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VANDU ALIAS MADASAMY versus STATE BY

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Vandu alias Madasamy v. State by - Criminal Appeal (MD) No.755 of 2004 [2007] RD-TN 771 (1 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01/03/2007

CORAM

THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM

AND

THE HONOURABLE MR. JUSTICE G. RAJASURIA

Criminal Appeal (MD) No.755 of 2004

Vandu alias Madasamy .. Appellant Vs

State by

The Inspector of Police,

Srivilliputtur Taluk Police Station,

Srivilliputtur,

Virudhunagar District. .. Respondent Appeal filed against the Judgment of learned Principal Sessions Judge, Virudhunagar District at Srivilliputtur in S.C.No.2 of 2002 by judgment dated 23.9.2002.

For Appellant .... Mr. V.Kathirvelu Amicus Curiae

For Respondent .... Mr.P.N.Pandidurai Addl.Public Prosecutor

:JUDGMENT



(Judgment of the Court was delivered by M.CHOCKALINGAM,J.) The sole accused/appellant in the case of murder on being found guilty as per the charge on trial and awarded life imprisonment in S.C.No.2/2002 on the file of the learned Principal Sessions Judge, Virudhunagar District, has challenged the judgment before this Court.

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

(a)The accused is the husband of Somu since deceased in the incident. P.W.1 is the sister of the deceased. P.W.3 is the daughter of the deceased and the accused. Out of wedlock, the accused and the deceased had two children. From the time of marriage, he was suspecting the fidelity of his wife. From the place where they were living, she often used to go P.W.1's house at Mathur. Thereafter, the brother of the deceased by name Sundarraj shifted the house from Mathur to Kothankulam. The deceased along with her children came to her brother's house four months prior to the occurrence. The accused, two months prior to the occurrence, came to Kothankulam and called her back. But, she refused. Then, the accused agreed to live with his family at Kothankulam. Accordingly, he came and they took a rented premises of one Gopal and they were living with their children. The deceased was employed in Alagammal Villow Factory while the accused was doing some pipeline work at Srivilliputtur. (b)On 17.2.2001 during evening hours, the accused came in a drunken mood and quarreled with his wife. The next day, i.e., on 18.2.2001, at about 8 O'clock, the accused took his wife to Pillaiyarkulam Kanmai Bund for collecting firewood. At that time, he took an aruval also. At about 1.00 p.m. he returned home and informed the children that they could be in the house along with their senior maternal aunt, P.W.1 and he would be coming back with his wife. At the place of occurrence, he called his wife, the deceased, to share the bed. When she refused, he cut her with aruval, M.O.1 and caused her death and fled away from the place of occurrence. P.W.1, since her sister, the deceased did not turn up, was in search of her and found her dead at the place of occurrence. P.W.1 gave a complaint to P.W.12 the Sub Inspector of the respondent Police, on the strength of which a case came to be registered under section 302 of Indian Penal Code. The Express F.I.R-Ex.P.10, was despatched to the Court. P.W.14, when he was the Inspector of Police, Srivilliputtur Taluk Police Station, on the receipt of the copy of the F.I.R., took up investigation, proceeded to the spot, made inspection in the presence of witnesses, prepared Ex.P.3-Observation Mahazar and also the sketch-Ex.P.12. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P.13-the Inquest Report. He also recovered the material objects from place of occurrence. Following the inquest made, a requisition was forwarded to the Government Hospital for the purpose of autopsy. P.W.10, the doctor attached to the Government Hospital conducted the autopsy on the dead body and gave the postmortem certificate, Ex.P.9, where he has opined that the deceased would appear to have died 24 to 28 hours prior to autopsy due to shock and haemorrhage.

(c)The accused appeared before P.W.8, the Village Administrative Officer of Pillaiyarkulam who was in his office on 20.2.2001 at about 1.00 p.m. and gave a confessional statement narrating the entire incident, which was marked as Ex.P.5. Along with the confessional statement, the Village Administrative Officer produced the accused before the respondent Police Station. The Inspector also enquired him. When he came forward to give the confessional statement, the same was also recorded by the investigating officer, the admissible part of which was marked as Ex.P.7. The aruval M.O.7 was also produced along with M.Os.8 and 9, the blood stained shirt and dhothi. They were all recovered under the cover of Mahazar. The accused was sent for judicial remand.

