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2008 DIGILAW 928 (MAD)

M. Marimuthu v. State, Inspector of Police

2008-03-14

P.D.DINAKARAN, R.REGUPATHI

body2008
Judgment :- P.D. Dinakaran, J. The appellant is the sole accused and he was tried before the learned Additional Sessions Judge, Fast Track Court No.4, Coimbatore, in Sessions Case No.177 of 2005 on a charge of murder with an allegation that at 1.00 p.m. on 30.5.2004, he caused the death of his wife, Priya, by pushing her in the bed and pressing a pillow on her face with his right knee making her to gasp for breath and thereafter, by strangling her neck with a coir rope. 2. Before the trial Court, the prosecution examined P.Ws.1 to 15 and marked Exs.P.1 to P.12 and M.Os.1 and 2 to substantiate its case. On the side of the defence, no witness was examined nor any documentary evidence was produced. After hearing the submissions of both sides, by the impugned judgment, the learned trial Judge, accepted the prosecution version, as brought out through the oral and documentary evidence and convicted and sentenced the appellant to imprisonment for life and also imposed a fine of Rs.25,000/- and in default, to undergo one year rigorous imprisonment. The learned trial Judge also directed that on payment of the fine amount of Rs.25,000/-, Rs.10,000/-shall be paid to P.W.2, father of the deceased and Rs.10,000/- to the son of the accused and deceased, to be kept in a fixed deposit in any nationalised bank and Rs.5,000/- as fine in Court. Aggrieved by the said conviction and sentence, the present appeal has been preferred before this Court. 1. The case of the prosecution, as could be culled out from the oral and documentary evidence, are stated as hereunder:- The deceased Priya is the wife of the accused and P.W.2 is the father of the deceased. The accused fell in love with the deceased and about three years prior to the date of occurrence, they got married. Initially, their marriage was not accepted by their parents, but subsequently, the parents of the deceased accepted and also got their marriage registered in a Sub-Registrars office. They were residing at Aranmanipudur and a boy child was born to them and they named the child as Majnu Prakash. About four months prior to the date of occurrence, the deceased Priya developed illicit relationship with one Senthil, who was working in a tiles company nearby to the house of the deceased. They were residing at Aranmanipudur and a boy child was born to them and they named the child as Majnu Prakash. About four months prior to the date of occurrence, the deceased Priya developed illicit relationship with one Senthil, who was working in a tiles company nearby to the house of the deceased. On coming to know about this from the deceased herself, the accused, showing their one year old child, advised her not to continue with the illicit relationship and he also informed about this to the parents of the deceased when they visited their house. The parents of the deceased advised her and also cautioned the said Senthil not to come to the house of the deceased thereafter. But, the intimacy continued and due to this, there used to be frequent quarrels between the accused and the deceased. 2. On 30.5.2004 at about 9.00 a.m., the deceased told the accused about the visiting of Senthil the day before and informed him that she would go to Ayyan temple along with Senthil and that thereafter, she would live with Senthil. Since the deceased did not heed the advice of the accused, a quarrel ensued between them and on being provoked by the words uttered by the deceased and her adamant attitude, the accused pushed her on the bed, pressed her face with a pillow, stamped with his right knee and thereafter, strangled her neck with a coir rope and thus, caused her death. 3. At about 3.15 p.m., the accused appeared before P.W.1, the Village Administrative Officer of Andipalayam, Thiruppur Circle, and confessed to him about the murder of his wife. P.W.1 reduced the statement given by the accused into writing, which is marked as Ex.P.1 in the case and obtained the signature of the accused and thereafter, prepared his report, Ex.P.2. P.W.1 took the accused along with Exs.P.1 and P.2 and reached the scene of occurrence along with his menial Jagadeesan and saw the deceased lying dead on the bed with a rope tied around her neck. Thereafter, he proceeded to the police station and handed over the accused to the police along with Ex.P.1, confession statement given by the accused and Ex.P.2, his report. 4. Thereafter, he proceeded to the police station and handed over the accused to the police along with Ex.P.1, confession statement given by the accused and Ex.P.2, his report. 4. P.W.12, Sub-Inspector of Police attached to Tiruppur South Police Station, received Exs.P.1 and P.2, on the basis of which, he registered a case in Crime No.821 of 2004 under Section 302 I.P.C. and arrested the accused. Ex.P.10 is the printed F.I.R. He sent the copies of the F.I.R. to the Court as well as to the higher officials and after informing the Inspector of Police over phone, he proceeded to the scene of occurrence. 