Shanthi v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.06.2008CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1003 of 2007Shanthi .. Appellant/Accused No.2Vs.State rep. byThe Inspector of Police,Maduravoil Police Station,Cr.No.1883 of 2006 .. Respondent/Complainant* * *Prayer : Criminal Appeal filed under Section 374 (2) of the Code ofCriminal Procedure against the Judgment of conviction passed by thelearned Additional District and Sessions Judge, Fast Track Court No.IV,Poonamallee, Thiruvallur, in S.C.No.36 of 2007 dated 31.10.2007. * * * For Appellant : Mr.N.Duraisami for M/s. S.Sinthana Devi For Respondent : Mr.N.R.Elango, Additional Public ProsecutorJ U D G M E N T(Judgment of the court was delivered by K.N.BASHA, J.) The second accused, Shanthi, has preferred this appeal questioningthe legality of the judgment passed by the learned Additional Districtand Sessions Judge, Fast Track Court No.IV, Poonamallee, Thiruvallur,in S.C.No.36 of 2007 dated 31.10.2007 convicting the appellant for theoffence under Sections 302 r/w 34 IPC and sentencing her to undergolife imprisonment and convicting her under Section 201 IPC andsentencing her to undergo 7 years rigorous imprisonment. Both thesentences were ordered to run concurrently.2. There are two accused in this case, namely, A-1 and A-2. Afterframing the charges, A-1 said to have committed suicide and therefore,the charges stand abated in respect of A-1. https://hcservices.ecourts.gov.in/hcservices/

3. The appellant, A-2, is none else than the wife of the deceased,Elumalai. A-1 is said to be the Paramour of A-2 as A-2 was havingillicit intimacy with A-1. The charge against the accused/appellant isthat she along with A-1, due to illicit intimacy between them, plannedto murder the deceased, Elumalai, as he objected such intimacy andaccordingly, between 13.10.2006 and 14.10.2006 night, pushed down thedeceased from his cot and pressed the face of the deceased with pillowand beat the deceased with hands and legs on his neck and chest andalso dashed the head of the deceased against the wall which resulted inthe death of the deceased and thereby said to have committed theoffence under Sections 302 r/w 34 IPC and thereafter, to screen theoffence threw the body of the deceased from the staircase to show thatthe deceased died due to accidental fall and thereby said to havecommitted the offence under Section 201 IPC.4. The prosecution, in order to substantiate its case, examinedP.Ws.1 to 14, filed Exs.P.1 to P.22 besides marking M.Os.1 to 10.5. The prosecution version, in a nutshell, is as follows :(i) P.W.1 is the brother of the deceased ; P.W.6 is the father ofthe deceased. P.Ws.7 and 8 are the daughter and son of the deceasedand A-2, the appellant herein.(ii) P.W.1, P.W.2 and P.W.3 have spoken about the alleged motiveput forward by the prosecution. P.W.2 stated that the deceasedinformed him that his wife A-2 was having intimacy with A-1, who is anauto-driver and as such he was not having peace of mind. P.W.3 statedthat few days before the occurrence, he was informed by the deceasedthat his wife, A-2, was having intimacy with one auto-driver and assuch he was not having peace of mind. It is also stated by him thatthe deceased told him that there was a threat to his life. P.W.4, yetanother witness, stated that the deceased informed him that his wife,A-2, was having illicit intimacy with one auto-driver and as such hewas not having peace of mind and there were frequent quarrels in thehouse between himself and A-2, his wife. P.W.4 also stated that thedeceased told him that there was a threat to his life. P.Ws.7 and 8,the daughter and son of the deceased and A-2, also stated that therewere frequent quarrels between the deceased and A-2 as A-2 was havingillicit intimacy with A-1. Therefore, there were strained feelingsbetween A-1, A-2 and the deceased.