BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27/02/2007

CORAM:

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Criminal Appeal No.169 of 1999

Rajam ... Appellant

Vs

State,

rep. by the Inspector of Police,

Vadasery Police Station,

Crime No.202 of 1997 ... Respondent

Appeal under Section 374 of the Code of Criminal Procedure against the judgment, dated 25.01.1999, of the learned Sessions Judge, Kanyakumri Division at Nagercoil, in S.C.No.102 of 1997.

!For Appellant : Mr.G.Arumugaperumal

^For Respondent : Mr.P.N.Pandithurai,

Addl.Public Prosecutor.

:J U D G M E N T

(Judgment of the Court was delivered by G.RAJASURIA,J)

The appellant Rajam is the sole accused in S.C.No.102 of 2001 on the file of the learned Principal Sessions Judge, Kanyakumari Division at Nagercoil. She stood charged under Sections 341, 364 and 302 IPC and on trial, she was found guilty under Sections 364 and 302 IPC alone and sentenced to one year rigorous imprisonment for the former offence and life imprisonment for the latter offence. However, she was acquitted of the charge under Section 341 IPC. Challenging the conviction and sentence imposed under Sections 364 and 302 IPC, the appellant has filed the present appeal.

2.The background facts of the prosecution case could be tersely and briefly portrayed thus.

(a)The Accused Rajam is none but the deceased Arunachalam's wife's younger sister. Undisputedly and indubitably, before the occurrence, there had been a long standing civil dispute. There were civil proceedings also between the accused and the deceased in connection with the house property under the occupation of the accused, which is the scene of crime. The house of the deceased Arunachalam and the house of the accused situated nearer to each other. Ofen quarrels erupted between them.

(b)It so happened that on 10th February, 1997 at about 8.30 p.m., in front of the house of the accused, there was a quarrel between the deceased and the accused which culminated to the extent of the accused loosing her self- control and consequently catching hold of the deceased Arunachalam, who was a sexagenarian, so to say around 64 years, and dragging him into her nearby house and taking out a knife (M.O.1) which was on the table of her house and inflicting successive injuries as found set out in Ex.P-12, the postmortem certificate, issued by P.W.13, the postmortem doctor and thereby causing the death of Arunachalam. Thereupon, the accused fled away from the scene of occurrence with the weapon of offence (M.O.1). Ex.P-1, the complaint, was came to be lodged by P.W.1, the son-in-law of the deceased, with P.W.5, the Sub- Inspector of Police, Vadasery Police Station and thereupon, as per Ex.P-2, the Express F.I.R., a case was registered in Crime No.202 of 1997 of Vadasery Police Station and P.W.14, the Inspector of Police, took up the investigation.

(c)In the course of investigation, P.W.14, the Investigation Officer, examined P.Ws.1 to 4, the eye-witnesses and recorded their statements, in addition to having prepared Ex.P-3, the observation mahazar and Ex.P-13, the rough sketch. He also recovered M.O.6, the bloodstained floor tile, and M.O.7, the sample floor tile, under Ex.P-4 mahazar, attested by P.W.6 and another. He also caused the place of occurrence to be photographed. He conducted inquest over the dead body as revealed by Ex.P-14, the inquest report and thereafter the body was sent for postmortem.

(d)P.W.13, the doctor, conducted autopsy on the body of the deceased and issued Ex.P-12, the postmortem certificate, opining that the deceased would appear to have died of shock and haemorrhage due to the injury to the vital organs. The bloodstained clothes of the deceased, namely M.Os.3 to 5, were recovered under Form No.95.

(e)In the course of investigation, P.W.14, the Inspector of Police, arrested the accused at 8.30 hours on 11.02.1997 and recorded her confession statement and as per the admissible portion of the confession, marked as Ex.P- 5, the M.O.1, the knife, was recovered under Ex.P-6 mahazar. The material objects concerned were sent to Forensic Laboratory for getting expert opinion and Ex.P-9, the Chemical Examiner Report and Ex.P-10, the Serologist's Report, were received. P.W.15, the Inspector of Police, after completing the usual investigation filed the police report before the Magistrate Court concerned, which committed the case to the court of session, which framed the relevant charges as against the accused, for which the accused pleaded not guilty.

