased second wife to see that she should not conceive. However, after the first child was born, the deceased had to go to P.W.1's house since the accused did not give her any money for food. Even though there was a compromise, the accused did not provide for her food and therefore, she came back to P.W.1's house. However, after the first child was born, the deceased had to go to P.W.1's house since the accused did not give her any money for food. Even though there was a compromise, the accused did not provide for her food and therefore, she came back to P.W.1's house. Thereafter, she filed the petition for maintenance, but the accused did not pay the maintenance of Rs.300/=, though ordered, even for a month. Thereafter, the deceased filed an application before the court for arrest of the accused and the accused had to go to jail two or three times and he came back only after the payment of the maintenance amount. Subsequently, there was a panchayat, by which one acre of land was gifted to the deceased wife by the accused and thereafter, they were living together and a second child was born. Even after the birth of the second child, there were quarrels between the deceased and the accused. On the date of the occurrence, P.W.1 had returned from her work at 4 pm and heard that the accused had murdered his wife and children. She did not see the occurrence, but she went to the house and saw the dead bodies and the accused was not in the house. However, the people who had gathered there, told her that it was the accused, who had committed the murder. Her evidence as to time she goes to the house of the deceased and her witnessing the occurrence is contrary to her complaint, Ex.P.1. 9. P.W.2, the nephew of the accused (brother's son), living 40 feet away from the house of the accused, says that on the date of the occurrence at 11 am, they heard an alarm from the house of the accused. However, as the accused and the deceased often used to quarrel, thinking that it was one of the usual quarrels and shouts, they kept quite. After the shouts, they saw people gathering in front of the house of the accused and therefore, he also ran to their house. Those in the crowd told him that the wife and children were murdered by the accused. After the shouts, they saw people gathering in front of the house of the accused and therefore, he also ran to their house. Those in the crowd told him that the wife and children were murdered by the accused. Both P.Ws.1 and 2 have clearly and categorically have stated that there was a serious quarrel between the deceased and the accused and P.W.2 specifically says that they used to quarrel often and on that day, they heard a big scream, The evidence of P.W.2 is that he had reached the place of occurrence immediately after hearing the screams and heard the people saying that it was the accused who committed the murder. The evidence of P.W.2 is relevant to the fact and is admissible. P.W.3, the son of the accused through his first wife, admits living with them and, having stated before the police that the accused had a quarrel in the morning with his second wife, he turned hostile and says that he went to the school from his grand-father's house and he came to know of this incident when he came for lunch. 10. A statement about this murder was given by P.W.1 before P.W.4, the Village Administrative Officer at 2 pm on 11.11.1993. The Village Administrative Officer had given a written statement along with the complaint of P.W.1, which was received by P.W.13, the Sub Inspector of Police, who registered the complaint at 4.30 pm on the same day. Thereafter, investigation was taken on by P.W.14, the Inspector of Police. The observation magazar, Ex.A.4 was prepared by the investigating officer at 6 pm as per the evidence of P.W.4, the attesting witness. However, the M.O. Series, including M.O.1, the sickle was seized only at 1.15 am as per Ex.A.5 magazar, according to P.W.4. 11. It could be seen that there is discrepancy in reference to the time of the occurrence in the evidence of P.W.1, P.W.2 and P.W.4. According to P.W.1, the occurrence took place at 11 am. The complaint was given to the V.A.O. At 2 pm. 11. It could be seen that there is discrepancy in reference to the time of the occurrence in the evidence of P.W.1, P.W.2 and P.W.4. According to P.W.1, the occurrence took place at 11 am. The complaint was given to the V.A.O. At 2 pm. Ex.P.1, the complaint was reduced in writing at the police station at 4.30 pm and Crime No.462 of 1993 was registered under Section 302 I.P.C. However, the core of the occurrence is that on 11.11.1993 at 11 am, three murders have been committed and that P.W.2, who has heard the alarms of the deceased, went to the house of the accused immediately and was told by the people who had gathered there that it was the accused who committed those murders. 12. The accused had given an application for surrender, Ex.P.6 before the Judicial Magistrate Court at Salem, which is about 40 kms away from the place of occurrence. In the said application, he has stated that the offence comes within the jurisdiction of the Rasipuram Judicial Magistrate. He further says that on the morning of 11.11.1993, his wife and two children were murdered, but he says he has no connection with the case and that the respondent, namely the Inspector of Police, Ayilpatti Police Station (Rasipuram) was searching for the accused and therefore, he wants to surrender. He has pleaded that since he is innocent, he may be permitted to surrender and justice rendered. The said application was filed at about 4 pm, according to the accused (vide his answer to Question No.18) in his questioning under Section 313 Cr.P.C., and the Magistrate remanded the accused to judicial custody. On behalf of the accused, a suggestion was put to P.W.13, the Sub Inspector of Police that he was not in town for two days prior to the occurrence. In his written defence statement received by the Court on 6.3.1996, he has stated that while he was not in town, in order to spoil his family and to grab his land, his wife and children were murdered and the police case was being filed and that is why he went to the Judicial Magistrate, Salem and surrendered himself through an advocate. He further says that since he was implicated in the criminal case, his brother's family was trying to purchase his lands and when he refused to give them the lands, they were giving evidence against him. 13. Therefore, it could be seen that though the accused has put up a case that he was not in town two days prior to the occurrence and on the date of occurrence, he has not explained as to his whereabouts during the relevant time. He has no explanation as to the time of his information and why did he travel for 40 kilometers to a Court at Salem, which is beyond the jurisdiction. 14. There is no explanation whatsoever for the accused to travel about 40 kilometers to Salem in order to surrender even before the case was registered and it is not explained as to how he could say in his surrender application that the respondent, namely the Inspector of Police, Ayilpatti was searching for him. If the accused was really innocent, he should have gone to the police and given a complaint about the murder of this wife and two children. He did not even show the normal human reaction for the death of his wife and two children and see their dead bodies even after coming to know that there were murdered. 