(iii) On the fateful date of occurrence, i.e., on 14.10.2006 at5.00 a.m., P.W.3 received a phone call from A-2 stating that thedeceased, her husband, died as he fell down from the staircase. P.W.3,in turn, informed his friend, P.W.4, and requested him to convey themessage to P.W.1, brother of the deceased. Thereafter, P.W.4 went tothe house of the deceased and found the deceased lying dead on anAmmikkal. A-2 was weeping at that time. While P.W.4 enquired A-2 https://hcservices.ecourts.gov.in/hcservices/ whether she informed her relatives, she requested him to inform P.W.1,brother of the deceased. Thereafter, P.W.4 went and broughtP.W.1/brother of the deceased. P.W.1 found a cut injury on the head ofthe deceased. He also found a contusion on his cheek and also nailmarks and scratches on the face and neck of the deceased. There wasalso pool of blood near the body. P.W.1 got suspicion about the deathof the deceased as already the deceased informed him on 04.10.2006 thathis wife, A-2, was having illicit intimacy that A-1 and as a result,there were quarrels between them and he gave a complaint to MaduravayilPolice Station and A-2 also insisted P.W.1 to perform the last ritesand the cremation immediately.(iv) Thereafter, P.W.1 went to Maduravayil Police Station on14.10.2006 at 8.30 a.m. and gave a report, Ex.P.1. P.W.14, theInspector of Police, registered a case in Crime No.1883 of 2006 underSection 174 Cr.P.C. for suspicious death. Ex.P.13 is the FirstInformation Report.(v) P.W.14, took up investigation and went to the scene ofoccurrence and prepared the Observation Mahazar, Ex.P.3 and roughsketch, Ex.P.14. He held inquest on the dead body of the deceased.Ex.P.15 is the inquest report. He arrested A-2 on 14.10.2006 at 5.30p.m. and arrested A-1 on the same day at 8.00 p.m. In pursuance of theadmissible portion of the confession of the accused, P.W.14, he alteredthe offence to one under Section 302 IPC. Ex.P.16 is the altered FirstInformation Report. He examined the witnesses. He also recovered thebloodstained white granite piece, M.O.3, sample white granite piece,M.O.4, bloodstained cement stone, M.O.5, sample cement piece, M.O.6,under Form 95 under Exs.P.17 and P.18. He sent the body for post-mortem with requisition, Ex.P.19.(vi) The Doctor, P.W.12, conducted post-mortem on the dead body ofthe deceased. He found the following injuries on the deceased :(1)Irregular brown colour abrasions seen ; over – rightfrontal region 2 X 1 cm – Mid forehead 2 X 2 cms – Back ofleft shoulder 3 X 1 cm – Punctured abrasions over left sideof neck 1 X 1 cm, 1 X 0.5 cm, 1 X 1.5 cm(2)Lacerated wound seen over middle of chin 3 X 1 X 1 cm(3)Reddish subscalp contusion seen over bifrontal region(Hence black eye), left parietal and left occipital region.(4)Reddish contusion seen over both sides of neck(Parapharyngeal) and retrosternal region.(5)Fracture of 2-3 segments of sternums and 7-9 ribs atmidaxillary line on right side https://hcservices.ecourts.gov.in/hcservices/ (6)Reddish subdural and subarachnoid haemorrhage seen overboth fronto temporal lobes on both sides. All the above injuries are ante-mortem in nature.The Doctor, P.W.12, opined that the deceased would appear to have diedof traumatic brain injuries. Ex.P.5 is the Post-Mortem Certificate. (vii) P.W.14, in continuation of his investigation, sent thematerial objects for chemical examination through the Court. He alsoexamined the witnesses and recorded their statements, earlier duringinquest, and after the inquest and received the Post-MortemCertificate, Ex.P.5, Viscera report, Ex.P.6, Serologist report, Ex.P.21and Biology report, Ex.P.22. After completing the investigation,P.W.14 filed the charge sheet against A-1 and A-2 for the offence underSection 302 IPC and under Section 201 IPC on 15.12.2006.6. When the accused (A-2) was questioned under Section 313 Cr.P.C.in respect of the incriminating materials appearing against her throughthe evidence adduced by the prosecution, A-2, the appellant, has deniedeach and every circumstance as contrary to the facts and stated thatshe has been falsely implicated in the case and she has not chosen toexamine any witness or marked any document on her side.7. Mr.N.Doraisamy, learned counsel appearing for the appellantvehemently contended that the prosecution has not proved its case byadducing clear and cogent evidence. It is submitted that there is noeyewitnesses to the occurrence and the entire prosecution case rests onthe circumstantial evidence. The learned counsel further submittedthat the prosecution has not put forward any clinching circumstances toimplicate the appellant herein. It is contended that A-2 was presentall