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S.GANESAN versus STATE OF TAMIL NADU

High Court of Madras

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S.Ganesan v. State of Tamil Nadu - Criminal Appeal No. 153 OF 1998 [2002] RD-TN 286 (24 April 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 24/04/2002

CORAM

THE HONOURABLE MR JUSTICE N. DHINAKAR

and

THE HONOURABLE MR JUSTICE MALAI. SUBRAMANIAN

Criminal Appeal No. 153 OF 1998

S.Ganesan ... Appellant. Vs

State of Tamil Nadu

rep. by its Inspector of Police

Saibaba Nagar Police Station,

Coimbatore. ... Respondent Prayer:- Appeal against the judgment passed by the learned I Additional Sessions Judge, Coimbatore in S.C.No. 184 of 1997 dated : 29.1.199 8. For Appellant : Mr.R.Suresh

For Respondent : Mr.S.Jayakumar Addl. Public Prosecutor. :JUDGMENT



(Judgment of the Court was delivered by N. DHINAKAR, J) The appellant, who hereinafter will be referred to as 'the accused', was tried before the learned I Additional Sessions Judge, Coimbatore, on a charge of murder, with an allegation that at 3.30 a.m. on 17.8 .1995, he murdered his wife Prema by smothering her. To prove the above charge, the prosecution examined P.Ws.1 to 11 and marked Exs.P.1 to P.15 as well as M.Os.1 to 4. On the side of the defence, Ex.D.1, a petition sent by the father of the accused to P.w.6, was marked. On the evidence adduced, both oral and documentary, the trial Court convicted and sentenced the accused to imprisonment for life. Hence, the appeal.

2. The case of the prosecution, as could be discerned from the oral and documentary evidence, can be briefly summarised as follows:- The deceased is the wife of the accused and they were residing in a house belonging to P.W.1. There used to be quarrels between the accused and the deceased. On 20.7.1995 P.W.1 went along with his family members to condole the death of a relative and returned on the next day and he was informed that the wife of the accused has consumed poison. P.W.1, therefore, asked the accused and the deceased to vacate the house. The accused promised to vacate the house in few months time. At about 5.00 a.m. on 17.8.1995, when P.W.1 was sleeping in his portion, the accused went and knocked the door. P.W.1 came out of the house and asked the accused as to what has happened. The accused told him that his wife is lying unconscious and requested P.W.1 to examine her. P.W.1, on examining Prema, found her dead. The accused left the place after informing P.W.1 that he will bring his relatives. He did not return till noon. Since the accused did not return even by noon, P.W.1 left for Saibaba Colony police station, where he gave a complaint to P.W.10, the Inspector of Polic e (Law and Order), which was reduced into writing and the same is Ex.P.1. On the basis of Ex.P.1, a case in Crime No. 1288 of 195 was registered under Section 17 4 Cr.P.C. Ex.P.15 is a copy of the printed first information report. Investigation was taken up by P.W.9, the Assistant Commissioner of Police. He reached the scene of occurrence, where a rough sketch, Ex.P.13 was prepared. An observation mahazar, Ex.P.2, was also prepared, attested by witnesses. He questioned witnesses including P.Ws.1, 2 and others. Their statements were recorded. He issued a requisition to P.W.6, the Revenue Divisional Officer, for conducting inquest, since the death occurred within 7 years of the marriage of the deceased with the accused. On receipt of the requisition, P.W.6, the Revenue Divisional Officer, went to the scene of occurrence and conducted inquest. He prepared inquest report, Ex.P.11. Thereafter, a requisition was issued to the doctor for conducting autopsy.

3. On receipt of the requisition, P.W.4, the Professor of Forensic Medicine and Police Surgeon, Coimbatore Medical College, Coimbator, assisted by another doctor P.V.Ramalingam, conducted autopsy on the body of Prema and found the following:-

"Moderately nourished body of a female aged about 24 years. Faceal matter seen in the anal region. Finger nails bluish. Ecchymosis seen in both eyes. Blood stained discharge seen in both nostrils. Upper and lower lips deeply contused and is covered with a thin layer of dried blood. Mucosal surface of both upper and lower lips bruised. Nail scratch like marks crescentic shaped 1 x cm seen on the right upper lip just below the alar nasi. Nail mark two numbers one on the left cheek and the other in the left zygomatic region. Bruising with abrasion measuring 1 x 1 cm seen below the left eye, and 1 x cm in the right cheek and the margins of both alar nasi. Contusion seen on the inner eminence of both palms. C/s. Revealed subcutaneous haemotoon a stellate shaped lacerated injury sutured with nylon thread, and almost healed seen on the vertex measuring 2 x 1 cm. Genitals in injury."

