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2003 DIGILAW 958 (MAD)

Saroja v. Inspector of Police

2003-07-02

A.S.VENKATACHALA MOORTHY, S.SARDAR ZACKRIA HUSSAIN

body2003
Judgment :- A.S.VENKATACHALAMOORTHY, J. The learned Principal Sessions Judge, Dindigul tried the appellant for a charge under Section 302 I.P.C. for allegedly causing the murder of the deceased at about 4.00 a.m. on 10.12.1998. The learned Judge found the appellant accused guilty under Section 302 I.P.C. and sentenced to undergo imprisonment for life. Questioning the correctness of the same, the above appeal has been filed. 2. The prosecution, to establish its case, examined as many as 13 witnesses and marked Exs.P1 to P14 and produced M.Os.1 to 14. 3. The case of the prosecution can be set out as under: (a) The appellant accused by name Saroja is the wife of the deceased Karuppiah @ Milagai. P.W.1 is the elder brother of the deceased. P.W.8 is the son of the deceased and the accused Saroja. P.W.7 is the second wife of the deceased. (b) P.W.1 is residing at Sanarpatti, Therkukalam and carrying on the profession of a driver. The deceased and the accused got married about 12 years back and P.W.8 is a sole child born to them. Misunderstanding arose between the deceased and the accused about two years prior to the occurrence when the deceased came to know about the illicit intimacy between the accused Saroja and one Veeraiah. The matter was taken to the Panchayat and it was decided in the panchayat that the accused Saroja should go and join the deceased and accordingly, they directed the accused. Everything went on well for a couple of years. However, thereafter, the accused revived her illicit intimacy but this time with number of persons. ( c) P.W.7 Ponnammal is a native of Vettaikaranpudur and she was given in marriage to a person several years back. After couple of years, her husband died and she came down to Sanarpatti and was eking out her livelihood as a coolie. Very often, she used to go and work with the deceased. The deceased – a frustrated man, because of the behaviour of the appellant Saroja, married P.W.7 as his second wife. After the marriage, the deceased and P.W.7 were living at Sanarpatti. Trouble again arose between the parties and it was taken to panchayat. In the panchayat, the deceased agreed that he would live along with both the wives. In the said panchayat, the appellant made a claim, namely, that the deceased Karuppiah should settle all his properties in her favour. After the marriage, the deceased and P.W.7 were living at Sanarpatti. Trouble again arose between the parties and it was taken to panchayat. In the panchayat, the deceased agreed that he would live along with both the wives. In the said panchayat, the appellant made a claim, namely, that the deceased Karuppiah should settle all his properties in her favour. But however the panchayat decided to direct the deceased Karuppiah to settle his properties in the name of P.W.8 who is none else than the son of the deceased and the accused. (d) On 9.12.1998, P.W.8, after attending the panchayat, went to the house of his grand father for the purpose of seeing Tele Vision and he spent that night in his grand father's house. (e) In the house of the deceased, both the deceased and the accused slept inside. P.W.1 the cousin brother of the deceased who belongs to Sanarpatti was lying on the outer pial of the house of the deceased. P.W.1 who resides 1 km away from the house of the deceased attended panchayat on 9.12.1998 and stayed there itself at the request of the deceased to help him in the execution of documents in favour of P.W.8. The accused Saroja was lying in the kitchen. At about 4.00 a.m. on 10.12.1998 the accused woke up and went outside and brought the stone M.O.2 and went inside the house. P.W.1, on seeing this, woke up from his bed. The accused who went inside the house with M.O.2 stone dropped the same on the left side of the head of the deceased. Seeing this P.W.1 shouted and on hearing the sound, the accused started running out of the house. P.W.1 could see the occurrence with the help of a chimney lamp that was burning inside the house. On hearing the shouting of P.W.1, the neighbours gathered in the place of occurrence. P.W.8 who was sleeping in the house of his grand father, woke up at 4.00 a.m. in the early morning and came to the house of the deceased where the occurrence had taken place. He found a number of persons standing near the house. He went inside the house and saw his father lying there. P.W.1 thereafter went to Sanarpatti police station and laid a complaint with regard to the occurrence at about 5.00 a.m. to P.W.12 Sub Inspector of Police. He found a number of persons standing near the house. He went inside the house and saw his father lying there. P.W.1 