15. Thus, we are clear from the defence statement of the accused and his surrender application that the accused ha a clear guilty mind in seeking a surrender after committing the murder. His inability to explain as to his presence during the relevant period at the scene of occurrence and the unnatural attitude of the accused in running away from the scene for 40 kms to Salem to surrender, clearly points out that it is the accused, who had committed the murder. 16. From the defence statement of the accused, it is clear that he was living with his second wife, though he states that while he was not in town, his wife and children were murdered and as the police was foisting a case, he has surrendered before the Magistrate. The said statement, which is a cleverly worded one, is extracted below : In his surrender application dated 11.11.1993, he states as follows : He has not stated in the surrender application that he was not in town on that day. The said statement, which is a cleverly worded one, is extracted below : In his surrender application dated 11.11.1993, he states as follows : He has not stated in the surrender application that he was not in town on that day. Therefore, the defence statement, made long after, is an improvement on his earlier version that he was not in town and speaks of a motive for getting his lands. When the accused pleads his absence on the day of the occurrence in the house, he has to state as to what he was doing on that day at that time. Considering the unusual conduct of the accused to go over to Salem without stating as to who has informed him of the occurrence and surrendering himself clearly proves the guilt of the accused. On his own statement before the Magistrate made at the time of his surrender, it must be held that the accused was with the deceased in the morning on 11.11.1993. This, coupled with the other circumstances namely that he was against the deceased second wife getting children in the light of his already having four children through his first wife and the deceased writing a letter informing him that she had undergone an operation after the second child, thereby implying that she would not have any more children, it is clear that the accused had been quarreling with his second wife for having begotten two children and considering the enmity between them which went to the extent of the deceased second wife sending him to jail for the purpose of recovery of maintenance and in spite of the reconciliation, her having begotten the second child, it is a sufficient motive for the appellant to commit the murder of his second wife and her two children. The motive for the murder to kill the second wife and children, viz., to grab his property is far-fetched since the person benefited will be the accused. The motive for the murder to kill the second wife and children, viz., to grab his property is far-fetched since the person benefited will be the accused. The defence theory of the gifting of one acre of land is a make-believe affair in order to get out of the situation and to avoid payment of maintenance and combined with his earlier grouse that the property should not go to the children of the second wife, shows that she is intended only giving him company and not for getting children and it is established that he had the motive to dispose of both the children and the second wife. These basic facts, viz., that the wife and two children were murdered in the house of the accused, that P.W.2, a neighbour and relative hears the shouts of the deceased and goes there immediately, combined with the circumstances as discussed above, will lead to the proof of guilt of the accused conclusively. There are no other circumstances in this case which are consistent with the innocence of the accused. 17. IN JAGATH SINGH VS. STATE OF HIMACHAL PRADESH [1994 S.C.C. (CRIMINAL) 176], it was held that in a case of circumstantial evidence, when the dead body was found with fatal injuries in the room of the accused, the accused is bound to give explanation which should be probable. If the explanation given by the accused is found to be palpably false, it has to be held that the circumstances are sufficient to establish the guilt of the accused. In this case, there is no explanation for his absence in his house in his surrender application made on the same day of the occurrence. If the explanation given by the accused is found to be palpably false, it has to be held that the circumstances are sufficient to establish the guilt of the accused. In this case, there is no explanation for his absence in his house in his surrender application made on the same day of the occurrence. Thus, the circumstances in this case are as follows : i) there is motive, viz., the arrest of the accused for non-payment of maintenance and his land had to be given away in lieu thereof; ii) the deceased second wife begetting the second child inspite of his advice and aversion to it; iii) frequent quarrel; iv) the presence of the accused in the residence not denied in his surrender application; v) traveling 40 kilometers to surrender, without bothering to see the murdered wife and children; vi) the evidence of P.W.1, P.W.2 as to the frequent quarrel; vii) P.W.2, living 40 feet away, hears the screams from his field and on his immediate arrival at the scene, he is informed by the people of the killings by the accused; and viii) there is no evidence of there being any other enemies to the deceased wife and children. 18. For all these reasons, we find that the circumstances in this case lead to the inference of guilt of the accused. The finding of the Principal Sessions Judge, Salem is hereby confirmed. The appeal is accordingly dismissed. The court below is directed to take steps to secure the accused and commit to undergo the remaining period of imprisonment. 19. Before we conclude, we are constrained to express our displeasure at the perfunctory manner of investigation done with little interest and no care. The investigating officer has miserably failed to take the accused into custody for police interrogation, when admittedly he had surrendered himself and was remanded, so as to get hold of his blood stained clothes or as to the possibility of his getting personal injuries on his body, if any. It is rather surprising to note that the investigating officer did not find it necessary to do so in order to get a direct evidence from the accused. It is rather surprising to note that the investigating officer did not find it necessary to do so in order to get a direct evidence from the accused. It is further surprising to note that when a triple murder is committed in broad daylight and the people who had gathered could have either witnessed the occurrence or seen the accused running away from the scene of occurrence, the prosecution did not deem it appropriate to find any direct evidence to that effect. We share our expression of displeasure made by the learned Sessions Judge against the improper investigation done in this case.