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2015 DIGILAW 2709 (MAD)

Jothi v. State of Tamil Nadu

2015-08-04

S.NAGAMUTHU, V.S.RAVI

body2015
JUDGMENT : S.NAGAMUTHU, J. The appellant is the sole accused in S.C.No.177 of 2009, on the file of the learned Principal Sessions Judge, Dindigul. He stood charged for the offence punishable under Section 302 of the Indian Penal Code. By Judgment dated 08.07.2010, the Trial Court convicted the appellant under Section 302 of the Indian Penal Code and sentenced her to undergo imprisonment for life and to pay a fine of Rs.1,000/-in default to undergo rigorous imprisonment for one year. As against the said conviction and sentence, the appellant has come up with this Criminal Appeal. 2. The case of the prosecution, in brief, is as follows:- The deceased, in this case, was one Ochappan. The accused is his wife. They have three children born out of the said wedlock. The deceased was a drunkard. Invariably, every day, he used to return home fully drunk and quarrel with the accused. He also claimed that the three children were not born to him. Thus, suspecting the fidelity of the accused, he used to fight with her in drunken state. While so, on 21.07.2009, when the deceased was sleeping in his house, at about 10.30 AM, the accused attacked the deceased with grinding stone on his head, resulting in bleeding injuries. He died instantaneously. With these allegations, the respondent filed the final report, upon which the Trial Court framed charge under Section 302 of the Indian Penal Code. The accused denied the same. 2.1. In order to prove the charges, the prosecution examined as many as 15 witnesses and 22 documents were exhibited, besides eight Material Objects. Of the said 15 witnesses, PW-1 is a resident of Thandikudi Village, to which the accused also belonged to. According to the case of the prosecution, on 21.07.2009, at about 11.00 AM, the accused came to his house. On enquiry, the accused told him that she had killed her husband and he took the accused to the Police Station and made a complaint. But, he has turned hostile and he has not supported the case of the prosecution in any manner. PW-2 is the brother of the deceased. According to him, on 21.02.2009, as usual, at about 09.00 AM, the deceased was fully drunk and he was fighting with the accused. He has further claimed that he separated them and persuaded them. Accordingly, the accused started doing her work and he went away. PW-2 is the brother of the deceased. According to him, on 21.02.2009, as usual, at about 09.00 AM, the deceased was fully drunk and he was fighting with the accused. He has further claimed that he separated them and persuaded them. Accordingly, the accused started doing her work and he went away. By about 10.00 AM, according to PW-2, he heard the alarm raised by the deceased. At that time, he was at his house taking food. On hearing the said alarm, when he rushed into the house of the accused, he found that the accused repeatedly hitting the deceased on his head with a grinding stone. PW-2 returned and informed the same to his mother. 2.2. PW-3 is the neighbour of the deceased. He has stated that on the crucial date, he was not at home, as he had gone to a nearby shop to take Tea. He has not stated anything incriminating against the accused. He has stated that when he returned, he found the deceased dead and there was a grinding stone by the side of the dead body. PW-4, who is yet another neighbour of the deceased, has turned hostile and he has not supported the case of the prosecution in any manner. 2.3. PW-5 is the son of the deceased. He has also stated that the deceased used to quarrel with the accused in drunken state. He has further stated that everyone at home was not able to lead the life peacefully, because of the conduct of the deceased. He has further stated that the deceased used to quarrel with him, if he had gone to the rescue of his mother. He is not an eye witness to the occurrence. He has further stated that the police came to his house and took the accused into custody. PW-6 is the Village Assistant, who has spoken to the fact that after the occurrence, he came to the house of the deceased and he was guarding the dead body. 2.4. PW-7 was the then Village Administrative Officer. He has stated that he was summoned to the Police Station, where the accused was present. It is alleged that the accused gave a confession, which was reduced into writing by the police in his presence. PW-8 is the mother of the deceased. 2.4. PW-7 was the then Village Administrative Officer. He has stated that he was summoned to the Police Station, where the accused was present. It is alleged that the accused gave a confession, which was reduced into writing by the police in his presence. PW-8 is the mother of the deceased. She has stated about the quarrel between the accused and the deceased on the crucial date of the occurrence. Then, she went out of his house and was sleeping on the verandah. According to her, she came to know that the deceased was done to death. 