Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 1147 (MAD)

Kandan v. State, rep. by Inspector of Police

2008-04-02

P.D.DINAKARAN, R.REGUPATHI

body2008
Judgment :- R. Regupathi, J. The appellant, who is the husband of the deceased was convicted for the offence punishable under Section 302 IPC and under Section 302 read with 201 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/=, with default sentence for the offence under Section 302 IPC and sentenced to undergo 7 years rigorous imprisonment and fine of Rs.5000/= with default sentence for the offence under Section 302 r/w.201 IPC. 2. As per the charges framed against the accused, on 12. 2003 between 10.30 and 11.00 pm, the accused due to family misunderstanding with his wife had alleged to have strangulated her and committed her death and thereby committed the offence punishable under Section 302 IPC. During the course of the same transaction, the dead body of the deceased was hanged in a tree and shown as if the deceased committed suicide and thereby committed offence punishable under Section 201 IPC. Initially, when the accused was questioned by the trial Judge, the accused denied complicity of the commission of the offence and pleaded innocence. Therefore the trial of the case was taken up by the Sessions Judge. To substantiate the offence committed by the accused, the prosecution examined P.Ws 1 to 10 and marked Exs.P.1 to P.24 and produced M.Os.1 to 19. 3. P.W.3 is the Village Assistant and in his evidence he has stated that on 112. 2003 some villagers were returning from the nearby hill and when questioned, they replied that a dead body was found hanging from a tree. P.W.3 went to the place and found the wife of the accused hanging in a tree and returned back to the Village and informed the same to the Village Administrative Officer, P.W.1. P.W.1 at 6.00 a.m., on receipt of the information accompanied by P.W.3 reached the scene of occurrence and found the dead body hanging in the tree. He has prepared a report and reached the Police Station at at 9.30 a.m., and lodged Ex.P.1 complaint. 4. P.W.10, Investigating officer on 112. 2003 at 9.30 a.m., on receipt of the complaint given by the VAO, registered a case in Crime No:1201 of 2007 for offence punishable under Section 302 IPC. Ex.P.18 is the FIR. He visited the scene of occurrence, prepared Ex.P.19, Rough Sketch and Ex.P.5, Observation Mahazar, which is attested by P.W.6. 4. P.W.10, Investigating officer on 112. 2003 at 9.30 a.m., on receipt of the complaint given by the VAO, registered a case in Crime No:1201 of 2007 for offence punishable under Section 302 IPC. Ex.P.18 is the FIR. He visited the scene of occurrence, prepared Ex.P.19, Rough Sketch and Ex.P.5, Observation Mahazar, which is attested by P.W.6. Conducted inquest over the dead body of the deceased. Ex.P.21 is the Inquest Report. He has recovered Ex.P.19 pair of Hawai Chappals from the scene of occurrence. He has sent a requisition Ex.P.16 to the Medical Officer. As per the requisition received from the Investigating officer, Medical Officer reached the scene of occurrence on 112. 2003 at 3.30 pm., and commenced autopsy over the dead body of the deceased at the scene of occurrence itself at 4.05 pm., and noticed the following features and found the following injuries:- "Appearances found at the post-mortem: A female body aged about 28-30 years found in prone position with body hanging by a @czhd; bfho@ from a near by small tree upper part of the body trunt, chest, head above the ground level. Both hands clenched; eyes closed, tongue projecting outward motion not passed. Bleeding through vagina present. Bleeding through Nose. The hand is 2 ½ feet black in colour, face and exposed parts are blackish in colour all teeth are present. External exfoliation seen over the abdomen, chest, both upper limbs present with ant bite over both the legs, forearm. The in skirt is stained with semen and blood. External Injuries:- @czhd; bfho@ is around the neck (n.c) rope mark around the neck with knot around the left side neck. Rope mark is 28 cm x 2 cm x ¼ cm depth around the neck except back side. Visceral Examination:- 1) Chest opened, no fracture ribs. Abdomen LCSC mark more present linear straw Left lungs right 530 gm., left 550 gm publish black in colour congested. Stomach: contains partially digested food. Small Intestine: partially digested liquid. Liver: 1200 gm, normal. Spleen: 60 gms, normal. Right Kidney: 80 gms. Left kidney: 80 gms. Heart: 200 gm, chamber full of blood. Bladder: empty. Uterus: empty vaginal smear taken. Skull: opened, no fracture. Brain: 1200 gms normal except mold edema and congested. 5. He issued the Postmortem Certificate Ex.P.17. Stomach: contains partially digested food. Small Intestine: partially digested liquid. Liver: 1200 gm, normal. Spleen: 60 gms, normal. Right Kidney: 80 gms. Left kidney: 80 gms. Heart: 200 gm, chamber full of blood. Bladder: empty. Uterus: empty vaginal smear taken. Skull: opened, no fracture. Brain: 1200 gms normal except mold edema and congested. 5. He issued the Postmortem Certificate Ex.P.17. He has opined that Hyoid bone is intact, ligature mark found in the skin antemortem and no poison detected in viscera as certified by the regional forensic science laboratory. He has given the final opinion that the deceased would appear to have died due to strangulation and asphyxia due to strangulation. 6. P.W.5, is the father of the deceased who speaks about the marriage which took place between the accused and the deceased 13 years ago and since there were no children due to miscarriage and abortion, there was quarrel between the accused and the deceased. The accused wanted to perform second marriage, for which the deceased objected and returned back to her parents place and after the performance of the second marriage on invitation by the accused during the time of occurrence the deceased had gone back at the request of the accused to her matrimonial home and under such circumstances, the occurrence had taken place. P.Ws.2 and 4 have been examined to substantiate that the deceased was last seen in the company of the accused. However, he did not support the case of the prosecution and therefore, he was treated hostile witness. 7. The Investigating Officer, on 112. 