V.Dharmalingam v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 10.06.2008CORAMTHE HONOURABLE MR. JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR. JUSTICE K.N.BASHACRL.A.No.1050 OF 2007V.Dharmalingam.. Appellant/Sole AccusedVsState by Inspector of Police Dharapuram Police Station.[Crime No.698/2006].. RespondentAppeal filed under section 374[2] Cr.P.C., against the Judgmentdated 20.04.2007 in S.C.No.199/2006 on the file of the Fast TrackCourt No.3, [Additional District and Sessions Judge], Dharapuram.For Appellant:Mr.S.KalyanaramanFor Respondent:Mr.N.R.Elango,APPJUDGMENT[Judgment of the Court was delivered by K.N.BASHA, J.]The sole accused Dharmalingam has come forward with this appealchallenging his conviction and sentence passed by the learnedAdditional District and Sessions Judge, Fast Track Court, No.3,Dharapuram by the Judgment dated 20.04.2007 in S.C.No.1999/2006convicting him for the offence under section 302 IPC and sentencinghim to life imprisonment.2.The prosecution case in a nutshell is as follows:-[a]The deceased Veeramani is the wife of the accused. Thedeceased was working at Nallammai Polytechnic, Dharapuram. A malechild Karmugilan aged about 9 years was born out of the wedlock of theaccused and the deceased. As the accused suspected the fidelity of thedeceased there were frequent quarrel between them. P.W.s.1 and 2pacified both of them during their quarrel on several occasions. https://hcservices.ecourts.gov.in/hcservices/ Therefore, there were strained feelings between the accused and hiswife, the deceased.[b]On the fateful day of occurrence, i.e., 17.09.2006, at 5.45p.m., P.Ws.1 and 3 went to the shop of P.W.2 to discuss about thepanchayat election. The house of the accused was just opposite to theshop of P.W.2. P.Ws.1 to 3 were present at the shop of P.W.2 and atthat time, they heard the hue and cry and they rushed to the house ofthe accused and found the accused beating the deceased with wooden log[M.O.1-Karla Kattai] twice on her head. The deceased fell down andagain the accused beat her on her head. While P.Ws.1 to 3 questioned,the accused stated to them that he had already complained about thedeceased, but they have not listened to his complaint and as such, hehad killed his wife and thereafter the accused left the scene alongwith M.O.1-weapon. The deceased died instanteneously.[c]P.W.1 went to Dharapuram Police Station on 17.09.2006 andgave a report Ex.P.1 at 8.30 p.m. to P.W.16, the Sub-Inspector ofPolice. P.W.16 registered a case in Crime No.698/2006 for the offenceunder section 302 IPC. Ex.P.14 is the Express First InformationReport [FIR] and he ha sent the same to the higher police officials.[d]P.W.17, the Inspector of Police received the FIR in thiscase on 17.09.2006 and took up investigation at 9.45 p.m. He went tothe scene of occurrence at 10.00 p.m. an made Bandobust arrangementsas no witness was available at that time. Again on 18.09.2006 at 6.00a.m. P.W.17 went to the scene of occurrence. He prepared Ex.P.3-Observation Mahazar and Ex.P.15-Rough sketch in the presence of P.Ws.1and 2. He also recovered Sample cement earth, M.O.4 and blood-stainedcement earth, M.O.5 from the scene under Ex.P.4. He held inquest onthe dead body of the deceased from 7.00 a.m. to 10.30 a.m. Ex.P.16 isthe Inquest Report. During inquest he has examined P.Ws.1 to 3 andothers. He has sent the body for Post-Mortem.[e]Dr.Sivabalan, P.W.9, attached to Government Hospital,Dharapuram, conducted Post-Mortem on the dead body of the deceased on18.09.2006 at 12.30 Noon. He found the following injuries:-EXTERNAL INJURIES:-1]Vertical lacerated injury 5cmx1/2cmx1/2cm overthe dorsal aspect of the left middle finger.2]Contusion 5cmx1cm over the dorsal aspect of theleft index finger, ring finger and little fingers.3]Contusion 4cmx1cm over the Right little finger,ring finger and middle finger with [NC] contusion alsopresent. https://hcservices.ecourts.gov.in/hcservices/ 4]8cmx6cm contusion right parieto occipitalregion with 5cmx1cm lacerated injury obliquely placedover it.5]6cmx6cm contusion with 4cmx1cmx1cm laceratedhorizontal injury over the middle occipital region.6] 6cmx6cm contusion with 1cmx1cmx1cm laceratedinjury over the left occipital region."Ex.P.2 is the Postmortem Certificate wherein the doctor hasopined that the deceased would appear to have died of shock andhaemorrhage and injury to vital organs between 12 to 24 hours prior toautopsy.[f]P.W.17, the Inspector of Police in continuation of hisinvestigation examined the other witnesses. At 1.15 p.m. on18.09.2006 he arrested the accused at Best Cotton Mill Bus stand inDharapuram-Pollachi Main Road. In pursuance of the admissible portionof the confession of the accused under Ex.P.5, P.W.17 recovered M.O.1-Blood-stained wooden log [Karla Kattai]. He also recovered M.O.3-lungi, M.O.2-Blood stained shirt under Ex.P.6. Thereafter the accusedwas remanded to judicial custody. P.W.17, the Inspector of Policesent the material objects for chemical examination through the Courton 18.09.2006 as per requisition under Ex.P.7. On 28.09.2006 he hasexamined the doctor, P.W.9 who has conducted Post-Mortem and receivedthe Postmortem Certificate, Ex.P.2. After the receipt of the Chemicalexamination Report and Serologist Report, Exs.P.9 to 12 and