2.5. PW-9 was the then Judicial Magistrate, Nilakottai. According to him, a requisition was made by the Investigating Officer to record the confession statement of the accused. According to him, the accused was produced before him on 24.07.2009. He gave warning to the accused as required under Section 164 of the Code of Criminal Procedure. The accused was given time to relax. She was again produced on 31.07.2009. After giving required warning and after having satisfied that the accused was willing to make a statement voluntarily, he recorded her statement. But, in the said statement, she has not stated anything incriminating against her. To the contrary, she has stated that due to drunken state, the accused fell on the steps of the house, came into contact with the grinding stone and sustained injuries, which resulted in his death. PW-10, Dr.A.Govindarraj, conducted autopsy on the body of the deceased on 22.07.2009, at 11.00 AM. According to him, he found the following external injuries on the body of the deceased. "1. Contusion 10 X 10 cm occipital region with depression off skull on dissection -depressed fracture occipital bone with brain laceration. 2. Contusion 6 X 4 cm left Temporal region with underlying fracture left temporal bone with brain matter protrusion through fracture. 3. Contusion 6 X 4 cm right temporal region with underlying fracture right temporal bone. 4. Contusion 10 X 6 cm over nose and left cheek and fracture left maxilla". He gave opinion that the deceased would have died of the shock and hemorrhage due to the injuries sustained by him. 2.6. PW-11 is the Police Photographer, who has spoken about the photograph taken on the dead body from the place of occurrence. 4. Contusion 10 X 6 cm over nose and left cheek and fracture left maxilla". He gave opinion that the deceased would have died of the shock and hemorrhage due to the injuries sustained by him. 2.6. PW-11 is the Police Photographer, who has spoken about the photograph taken on the dead body from the place of occurrence. PW-12 was a Constable, attached to the Thandikudi Police Station, who has stated that he handed over the First Information Report at 02.00 PM, on 21.07.2009 to the Inspector of Police for investigation. PW-13 is the Head Constable, who has stated that the accused was kept in police custody on being produced by PW-1. PW-14 has spoken about the registration of the case by him on 21.07.2009, at 01.00 PM, and PW-15 has spoken about the investigation done by him. 2.7. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against her, the explanation offered by her was that the accused was fully drunk, he had lost his balance, fell on the cement steps of the house and came into contact with the grinding stone. Thus, the deceased died due to the accidental injuries. She did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment and punished her accordingly. That is how, the appellant is now before this Court with this Criminal Appeal. 3. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent and also perused the records carefully. 4. The learned counsel for the appellant would submit that the evidence of PW-1 that the accused told him that she had killed her husband by hitting the grinding stone cannot be believed, for the reason that in the later part of his evidence, he has stated that the accused did not say anything to him at all. Thereafter, he was treated as hostile and therefore, his evidence cannot be given weightage of. The learned counsel would further submit that the evidence of PW-2, the brother of the deceased, who claimed to be an eye-witness also cannot be believed. According to him, admittedly, at the time of occurrence, he was in the house taking food. Thereafter, he was treated as hostile and therefore, his evidence cannot be given weightage of. The learned counsel would further submit that the evidence of PW-2, the brother of the deceased, who claimed to be an eye-witness also cannot be believed. According to him, admittedly, at the time of occurrence, he was in the house taking food. He has stated that on hearing the alarm raised, he came to the house and witnessed the occurrence. He is an independent witness and therefore, according to the learned counsel, his evidence deserves close scrutiny. The learned counsel would further submit that the conduct of PW-2 would go to show that his presence itself is doubtful at the time of occurrence. The learned counsel would further submit that before the learned Judicial Magistrate, [PW-9], the accused has made a statement detailing the way in which the deceased sustained injuries. Apart from the above, according to the learned counsel, the doctor, who conducted autopsy on the body of the deceased, has not ruled out the possibility of the accidental fall. According to the learned counsel, absolutely, there is no evidence to prove the case that the accused hit the deceased with the grinding stone on his head repeatedly. 5. The learned Additional Public Prosecutor would, however, oppose this Criminal Appeal. According to him, the occurrence had taken place inside the house of the accused and thus, she is bound to explain as to how the deceased sustained injuries and died. He would further submit that the explanation offered by the accused is not plausible and the same cannot be accepted. If once it is proved that the accused has come up with a false plea, according to the learned Additional Public Prosecutor, that by itself is yet another circumstance against the accused. He would further submit that at the time of occurrence, except the accused and the deceased, nobody else was available in the house, which would further go to prove that the deceased would have been done to death by the accused. Thus, from the evidence of PW-1, the medical evidence and the circumstances, as stated above, the prosecution has proved the case beyond reasonable doubts, the learned Additional Public Prosecutor contended. 