5. On receipt of the information from P.W.12, P.W.15, Inspector of Police, proceeded to the scene of occurrence and obtained a copy of the first information report and took up the investigation. He observed the scene of occurrence and prepared an observation mahazar, Ex.P.3, in the presence of P.W.3 and another. He also prepared a rough sketch, Ex.P.11. He seized M.Os.1 and 2, the coir rope and the pillow, under a cover of mahazar Ex.P.4. Thereafter, he conducted inquest over the dead body of Priya in the presence of panchayatdars and other witnesses and prepared the inquest report, Ex.P.12. During the inquest, he examined P.W.1, V.A.O., his menial Jagadeesan, P.W.2 and one Victoria and recorded their statements. He despatched the dead body through a police constable, P.W.14, to Government Hospital, Tiruppur, along with a requisition to conduct autopsy on the dead body of the deceased Priya. 6. On receipt of the requisition and the dead body at 11.30 p.m. on 30.5.2004, P.W.7, the Assistant Surgeon, Government Head Quarters Hospital, Coimbatore at Tiruppur, commenced the post-mortem at 2.30 p.m. and found the following external and internal injuries:- "Appearances found at the post mortem on a female body lying on its back with both arms on the sides of the body. Eyes closed, right eye congested with sub conjunctival haemorrhage mouth partially opened tongue kept inside jawas right hands empty nails blue. External injuries:- (1) A brownish abrasion on the right side fron of neck transverse linear about 10 cm. x 1 cm. extending from 3 cm. lateral to mid line towards right side; 2) A brown abrasion on the left side of the neck about 6 cm. x 5 cm., linear transverse about 5 cm. lateral to mid line. External injuries:- (1) A brownish abrasion on the right side fron of neck transverse linear about 10 cm. x 1 cm. extending from 3 cm. lateral to mid line towards right side; 2) A brown abrasion on the left side of the neck about 6 cm. x 5 cm., linear transverse about 5 cm. lateral to mid line. On blood less dissection of the neck underlying tissues of the abrasions congested. Borders of the injuries congested. Neck muscles congested. Hyoid bone preserved. Trachea, larynx congested. The above injuries found on the thyroid cartilage and at the level of it. On opening thorax and abdomen, no rib fracture lungs congested, normal heart, right side chambers contains 30 ml. Of fluid blood left side empty stomach contains about 50 ml. Of straw coloured fluid no smell. Mucous present normal. Large and small intestine normal distended with gas, liver, spleen kidneys normal congested uterus normal size empty skull no bone injury brain normal congested spinal column intact." The doctor, P.W.7, issued Ex.P.5, the post-mortem certificate and reserved his opinion as to the cause of death pending viscera report and on receipt of the same, Ex.P.6, he has opined that the deceased would appear to have died of asphyxia due to external compression of neck about 22 to 24 hours prior to autopsy. 7. In the meantime, P.W.15, continuing with his investigation, sent the accused to Court for remand along with the seized materials. Thereafter, he examined P.Ws.4, 5 and 9 to 11 and recorded their statements. He examined the post-mortem doctor, P.W.7 and recorded her statement. He sent the hyoid bone and the viscera for chemical analysis through a police constable and examined P.W.6, P.W.13 and P.W.14 and recorded their statements. On 10. 2004, he obtained the opinion of P.W.7, the postmortem doctor as to the cause of death. After completion of investigation, he laid the final report on 211. 2004. 4. The accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him in the oral and documentary evidence. On 10. 2004, he obtained the opinion of P.W.7, the postmortem doctor as to the cause of death. After completion of investigation, he laid the final report on 211. 2004. 4. The accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him in the oral and documentary evidence. He denied all the incriminating circumstances as false and stated that on day of occurrence, he took his child to the hospital and returned back to the house at 3.00 p.m. only to find his wife lying dead in the bed and that he questioned his neighbours who have informed him that Senthil came to his house and picked up quarrels with his wife. He has stated that thereafter, he went to the police station, where he was detained and after some time, his signature was obtained in a paper containing certain details and that he was sent to Court and thereafter, to prison, where he came to know that a false case had been foisted on him. Neither any witness was examined nor any documentary evidence was produced on his side. 5. The learned trial Judge, on hearing the submissions of both sides, convicted and sentenced the appellant/accused as referred to above. 6. The main contentions of the learned counsel appearing for the appellant/accused are that: (i) The extra judicial confession, Ex.P.1, made by the accused to the Village Administrative Officer cannot be relied upon for the following reasons:- a) there is no seal of the VAO in the extra judicial confession, Ex.P.1; b) the extra judicial confession, Ex.P.1 is prepared at the police station; c) the medical evidence is not corroborated with the extra judicial confession; d) if Ex.P.1 goes, the evidence of P.W.1, the V.A.O. should also be thrown out; and e) except Ex.P.1 and the evidence of P.W.1, there is no other material connecting the accused with the crime. (ii)alternatively, the learned counsel argues for modification for bringing the offence under Exception-I to Section 300 I.P.C., since admittedly, there were frequent quarrels between the deceased and the accused prior to the occurrence and even in Ex.P.1, it is stated that on the date of occurrence, there was a quarrel and due to the provocation given by the deceased, the accused went to the extreme of killing her and thus, the accused can be convicted for lesser offence. 