thereafter went to Sanarpatti police station and laid a complaint with regard to the occurrence at about 5.00 a.m. to P.W.12 Sub Inspector of Police. A case was registered in Cr.No.368 of 1998 under Section 302 I.P.C. and Ex.P12 Express F.I.R. was prepared. He sent the Express F.I.R. and Ex.P1 complaint to the court of Judicial Magistrate and copies to his superiors. (f) P.W.13 Inspector of Police took over the investigation and proceeded to the scene of occurrence at about 6.00 a.m. on that day. He prepared the observation mahazar and the sketch Ex.P4 and Ex.P13 respectively, in the presence of witnesses. At about 7.40 a.m. on that day, he held inquest over the body of the deceased and Ex.P.14 is the inquest report. During inquest, he examined number of witnesses. The Investigating Officer thereafter sent a requisition Ex.P3 to the Government Hospital to conduct post mortem. On the same day, on the basis of the information, he proceeded to a place called Purasankulam and arrested the accused in the presence of witnesses. On arrest, she gave a voluntary confession statement. Blood stained skirt M.O.7 and blood stained saree M.O.8 were recovered under Ex.P6. These, along with the other material objects including the stone M.O.2 which was found and seized near the body of the deceased, were sent to the court with a requisition to send them for chemical analysis. On the subsequent days, the Inspector of Police examined various witnesses and recorded their statements. (g) P.W.6 is the Doctor who conducted post mortem on the body of the deceased pursuant to the requisition made by the Inspector of Police at about 12.30 p.m. on 10.12.1998. Ex.P2 is the post mortem certificate. In the said certificate, the Doctor has noted the following: " A moderately nourished, symmetrical male body was lying on its back. It had black skin and black iris. It had 1 ½ inch long black hair on its head. Mustache was present. Hair was present in the armpits and pubis. EXTERNAL INJURIES: 1. A lacerated wound 7 cm x 2 cm extending from just below the middle of the Lt. Eye brow downwards and obliquely outwards. Depth is 1 ½ cm. Bleeding present. 2. It had 1 ½ inch long black hair on its head. Mustache was present. Hair was present in the armpits and pubis. EXTERNAL INJURIES: 1. A lacerated wound 7 cm x 2 cm extending from just below the middle of the Lt. Eye brow downwards and obliquely outwards. Depth is 1 ½ cm. Bleeding present. 2. A lacerated wound 5 cm x 1 cm x skin deep over the middle of the nose extending from the bridge to the tip of the nose. Bleeding present. 3. A lacerated wound 3 cm x ½ cm x bone deep over the middle of the Rt. Eye brow. Bleeding present. 4. A lacerated wound ½ cm x ½ cm x whole thickness of pinna over the middle of the pinna of the Rt. Ear. Bleeding present. 5. A lacerated wound 8 cm x 3 cm x bone deep over the Rt. Occipiatal area. Bleeding present. 6. A lacerated wound 2 x ½ cm x skin deep Rt. Side of the neck near the angle of the mandible. Bleeding present. 7. A lacerated wound 6 cm x 2 cm x bone deep middle of the occipital area. Bleeding present. The eyelids were closed. The tongue was protuding. The teeth 8 8 8 8 INTERNAL EXAMINATION: HEART: 250 gms Chambers empty. LUNGS: Rt.300 gms. Lt.250 gms. Both pale. Hyoid bone was intact. The liver, spleen and kidneys were pale. OPENING OF HEAD: Adherent blood clots were present over the Lt. Side of perital bone. Lt. Side of Frontal bone and Lt. Side of Temporal bone. Of the Lt. Side of frontal bone and Lt. Temporal bone were present. Cranium is opened due to the Membranes torn over the Lt. Perital lobe. Congestion of the perital lobe and frontal lobe of the Lt. Side. Of the basi-sphenoid and basi-occiput present." The Doctor had opined that the deceased would appear to have died of shock and hemorrhage due to the injuries sustained about 8 to 9 hours prior to the autopsy. Before the trial court, the Doctor has categorically deposed that if a stone like M.O.2 is thrown on a person lying on the floor, then the injuries like 1 to 7 could be caused. (h) The Inspector of Police thereafter examined the witnesses including the Doctor who conducted post mortem and recorded their statements. Before the trial court, the Doctor has categorically deposed that if a stone like M.O.2 is thrown on a person lying on the floor, then the injuries like 1 to 7 could be caused. (h) The Inspector of Police thereafter examined the witnesses including the Doctor who conducted post mortem and recorded their statements. Ex.P10 is the chemical analysis report and Ex.P11 is the report of the serologist. After completing the investigation, the Investigating Officer filed his final report. 4. When questioned under Section 313 Cr.P.C. the appellant accused denied having any complicity in the commission of the crime and pleaded ignorance. 