(d) All the material objects recovered from the place of occurrence, from the dead body and also the material objects recovered from the accused including the aruval were all subjected to chemical analysis by the Forensic Department which resulted in two certificates, Exs.P.16 and 17, the Chemical Analysis Report and the Serologist Report. On completion of investigation, the investigating officer filed the final report.

3.The case was committed to Court of Sessions. Necessary charges were framed. In order to substantiate the charge levelled against the accused, the prosecution examined 15 witnesses and relied upon 17 exhibits and 14 material objects. On completion of evidence on the side of the prosecution, when the accused/appellant was questioned under Section 313 Cr.P.C., he denied them as false. No defence witnesses were examined.

4.Both sides were given opportunity to advance their arguments. Arguments were heard, materials were scrutinised and the Trial Court took a view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty under Section 302 IPC and awarded life imprisonment. Hence, this appeal is preferred at the instance of the accused.

5.Advancing his arguments Mr.V.Kathirvelu, learned counsel appointed as amicus curiae by this Court to appear on behalf of the appellant/accused, inter- alia, submitted the following:

(a)The prosecution had no direct evidence and it rested its entire case on two circumstances, viz., the last seen theory as spoken to by P.Ws.1 and 3 that they saw the accused in the company of the deceased at about 8.00 a.m. on the day of occurrence and secondly, the extra judicial confession alleged to have been made by the accused to the Village Administrative Officer, P.W.8 at about 1.00 p.m. on 20.2.2001. Attacking these pieces of evidence, the learned counsel would submit that in the instant case, P.Ws.1 and 3 could not be believed for the simple reason that P.W.1 is the own sister of the deceased and P.W.3 was the daughter of the deceased. So far as these two witnesses are concerned, what they have stated was that the accused left the house along with his wife at about 8.00 a.m. and the occurrence has taken place during evening hours and there was sufficient interval and apart from this, even as per the prosecution case, the accused came to the house during noon hours. In the circumstance, what happened in the intervening period, was not known to the accused and hence, the last seen theory would be of no avail to the prosecution case. (b)The learned counsel further added that the extra judicial confession was also not believable for the reason that there is nothing to point out that the accused has previously acquainted to P.W.8-the Village Administrative Officer and thus, there is no occasion for him to meet the Village Administrative Officer and give such a confessional statement. Thus, the confessional statement alleged to have been given by the accused to the Village Administrative Officer, P.W.8 was nothing but an introduction by the prosecution to suit its convenience and hence, both these materials were not available for the prosecution. But, the lower Court has erroneously believed the same and recorded an order of conviction. Hence, the evidence has got to be rejected. (c)Advancing his arguments further, the learned counsel would submit that in the instant case, there was provocation which led the accused to act so, even if it could be taken that the prosecution has proved the case that it was the accused who attacked his wife and caused her death. Even as per the narration of the prosecution case, the accused suspected the fidelity of his wife in the past and also on previous day, there was a quarrel between them. On the day of occurrence, both of them left for cutting firewood and when both of them were in the Kanmai Bund, after making preparation, the accused called her for sharing the bed. But, she refused. In the circumstance, it passed in the mind of the accused that she used to have sharing offer with the third parties and not with him and once he got such an opinion in his mind, he got provoked naturally and took the aruval and cut the deceased on her neck. Thus, there was a provocation due to the conduct of the wife and also sustained provocation due to suspicion entertained by him. Under such circumstance, it has got to be considered by this Court.

6.Heard the learned Additional Public Prosecutor on the above contentions and this Court paid its anxious consideration over the same.

7.It is not in controversy that the wife of the accused was done to death in an incident that took place at the time and place of occurrence as put forth by the prosecution. In order to prove the said fact the prosecution has examined P.W.10, Postmortem doctor, through whom Ex.P.9, postmortem certificate was marked wherein he opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. She died of homicidal violence as put forth by the prosecution, was never questioned by the accused at any stage of proceedings. Hence, it has got to be recorded so.

8.In order to prove that it was the accused who caused the death of his wife, the prosecution had no direct evidence to offer. But, in the instant case, in the considered opinion of the Court, the prosecution has placed circumstances which are sufficient and also pointing to the hypothesis that except the accused no one else could have committed the offence.