The doctors issued Ex.P.8, the post-mortem certificate, and after the report of the chemical analyst was received, the final opinion, Ex. P.9, was given, opining that Prema died on account of asphyxia due to obstruction to the air passage as a result of smothering.

4. P.W.9 after receipt of the report from the Revenue Divisional Officer, altered the crime to one under Section 302 IPC. and the report in the altered crime is Ex.P.14. Further investigation was taken up by P.W.10, the Inspector of Police. In the meantime, the accused appeared before P.W.3, who is his friend, and told him that he has murdered his wife. He informed P.W.3 that he has smothered his wife by using a pillow. The statement of the accused was reduced into writing by Nagarajan, who was with P.W.3 at that time. The said statement of the accused so reduced into writing by Nagarajan is Ex.P.3. After the statement of the accused was reduced into writing, he was taken to the police station and produced before P.W.10. The accused was questioned by the police officer and the police party was taken by the accused to his house, where M.O.1, pillow was seized under a cover of mahazar Ex.P.6 attested by witnesses. The accused was brought to the police station and later sent to Court for remand. The witnesses were questioned and their statements were recorded. The material objects were sent to Court with a request to forward them for analysis. P.W.11, later took up investigation in the crime. He, after verifying the investigation conducted by the earlier officer and after questioning few witnesses, laid the final report against the accused on 27.12.1995.

5. When questioned under Section 313 of the Cr.P.C. on the incriminating circumstances appearing against him, the accused denied all the incriminating circumstances. He did not examine any witness. In the written statement, the accused has stated that at noon on 17.8.1995 he was taken to Saibaba Colony Police Station, where he was harassed by the police officer and compelled to appear before the Court. He denied that he gave a statement to the witnesses P.W.3 and the Revenue Divisional Officer, P.W.6. He has also produced along with the statement, a bail petition filed on his behalf, wherein it was alleged that he was detained at the police station from noon on 17.8.1995 till 4.00 p.m. on 19.8.1995 and that he was beaten by the police officers.

6. The learned counsel appearing for the appellant submits that the Court cannot accept Ex.P.3, the statement given by the accused to P.W.3, since according to him, the extra judicial confession is a weak piece of evidence and the said statement cannot be relied upon to find the accused guilty. It is his further submission that though P.W.3 was also present at the time of inquest and was a panchatyatdar, he has, in his evidence, stated that he did not see the dead body and therefore, his evidence is to be discarded. We have heard the learned Additional Public Prosecutor on the above contentions.

7. The case of the prosecution that Prema died on account of homicidal violence stands established through the evidence of the postmortem doctor, P.W.4, who conducted autopsy and who issued Ex.P.8, the post-mortem certificate, and Ex.P.9, the final opinion. According to the doctor, Prema died on account of smothering and the injuries which he noted in the post-mortem certificate, Ex.P.8, show that several nail scratch marks, which were present in crescentic shape, were seen on the right upper lip below the nose. The doctor also noted nail marks on the left cheek and the left zygomatic region. Several bruises and abrasions were noticed on the right cheek, left eye and the margins of both alar nasi. Contusions were also noticed by the doctor on the inner eminence of both palms. The doctor, after obtaining the report of the chemical analyst and on the basis of the injuries noted by him, gave his opinion that Prema died on account of smothering. He also gave evidence in Court. In cross-examination, when a suggestion was put to the doctor that if solid particles get struck in the windpipe, a person is likely to die and the said suggestion is denied by the doctor by saying that he did not notice any solid particles in the windpipe. On the evidence, we hold that the deceased died on account of homicidal violence.