7. 7. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor submits that the extra judicial confession being given by the accused voluntarily, it cannot be brushed aside and it needs no corroboration. That apart, he submits that in view of the evidence of P.W.2, father of the deceased and other witnesses, viz. P.Ws.4, 6, 9, 10 and 11, with regard to the illicit relationship of the deceased with Senthil due to which there were frequent quarrels between the deceased and the accused, the motive for the accused to murder the deceased stands proved. Thus, the prosecution has substantiated its case against the accused beyond all reasonable doubts and hence, the conviction has to be confirmed. 8. We have given our anxiousconsideration to the submissions made on both sides and perused the entire materials placed on record. 9. The main points for consideration are whether Ex.P.1, the extra judicial confession given by the accused to P.W.1, the Village Administrative Officer, can be relied upon and whether the prosecution has proved its case beyond all reasonable doubts. 10. Admittedly, in the case on hand, the case originates from the extra judicial confession, Ex.P.1, given by the accused to the Village Administrative Officer, P.W.1. Before we proceed to analyse whether the extra judicial confession was given by the accused to P.W.1, the Village Administrative Officer, voluntarily, there are other circumstances which are to be considered. 11. This is a case where there is no eye witness to the occurrence and thus, motive assumes importance. It is the consistent evidence of P.W.2, father of the deceased and P.Ws.4, 6, 9, 10 and 11 that the deceased was having illicit relationship with one Senthil, due to which, there used to be frequent quarrels between the accused and the deceased. P.W.2, father of the deceased, has stated in his evidence that some time prior to the date of occurrence, his daughter, the deceased and the accused came to his house along with their child for celebrating the first year birthday of the child and that when he returned to his house after attending his outside work, his wife informed him that at about 1.00 p.m. the accused asked her to give in writing that the deceased Priya is not their daughter and that either he would live with the deceased or would kill her. Subsequent to that, it is the evidence of P.W.2 that on the date of occurrence, i.e. on 30.5.2004 at about 1.30 p.m., he was informed over phone that his daughter was killed and that the person who phoned him has informed him that due to the illicit relationship between the deceased and one Senthil, the accused had killed her. However, in the cross-examination, P.W.2 has stated that while he was examined by the police during investigation, he has stated that when he and his wife were staying in the house of the accused, Senthil came there and that the accused told them that the deceased was having illicit relationship with the said Senthil and requested them to advice her. It is pertinent to note that this evidence of P.W.2 in the cross-examination corroborates with the confession statement given by the accused to P.W.1, the Village Administrative Officer, wherein he has stated that he requested the parents of the deceased to advice her not to continue her relationship with Senthil. 12. That apart, it is the consistent evidence of P.Ws.4, 6, 10 and 11, the owners of the houses, where the accused and the deceased lived at different points of time, that there were frequent quarrels between the accused and the deceased due to the illicit relationship the deceased had with Senthil. P.W.9, in his evidence, has stated that when he was proceeding in the road towards Aranmanai Pudur along with his friend, the accused and the deceased were proceeding in front of them and he heard the deceased telling the accused that she would go to Ayyan temple with Senthil, for which the accused told her that till he is alive, she should not go with Senthil and if she goes, he would kill her by strangling her neck with rope. On going through the consistent evidence of P.Ws.2, 4, 6, 9, 10 and 11, we are of the confirmed view that the prosecution has established the motive part of the occurrence. 11. Now, let us analyse whether the extra judicial confession, Ex.P.1, given by the accused to the Village Administrative Officer, P.W.1 is true and voluntary and can be relied upon. The law is well settled that on the basis of the extra judicial confession, conviction can be sustained, but before accepting the said confession, three tests are to be satisfied and they are: "1. The law is well settled that on the basis of the extra judicial confession, conviction can be sustained, but before accepting the said confession, three tests are to be satisfied and they are: "1. To whom the said extra judicial confession is made?; 2. Whether the person to whom the extra judicial confession is made, his evidence inspires the confidence of the Court?; and 3. Whether the extra judicial confession is consistent to the prosecution case? 12. At this juncture, it is also relevant to refer to the decision of the Apex Court in GURA SINGH -vs- STATE OF RAJASTHAN (2001 Supreme Court Cases (Crl.) 323), wherein it has been held as follows:- "..the extrajudicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. The Supreme Court further held that the evidence in the form of extrajudicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence and corroboration of such evidence is required only by way of abundant caution. The Supreme Court further observed that if the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone and it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence and it would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The Supreme Court further held that retraction of extra judicial confession which is a usual phenomenon in criminal cases by itself will not weaken the case of the prosecution based upon such a confession and an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity." The Supreme Court has further held that "..,before relying on the alleged confession, the Court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicion circumstances to circumvent Sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised." 13. The above decision has been followed by the Apex Court in its subsequent decisions, viz. in State of Rajasthan v. Raja Ram (2003 SCC Crl. 1965) and in Sivakumar v. State [(2006) 1 SCC Crl. 470] and thus, the law is well settled on the point. 14. Keeping in mind the above principle, in the instant case, it is the evidence of P.W.1, the Village Administrative Officer that when he was in his office at Kailasa Mill road along with his menial Jagadeesan, at about 3.15 p.m. on 30.5.2004, the accused appeared before him and confessed to him that he killed his wife Priya at about 1.00 p.m. on that day by pressing a pillow on her face with his knee and thereafter, by strangling her neck with a coir rope, pursuant to the quarrel between them with regard to the illicit relationship the deceased had with one Senthil. He reduced the said statement of the accused into writing and obtained his signature and he and his menial Jagadeesan also signed in the said statement. He reduced the said statement of the accused into writing and obtained his signature and he and his menial Jagadeesan also signed in the said statement. Though it may be presumed that P.W.1, being a Government servant, may be obliged to the police officers, there is no reason for him to give false evidence against the accused nor any suggestion was put to him to elicit that he was inimical towards the accused. That apart, after reducing the confession statement, Ex.P.1, given by the accused into writing, he took the statement and the accused to the scene of occurrence and saw the deceased lying dead with a rope tied around her neck and thereafter, he went to the police station at 4.30 p.m. and handed over Ex.P.1, the confession statement, Ex.P.2, his report and the accused to the Sub-Inspector of Police, P.W.12. P.W.12 has stated in his evidence that on receipt of Exs.P.1 and P.2 from P.W.1, he set the law in motion by registering a case and arrested the accused and that after informing the higher officials he went to the scene of occurrence. P.W.15, on receipt of copy of the F.I.R., reached the scene of occurrence, where he recovered M.O.1, coir rope from the body and M.O.2, a pillow with cover. 11. The main contention of the learned counsel is that as per Rule 6 of V.A.O. Manual, while recording the extra judicial confession P.W.1, the Village Administrative Officer, has not followed the formalities and hence, the extra judicial confession becomes unreliable and it would have been prepared at the police station. Even assuming that the Village Administrative Officer, P.W.1, has not followed the procedures as prescribed under the V.A.O. Manual while recording the judicial confession and thus, eschewing the extra judicial confession, Ex.P.1, from the point of consideration, there are other circumstances, which we already referred to above, that the deceased was having illicit relationship with one Senthil and due to that, there were frequent quarrels between them. It is the clear evidence of P.W.2, father of the deceased, and P.W.9, an independent witness, in that, P.W.2 has stated that the accused had told the mother of the deceased that he would either live with the deceased or would kill her and P.W.9 has stated that when he was proceeding to his work, the accused was seen proceeding in front of him with the deceased and that when the deceased told the accused that she would go to Ayyan temple along with Senthil, the accused warned her that if she goes with the said Senthil, he would rather go to the extent of killing her by strangling her neck. 12. That apart, the occurrence having taken place at about 1.00 p.m., the law was set in motion within a short span of time, i.e. at 4.30 p.m., only after the receipt of the alleged extra judicial confession, Ex.P.1 given by the accused to P.W.1, the Village Administrative Officer and his report, Ex.P.2 and hence, even though it is assumed that P.W.1 has not followed the procedures while recording the confession statement, it has no relevance when there are other incriminating materials connecting the accused with the crime and on going through the evidence of P.W.1, the Village Administrative Officer, and P.W.12, the Sub-Inspector of Police, we find no reason to disbelieve their evidence, which is cogent and convincing. Hence, we accept Ex.P.1, the extra judicial confession as the one given by the accused after he committed the murder of his wife and the evidence of P.W.1, the Village Administrative officer. 