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2008 DIGILAW 1077 (MAD)

G. Sivalingam v. State by Inspector of Police

2008-03-27

P.D.DINAKARAN, R.REGUPATHI

body2008
Judgment :- P.D. Dinakaran, J. The appellant/sole accused was tried in S.C.No.82 of 1997 on the file of the learned Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Vellore. By the judgment dated 211. 1998, he was found guilty of the offences under Sections 302 and 323 IPC and sentenced to undergo life imprisonment and three months rigorous imprisonment respectively which shall run concurrently. Challenging the said conviction and sentence, the present appeal has been filed. 2. The deceased is nonetheless the wife of the appellant/accused. P.W.9 is their daughter. The foundation for the prosecution was laid by P.W.1, based on her statement, Ex.P.1, recorded by P.W.2, the Village Administrative Officer of Moothur on 29. 1996 at 8.30 p.m., the FIR in Crime No:530 of 1996 was registered by P.W.14, Head Constable attached to the Arakkonam Rural Police Station, the respondent herein, for the offence punishable under Sections 302 and 323 IPC on the same day at 10.30 p.m., 3. The brief facts of the case as spoken to by P.W.1 is that on 29. 1996 she along with P.Ws.3,4, the deceased Valliammal and 14 others were doing harvesting work from 10.00 a.m., onwards in the field of Ramamurthy Naidu of Karpandal Village. At about 4.00 pm., when the deceased Valliammal was taking the hayrick bundle on her head and walking towards the threshing floor, her husband, the appellant/accused suspecting her fidelity asked her as to where she had gone on the previous day. Saying so, he began to attack the deceased Valliammal with a bamboo stick on her head, back and all over her body repeatedly. When P.W.4 attempted to prevent the same, he also slapped her on her cheek and pushed her down. Again, when P.Ws 1, 2 and 3 tried to prevent the accused to save Valliammal, the accused by using filthy words slapped P.W.1 also. When the deceased was begging for water, the accused did not even permit the witnesses to give water. Thereafter when they went to the village and informed of the same, P.W.5 Manoharan, one Arujunan and Sekar came and by that time Valliammal died. The accused himself took the body of the deceased to the Muthoor Rural Hospital. At that time, there was heavy raining. When P.Ws 1,2 and 3 went and saw the deceased in the Hospital, there was bleeding on her head and private parts. The accused himself took the body of the deceased to the Muthoor Rural Hospital. At that time, there was heavy raining. When P.Ws 1,2 and 3 went and saw the deceased in the Hospital, there was bleeding on her head and private parts. On hearing the same, P.W.2 the Village Administrative Officer came and recorded Ex.P.1 statement and forwarded the same to the Police Station, based on which, the FIR has been registered. 4. P.W.14, Head constable, on receipt of Ex.P.1 complaint from the VAO, and after registering the FIR sent copy of the same to the Judicial Magistrate and superior police officers through P.W.13 Head Constable. P.W.18, the Inspector of Police on receipt of copy of the FIR, took up investigation. He visited the Hospital at 12.00 pm., midnight and prepared the Observation Mahazar, Ex.P.3 in the presence of witnesses. He conducted inquest on the body of the deceased between 1.15 a.m., and 4.15 a.m., in the presence of panchayatdars. The Inquest Report is Ex.P.19. Thereafter, he examined the witnesses Sekar, Arjunan, Manoharan, Pushpa, Vasantha, Murugammal, Valliamma, Govindasamy, Varadhareddy, Rejireddy, Yesumani, malar, Murugesan, Krishnaveni and Thulasi and recorded their statements. Under Ex.M.O.4, he recovered the bloodstained cement mortar and sample mortar under Ex.P.5 in the presence of witnesses. By 4.30 a.m., he arrested the accused and recorded confession statement given by him. The admissible portion of the confession statement is marked as Ex.P.6. Based on his confession, M.O.1, bamboo stick was recovered under a cover of mahazar Ex.P.8. Prior to that, M.Os 1 to 3, the dress worn by the accused was recovered under Ex.P.7. At 7.30 a.m., P.W.18 visited the place of occurrence and prepared Ex.P.9 Observation Mahazar and Ex.P.20, rough sketch. Thereafter, he arranged for conducting autopsy and entrusted the dead body to one Dhanaraj, Police Constable. 5. P.W.17, the Deputy Civil Surgeon attached to Arakkonam Government Hospital, conducted postmortem on the dead body of the deceased on 29. 1996 and issued Ex.P.16, Post-mortem certificate. The following internal and external injuries were found by the Doctor:- "External Injuries: 1. A lacerated injury 6 cm x 3 cm x 2 cm obliquely placed right side of the fore head near lateral aspect of right eye brow. Skin and bone deep. 2. A lacerated injury 5 cm x 2 cm x 1 cm posterior aspect of right parietal bone. 3. A lacerated injury 6 cm x 3 cm x 2 cm obliquely placed right side of the fore head near lateral aspect of right eye brow. Skin and bone deep. 2. A lacerated injury 5 cm x 2 cm x 1 cm posterior aspect of right parietal bone. 3. A lacerated injury 5 cm x 3 cm x 2 cm obliquely placed just above left eye brow skin and bone deep. 4. A lacerated injury 4 cm x 3 cm x 3 cm left side of the fore head skin and bone deep. 5. A lacerated injury 3 cm x 2 cm x 1 cm over posterior aspect of right parietal bone just below injury No.2. 