8. The occurrence was not witnessed by anyone and therefore, the prosecution relied upon Ex.P.3, the statement made by the accused to P.W.3 and also on the conduct of the accused in leaving the house after informing P.W.1. It is the evidence of P.W.1 that the deceased and the accused were his tenants and that there used to be quarrels between them. According to him, on 20.7.1995, he left to condole the death of a relative and on returning to the house on the next day, he was informed that the deceased has consumed poison. P.W.1, seeing frequent quarrels between the accused and the deceased, asked them to vacate the house and the accused promised to vacate within a short time. This evidence of P.W.1 indicates that all was not well between the accused and the deceased and there was ill-feeling between the couple. It is his evidence that at about 5.00 a.m. on 17.8.1994, when he was sleeping in the house, the door was knocked and when he opened, he found the accused standing outside. According to him, the accused told him that his wife is found lying in unconscious state and requested him to examine her. P.W.1 has further deposed that on examining Prema, he found her dead and the accused later left the house after informing P.W.1 that he will bring his relatives. P.W.1 waited for the arrival of the accused till noon and finding that the accused not returning, went to the police station and laid a complaint leading to the registration of a crime by P.W.10. This conduct of the accused in leaving the scene of occurrence on the pretext of bringing the relatives is relevant under Section 8 of the Evidence Act. When the above incriminating circumstances was put to the accused under Section 313 of the Cr.P.C., he flatly denied and the flat denial is an additional link in the chain of circumstances as held by the Supreme Court in JOSEPH, Son of KOOVELI POULO -vs- STATE OF KERALA (2000 Supreme Court Cases (Crl.) 926).

9. The next piece of evidence relied on by the prosecution is the statement given by the accused to P.W.3. P.W.3, who is the friend of the accused, in his evidence stated that at about 19.8.1995, he was in his house and talking with his friend Nagarajan and that the accused appeared before him and told him that he has murdered his wife. The statement given by the accused was reduced into writing by Nagarajan to the dictation of the accused in which the accused signed. The said statement and the accused were taken to the police station and produced before the officer, who arrested the accused. In the said statement, the accused has graphically described the circumstances under which he committed the murder. On going through the evidence of P. W.3 and the statement, Ex.P.3, given by the accused, we find that the evidence of P.W.3 is natural and the statement of P.W.3 is not a concocted one.

10. In GURA SINGH -vs- STATE OF RAJASTHAN (2001 Supreme Court Cases (Crl.) 323), the Supreme Court held that extrajudicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged and 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 above principles, when applied to the facts of the case, indicate that the extrajudicial confession cannot be brushed aside and it can be relied upon without even any corroboration for basing a conviction against the accused. We accept the extrajudicial confession given by the accused to P.W.3.

11. The contention of the counsel that because P.W.3 did not care to go and see the dead body, even though he was a panchayatdar, cannot be a reason to reject his evidence, when he stated on oath that the accused appeared before him and gave a statement. P.w.3, being a friend of the accused, had no reason to come out with a false version implicating the accused. The accused also did not elicit any answer in his favour for this Court to hold that he had a motive to speak falsehood against the accused and to implicate him in a grave offence of murder. Similarly, the contention of the defence that he was in illegal custody with the police from noon on 17.8.1995 till 4.00 p.m. on 19.8.1995 is to be stated only to be rejected. Ex.D.1, the petition sent by the father of the accused is dated 19.8.1995 and the said petition must have been sent to the higher officials only to defeat Ex. P.3 on the advice given by someone, since Ex.P.3, the statement given by the accused was on 19.8.1995 and the accused was also arrested on that day. If the accused was really in illegall custody from 17.8.19 95, then the petition would have been sent much earlier and in the absence of any material before the Court, we are unable to place any reliance on Ex.D.1 dated 19.8.1995, since it had come into existence much after the arrest of the accused. We reject Ex.D.1 and the defenc theory. The other important circumstance against the accused is the fact that he was alone in the house with his wife and when she was found with injuries, it is for the accused to explain as to how she came to sustain those injuries. The accused had no explanation to offer for the said injuries and the absence of explanation for the injuries is an additional link in the chain of circumstances as held by the Supreme Court in DEONANDAN MISHRA -vs- STATE OF BIHAR (A.I.R. 1955 SUPREME COURT 801). Ex.P.3 is corroborated by the medical evidence and therefore, in our view, the learned Sessions Judge was justified in convicting the accused and we find no reason to take a different view from the one already taken by him. The ap peal is, therefore, dismissed. (N.D.J.) (M.S.J.)

24.4.2002

Index:- Yes

Website:- Yes

bs/

To

1.The I Additional Sessions Judge, Coimbatore.

2.The Sessions Judge, Coimbatore.

3.The Inspector of Police,Saibaba Nagar Police Station. 4.The Superintendent, Central Prison,Coimbatore. 5.The Collector, Coimbatore.

6.The Director General of Police, Madras.

7.The Public Prosecutor, High Court, Madras.

N. DHINAKAR, J

AND

MALAI. SUBRAMANIAN, J

C.A.No. 153 Of 1998

24.04.2002




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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