5. P.W.6 is the Doctor who conducted post mortem over the body of the deceased on 10.12.1998 at 12.30 p.m. and issued Ex.P2 post mortem certificate. It is unnecessary to describe the injuries noted by the Doctor in the post mortem certificate since we have already extracted the same in the earlier part of the judgment. The Doctor has clearly stated that the injuries found on the deceased could have been caused if a stone like M.O.2 is thrown on his head. The medical evidence available on record is sufficient enough for this court to come to the conclusion that the deceased died of homicidal violence. 6. The case of the prosecution is that the accused married the deceased about 12 years back and P.W.8 is the son born to them. There was misunderstanding between the accused and the deceased since the accused developed illicit intimacy with some third party. The village panchayat had advised the accused to go and live with the deceased. Thereafter, things went on well for a couple of years. But again the accused started leading a wayward life and developed illicit intimacy with number of persons. The frustrated deceased married P.W.7 and again this was the cause for another panchayat. In the said panchayat the deceased agreed to live with both the wives and the accused demanded that the deceased must execute necessary documents settling the properties in her favour. Ultimately, it was agreed that the deceased should settle the properties in favour of their son namely P.W.8. 7. P.W.1 who is the cousin brother of the deceased and who resides about a couple of kilometres away from the residence of the deceased also attended the panchayat. Ultimately, it was agreed that the deceased should settle the properties in favour of their son namely P.W.8. 7. P.W.1 who is the cousin brother of the deceased and who resides about a couple of kilometres away from the residence of the deceased also attended the panchayat. After the panchayat, he stayed back on the request made by the deceased to help him to execute necessary documents in favour of P.W.8. P.W.8 after attending the panchayat appears to have gone to the house of his grand father and stayed there and returned only on the next morning. The evidence of P.W.1 is that on that day while the accused and deceased slept inside the house, he slept in the front pial of the house of the deceased. At 4.00 a.m. according to P.W.1 the accused came out of the house, took a stone and went inside the house and threw the same on the deceased. The testimony of P.W.1 is to the effect that he initially thought the accused had come out to answer the calls of nature and only after she went inside and on hearing the noise, he could see what happened and that he made a noise and neighbours gathered and in the mean time, the accused ran away. 8. Apart from this, the prosecution also placed reliance on the recovery of M.O.2 blood stained stone of the same group as that of the deceased so also the blood stained skirt and saree of the accused of the same group as that of the deceased. 9. Even according to the prosecution P.W.8 was not in the house on the fateful day and the only eye witness relied on by the prosecution is P.W.1. If this court accepts the testimony of P.W.1, then necessarily, the conviction and sentence has to be sustained. But however if this court comes to the conclusion that the testimony of P.W.1 is wholly unreliable then this court can have no hesitation to acquit the accused and allow the appeal. In short, the first question that survives for consideration is as to whether the testimony of P.W.1 infuses confidence. To start with, admittedly P.W.1 resides 2 kms away from the house of the deceased. Normally speaking, it has to be considered that he is only a chance witness. In short, the first question that survives for consideration is as to whether the testimony of P.W.1 infuses confidence. To start with, admittedly P.W.1 resides 2 kms away from the house of the deceased. Normally speaking, it has to be considered that he is only a chance witness. But now the prosecution has come forward with an explanation for his presence in the house of the deceased. During investigation, P.W.1 has stated that he remained in the house of P.W.1 on the night of 9th October so that on the next day the document could be written. Strangely, P.W.1 has given a go by to the stand that he had taken before the Investigating Officer. In the cross examination he has deposed as under: That being so, we are not inclined to readily accept the explanation putforward by the prosecution for the presence of P.W.1 on the fateful day in the house of the deceased. 