3.By way of unfolding the prosecution case, 15 witnesses were examined as P.Ws.1 to 15, Exs.P-1 to P-14 were marked along with M.Os.1 to 10. In response to the questions put to her under Section 313 Cr.P.C. about the incriminating circumstances found in the evidence of prosecution witnesses, the accused came forward with a specific case to the effect that there had been a long standing civil dispute relating to the house property; that the accused attempted to grab her property; that somebody murdered Arunachalam and managed to

put his dead body inside her house through the back door and that thereby the case was foisted as against her. The trial court ultimately found the accused guilty and recorded the conviction and imposed the sentences as set out supra.

4.Being dissatisfied and aggrieved by the judgment of the trial in recording the conviction and impoing the sentence, the appellant has preferred the appeal on the grounds inter alia that the occurrence did not take place in the manner projected by the prosecution; that the alleged eye-witnesses have not spoken the truth; that they could not have seen the occurrence at all; that the prosecution case was highly improbable; that the accused being a lady could not have dragged the deceased into her house and inflicted the injuries on him so as to cause his death; that there was no electric power supply in that area as deposed to by P.W.11, the wireman/helper; that the evidence of P.W.1 would highlight that the accused was not occupying at the relevant point time her house; that the ocular evidence and the medical evidence do not hang together; that there was no recovery of M.O.1, the weapon of offence in pursuance of the alleged confession made by the accused; that the appellant did not commit any offence at all and if proper treatment had been given to the deceased, he could have been saved. Accordingly, the accused prayed for acquitting her.

5.Heard both sides. The learned counsel for the appellant advanced his arguments based on the grounds of appeal set out supra. The points for determination are:

(1)Whether the accused being a lady could not have dragged the deceased into the house of the former and done him to death, as narrated by the prosecution?

(2)Whether the evidence of the eye-witnesses were not believable in the wake of medical evidence adduced by the prosecution side?

(3)Whether there are imperfections and improbabilities in the prosecution case as highlighted in the grounds of appeal?

6.Points: 1 to 3. These points are taken together for discussion as they are inter linked with one another. The incontrovertible and unassailable facts are that the accused is the deceased Arunachalam's wife's younger sister and before the occurrence, there had been a long standing civil dispute concerning the said house property, whereupon often quarrel ensued between the accused and the deceased. The house of the accused and the house of the deceased are situated nearer to each other, as found set out in Ex.P-13, the rough sketch, drawn by P.W.14, the investigator.

7.P.W.1 Arunachalam, the son-in-law of the deceased and P.W.2 Bhagavathi Amma, the wife of the deceased and P.W.4 Mutukumar are all the residents of the same village where the occurrence took place and they would in unison and in one voice implicate the accused to the effect that it was she who dragged the deceased Arunachalam into her house and inflicted various knife blows and caused his death. The cumulative effect of the narration in Ex.P-1, the complaint, and in the deposition of P.Ws.1, 2 and 4 would show that at the initial stage, only the accused and the deceased Arunachalam were quarrelling with each other in front of the house of accused and only on hearing the alarming sound, which emanated from the quarrel between them, these eye- witnesses have been made to come to the spot. In the meanwhile, the accused, in a frenzied mood dragged the deceased into her nearby house and inflicted various injuries with M.O.1 knife and ran away from the scene of crime.