along at the house and she was not absconding and her conduct showsher innocence. It is further submitted that the motive and last seentheory itself are not sufficient, in view of missing links in the chainof circumstances, without any further materials to connect A-2 forcausing the death of the deceased. It is contended that theprosecution version is also not corroborated by the medical evidence. It is contended that the Doctor, P.W.12, admitted in his cross-examination that the deceased could have sustained injury on his headdue to a fall from the staircase. Therefore, it is contended that theprosecution has not proved its case.8. Per contra, Mr.N.R.Elango, leaned Additional Public Prosecutor,contended that the prosecution adduced clinching circumstancesimplicating the accused. It is submitted that as far as motive isconcerned, there is clear and consistent version through the evidenceof P.Ws.2 to 4, 7 and 8. It is submitted that P.Ws.7 and 8 are noneelse than the daughter and son of the deceased and the appellant, A-2. It is further pointed out that P.Ws.7 and 8 went to the extent ofstating that their mother, the accused, assaulted the deceased severaltimes. It is also pointed out that on an earlier occasion the deceased https://hcservices.ecourts.gov.in/hcservices/ said to have informed P.Ws.3 and 4 about the illicit intimacy of A-2with A-1 and further expressed that there was a threat to his life atthe instance of A-1 and A-2. It is contended that the occurrence tookplace inside the house of the accused (A-2) and deceased and theappellant (A-2) has not given any explanation for the death of thedeceased and on the other hand, A-2 has given a false explanation tothe effect that the deceased died due to the accidental fall from thestaircase. It is pointed that there is absolutely no materialavailable on record to probabilise such explanation of A-2. Thelearned Additional Public Prosecutor further contended that theinjuries found as per the Post-Mortem Certificate, Ex.P.5, and theopinion of the Doctor, P.W.12, rule out the possibility of the deceasedsustaining injury due to the fall from the staircase. The learnedAdditional Public Prosecutor further contended that A-2 has notinformed P.W.1, who is none else than the brother of the deceased, andon the other hand, she has informed P.W.3 over the phone. Therefore,it is submitted that the conduct of A-2 also clearly shows that she isresponsible for causing the death of the deceased with A-1 and as suchit is submitted that the prosecution has proved its case in all aspectsagainst the accused.9. We have given our careful and anxious consideration to therival contentions put forward by either side and thoroughly scrutinizedthe materials available on record and also perused the impugnedJudgment of conviction.10. The entire prosecution case rests on the circumstantialevidence. The Hon’ble Apex Court has held in BODH RAJ ALIAS BODHA ANDOTHERS v. STATE OF JAMMU AND KASHMIR reported in AIR 2002 (SC) 3164 asfollows:"Where a case rests squarely on circumstantialevidence, the inference of guilt can be justified onlywhen all the incriminating facts and circumstances arefound to be incompatible with the innocence of theaccused or the guilt of any other person. Theconditions precedent before conviction could be basedon circumstantial evidence must be fully established.They are: (a) the circumstances from which theconclusion of the guilt is to be drawn should be fullyestablished. The circumstances concerned must orshould and not may be established ; (b) the facts soestablished should be consistent only with thehypothesis of the guilt of the accused, that is tosay, they should not be explainable on any otherhypothesis except that the accused is guilty ; (c) thecircumstances should be of a conclusive nature andtendency ; (d) they should exclude every possiblehypothesis except the one to be proved ; and (e) theremust be a chain of evidence so complete as not toleave any reasonable ground for the conclusion https://hcservices.ecourts.gov.in/hcservices/ consistent with the innocence of the accused and mustshow that in all human probability the act must havebeen done by the accused". 