6. A lacerated injury 2 cm x 2 cm x 1 cm over posterior aspect of right parietal bone just below injury No.5. 7. A lacerated injury 5 cm x 3 cm x 2 cm posterior aspect of scalp. 8. A lacerated injury 2 cm x 1 cm x 1 cm over dorsal aspect of left hand. 9. A lacerated injury 2 cm x 1 cm x 1 cm over anterior aspect of left forehand. 10. Diffused contusion on right scapular region colour of the skin is greenish blue. 11. Multiple linear abrasion present in front of chest. 12. A linear abrasion over pubic region. 13. A lacerated injury 1 cm x 1 cm x over posterior aspect of inner aspect of vaginal wall. Urethral orifice normal. Internal Examination: hyoid bone intact on opening of thorax. Fracture of ribs 1 x 2 cm on right side. Fracture of ribs 2 x 3 cm on left side. Heart: Chambers empty. Stomach: Distended contains about 500 gm of semi digested food particles. Lungs: Blackish in colour. Liver:normal C/S congested. Kidney:left side normal. Ulna present right kidney. Intestine:distended with gas. Uterus:Normal size cavity empty. Bladder:empty. On opening of Skull: Fracture of left frontal bone corresponding injury No.4. Brain matter soft vessels congested. Spinal column intact." 6. The Doctor also opined that the deceased would appear to have died of shock and haemorrhage due to multiple head injuries and fractures as described above 18-19 hours prior to post-mortem. 7. The bloodstained saree M.O.8, blouse M.O.9, petticoat M.O.10 and thali M.O.6 were recovered from the dead body. The bloodstained materials were sent for chemical analysis through P.W.16, Deputy Nazir, working in the District Munsif Court, Sholinghur. 7. The bloodstained saree M.O.8, blouse M.O.9, petticoat M.O.10 and thali M.O.6 were recovered from the dead body. The bloodstained materials were sent for chemical analysis through P.W.16, Deputy Nazir, working in the District Munsif Court, Sholinghur. Subsequently, Ex.P.13 Biology Report and Ex.P.14, Serology Report were received by the Court. P.W.19, successor of P.W.18, recorded statement from P.W.17, Doctor who conducted the autopsy. Thereafter after completing the investigation, along with the statement of witnesses and on getting the biological and serological reports, laid the final report before the Judicial Magistrate Court-II, Arakkonam, against the accused for the offence punishable under Sections 352, 323 and 302 IPC. 8. The case was committed to Court of Sessions which was taken up in Sessions Case No:82 of 1997 by the learned Additional Sessions Judge-cum-Chief Judicial Magistrate, Vellore, and charges were framed by the learned Sessions Judge against the accused, for which the accused denied the complicity of the offence and therefore the trial of he was taken up. In order to substantiate its case before the trial court the prosecution examined P.Ws.1 to 19 and marked Exs. P.1 to P.21 and also produced M.Os.1 to 10. On conclusion of the evidence of the prosecution witnesses as referred to above, when the accused was questioned under Section 313 of the Criminal Procedure Code with regard to the incriminating materials appearing against him in the evidence of the prosecution witnesses, he denied each and every incriminating material as false and pleaded not guilty. No witness was examined and no document was marked on the side of the defence. 9. The learned trial Judge on appreciation of the oral and documentary evidence and on hearing the counsel appeared on either side, found the accused guilty, convicted and sentenced him for the offence as stated earlier. Aggrieved of the same, the present appeal is filed by the accused. 10. Mr. A. Abdul Lathif, learned counsel for the appellant in fact did not seriously dispute the presence of the accused at the time in the place of occurrence and his involvement in the commission of the crime. But, only argues that the accused was under sustained provocation as he had suspected that his wife was having an illicit intimacy with some one. On the date of occurrence the accused attacked the deceased indiscriminately by saying that "Vz;o. new;W v;nf ngha; ,Ue;jha;. But, only argues that the accused was under sustained provocation as he had suspected that his wife was having an illicit intimacy with some one. On the date of occurrence the accused attacked the deceased indiscriminately by saying that "Vz;o. new;W v;nf ngha; ,Ue;jha;. ahiuao itj;Jf; bfhz;Ls;sha;@/ Thus, by questioning the deceased "as to where she had gone on the previous day and with whom she has the illicit intimacy", the accused attacked the deceased with M.O.1, bamboo stick, which only shows that the accused had lost his self control and was provoked to commit the alleged offence and the same will not amount to murder as per Exception (1) to Section 300 IPC and prays to modify the conviction as one under Section 304 (2) IPC, since according to him, the accused had no intention to kill the deceased, though he had the knowledge, otherwise, according to the learned counsel, the accused would not have taken her to the Hospital. 11. Learned counsel for the appellant also submitted that the accused has been inside the jail for more than 10 years, though he was granted bail and he is having a son and daughter at their marriage age. He also submitted that both of them being dependants of the accused, are even prepared to file affidavits before this court praying to forgive the act of their father and to acquit him treating the period already undergone by him as sufficient punishment. 