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ANBARASAN versus STATE REP. BY

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Anbarasan v. State rep. by - CRIMINAL APPEAL(MD)NO.1259 OF 2002 [2007] RD-TN 1248 (3 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 03/04/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRIMINAL APPEAL(MD)NO.1259 OF 2002

Anbarasan .. Appellant

Vs.

State rep. by

The Inspector of Police,

Thiruverambur Police Station,

Trichy

Crime No.1202 of 2001 .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Judge, Trichy made in S.C.No.138 of 2002, dated 8.7.2002.

For Appellant : Mr.R.Murugappan

For Respondent : Mr.P.N.Pandidurai, APP

:JUDGMENT



(The judgment of the court was made by M.CHOCKALINGAM, J.) Challenging the judgment of the learned Principal Sessions Judge, Tiruchirappalli made in S.C.No.138 of 2002, the sole accused, who stood charged under Section 302 IPC, tried, found guilty and awarded life imprisonment, has brought forth this appeal before this Court.

2.The short facts necessary for the disposal of this appeal can be stated thus:

a)The accused/appellant is the husband of the deceased Geetha. The marriage between them took place on 10.09.2001. The accused belonged to Bommanaickenpatti in Theni District. The deceased is the daughter of P.W.3. P.W.3 and his family were the residents of Gandhi Nagar, Thiruverambur within the jurisdiction of Thiruverambur Police Station. After the marriage, the deceased and the accused were living at Bommanaickenpatti for a short period. They used to quarrel in day hours and they were happy during night time. Both of them came to Gandhi Nagar, Thiruverambur, where P.W.1 was living. They decided to set their family at Thiruverambur, for which P.W.3 and his wife went to Bommanaickenpatti to bring the household articles. b)On the date of occurrence, namely on 01.12.2001, at about 7.00 p.m., the accused came to the house. There was a quarrel between the accused and deceased at about 8.45 p.m. P.W.1, who is the brother of the deceased, was supplying fodder to the cattle at the backside of the house. On hearing the distressing cry, P.W.1 saw through the window and found the accused took the stone pestle, M.O.1 and attacked the deceased on her head. Immediately, P.W.1 raised alarm. P.W.2 also joined with him and chased the accused, but they could not. The accused ran out. P.W.3 came to the house at about 10.30 p.m. from Bommanaickenpatty and the matter was informed to him. c)P.W.1 went to the respondent police station, where P.W.7, the Sub Inspector of Police, was available at that time. P.W.7 recorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of which, a case came to be registered in Crime No.1202 of 2001 under Section 302 IPC. Ex.P.10, the FIR was despatched to the Court.

d)On receipt of the copy of the FIR, P.W.9, the Inspector of Police, took up the investigation, proceeded to the spot, made an inspection in the presence of the witnesses and prepared Ex.P.2, the observation mahazar and Ex.P.12, the rough sketch. He has conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.13, the inquest report. P.W.5, the photographer, took photographs of the deceased. Ex.P.5 (series) are the photos and Ex.P.6 (series) are the negatives. P.W.9 also recovered M.O.1, stone pestle, M.O.2, bloodstained mat and M.O.3, bloodstained cement mortar and M.O.4, sample cement mortar under a cover of Ex.P.3 mahazar. Following the same, he sent the dead body of the deceased to the hospital for the purpose of autopsy along with the requisition. e)P.W.6, the Doctor attached to the Government Medical College Hospital, Trichy, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of cranio cerebral wounds. f)Pending investigation, the Investigator arrested the accused on 2.12.2001. The accused voluntarily gave confessional statement, which was recorded in the presence of the witnesses. He recovered M.O.5, bloodstained shirt and M.O.6, bloodstained lungi from the accused under a cover of mahazar. The accused was sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and also the M.Os recovered from the accused were subjected to chemical analysis by the Forensic Sciences Department, which resulted in two reports, namely Ex.P.16, Biology Report and Ex.P.17, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report.

3.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 9 witnesses and relied on 17 exhibits and 9 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. After the evidence was over, the trial court heard the arguments advanced on either side and took the view, after scrutinizing the materials, that the prosecution has proved the case beyond reasonable doubt and has found the accused guilty and awarded life imprisonment, which is the subject matter of challenge before this court in this appeal.

4.Advancing his arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution rested its case only on the evidence of P.W.1; that the evidence of P.W.1 is thoroughly self inconsistent and also discrepant; that the evidence of P.W.1 was that he saw the entire occurrence through the window, but, in Ex.P.1, the complaint, he has stated that he came to the house through the back door of the house and witnessed the occurrence and thus, where from, he witnessed the occurrence is highly doubtful; that this would indicate the fact that he could not have seen the occurrence at all; that the marriage between the spouses took place on 10.09.2001; that according to P.W.1, they were living for a period of 6 months at Bommanaickenpatti in Theni District; that the occurrence has taken place, according to the prosecution, on 1.12.2001; and that if to be so, the evidence of P.W.1 cannot be believed.

