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2004 DIGILAW 1487 (MAD)

Jeyakumar v. State rep. by Inspector of Police

2004-11-09

M.THANIKACHALAM, P.SATHASIVAM

body2004
Judgment :- M. Thanikachalam, J. A life convict in S.C.70 of 2002, on the file of Additional Sessions Judge, Nagapattinam, is the appellant. 2. The respondent Police had filed a final report, against the accused/appellant, seeking appropriate punishment under Section 302 IPC, on the ground that, he had committed the murder of his wife by strangulating her with nylon rope, in his house on 10.04.2001, between 10.30 pm and 5.00 am, with an intention to commit murder and, therefore, he should be dealt with, according to law. 3. The accused/appellant, since refused to plead guilty, upon questioning after framing the charge, on behalf of the prosecution, 11 witnesses have been examined and to buttress the oral testimony, 14 documents were exhibited, in addition to one material object. 4. The evaluation of the above materials, coupled with the principles of law, according to the assessment of the learned Additional Sessions Judge at Nagapattinam, brought to surface, that the accused, suspecting the fidelity of his wife, had decided to commit the murder, and in execution of the same, when the husband and wife were in the house with infant children, the husband had strangulated the wife, thereby prematurely taking the life of an young lady, that too, with an intention to eradicate her from the earth. In this view, concluding the offence reported against the accused is proved beyond all reasonable doubts, the trial court convicted the accused under section 302 IPC, directing him to suffer life imprisonment, further imposing a fine of Rs.1,000/= with default clause, giving set off also. 5. Prosecution case in brief is as follows: (a) Thiru Arumuam (P.W.1) and Tmt.Saradambal (P.W.3) are the parents of Subbulakshmi (deceased) and Tamil Selvi (P.W.5). Subbulakshmi was married to the accused, and they begotten two children also. It appears, the accused was addicted to drink, then having the habits of beating the wife also, resulting day-to-day problem in the house. Further, it seems, the accused had doubted about the fidelity of his wife also. Because of the family dispute, and the doubt entertained by the accused, when he was with his wife on 10.04.2001 during night hours in the house, by locking the house, he strangulated his wife to death, using M.O.1-nylon rope. Further, it seems, the accused had doubted about the fidelity of his wife also. Because of the family dispute, and the doubt entertained by the accused, when he was with his wife on 10.04.2001 during night hours in the house, by locking the house, he strangulated his wife to death, using M.O.1-nylon rope. (b) The next day, i.e.on 11.04.2001, when the mother of Subbulakshmi, went to the house of the accused for some purpose, she knocked at the door, but there was no response. She reported the matter to her husband. P.W.1. Then, both knocked at the door, which evoked the accused to come out, after opening the house. P.Ws.1 and 3 as well as P.W.5, who had seen the husband and wife in the same house, in the previous night, have seen the body of Subbulakshmi as well as some injury over the neck, thereby entertaining some doubt about the death of Subbulakshmi. When it was questioned, and when the neighbours rushed to the spot, the accused escaped from the scene. (c) The father of deceased, P.W.1, preferred Ex.P-1 Complaint to the police on 11.04.2001 at about 9.00 am. P.W.10, Inspector, who had received Ex.P-1, originally registered a case under section 174 of the Code of Criminal Procedure in Crime No.152/2001, for which first information report was submitted to the Executive Magistrate under Ex.P-11. Thereafter, P.W.10 inspected the premises, prepared sketch Ex.P-12, observation mahazar Ex.P-9, as well as recovered M.O.1 from the scene of crime. Subbulakshmi met the death within seven years from the date of marriage and therefore, as contemplated under procedure, P.W.4 conducted an enquiry, which revealed that, there was no demand of dowry and only suspicion of death. (d) At the request of P.W.4, P.W.2 doctor had conducted autopsy, which revealed, the death is not natural one, whereas it is homicide. On that basis, a case registered originally under section 174 of the Code of Criminal Procedure, has been altered into one under section 302 IPC and thereafter, all the papers were transferred to the Judicial Magistrate on 26.04.2001. In the course of the investigation, P.W.10 arrested the accused, examined him and obtained confession statement also. The statements recorded by the Investigation Officers then and there and other materials collected, revealed the fact that, the hands of the accused alone involved in strangulating the wife, thereby causing her death. In the course of the investigation, P.W.10 arrested the accused, examined him and obtained confession statement also. The statements recorded by the Investigation Officers then and there and other materials collected, revealed the fact that, the hands of the accused alone involved in strangulating the wife, thereby causing her death. Thus concluding, a final report has been filed, leading to the trial, ending in conviction, as herein before mentioned, which is under challenge, in this appeal. 