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2006 DIGILAW 225 (MAD)

Rayar v. State, rep. by the Inspector of Police

2006-02-01

A.R.RAMALINGAM, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Criminal Appeal against the judgment made in S.C.No.10 of 2002 on the file of the Principal District and Sessions Judge, Perambalur, dated 28.3.2002.) M. Karpagavinayagam, J. Rayar, the appellant herein has been convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment for having killed his wife Rani. Challenging the same this appeal has been filed. 2. The facts in brief are as follows:- (i) Rayar, the appellant married the deceased in the year 1998. P.W.1, Thambusami is the father of the deceased Rani. Immediately after the marriage, the deceased Rani eloped with one Ravi. P.W.1, father of the deceased lodged a complaint with the police and same was registered in Crime No.77/98 against the said Ravi. Ultimately, on 1.9.1999 the deceased was rescued and produced before the Magistrate. By an order of the Magistrate, the custody of the deceased was handed over to her father, P.W.1. On intervention of Panchayatdars, the husband/accused was inclined to take his wife/deceased. For three months, they were living together under the same roof belonging to the accused. (ii) On 23.11.1999, there was a wordy quarrel between the deceased and the accused. The accused took a stick and throttled her and also beat her with a grinding stone and caused injury on the right ear. P.Ws.2 to 4, the neighbours, witnessed the occurrence. On receipt of information that the deceased fell down on the floor inside the house of the accused with bleeding injuries and became unconscious, P.W.1 rushed to the house of the accused. Then P.W.1 took the deceased to the Government Hospital, Ariyalur. She was admitted in the hospital at 2.15 p.m. by P.W.7, the Doctor. P.W.7 issued the Accident Register Ex.P11 and referred the victim to the Thanjavur Government Hospital. (iii) In the meantime, P.W.8, the Head Constable attached to the local police station came to the hospital and received a complaint from P.W.1. The case was registered in crime NO.276 of 1999 for the offences punishable under Sections 323 and 294(b) of IPC. Then, he went to the scene of occurrence and prepared observation mahazar Ex.P2 and rough sketch Ex.P13 and recovered M.O.1 grinding stone, M.O.2 stick, M.O.3 bloodstained saree, M.O.4 bloodstained towel, M.O.5 bloodstained earth and M.O.6 sample earth from the house of the accused. The deceased, who was admitted in the Thanjavur Government Hospital, died on 25.11.1999. Then, he went to the scene of occurrence and prepared observation mahazar Ex.P2 and rough sketch Ex.P13 and recovered M.O.1 grinding stone, M.O.2 stick, M.O.3 bloodstained saree, M.O.4 bloodstained towel, M.O.5 bloodstained earth and M.O.6 sample earth from the house of the accused. The deceased, who was admitted in the Thanjavur Government Hospital, died on 25.11.1999. On receiving the information, P.W.8 altered the case into one under Section 302 IPC. P.W.9 took up further investigation and conducted inquest over the body of the deceased between 2 p.m. and 5 p.m on 26.11.1999. (iv) P.W.11, Dr. R. Gandhi, conducted postmortem on 27.11.1999 and found the following injuries:- 1. Infected laceration 5 cm X 2 ½ cms x skin deep with diffuse swelling wound present over the right inframastoid area along with infected abraded laceration of the lower half of right pinna with pus coming out through the right external orditory meatus. 2. Multiple scab formed abrasion pin head sized and hair breadth seen over the left supra orbital and left outer can thus area with swelling of whole of frontal and left half of face with light bluish brown discolouration of left upper eyelid. 3. Scab formed infected abraded laceration irregular skin deep laceration with inflammatory fluid oozing out seen on the right middle finger, index finger and right thumb distal aspect with bluish brown discolouration. 4. Diffuse swelling with bluish brown discolouration over the front and sides of neck noticed. 5. I.V. Cut down wound in the left leg. Internal Injuries: - 6. On opening the scalp sub scalpal massive bruising with inflammatory fluid oozing out and yellowish discolouration at placed seen over the right mastoid area right pterion area and left frontal area surface congestion with patohy subarachnoid haemorrhage at places noticed. On section the brain haemorrhages noticed on the posterior 3rd of corpus colosum and in the lowermid brain area. 7. On dissection of neck and chest subcutaneous bruising and deep tissue bruising seen on the whole of neck region and right medial calvicular region massive bruising in the whole of outer laryngeal and pharyngeal regions noticed. P.W.11 issued Ex.P17 postmortem certificate and has opined that the deceased would appear to have died of effects and complications of head and neck injuries. (v) P.W.12, the successor took up further investigation on 1.12.1999. At that time, the accused was absconding. The accused surrendered before the Court on 24.12.1999. P.W.11 issued Ex.P17 postmortem certificate and has opined that the deceased would appear to have died of effects and complications of head and neck injuries. (v) P.W.12, the successor took up further investigation on 1.12.1999. At that time, the accused was absconding. The accused surrendered before the Court on 24.12.1999. After completion of the investigation, P.W.12, filed the charge sheet against the accused for the offence under Section 302 IPC. 3. During the course of trial, on the side of the prosecution, P.Ws.1 to 12 were examined, Ex.P1 to P17 were filed and M.Os.1 to 6 were marked. 