16. Once we accept the extra judicial confession, Ex.P.1, as reliable piece of evidence, the other contention of the learned counsel for the appellant that the medical evidence does not corroborate with the act committed by the accused lacks significance. The evidence of the doctor, P.W.7 and Ex.P.5, the post-mortem certificate coupled with the chemical analysis report, Ex.P.6, clearly prove the cause of death of the deceased that she died of asphyxia due to compression of neck about 22 to 24 hours prior to postmortem. The evidence of the doctor, P.W.7 and Ex.P.5, the post-mortem certificate coupled with the chemical analysis report, Ex.P.6, clearly prove the cause of death of the deceased that she died of asphyxia due to compression of neck about 22 to 24 hours prior to postmortem. It is the case of the accused that after he pressed the pillow on the face of the deceased with his knee and made the deceased unconscious, suspecting that she would not have died, he took a coir rope and strangulated her neck and thus caused her death, which corroborates with the medical evidence. Hence, we do not find any reason to disbelieve the medical evidence. 17. The alternative submission of the learned counsel for the appellant is that due to the adamant attitude of the deceased from the morning of 30.5.2004 till 1.00 p.m. that she would go along with Senthil to Ayyan temple and live with him thereafter, the accused, whilst deprived of the power of self control by grave and sudden provocation given by the deceased, caused her death and hence, the offence committed by the accused can be brought under Exception 1 to Section 300 I.P.C. We heard the learned Additional Public Prosecutor on the above submission. 18. In Ex.P.1, which we have already accepted as reliable piece of evidence, it is clearly stated by the accused that in spite of his giving repeated advice to the deceased not to continue her relationship with Senthil and refusing to allow her to go along with Senthil, the deceased was very adamant in her behaviour and due to the grave and sustained provocation given by the deceased on the date of occurrence, the accused lost his temper and caused her death by pushing her in the bed and pressing the pillow on her face and thereafter, strangling her neck with a coir rope. That apart, it is the clear evidence of P.W.2, father of the deceased that the accused requested him and his wife to advice their daughter, the deceased in respect of her illicit relationship with Senthil, which evidence is also corroborated with the extra judicial confession, Ex.P.1, given by the accused and the evidence of other witnesses, viz. P.Ws.4, 6, 9, 10 and 11 that the deceased was having illicit relationship with one Senthil and due to that, there were frequent quarrels between them. P.Ws.4, 6, 9, 10 and 11 that the deceased was having illicit relationship with one Senthil and due to that, there were frequent quarrels between them. In fact, it is the evidence of P.W.6 that due to the illicit relationship of the deceased with Senthil, the accused attempted to commit suicide by hanging himself and it was he, who, on hearing the hue and cry of the deceased, saved the accused with the help of others. P.W.10, in whose house the deceased and accused were staying as tenant at some point of time, in his evidence, stated that the deceased attempted to slap the accused with slippers and that he questioned her conduct and thereafter, asked them to vacate the house. On going through the evidence of the witnesses, which is trustworthy and cogent, we are satisfied that the accused has committed the offence due to the grave and sustained provocation given by the deceased and thus, it can be brought down under Exception 1 to Section 300 I.P.C. In view of the same, instead of convicting the accused under Section 302 I.P.C., we convict him under Section 304 Part-II I.P.C. 19. So far as the sentence of imprisonment is concerned, treating the case of the appellant as an exceptional case and also considering the paramount interest of the infant child of the accused, aged one year at the time of occurrence, we are inclined to reduce the sentence of imprisonment to three years rigorous imprisonment. 20. With regard to the sentence of fine, if the fine amount of Rs.5,000/- as directed by the trial Court has already been paid, the same shall be refunded to the appellant. However, we confirm the balance fine amount of Rs.20,000/-, viz., Rs.10,000/-to be paid to P.W.2, father of the deceased, as compensation and Rs.10,000/- to be kept as deposit in the name of the child of the accused. However, we confirm the balance fine amount of Rs.20,000/-, viz., Rs.10,000/-to be paid to P.W.2, father of the deceased, as compensation and Rs.10,000/- to be kept as deposit in the name of the child of the accused. In the result, (i) The conviction of the appellant is modified from Section 302 I.P.C. to Section 304 Part- II I.P.C.; (ii) for the said conviction, he is sentenced to rigorous imprisonment for a period of three years; and (iii)out of the fine amount of Rs.25,000/-, the direction of the trial Court that Rs.10,000/-to be paid to P.W.2 as compensation and Rs.10,000/-to be kept as deposit in the name of the child of the accused is confirmed; however, the balance fine amount of Rs.5,000/-, if paid, shall be refunded to the appellant. The appeal is accordingly dismissed with the above modification in conviction and sentence.