6. Heard Mr.K.Jegannathan, learned counsel appearing for the appellant and Mr.E.Raja, the Additional Public Prosecutor. 7. The learned counsel for the appellant, Mr.Jegannathan, attempted to assail the conviction and sentence on the following grounds, namely, (i) that there was inordinate delay in preferring the first information report as well as the same reaching the hands of the Judicial Magistrate; (ii) that the autopsy conducted also failed to throw any light, regarding the cause of death, exposing the symptoms of strangulation; (iii) that the accused was not at all present at the time of death of his wife in the house, whereas he was away during the night and returned later, and in this view, he cannot be blamed for the death of his wife; (iv) that the prosecution has failed to prove as to how the first information report was given, without any shade of doubt, whereas Ex.P-1 creates some spontaneous doubt, since the scribe has not been examined; and (v) that the learned trial Judge had not properly appreciated the evidence available on record, though the above matters were brought to his knowledge, thereby he landed himself in an erroneous conclusion, convicting the accused, which should be erased. Thus, on the basis of the above points, taking us elaborately through the evidence of prosecution witnesses, the learned counsel Mr.Jegannathan strained himself to create doubt at least, thereby making the accused to get the relief of acquittal. 8. Per contra, the learned Additional Public Prosecutor, submitted that though there is no eye witness in this case, the established unquestionable circumstances are so sound, not giving any chance, even to imagine that somebody might have involved in the offence, and in this view, the conviction, slapped by the trial court, is proper, since the same is based upon the legal evidence, after appreciating the same in proper perspective, as required under law as well as under the judicial precedents. 9. 9. It is not in dispute, that the accused and the deceased were living as husband and wife, in the house at Pillur Village. It is also not disputed that, Subbulakshmi died on 10.04.2001 during night hours, which spread over to 11.04.2001 early hours also. The prosecution case is, when both the husband and wife were living together in the same house, the husband, suspecting the fidelity of the wife, strangulated her for that previous day incident, namely, dispute between the husband and wife, was also relied upon. Before going into the dispute between the parties, namely, the husband and wife, it is pertinent to note at the first instance itself, whether Subbulakshmi died natural death or she met homicidal death. If it is a homicidal, then only roping the accused under section 302 IPC would be possible, not otherwise. 10. Subbulakshmi died within seven years from the date of marriage, and therefore, P.W.4 Revenue Divisional Officer had conducted an enquiry, which revealed that, there was no dowry harassment, which is spoken to by P.W.4 also. At the request of P.W.4, P.W.2 doctor conducted autopsy over the body of Subbulakshmi. She died on 10.04.2001 between 10.30 pm and 5.00 am. Autopsy was conducted by P.W.2 only on 12.04.2001 at about 11.30 am, though a requisition had been given for conducting autopsy on 11.04.2001. The post mortem report revealed, as disclosed in Exs.P-5 and P-6, Subbulakshmi died due to asphyxia. No injury is noticed in the hyoid bone. It is not mandatory in all the cases of strangulation, as spoken to by the doctor, there should be injury in the hyoid bone or there should be fracture. The doctor had noticed, peeling of skin around the neck. Since the post mortem had been conducted after 24 hours from the time of death, doctor had noticed peeling of skin, thereby in a way erasing the visible strangulation mark. The opinion given by the doctor, that the deceased would have appeared to have died due to asphyxia, is not challenged. 11. Since the post mortem had been conducted after 24 hours from the time of death, doctor had noticed peeling of skin, thereby in a way erasing the visible strangulation mark. The opinion given by the doctor, that the deceased would have appeared to have died due to asphyxia, is not challenged. 