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2006 DIGILAW 2271 (MAD)

Tamilarasan v. State rep. by Inspector of Police

2006-09-02

A.C.ARUMUGAPERUMAL ADITYAN, M.KARPAGAVINAYAGAM

body2006
Judgment :- This appeal is filed against the Judgment passed in S.C.No.164/2002 dated 27.10.2003 on the file of Principal Sessions Judge, Thiruvannamalai. A.C. Arumugaperumal Adityan, J. The appeal has been preferred against the Judgment in S.C.No.164/2002 on the file of the Principal Sessions Court, Tiruvannamalai. 2. The short facts of the prosecution case relevant for the purpose of deciding this appeal are as follows: It is a case of uxoricide. The accused suspecting the fidelity of his wife deceased Sivakami, on 4.7.2001 at about 10.45p.m., in his house at J.J.Nagar, Perunkattur Village, committed the murder of the deceased by strangulating her with a nylon rope, while she was asleep. On 5.7.2001 at about 7.00p.m., the accused went to the office of the Village Administrative Officer, Perunkattur Village and gave an extra-judicial confession to him to the effect that suspecting the fidelity of his wife, he had committed murder of her by strangulating her with a nylon rope, while she was asleep in the house. The Village Administrative Officer, who was examined as P.W.1 along with his assistant went to the scene of occurrence and after having ascertained the deceased Sivakami is dead, they went to the Moranam Police Station and lodged a complaint, Ex P1. At the police station, the accused gave a confession before P.W.13, Investigating Officer, who had conducted an earlier part of the investigation and in pursuance of the said confession, P.W.13 went to the scene of occurrence and recovered a nylon rope M.O.1. P.W.13, who was in-charge of the Inspector of Police, Moranam Police Station, registered a case in Crime No.78 of 2000 and the First Information Report is Ex P18 and also recorded the confession statement of the accused and proceeded to the scene of occurrence prepared the observation Mahazar and rough sketch Ex P20 and after sending the corpse for postmortem to the Government Hospital, Cheyyar along with a requisition to the Doctor for conducting post mortem. P.W.9, the Doctor, who had conducted autopsy on the corpse of Sivakami, has given her opinion that the deceased would appear to have died due to asphyxia due to strangulation between 16 and 20 hours prior to the post mortem. Ex P17 is the Post mortem report. P.W.9, the Doctor, who had conducted autopsy on the corpse of Sivakami, has given her opinion that the deceased would appear to have died due to asphyxia due to strangulation between 16 and 20 hours prior to the post mortem. Ex P17 is the Post mortem report. P.W.14 is the successor of P.W.13, who took up further investigation and P.W.15, who is the successor of P.W.14, after completing the investigation laid charge sheet against the accused on 21.12.2001 under Section 302 IPC. 3. The case was taken on file by the learned Judicial Magistrate No.2, Cheyyar in PRC No.8 of 2002 and after furnishing copies to the accused under Section 207 Cr.P.C, the learned Magistrate had committed the case for trial to the Court of Sessions under Section 209 Cr.P.C. After committal, the learned Sessions Judge framed charges under Section 302 IPC against the accused and when questioned the accused pleaded not guilty. 4. Before the trial Court, P.Ws1 to 15 were examined . Exs P1 to P21 and M.Os 1 to 14 were marked. 5. When incriminating circumstances were put to the accused under Section 313 Cr.P.C., the accused denied his complicity with the crime. on the basis of the oral and documentary evidence, the learned Sessions Judge, has held that the prosecution has proved the guilt of the accused beyond any reasonable doubt and consequently convicted and sentenced the accused under Section 302 IPC to undergo life imprisonment and also slapped a fine of Rs.5,000/- with default sentence. Against the said finding, the accused has preferred this appeal. 6. The point for determination in this appeal is whether the conviction and sentence against the accused by the learned Sessions Judge, Tiruvannamalai in S.C.No.164/2002 is liable to be set aside for the reasons stated in the memorandum of appeal? 7. We have heard Mr. John Sathyan, learned counsel appearing for the appellant and Mr.V.R.Balasubramanian, learned Government Advocate appearing for the respondent. We have carefully considered their submissions. 8. The Point: The charge against the accused is that he had committed murder of his wife on 4.7.2001 at 10.45p.m., with a nylon rope, suspecting her fidelity . There is no eye witness to the occurrence. The entire case of the prosecution hinges upon the evidence of P.W.1,the then Village Administrative Officer of Perunkattur Village. 8. The Point: The charge against the accused is that he had committed murder of his wife on 4.7.2001 at 10.45p.m., with a nylon rope, suspecting her fidelity . There is no eye witness to the occurrence. The entire case of the prosecution hinges upon the evidence of P.W.1,the then Village Administrative Officer of Perunkattur Village. It is the case of the prosecution that after committing the murder of his wife on 4.7.2001 at 10.45p.m., the accused went to P.W.1, the then Village Administrative Officer on the very next day viz., on 5.7.2001 at about 7.00 a.m., gave a confession statement and after ascertaining the fact, P.W.1 along with the accused went to the Moranam Police Station and gave Ex P1 Complaint. On the production of the accused, P.W.13 the Investigation Officer, who had conducted the investigation, had reduced the confession statement given by the accused into writing and Ex P2 is the admissible portion of the confession statement leading to recovery of M.Os.1 to 4. P.W.5 and P.W.6 have deposed to the fact that both accused and his wife used to quarrel very often and that suspecting the fidelity of his