8.Learned counsel for the appellant would develop his argument that a lady could not have dragged a male into her house and done him to death as projected by the prosecution. The admitted facts are that at the relevant time of occurrence, the accused was 45 years old and the deceased was about 64 years old and obviously and apparently there was an age difference of 20 years. There is nothing to show that the accused was suffering from any infirmity which would have made her not to drag such an old man into her house and inflict injuries on him. It is not the accused who dragged the deceased to a very long distance but she simply dragged him from the door steps of her house into her house and before the eye-witnesses could rescue him from her clutches, the fatal injuries were inflicted on him by her.

9.P.W.3, a neighbour, was also one of the eye-witnesses to the occurrence but, when she started deposing before the Court, she swooned and could not depose further and hence her evidence is of no use in this case. It is a trait proposition of law that simply because P.Ws.1 and 2 are close relatives of the deceased, their evidence cannot be discarded. In this connection, the following decisions of the Hon'ble Apex Court could fruitfully and profitably be cited.

(1)State of Punjab v. Karnail Singh [(2003) 11 SCC

271.]

(2)Kartik Malhar vs. State of Bihar - [(1996) 1 SCC

614.]

Further, P.Ws.1 and 2 are equally related to the accused also, since she being the younger sister of P.W.2.

10.This Court is fully aware of the fact that the accused is not expected to have any specific defence and even a false defence would not automatically fasten the accused with guilt. However, once the accused has come forward with a specific case, it is open for the Court to comment upon it and highlight the falsity of it. As set out supra, during Section 313 Cr.P.C. examination, the accused came forward with the specific case as though somebody murdered the deceased Arunachalam and put his body in her house so as to fasten her with criminal liability. Absolutely there is no iota or shred of truth in the plea of the accused. Ex.P-13, the rough sketch, would reveal that there were lot of nearby houses and if any such thing had happened, as narrated by the accused, then certainly the said fact would have known to the police and others. Here, in this case, the police had no axe to grind in the matter and there is no political overtone or extraneous pressure on the police in foisting the case against the accused who is a lady.

11.P.W.1 and P.W.2 were cross-examined with reference to the physical features of the house and the street, etc. without even visualising for a moment that both P.W.1 and P.W.2 are relatives of the deceased and admittedly the house of the deceased is also situated very near to the house wherein the occurrence took place. The trial court correctly highlighted these facts and discarded the cross-examination as untenable. P.W.1 being the son-in-law of the deceased would expound and clarify that in connection with his nature of job, at the relevant time, he was constrained to stay in his father-in-law's house and that he had the opportunity of witnessing the crime. P.W.2, the wife of the deceased, would corroborate the evidence of P.W.1 relating to his presence in her house at the relevant time by narrating that in the evening at 07.45 p.m. P.W.1 came to her house and that both of them on hearing the sound emanated from the quarrel rushed to the spot and had the chance to witness the crime.

12.The eye-witnesses withstood the cross examination and there is nothing to doubt their testimony. The medical evidence, as put-forwarded by examining P.W.13, the doctor who conducted postmortem and marking Ex.P-12, the postmortem certificate, would demonstrate that the deceased died as a result of the various incised wounds and the death was due to shock and haemorrhage consequent upon the ante-mortem injuries inflicted on the deceased. It is, therefore, clear that the deceased died a homicidal death, over which there is no controversy at all.

13.The injuries found as set out in Ex.P-12, the postmortem certificate, do tally with the narration found in the deposition of the eye- witnesses, who, without mincing words, clearly deposed that the accused inflicted successive knife blows on Arunachalam. M.O.6, the bloodstained floor tile, which was sent for obtaining the opinion of the Forensic Science Expert under Ex.P-10, would demonstrate that the occurrence took place inside the house of the accused. Section 106 of the Indian Evidence Act also would come into operation as the occurrence took place in her house and in such a case, the onus of proof is on her to explain as to how it had occurred. However, she had come forward with a false plea as though she was not in occupation of the house at the

relevant point of time and somebody murdered the deceased and put his body in her house. Such a defence paves way for the bristling up of various questions. There is nothing to show elucidate or exemplify as to what made her not to occupy her house and there is no evidence also to show as to how a third party entered into her house with a dead body, etc. Realising the weakness of the defence, the learned counsel for the appellant, in all fairness, did not develop his argument on the line of defence as put-forth by the accused in her answer to the question under Section 313 Cr.P.C.