11. During the course of cross examination of some of the prosecution witnesses, it is suggested to them, that P.Ws.1, 3 and 5, suspecting the fidelity of Subbulakshmi had committed the murder, but implicated the accused, thereby admitting that Subbulakshmi had not met with natural death, whereas she was murdered or killed as the case may be, bringing the same within the meaning of homicide. The submission made by the learned counsel for the appellant that, there would not have been strangulation, since no injury was noticed in the hyoid bone, is not acceptable to us, in view of the specific evidence given by the doctor. Thus, accepting the medical evidence as well as considering the defence projected during the cross examination, we find, no difficulty in coming to the conclusion, as held by the trial court also, that Subbulakshmi died due to asphyxia and not due to any natural cause. 12. It is also not the case of the accused that Subbulakshmi died due to any other disease, but in order to take vengeance, a false case is filed, as if she met with death due to asphyxia. In this view of the matter, we conclude that Subbulakshmi was terminated prematurely by strangulation, causing asphyxia. Then, the next question arises is, who did this act. 13. Concededly, there is no eye witness to speak about the crime, said to have been committed by the accused. Prosecution purely relies upon the circumstantial evidence. It could be said, man may lie, but not the circumstances, if the circumstances are so established acceptably. Then, the next question arises is, who did this act. 13. Concededly, there is no eye witness to speak about the crime, said to have been committed by the accused. Prosecution purely relies upon the circumstantial evidence. It could be said, man may lie, but not the circumstances, if the circumstances are so established acceptably. The circumstances relied on in this case, are (i) the accused had frequent quarrel with the deceased, after consuming liquor; (ii) that he had suspected the fidelity of the wife; (iii) that the accused was seen along with the company of his wife on 10.04.2001 at about 10.00 pm and thereafter, wife met the death; (iv) that when the parents of the deceased, attempted to open the door by knocking, accused came out, where they have seen the body of Subbulakshmi with injury mark over neck and thereafter, the accused, without giving any explanation, went away from the house. Further, it is the case of the prosecution that the rope used for strangulating Subbulakshmi was recovered from the scene of crime also. If the above circumstances are established beyond any shade of doubt, to the satisfaction of the Court, then, in our considered opinion, it should have the effect and strength of roping the accused, as the culprit, warranting punishment, under section 302 IPC, as did by the trial court. 14. P.Ws.1, 3, and 5, though closely related to the deceased, being the parents and sister, they had no much animosity or hatredness against the accused. On the basis that they are related to the deceased alone, their convincing evidence, dependably given, cannot be eschewed or ignored, as incorrectly claimed by the learned counsel for the appellant. If the accused was not the reason for the death of his wife, at least, considering the fate of the children, in our considered opinion, P.Ws.1, 3 and 5, would not have spoken against the accused. This strong and other attending circumstances prompt us to think that, these witnesses are dependable, and their evidence are natural, fitting with all probabilities. In order to eclipse the veracity of the oral evidence given by P.Ws.1, 3 and 5, an attempt is made by the learned counsel for the appellant, pointing out some contradictions, and on that basis, it was urged, their evidence is not worthy of credence. In order to eclipse the veracity of the oral evidence given by P.Ws.1, 3 and 5, an attempt is made by the learned counsel for the appellant, pointing out some contradictions, and on that basis, it was urged, their evidence is not worthy of credence. After all, the witnesses are rustic, villagers, not having even the basic education to understand the world etc,. Such kind of persons, when give evidence in the different atmosphere, in a court of law, there bound to be some discrepancies. Therefore, some of the discrepancies pointed out regarding the knocking of door and the conduct of the accused, in our considered opinion, failed to spread the dark cloud, so as to say the evidence is undependable. By going through the oral evidence of P.Ws.1, 3 and 5 meticulously, we are fully satisfied that they are speaking the truth, nothing but truth, barring some discrepancies, which are liable to occur, on the basis of persisting cross examination by the learned defence counsel. In this view, accepting their testimony, we have to see, whether the evidence given by them, brought to surface the above mentioned circumstances. 