6. We have considered the above submissions. 7. Thus, from the evidence of PW-1, the medical evidence and the circumstances, as stated above, the prosecution has proved the case beyond reasonable doubts, the learned Additional Public Prosecutor contended. 6. We have considered the above submissions. 7. At the outset, from the evidences of the family members of the deceased, we find that the deceased was a drunkard and he used to come home every day in drunken state and quarrel with his wife and the other family members. Even the son of the deceased, PW-5, has stated that the deceased used to lose his balance due to the drunken state and quarrel with anybody, including the family members. He has also stated that when he had gone to persuade him, he used to scold everyone in the house including the children. 8. It is also in evidence that on the date of occurrence, at 09.00 AM, the deceased was fully drunk and he quarreled with his wife. PW-2 has stated that he separated them and thereafter, the accused started doing her work. PW-2 went to his house. He heard the alarm raised by the deceased and then, he rushed into the house of the accused at 10.00 AM. He has further claimed that he witnessed the occurrence. In our considered view, it is too difficult to believe this witness, for, there are lot of circumstances to doubt him. During cross-examination, he has admitted that he is the accused in many cases under the Narcotic Drugs Act. He has further admitted that there were more than 20 cases pending against him. He has further stated that there were 100 cases pending against his father and 50 cases against his mother. He has also stated that the deceased was claiming that the three children were not born to him and he used to quarrel with anybody. 9. From the above, it is clear that he was not new to the police. Secondly, on seeing the occurrence, he did not go to rescue to his brother. He did not raise any alarm. It is not as though he was watching the occurrence very patiently for such a long time. He did not inform the police about the occurrence. He did not rush unto the Police Station to make a complaint. From this conduct of PW-2 and his antecedents, we are forced to doubt the very presence of PW-2. It is not as though he was watching the occurrence very patiently for such a long time. He did not inform the police about the occurrence. He did not rush unto the Police Station to make a complaint. From this conduct of PW-2 and his antecedents, we are forced to doubt the very presence of PW-2. The First Information Report, in this case, was registered only at 01.00 PM. Admittedly, the distance between the Police Station and the place of occurrence is hardly five kilometres. Had it been true that PW-2 and the other family members were present in their respective houses at the time of occurrence, since PW-2 and others, who were not new to the police, would have gone to the Police Station immediately with the complaint. Absolutely, there is no explanation as to why the family members of the deceased, who have deposed against the accused, had not gone to the Police Station to make a complaint immediately. The complaint was made by PW-1 at 01.00 PM. PW-1 has stated that the accused came to him at 11.00 AM and told him that she killed her husband, but in the later part of his evidence, he has stated that the accused did not say anything to him at all. He has disowned the contents of even EX-P1, the complaint. He has admitted only his signature and therefore, he was treated as hostile. Thus, the evidence of PW-1 does not go to support the case of the prosecution in any manner. 10. Admittedly, an attempt was made to extract the confession from the accused. She was produced before the learned Judicial Magistrate, Nilakkottai, on 24.07.2009. On that date, she was given a statutory warning as required under Section 164 of the Code of Criminal Procedure and she was produced before the learned Judicial Magistrate, again on 31.07.2009. She has only stated that the deceased used to quarrel with her in drunken state every day. She has further stated that on the date of occurrence, the deceased was fully drunk and because of the same, he had lost his balance, fell on the cement steps, came into contact with the grinding stone lying there, sustained injuries and died out of the same. This explanation is the earliest explanation made by the accused. There is no reason to reject the same. This explanation is the earliest explanation made by the accused. There is no reason to reject the same. The medical evidence does not rule out the possibility of the accidental fall. 11. In our considered view, since PW-2, by his own conduct, has rendered himself unbelievable and since there is no other evidence available against the accused and since the explanation offered by the appellant is acceptable to the Court, which draws corroboration from the medical evidence, we hold that the prosecution has failed to prove the case beyond reasonable doubts. We hold that the Trial Court was not right in convicting the accused. 12. In the result, this Criminal Appeal is allowed, the conviction and sentence imposed on the appellant by Judgment dated 08.07.2010, made in S.C.No.177 of 2009, on the file of the learned Principal Sessions Judge, Dindigul, is set aside and the appellant is acquitted. Fine amount, if any, paid by the appellant shall be refunded to her. Bail bond executed by the appellant shall stand terminated.