11. In yet another decision in Balwinder Singh Vs. State ofPunjab (AIR 1996 SC 607) the Hon'ble Apex Court has held as follows :"In a case based on circumstantial evidence, thecircumstances from which the conclusion of guilt is to bedrawn should be fully proved and those circumstance must beconclusive in nature to connect the accused with the crime.All the links in the chain of events must be establishedbeyond a reasonable doubt and the established circumstancesshould be consistent only with the hypothesis of the guiltof the accused and totally inconsistent with his innocence.In a case based on circumstantial evidence the Court has tobe on its guard to avoid the danger of allowing suspicionto take the place of legal proof and has to be watchful toavoid the danger of being swayed by emotionalconsiderations, howsoever strong they may be, to take theplace of proof."12. Let us now scrutinize the circumstances available on record inthe light of the principle of law laid down by the Hon’ble Apex Courtin the decisions cited supra.13. The first and foremost circumstance available on record is themotive alleged against A-1 and A-2. In a case of circumstantialevidence, the motive aspect assumes importance. There are overwhelmingmaterials available on record to establish the motive put forward bythe prosecution to the effect that A-2 was having illicit intimacy withA-1 through the evidence of P.Ws.1 to 4, 6, 7 and 8. All thesewitnesses have categorically stated about the illicit intimacy of A-2with A-1 and there is absolutely no inconsistency in their evidence. It is pertinent to be noted that P.Ws.7 and 8, who are the daughter andson of the deceased and A-2, have also implicated A-2 for the allegedmotive put forward by the prosecution. Though it is seen from theevidence of P.Ws.7 and 8 that they have not stated to the police duringtheir examination about A-2 assaulting the deceased, the fact remainsas far as the continuous alleged intimacy between A-1 and A-2 isconcerned, their evidence is quite clear and natural and in conformitywith the other evidence available on record through P.Ws.1 to 4 and 6.14. Added to this clear and consistent version of P.Ws.1 to 4 and6 to 8, it is relevant to note that both P.Ws.3 and 4, who are theindependent witnesses, have categorically stated that the deceasedinformed them about the illicit intimacy of A-2 with A-1 and on thatground, he was not having peace of mind and there were frequentquarrels between A-2 and himself and also expressed apprehension ofthreat to his life at the instance of A-1 and A-2. Therefore, we haveno hesitation to hold that the prosecution has proved the motive https://hcservices.ecourts.gov.in/hcservices/ alleged against A-2.15. The next clinching and incriminating circumstance is to theeffect that the occurrence took place inside the house of the deceasedand A-2. It is pertinent to be noted that the occurrence took placeduring night time between 13.10.2006 and 14.10.2006. P.W.1, brother ofthe deceased, P.Ws.3 and 4, who are all the independent witnesses soonafter receiving the message about the death of the deceased, reachedthe house of the deceased and A-2 and they found A-2 was present at thehouse. It is further pertinent to be noted that P.W.2 has seen A-1 wasalso coming out of the house of the deceased and A-2 on 14.10.2006 at5.00 a.m. This particular categorical statement of P.W.2 is not at allchallenged by the defence during the course of cross-examination. Thedefence elicited an answer in the cross-examination only to the effectthat after seeing A-1 coming out of the house of the deceased, P.W.2has not gone inside the house of the deceased to find out whether thedeceased was available inside the house or not. Therefore, theundisputed fact remains that A-1 was coming out of the house of thedeceased on 14.10.2006 early morning at 5.00 a.m. and it is not at allchallenged by the defence. Therefore, the evidence of P.W.2 coupledwith the evidence of P.Ws.1, 3 and 4 makes it crystal clear that theoccurrence took place inside the house of the deceased and A-2 was verymuch present at that time and added to that A-1 was seen coming out ofthe house of the deceased at 5.00 a.m. on 14.10.2006. In view of suchclinching material, we are of the considered view that the prosecutionhas established that the occurrence took place