wife, the accused had complained the same before the Village Panchayat. P.W.5 is the grocery shop owner who was suspected to have illegal connection with the deceased. The accused had instructed P.W.5 not to supply any grocery to his wife, in case, if she visits his shop for purchasing grocery and accordingly he P.W.5) has also informed the deceased that she should not come to his shop for purchasing grocery and that he had seen both the accused as well as the deceased in his shop on 4.5.2001 at about 9.00 a.m., and thereafter the deceased never visited his grocery shop. P.W.6 has also deposed to the fact that matrimonial relationship between the accused and the deceased was not cordial and they used to quarrel very often and that the accused suspected the fidelity of his wife and on that score, they were three panchayats conducted between the accused and the deceased and on one occasion, the deceased had made an attempt to commit suicide by pouring kerosene on her. Even in Ex P1 complaint, on the date of occurrence ie., on 4.7.2001 at about 10.45p.m., the accused saw his wife deceased Sivakami returning to home and when this was questioned by the accused, she had replied that she will do whatever she likes and that she need not reply to him and that the accused could not bear the shame received at the hands of the deceased wife took up a nylon rope and strangulated her after she went to sleep. So the circumstances, which made the accused to take an extreme step of committing the murder of his wife is only due to the sustained provocation, he was having against the wife suspecting her fidelity and on the date of occurrence, the manner in which, she had replied to him, when he questioned about her returning to the house at late hours. A case of similar nature has been reported in Muthuvel and another-vs- State by Inspector of Police Keelarajakularaman Police Station, Virudhunagar District(2004-1 L.W.67). The accused therein was convicted under Section 302 IPC by the Sessions Court on a charge of committing murder of his wife. When the accused asked the deceased (his wife) for sexual intercourse, she refused and removed her Thali and threw on the accused's face and also kicked him on the chest. This act of the deceased had provoked him to commit the crime. While deciding the case, a Division Bench of this Court headed by my respectable and learned brother Justice M.Karpavinayagam has held as follows: " It is settled law that in a case of circumstantial evidence, the prosecution has to establish the circumstances clearly and those circumstances must form a complete chain without any missing link and the same should unerringly point to the guilt of the accused without giving any room for any hypothesis of his innocence. In the light of the principles, if we look at the case on hand, in our view, the circumstances projected by the prosecution would clearly point out that the first accused alone had caused the death of the deceased and that the second accused poured kerosene over the dead body of the deceased and set fire to the body for the purpose of causing disappearance of the evidence........... The confession statement of the first accused, E xP12 would clearly indicate that the first accused had sudden and grave provocation and due to this, he took M.O.5 pillow, which was kept inside the house, and pressed the same on the face of the deceased and caused suffocation. According to the first accused, he came in the evening to the house and asked the deceased to come and take bed with him to have sexual intercourse. But, the deceased refused for the same, since she was suffering from wound on her private part. Even then, he insisted for the intercourse stating that he had a right to have intercourse with her as a husband. Then, the deceased retaliated by saying that she would not live as his wife any more, and as such, he had no right to ask for intercourse. Stating this, she removed her Thali from neck and threw it on the face of the accused and also kicked him on the chest. This act of the deceased, according to him, provoked him to take the pillow and press the same on her face and within few minutes,she died. The incident, as narrated in Ex.P.12, would clearly indicate that the incident had occurred in a sudden quarrel due to sudden and grave provocation. Under those circumstances, we are inclined to hold that the first accused is liable to be convicted for an offence under Section 304 Part I IPC and not under Section 302 IPC." 9. So the facts of the above dictum squarely applies to the present facts of the case. Here also only due to the sudden provocation caused due to the reply made by the wife to the effect that the husband has no right to question her coming late to the house provoked the accused who was already suspecting the fidelity of the deceased made him to take an extreme step of committing murder of his wife. So the offence squarely comes within the Exception 4 to Section 300 IPC, which will warrant conviction only under Section 304 I IPC and not under Section 302 IPC. 10. We are of the considered view that the conviction and sentence imposed by the learned Principal Sessions Judge, Tiruvannamalai is liable to be modified as indicated above. The point is answered accordingly. 11. 10. We are of the considered view that the conviction and sentence imposed by the learned Principal Sessions Judge, Tiruvannamalai is liable to be modified as indicated above. The point is answered accordingly. 11. In the result,this appeal is partly allowed and the conviction for an offence under section 302 IPC imposed by the learned Principal Sessions Judge in S.C.No.164/2002 is set aside and the accused is convicted under Section 304 (I)IPC instead of under Section 302 IPC and the accused is sentenced to undergo seven years rigorous imprisonment. The accused is to be secured and sent to prison to undergo the remaining part of the sentence.