9.Admittedly, the accused was living with his wife and also with his children in a premises which belongs to one Gopal. On the day of occurrence, leaving the children and P.W.1, the accused took his wife for collecting firewood. This fact is also not denied by the accused. When they went together, it was the accused who came to the house at noon hours. At that time, his wife/deceased did not come with him and thereafter, the accused left the house stating that his wife is collecting firewood and that he would come with her back. But, he did not come with his wife. On the contrary, he absconded.

10.At this juncture, it has to be pointed out that the deceased was found in the company of the accused at about 8.00 a.m. and both went for collecting firewood. These facts are spoken to by P.Ws.1 and 3. But, the accused had no explanation to offer as to what happened to his wife. In the opinion of the Court, this is a strong circumstance against the accused. It is needless to say in a given case where the prosecution rested the case on circumstantial evidence, if a particular fact or circumstance is within the special knowledge of the accused, he must come forward with a clear answer or explanation to that and in the absence of the same, that circumstance itself will be acting against the accused. In the instant case, the accused had no answer or explanation to state what happened to his wife.

11.Secondly, the prosecution had to its benefit an extra judicial confession made by the accused to P.W.8 the Village Administrative Officer. In a given case, before accepting the extra judicial confession, the Court has to apply three tests, viz.,

"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?" If these tests are applied to the present case, the Court is thoroughly satisfied that the prosecution case has passed all the above three tests. P.W.8, is the Village Administrative Officer of the same place. The accused appeared before him and made the confessional statement. It is recorded by the Village Administrative Officer, P.W.8 and also the accused was immediately taken to the Police Station along with the extra judicial confession. It is true that Village Administrative Officer and the accused were not previously acquainted to each other. That by itself cannot be a reason to reject the extra judicial confession and in the instant case, the evidence of P.W.8 is marshalled by the lower Court and it inspired the confidence of the Court.

12.Apart from this, the entire narration in the extra judicial confession is consistent to the prosecution case. In such circumstance, the lower Court was perfectly correct in relying its decision on the piece of evidence also and thus, the last seen theory spoken to by P.Ws.1 and 3 and also the extra judicial confession given by the accused, both put together, in the opinion of the Court, would be the sufficient circumstances pointing to the guilt of the accused.

13.Coming to the question of the nature of the act of the accused, the Court has to necessarily disagree with the contention put forth by the learned counsel appearing for the accused/appellant. What was all contended by the accused before the Court below as narrated by him in the extra judicial confession and also before this Court, is that he found his wife talking with few male at two or three places and thus, he entertained suspicion in her fidelity. It is highly doubtful when a man see his wife talking with male members in a society, whether it would lead to pass in the mind or make an impression or form an opinion that the character of his wife has got to be doubted or not.

14.Further, in the instant case, he has given in the entire narration that he has not spoken anything at any point of time and she has acted in such a way that her fidelity would be questioned. The learned counsel further added that there was a sudden provocation as could be seen from the entire confessional statement, that preceding the occurrence the accused called her to share the bed. But, she was not amenable to his request. The reason being that it was an open kanmai bund and it is naturally the modesty of a woman to make her to refuse. But, he called her, to which course of action she refused. At any stretch of imagination the refusal of a wife to share the bed of a man and that too in a public place cannot cause provocation. Thus, it would be quite clear that a provocation was one that itself was made and he was not provoked by his wife. Neither the sustained provocation nor sudden provocation was available in the case for the accused to act so.

15.So, under such circumstance, the Court is of the opinion that when the accused cut the deceased on her neck on the neck with aruval, he should have certainly known that the injuries cause would in the ordinary course of action would cause death. Therefore, it would attract the penal provision of murder. The lower Court has correctly convicted the accused under Section 302 IPC and sentenced him to life imprisonment.

16.The judgment of the lower Court in convicting and sentencing the accused to life imprisonment under Section 302 IPC does not require any interference and the same is affirmed. Hence, the appeal must fail and fails. Accordingly, the criminal appeal is dismissed.

ap

To

1.The Principal Sessions Judge,

Virudhunagar District.

2.The Inspector of Police,

Srivilliputtur Taluk Police Station,

Srivilliputtur,

Virudhunagar District.

3.The Additional Public Prosecutor,


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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