10. According to the prosecution, the deceased and the accused slept inside while P.W.1 was sleeping in the outer pial. P.W.1 deposed that at about 4.00 a.m. the accused came out of the house and took the stone M.O.2 and went inside the house. Firstly, it is not known as to how he happened to be awoke at that odd hour namely at 4.00 a.m. Secondly, he has stated in the evidence that he was sleeping in the pial in such a manner that he was keeping his head towards the south and the leg towards the north. If one sees the plan, it could well be seen that if a person sleeps in that posture it may not be possible for him to notice what the accused did. It is not the case of P.W.1 that he woke up at 4.00 a.m. when he heard some noise like barking of a dog or noise emanated while the accused opened the door while coming out of the house. Yet another aspect, for which we do not find any answer is as to why P.W.1 kept quiet without enquiring the accused as to why she was carrying such a big stone inside the house. It is not as if P.W.1 is not on talking terms with the accused. The normal conduct of a person like P.W.1 should have been to immediately enquire the accused as to why she was carrying the stone. It is not as if P.W.1 is not on talking terms with the accused. The normal conduct of a person like P.W.1 should have been to immediately enquire the accused as to why she was carrying the stone. Further, the evidence of P.W.1 is not clear with regard to his witnessing the occurrence. At one place he would depose as if he entered the house only after hearing the noise and at another place he would say that he saw the accused throwing the stone on the deceased. Another important aspect which we would like to point out is that P.W.1 has categorically stated that immediately after the occurrence he shouted and all the neighbours gathered. It is not known as to why the prosecution failed to examine any one of them. Even though those witnesses could not have spoken to about the occurrence, they could have very well testified about the presence of P.W.1 at the scene of occurrence immediately after the occurrence. The conduct of P.W.1 in not catching hold of the accused when she came out and attempted to run away is also not convincing. Even P.W.3 did not inform police about seeing P.W.1. The above reasons would persuade us to come to the conclusion that the testimony of P.W.1 is not worthy of acceptance and certainly, it will not be safe to act on his testimony. 11. The next question is as to whether the deceased and P.W.1 were sleeping on the night of 9.12.1998 in the house in which the occurrence took place. We have totally disbelieved the testimony of P.W.1. The prosecution has not examined anybody else to depose that on the fateful night both of them were in the scene house. In fact, a suggestion was put to P.W.1 in the cross examination that the accused spent her night only in her mother's house. P.W.8, the child witness has in the cross examination has stated as under: This witness has not been treated as hostile. That being so, we find, there is no clear evidence to show that the accused was with the deceased on the night of 9/10th December, 1998 in the house in which occurrence took place. 12. Coming to the recovery of the material objects, the recovery of M.O.2 is of no significance. Because that was found missing near the body. That being so, we find, there is no clear evidence to show that the accused was with the deceased on the night of 9/10th December, 1998 in the house in which occurrence took place. 12. Coming to the recovery of the material objects, the recovery of M.O.2 is of no significance. Because that was found missing near the body. The assailant who attacked the deceased might have used it and it does not advance the case of the prosecution any further. Coming to the blood stained saree and skirt seized from the accused, we find the saree is one of polyster and even if any blood splashed at the time of her throwing M.O.2 stone on the head of the deceased, we do not understand as to how the skirt of the accused got blood stains. We in fact saw the Material Objects and found a large area of the skirt had been stained with blood and this gives us very serious doubt about the seizure from the person of the accused as claimed by the prosecution. 13. Thus having disbelieved the sole testimony of P.W.1, the case of the prosecution that the accused was in the scene house on the night of 9/10 December 1998 and also the recovery of the skirt of the accused, this court has to necessarily hold that the prosecution has not proved the case beyond all reasonable doubt. 14. In the result, the appeal is allowed. The appellant/accused Saroja is acquitted of the charge under Section 302 I.P.C. and she shall be set at liberty forthwith unless she is required in connection with any other case. Fine amount if any paid by the appellant/accused shall be refunded to her.