12. However, the learned Additional Public Prosecutor, contended that the motive as well as the commission of the offence by the accused has been established beyond all reasonable doubts by the prosecution. He has placed reliance on the oral evidence of the direct independent witnesses and also the medical evidence, including the chemical analyst reports which corroborates the version of the eye witnesses. 13. We have given our careful consideration to the material evidence available on record and heard the rival submissions of the counsel appearing on either side. 14. The point that arises for consideration is whether the prosecution has substantiated its case beyond reasonable doubt? 15. A perusal of the postmortem certificate reveals that the accused has caused multiple injuries on the deceased by using M.O.1, bamboo stick indiscriminately all over the body, which resulted in bleeding and instantaneous death on the spot. 14. The point that arises for consideration is whether the prosecution has substantiated its case beyond reasonable doubt? 15. A perusal of the postmortem certificate reveals that the accused has caused multiple injuries on the deceased by using M.O.1, bamboo stick indiscriminately all over the body, which resulted in bleeding and instantaneous death on the spot. It is the evidence of the prosecution witnesses that the accused had been suspecting the fidelity of the deceased and there were frequent quarrels between them on that account. P.W.9, the daughter of the accused and the deceased also deposed that his father, the accused had an illicit affair with a lady in Kullakuthur village and in fact the accused wanted to settle the family at Kullakuthur and in that regard there were frequent quarrels between her father and mother. 16. According to P.W.10, the accused by catching hold of the tuft of the deceased, pushed her head against the floor. It is the evidence of the eye witnesses that the accused also used his hands and legs to beat the deceased all over her body. All the prosecution witnesses say that because of the indiscriminate beating, there was bleeding from her head and private parts. There were about 13 external injuries on the body of the deceased, a fracture of ribs and fracture on the left frontal bone of the skull, which shows the gravity of the attack made by the accused on the deceased. Thus there cannot be any iota of doubt that the death is a homicidal death caused by the accused. The prosecution strongly relies on the evidence of P.W.1 and other eye witnesses, who are independent witnesses and the medical evidence viz., the Postmortem Certificate which reveals the multiple injuries found on the body of the deceased, a fracture on the skull, and also the opinion of the Doctor for the cause of death, biological report and serological report which would go to show that the bloodstains found in the dhoti and shirt worn by the accused tallies with the blood group of the bloodstains found in the saree, blouse and petticoat worn by the deceased. No explanation was offered by the accused regarding the presence of the blood on his cloths. 17. It is also not in dispute that P.W.1 and P.W.4 have also sustained injuries when they intervened to prevent the accused from attacking the deceased. No explanation was offered by the accused regarding the presence of the blood on his cloths. 17. It is also not in dispute that P.W.1 and P.W.4 have also sustained injuries when they intervened to prevent the accused from attacking the deceased. Ex.P.18 is the Wound Certificate issued to P.W.4. Thus, P.Ws. 1 to 4, being independent eye witnesses, of which P.Ws 1 and 4 are injured eye witnesses, their oral testimonies cannot be disbelieved or discarded, because there is no need for them to implicate the accused falsely in this case. No motive has also been attributed to them to speak falsehood against the accused. 18. Therefore, it is clear that the prosecution has not only proved the motive but also proved the commission of offence by the accused which is corroborated by medical evidence. We are unable to yield for the plea of sustained provocation, to bring the offence under Exception 1 of Section 300 or alter the sentence to one under Section 304(2) IPC, because, injuries were caused by the accused by using M.O.1, bamboo stick, his hands and legs, that too indiscriminately all over the body of the deceased repeatedly and the above facts clearly depict that the accused had the knowledge as well as intention to commit the murder. We are, therefore, of the firm opinion that the prosecution has proved its case beyond all reasonable doubts. 19. In the result, this Criminal Appeal is dismissed confirming the conviction and sentence of the accused by judgment dated 211. 1998 made in SC.No.82 of 1997 by the learned Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Vellore. It is stated by the counsel for the appellant that the appellant is still inside the prison inspite of granting bail by this court. Therefore, if the appellant is already let out on bail, the bail bond executed by him shall stand cancelled and he shall be taken into custody forthwith to undergo the remaining period of the sentence.