5.Added further the learned counsel that in the instant case, so far as the arrest of the accused was concerned, according to P.W.1, at about 11.00 p.m. on the date of occurrence, P.W.1 and others caught the accused and produced him before the respondent police station; that according to the Investigating Officer, the accused was arrested only on 2.12.2001; that subsequent to the same, M.O.5 and M.O.6, bloodstained cloths were recovered from the accused; that had it been true that P.W.1 and others caught the accused and produced before the respondent police on the date of occurrence in the night itself, the alleged arrest, confessional statement and recovery by the Investigator become false and hence, it has got to be rejected; that in the instant case, M.O.1, stone pestle was the weapon of crime, according to the prosecution; that according to the Investigator, it was recovered from the place of occurrence at about 1.15 a.m. on 2.12.2001, but, according to P.W.3, when he returned from Bommanaickenpatty at about 10.30 p.m., the stone pestle was not available in the place of occurrence; that if to be so, the recovery of M.O.1 by the Investigator cannot, but a false one; and thus, the prosecution evidence as to the recovery also has become false and that all put together, the case of prosecution should have been rejected outright and hence, the accused is entitled for acquittal in view of the suspicion attendant over the prosecution case.

6.Heard the learned Additional Public Prosecutor on the above contentions. The Court has paid its anxious consideration on the submissions made.

7.It is not the fact in controversy that one Geetha, the daughter of P.W.3, was done to death in an incident that took place at about 8.45 p.m. on 1.12.2001 in the house of the deceased. Following the inquest made by the Investigator, the dead body of the deceased was subjected to post-mortem by P.W.6, the Doctor. He has also issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of cranio cerebral wounds. The accused/appellant, who is none else than the husband of the deceased, has not questioned the cause of death. Hence, it has got to be recorded that the deceased died out of homicidal violence.

8.In order to establish the charges levelled against the accused, the prosecution rested its case on the evidence of P.W.1. P.W.1 is the close relative of the deceased. Merely because that he is a close relative of the deceased, the evidence of P.W.1 cannot be discarded. P.W.1 has categorically deposed that on the date of occurrence, namely on 1.12.2001 at about 8.45 p.m., when he was supplying fodder to the cattle at the backside of the house, he heard the distressing cry and he witnessed through the window that the accused was attacking the deceased on her head with M.O.1, stone pestle. The contention of the learned counsel for the appellant is that there is discrepancy in the evidence of P.W.1 and in Ex.P.1, the complaint; that in Ex.P.1, it is stated that he came through the back door of the house and saw the occurrence, but his evidence was that he saw the occurrence through the window and thus, the evidence of P.W.1 cannot be relied on. The Court is of the considered opinion that this discrepancy is very minor. It is an admitted position that P.W.1 is the brother of the deceased. The occurrence has taken place inside the house of P.W.3, in which P.W.1 was also residing. At the time of occurrence, P.W.1 was actually in the backside of the house, supplying fodder to the cattle. At that time, he heard the distressing cry. Immediately, he rushed into the house and saw the occurrence. Whether he witnessed the occurrence through the window or he entered into the house through the backdoor and saw the occurrence is not a material thing. When the occurrence has taken place inside the house, only two persons were available, one was the accused and the other was the deceased. P.W.1 and P.W.2 chased the accused in order to catch him, but they could not. Thus, while two persons were available inside the house, the accused was running away. Thus, the only person, who could explain the cause of death of the deceased, was actually the accused. It is pertinent to point out that except P.W.1, the accused was the only person to speak about the cause of death of the deceased. Thus, P.W.1 has witnessed the occurrence and hence, the evidence of P.W.1 has got to be accepted.

9.Apart from that, the other strong circumstance was that the occurrence has taken place at about 8.45 p.m. inside the house of the deceased and it was only the accused available with her. He came out of the house immediately after the occurrence. When he was chased by P.Ws.1 and 2, they could not catch him. Hence, it is for the accused to explain as to how the death of his wife was caused. The Court is of the considered opinion that this evidence is sufficient to sustain the conviction. In the instant case, P.W.6, the Doctor, who has conducted post-mortem was examined. He has issued Ex.P.8, the post-mortem certificate to the effect that the deceased would appear to have died of cranio cerebral wounds. Thus, the prosecution has proved the case beyond reasonable doubt.

10.As rightly pointed out by the learned counsel for the appellant, the evidence as to the arrest and recovery of bloodstained cloths from the accused has got to be rejected, in view of the contradictory evidence between P.W.1 and the Investigator. According to P.W.1, the accused was caught by P.W.1 and others on the night of the date of occurrence and he was produced before the respondent police station. But, contrary to the above, the Investigator has deposed that the accused was arrested on 2.12.2001. Thus, the evidence as to the arrest, confessional statement and the recovery of bloodstained cloths from the accused has got to be rejected. Even after the rejection of that part of the evidence as to the arrest, confessional statement and recovery of bloodstained cloths from the accused, the Court is of the considered opinion that the prosecution, with the evidence of P.W.1 and also with the other available circumstances noticed, has brought home the guilt of the accused. Thus, in the instant case, the court is of the considered opinion that the prosecution has proved the case beyond reasonable doubt.

11.The learned counsel for the appellant in his second line of the argument, would submit that there was quarrel between the spouses immediately before the occurrence, as spoken to by P.W.1. What is stated was that there was a quarrel. But, merely because there was a quarrel between the spouses, the same cannot be sufficient to bring down the case of murder to a culpable homicide not amounting to murder. Till the end, what was the quarrel between the spouses remained unknown. Unless and until, the quarrel of such a nature and the heat of exchange of words, which impelled the accused to act so, as one envisaged under the exceptions to Section 300 IPC, the act of the accused, attacking the deceased with the stone pestle and causing her death, cannot be brought down from the merciless act. Hence, the act of the accused, cannot but be termed only as murder, warranting punishment under Section 302 IPC.

12.In the result, the criminal appeal fails and the same is dismissed. vvk

To

1.The Principal Sessions Judge,

Tiruchirappalli.

2.The Inspector of Police,

Thiruverambur Police Station,

Trichy.

3.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.


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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