14.The evidence of D.W.1, the Advocate Commissioner, who was appointed in the civil case and Exs.D-1 and D-2 , the Commissioner Report and the Commissioner plan, respectively are not germane to decide this case and the learned counsel for the appellant, in all fairness, did not advance any argument based on such evidence also.

15.Ex.P-5, the admissible portion of the confession of the accused and the consequent recovery of M.O.1 knife, as revealed by Ex.P-6, the mahazar, would convey and exemplify the fact that the accused made the confession and in pursuance of the same, M.O.1 knife, the weapon of the offence, was recovered on 11.02.1997 at about 20.0 hours from a heap of casuarina poles. Additionally, even this piece of evidence also supports the prosecution case.

16.Exs.P-9 and P-10, the reports submitted by the Forensic Science Experts, would buttress the case of the prosecution that human blood of 'A' Group was found on M.O.1, the knife and all other material objects such as M.O.2, sari of the accused and M.Os.3 to 5, the clothes of the deceased.

17.In the grounds of appeal, it is found contended that there was no electric power supply at the relevant point of time of the occurrence. P.W.11 Subramanian, the wireman of the Municipality concerned, would clearly and categorically narrate and delineate that on the fateful day the lights were burning, including the lights in the street in which the accused house situated. During cross-examination P.W.11 would state that from January, 1997, there might have been short supply of electricity in Nagercoil area. But, such an isolated answer can never be relied on by the accused as though there could have been no light on the fateful day in front of the accused's house. In fact, p.W.11, without mincing words, clearly stated that it was he who was looking after the responsible for supply of electricity in that area and it was he who switched on the lights in that area during the evening time and it continued to burn till the next day morning. Inasmuch as there is no substance in the defence and that there are positive evidence to trace the guilt of the accused. all the points are decided in favour of the prosecution.

18.Learned counsel for the appellant, realising the nature of the defence, has come forward with an alternative plea to the effect that at any rate the offence could not be brought under Section 302 IPC. In our considered opinion, there is substance in such a contention. Ex.P-1, the complaint coupled with the evidence of the eye-witnesses would leave no doubt in the mind of the Court that just before the occurrence there was a wordy quarrel which alone culminated in the killing of Arunachalam by the accused. It is also the cae of the prosecution that the accused dragged the deceased into her house and thereafter took out the knife from the table of her house and inflicted injuries. It is clear, therefore, that she was not armed with any weapon and quarreled with the deceased in a pre-mediated manner. A perusal of Exception-1 to Section 300 IPC would highlight the fact that culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation caused the death of the person who gave the provocation. Here, our discussion supra, would undoubtedly highlight that owing to civil dispute there was squabble and in that process alone, the accused, having lost her self- control and at the spur of the moment, dragged the accused inside her house and took out M.O.1 knife and inflicted injuries and hence, we hold that the offence committed by the accused was not one covered under section 302 IPC but only under 304(i) IPC.

18.In the result, the appeal is partly allowed by modifying the conviction and sentence under Section 302 IPC into one under Section 304(i) IPC and we impose a sentence of seven years rigorous imprisonment and rest of the conviction under Section 364 IPC and sentence imposed thereunder are all confirmed. Both the sentences are ordered to run concurrently. The accused is on bail and hence the trial court is directed to issue non-bailable warrant against the accused so as to secure her presence and commit her to custody to undergo the remaining part of the sentence. The sentence already undergone by her shall be given set off.

To:

1.The Principal Sessions Judge,

Kanyakumari District at

Nagercoil.

2.The Inspector of Police,

Vadachery Police Station,

Kanyakumari District.

3. The Additional Public Prosecutor,