4. When the accused was questioned under Section 313 Cr.P.C., he denied his complicity in the crime. No defence witness has been examined. 5. The trial Court, after having analysed the evidence of the prosecution, convicted the accused for the offence under Section 302 IPC. Challenging the same, the appellant has preferred this appeal. 6. Mr. N.R. Elango, learned counsel appearing for the appellant, would take us through the entire evidence. He would strenuously contend that since the eyewitnesses P.Ws.2 to 4 have turned hostile, and in the light of the fact that there is no sufficient evidence to show that the occurrence took place in the house belonging to the accused, the materials available on record would not be sufficient to hold that the accused is guilty of murdering his wife. Ultimately, he confined himself to the nature of the offence. According to him, the occurrence took place due to a sudden quarrel and in the heat of passion and as such, the appellant may be convicted for a lesser offence and not for an offence under Section 302 IPC. 7. On this aspect, we have heard the learned Additional Public Prosecutor. 8. We have considered the submissions made by the counsel for the parties and perused the records. 9. According to the prosecution, the deceased, immediately after the marriage, eloped with one Ravi. P.W.1, the father of the deceased, gave a complaint to the police, who, in turn, rescued the deceased. Later, the Judicial Magistrate passed an order directing the custody of the deceased to be handed over to P.W.1. On the intervention of the Panchayatdars, the accused agreed to take her and live with her in his house. Accordingly, the custody of the deceased was handed over to the accused by P.W.1. Later, the Judicial Magistrate passed an order directing the custody of the deceased to be handed over to P.W.1. On the intervention of the Panchayatdars, the accused agreed to take her and live with her in his house. Accordingly, the custody of the deceased was handed over to the accused by P.W.1. After three months, the occurrence took place on 23.11.1999. 10. It is true that P.Ws.2 to 4, the eyewitnesses, turned hostile. The evidence of P.W.1 and P.W.2 would clearly indicate that the deceased was living with the accused at the time of the occurrence. For this, a suggestion had been put to P.W.1 and for that, he has stated that when he entered into the house, after coming to know about the occurrence, the accused came out of the house and left the place. Further, Ex.P13 rough sketch and Ex.P2 observation mahazar which have been prepared by P.W.8, Head Constable, would clearly indicate that the bloodstained materials have been recovered from the house of the accused. No suggestion has been put to the witnesses concerned to conclude that the place of occurrence, namely the house did not belong to the accused. 11. Further, the accused immediately, left the place and absconded throughout and ultimately, surrendered before the Court on 24.12.1999. When these materials were put to the accused under Section 313 Cr.P.C., no explanation was given with reference to the occurrence which took place inside the house and with regard to his abscondence from 23.11.1999 to 24.12.1999. So, these things would make it clear that the accused alone had committed the murder and absconded from the scene. 12. Now, let us consider the other contention namely the nature of the offence. Though P.Ws.2 to 4 eyewitnesses have turned hostile, it is noticed from the records that P.W.8 during the course of investigation recorded statements from the witnesses and from those statements, it is clear that there was a wordy quarrel. On that basis, the charge had been framed. The wordy quarrel had resulted in the attack on the deceased. In those circumstances, it could be inferred from the materials available on record that there must have been a wordy quarrel, which had occurred inside the house of the accused, especially when the accused disliked the deceased since she eloped with another man. 13. The wordy quarrel had resulted in the attack on the deceased. In those circumstances, it could be inferred from the materials available on record that there must have been a wordy quarrel, which had occurred inside the house of the accused, especially when the accused disliked the deceased since she eloped with another man. 13. Further, as stated in the statement of the witnesses, the occurrence had taken place due to a sudden quarrel and in the heat of passion and not out of premeditation. The stick and grinding stone were very much available in the house. Therefore, it can be easily concluded that the occurrence had taken place due to a sudden quarrel and in the heat of passion. 14. Therefore, we are of the view that instead of convicting the accused for the offence under Section 302 IPC, it would be appropriate to convict him for the offence under Section 304(i) IPC. Hence, the judgment of the Principal District and Sessions Judge, Perambalur in S.C.No.10 of 2002 dated 28.3.2002 convicting the accused for the offence under Section 302 IPC is set aside and instead, the appellant is convicted for the offence under Section 304(i) IPC and sentenced to undergo rigorous imprisonment for a period seven years. 15. With the above modification, the appeal is dismissed. The trial Court is directed to take steps to secure the custody of the accused for undergoing remaining period of sentence.