2003 arrested the accused at 9.00 a.m., and in pursuance of a voluntary statement given by the accused in the presence of the witnesses P.Ws 1 and 3, and in pursuance of which recovered M.O.2, nylon rope and M.O.1, gold chain of the deceased and under a cover of mahazar Exs.4 and 3 respectively. He has caused the photographs to be taken and Ex.P.22 and 23 series are the photographs and negatives. The material objects were despatched to the Court for receiving opinion from the chemical analyst. P.W.7 is the Head Clerk working in the Judicial Magistrates Court, who has stated that he has received Ex.P.13 to P.15 being Chemical Analyst Reports regarding to Hyoid Bone and Viscera. The material objects were despatched to the Court for receiving opinion from the chemical analyst. P.W.7 is the Head Clerk working in the Judicial Magistrates Court, who has stated that he has received Ex.P.13 to P.15 being Chemical Analyst Reports regarding to Hyoid Bone and Viscera. In continuation of the investigation, the Investigating Officer examined the other witnesses and Medical Officer and on conclusion of the investigation filed final report before the Judicial Magistrate court. 8. On conclusion of examination of the prosecution witnesses, the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating materials available in the evidence of the prosecution witnesses, for which the accused denied the complicity of the commission of the crime and pleaded innocence. Neither oral nor documentary evidence was produced on the side of the defence. The learned Sessions Judge after hearing both the parties convicted the appellant as above mentioned and aggrieved against the conviction and sentence, the present appeal. 9. The learned Senior Advocate Mr. V. Gopinath, appearing for the appellant submitted that there is no direct evidence to substantiate the commission of the crime. P.WS 1 and 3 being Village Administrative Officer and the Village Assistant who had seen the dead body of the deceased hanging in a tree given the complaint before the Police. To substantiate the motive part of the prosecution case, the father of the deceased, P.W.5 has been examined. He is not the occurrence witness. However, he has spoken about the misunderstanding and quarrel between the accused and the deceased. Apart from these materials available, there is no direct evidence. P.W.2 and 4 though speak about seeing the deceased with the company of the accused prior to the occurrence, they have not supported the case of the prosecution and they have been treated as hostile and their evidence cannot be relied upon for substantiating the case of the prosecution. The other witnesses are formal witnesses and therefore the learned senior counsel submitted that since the offence against the appellant is not substantiated, the accused is entitled for acquittal. 10. Per contra, the learned Additional Public Prosecutor, submits that motive part of the case of the prosecution has been proved through P.W.5, father of the deceased. The deceased was living with the accused during the time of occurrence and only under such circumstances, the occurrence has taken place. 10. Per contra, the learned Additional Public Prosecutor, submits that motive part of the case of the prosecution has been proved through P.W.5, father of the deceased. The deceased was living with the accused during the time of occurrence and only under such circumstances, the occurrence has taken place. Though P.Ws 2 and 4 have been examined to substantiate that the deceased was last seen along with the company of the accused prior to the commission of the offence, unfortunately, they have turned hostile. Under such circumstances, the materials available are the motive and the death of the deceased in a suspicious circumstance. Though direct witness is not available, it could be presumed that in view of the facts and circumstances of the case the accused could have committed the death of the deceased. 11. We have perused the materials available on record and heard the submissions of the learned senior counsel for the appellant and the learned Additional Public Prosecutor. 12. To substantiate the motive part of the prosecution case, P.W.5 has been examined. Though it has been stated that there was misunderstanding and quarrel between the accused and the deceased, the fact is that forgetting everything the deceased started living with the accused. Though P.W.5 has narrated about the misunderstanding, motive to commit the death of the deceased has not been substantiated. P.Ws 2 and 4 have been examined for the purpose of substantiating the last seen theory. However, they have not supported the version put forth by the prosecution. Apart from these materials, the other materials available are that of arrest and recovery. Statement has been given by the accused for recovering the nylon rope which was used for the purpose of commission of the offence. In addition to the recovery of the rope, a gold chain of the deceased has also been recovered. A perusal of the evidence of P.Ws 1 and 2 and observation mahazar, we could see that the dead body of the deceased was hanging with the help of a natural twine (czhd; bfho) and not with the help of a rope, particularly nylon rope. If a rope is also used for strangulation, certainly the same rope would have been used for the purpose of hanging the dead body of the deceased. If a rope is also used for strangulation, certainly the same rope would have been used for the purpose of hanging the dead body of the deceased. But, in the case on hand, the dead body of the deceased was hanging with the help of a twine and it creates a considerable doubt on the recovery in pursuance of the alleged statement given by the accused. 13. Apart from the available materials, though it has been substantiated through medical opinion that the deceased died due to strangulation and asphyxia due to strangulation, no further evidence is available to connect the appellant with the crime. P.Ws 1 and 3 have been examined only to set the law in motion and other witnesses are formal witnesses. Unfortunately, the material witnesses, namely P.Ws 2 and 4 who have been examined to establish the last seen theory have turned hostile and therefore, there is no consistency in the materials produced on the side of the prosecution. Therefore, we are of the considered view that the offence against the appellant has not been substantiated, and therefore, the conviction and sentence passed by the learned Sessions Judge are set aside. 14. In fine, the Criminal Appeal is allowed setting aside the conviction and sentence passed in judgment dated 212. 2005, made in S.C.No: 377 of 2004 by the learned I Additional Sessions Judge, Dharmapuri. The bail bond executed by the appellant shall stand cancelled. The find amount paid shall be refunded to the appellant.