15. P.W.1 had stated that, the accused used to beat his wife daily, after consuming arrack, and their efforts to persuade him or warning, ended in vain, which is fully corroborated by P.Ws.3 and 5 to some extent. He has stated that, on the date of the incident, early in the morning, when he and his wife knocked the door of the accused, the accused opened the door and at that time, they have seen the body of Subbulakshmi, which was shifted from one place to another, within the house. They have also categorically spoken that, near the body they had seen a green colour nylon rope, which was recovered by the Investigating Officer under the cover of mahazar, which has been spoken to by Investigating Officer also acceptably. The above evidence is well corroborated by P.W.3, the mother of deceased and P.W.5, the sister of the deceased, to some extent. 16. P.W.5 has stated that on the date of the incident, she along with others were viewing the TV programme, in the house of the accused with her sister, and at about 10.00 pm, when the accused returned to the house after his business, all of them left the place. This evidence is not challenged, as seen from the cross-examination. 16. P.W.5 has stated that on the date of the incident, she along with others were viewing the TV programme, in the house of the accused with her sister, and at about 10.00 pm, when the accused returned to the house after his business, all of them left the place. This evidence is not challenged, as seen from the cross-examination. Therefore, the presence of the accused from 10.00 pm on 10.04.2001 is proved beyond any doubt. The oral evidence of P.Ws.1, 3 and 5 as well as P.W.6 though treated as hostile, make it crystal clear that, all of them had seen the accused in the house, in the early morning of 11.04.2001 when he opened the door, responding to the knocking of the door by P.Ws.1 and 3. Thus, the presence of the accused at his house on 10.04.2001 is proved and his coming out from the house on 11.04.2001 early in the morning, also stands proved. In between this time alone, as averred in the final report, murder had taken place. It is not the case of the accused that, some other person had access to the house, thereby suspecting the involvement of any other hands in the crime. Thus, it is proved beyond all reasonable doubt, that death had occurred, when the husband and wife were together in a closed house. Therefore, the presumption should come automatically that the accused might have committed the murder, since the death is not otherwise explained, such as natural death or somebody is also involved in this case. Under the above facts and circumstances of the case, this fact alone is sufficient, in roping the accused, as the culprit under section 302 IPC, in view of the fact that Subbulakshmi met homicidal death. 17. The submission of the learned counsel for the appellant that there was delay in preferring the first information report, is not acceptable, since when the case was registered under section 174 of Criminal procedure Code, first information report had reached the Revenue Divisional Officer in time, but after altering the case under section 302 IPC, all the papers reached the Judicial Magistrate in time, though it is on 26.04.2001. This delay, fails to cause any abrasion over the prosecution case. This delay, fails to cause any abrasion over the prosecution case. The delay is properly and correctly explained by the trial court, pointing out under what circumstances this kind of delay had occurred, in which finding, we are unable to find any error, which deserves acceptance. 18. The submission of the learned counsel for the appellant that Ex.P-1 is not proved, since the scribe of the document has not been examined also stated only for rejection. P.W.1 has categorically deposed about the preparation of Ex.P-1 with the help of somebody, and handing over the same to the police, which is also spoken to by P.W.10, acceptably, not challenged. The non-examination of the scribe, who had written the document only on the instructions of P.W.1, will not have any impact, doubting about the case of the prosecution. 19. The trial court, very elaborately and convincingly analysed, and screened the materials, and reached a legal conclusion, based upon legal evidence, in which, we are unable to find any error either in law or fact, warranting our interference. For the foregoing reasons, we conclude, the appeal is devoid of merits and is liable to be dismissed. 20. In the result, the appeal is dismissed, confirming the conviction and sentence imposed upon the appellant in S.C.No.70 of 2002 (dated 07.06.2002) on the file of Additional Sessions Court, Nagapattinam.