inside the house of thedeceased and at that time A-1 and A-2 were very much present at thescene.16. Yet another clinching and incriminating circumstance is to theeffect that A-2 has not given any reasonable and probable explanationfor the death of the deceased and on the other hand, she has informedP.Ws.3 and 4 that the deceased died due to the accidental fall from thestaircase. It is relevant to note that she has not given any reason orexplanation for the death of the deceased, when P.W.1, brother of thedeceased, reached the house of the deceased after the occurrence. Theexplanation given by A-2 is not probabilised by the medical evidence. The Doctor, P.W.12, has categorically stated that the injuriessustained by the deceased are possible when a person is attacked withblunt weapon and similarly, if anyone pushes the other from a staircasethe injuries are possible. The Doctor, P.W.12, has not at all statedin his evidence either in the chief or in the cross-examination thatthe injuries found on the deceased could have been caused due to theaccidental fall from the staircase. It is the opinion of the Doctorthat the deceased appeared to have died of traumatic brain injuries. Aperusal of the injuries as per the Post-Mortem Certificate, Ex.P.5,clearly shows that the deceased could not have sustained injuries dueto the accidental fall from the staircase. It is seen that apart froma lacerated wound on the middle of chin, a contusion on the leftparietal and left occipital region, a reddish contusion also seen overboth sides of neck, irregular brown colour abrasions seen over right https://hcservices.ecourts.gov.in/hcservices/ frontal region and punctured abrasions also found on the left side ofneck. It is pertinent to be noted that there is no occasion for thedeceased to fall down from the staircase during night time. Therefore,we are of the considered view that A-2 has not only not given anyprobable explanation but also given false explanation.17. The Hon’ble Apex Court has held in Anthony D'Souza V. State ofKarnataka reported in AIR 2003 SC 258 as follows :"16. In Swapan Patra V. State of West Bengal, (1999) 9SCC 242, this Court said that in a case of circumstantialevidence when the accused offers an explanation and thatexplanation is found not to be true then the same offers anadditional link in the chain of circumstances to completethe chain. The same principle has been followed andreiterated in State of Maharashtra V. Suresh, (2000) 1 SCC471, where it has been said that a false answer offered bythe accused when his attention was drawn to a circumstance,renders that circumstance capable of inculpating him. ThisCourt further pointed out that in such a situation falseanswer can also be counted as providing a missing link forcompleting the chain. The aforesaid principle has beenagain followed and reiterated in Kuldeep Singh and othersV. State of Rajasthan (2000 (5) JT (SC) 161)."18. The above well settled principle of law laid down by theHon’ble Apex Court is squarely applicable to the facts of the instantcase as in this case also, as stated above, A-2 has given a falseexplanation for the death of the deceased. Therefore, we have nohesitation to hold that such false explanation can also be counted asproviding a missing link for completing the chain of circumstances.19. Therefore, we are of the considered view that the chain ofcircumstances as recited above coupled with the law laid down by theHon’ble Apex Court unerringly lead to one conclusion and that is theguilt of the accused. 20. For the aforesaid reasons, we are constrained to dismiss theappeal as devoid of merits and accordingly, the appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar gg https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District and Sessions Judge, Fast Track Court No.IV, Poonamallee, Thiruvallur District.2. -do- thro" The Principal Sessions Judge, Thiruvallur District.3. The Collector, Thiruvallur District.4. The Director General of Police, Chennai.5. The Superintendent, Central Prison - for Women III, Puzhal, Chennai.6. The Inspector of Police, Maduravoil Police Station, Chennai.7. The Public Prosecutor, Madras High Court, Madras.+1cc to M/s.S.Sinthana Devi,Advocate Sr 31519SSN (CO)km/11.7.Crl.A.No.1003 of 2007