aftercompleting the investigation, filed the charge sheet against theaccused on 03.11.2006 under section 302 IPC.3.The prosecution in order to bring home, the charges againstthe accused, examined P.Ws.1 to 17, filed Exs.P.1 to 16 beside markingM.Os.1 to 17.4.When the accused was questioned under section 313 Cr.P.C.,in respect of the incriminating materials appearing against himthrough the evidence adduced by the prosecution, the accused deniedeach and every circumstances as contrary to the facts and stated thathe has been falsely implicated in the case. He has not chosen toexamine any witness or mark any document on his side.5.Mr.S.Kalyanaraman, learned counsel for the appellantcontended that the prosecution has not come forward with the clear andcogent evidence. It is contended that there are contradictions inmaterial particulars between the evidence of the eyewitnesses, P.Ws.1to 3. The learned counsel would further submit that P.Ws.1 to 3 arechance witnesses and their presence at the scene is highly doubtful as https://hcservices.ecourts.gov.in/hcservices/ they admittedly came to the shop of P.W.2 and at that time claimed tohave witnessed the occurrence. It is also contended that there arecontradictions in respect of the recovery of M.O.1-Wooden log. Thelearned counsel for the appellant further contended that even assumingif not admitting that the accused attacked the deceased, his wife, hecould not be attributed with the intention to cause her death as thereare materials available on record to show that there were frequentquarrel between the accused and the deceased as the accused suspectedher fidelity. It is also contended that the occurrence was precededby the quarrel and the accused should have assaulted the deceased dueto grave and sudden provocation.6.Per contra Mr.N.R.Elango, learned Additional PublicProsecutor contended that the prosecution has established the guilt ofthe accused by adducing clear and consistent evidence through theevidence of the eyewitnesses P.Ws.1 to 3. It is submitted that theevidence of P.Ws.1 to 3 is also corroborated by the medical evidencethrough the doctor P.W.9 as there are corresponding injuries found onthe deceased. The learned Additional Public Prosecutor would furthersubmit that there are no material contradictions between the evidenceof P.Ws.1 to 3 and their evidence is quite natural. It is alsopointed out by the learned Additional Public Prosecutor thatadmittedly the shop of P.W.2 is just opposite to the house of theaccused and as such, on hearing the hue and cry, P.Ws.1 to 3 who werepresent at that time, rushed to the scene of occurrence and found theaccused attacking the deceased. It is further submitted by thelearned Additional Public Prosecutor that the nature of weapon and theinjury sustained by the deceased clearly shows that the accused couldhave attacked the deceased with the intention to cause her death andas such, the accused is not entitled to the benefit of any exceptionunder section 300 I.P.C.7.We have given our careful and anxious consideration to therival contentions put forward by either side and also thoroughlyscrutinised the evidence available on record and perused the impugnedJudgment of conviction.8.The prosecution heavily placed reliance on the evidence ofthe eyewitnesses P.Ws.1 to 3. It is seen that the accused as well asP.Ws.1 to 3 are residing in the same place and the accused and thedeceased were known to P.Ws.1 to 3. The perusal of the their evidenceclearly shows that P.Ws.1 to 3 categorically stated about the quarrelbetween the accused and the deceased and after hearing the hue and crywhile P.Ws.1 and 3 were sitting and chatting along with P.W.2 in hisshop, rushed to the house of the accused and found the accusedattacking the deceased. The perusal of the earliest document, Ex.P.1,the report given given by P.W.1 also clearly shows that there werefrequent quarrel between the accused and the deceased and the accusedsuspected the fidelity of the deceased. It is also seen that in https://hcservices.ecourts.gov.in/hcservices/ Ex.P.1, P.W.1 has mentioned about the presence of P.Ws.2 and 3 at thetime of occurrence and they were also witnessing the occurrence. Theprosecution also proved the motive put forward against the accused,viz., the frequent quarrel between the accused and the deceased as theaccused suspected the fidelity of the deceased. The categoricalversion of P.Ws.1 to 3 implicating the accused attacking the deceasedis also corroborated by the medical evidence through the doctor, P.W.9as the Postmortem Certificate disclosed corresponding injuries on thedeceased. Therefore, we have no hesitation to hold that the deceaseddied only due to homicidal violence and that too, at the hands of theaccused.9.Now, we are left with the crucial question in respect of thenature of the offence said to have been committed by the accused. 10.In order to find out the nature of offence committed by theaccused, we have to scrutinise the evidence available on record withgreat care and caution. It is the admtited version of the prosecutionthrough the evidence of P.Ws.1 to 3, the eyewitnesses and as well asthe evidence of P.W.4, the mother of the deceased that there werestrained feelings between the accused and the deceased as there werefrequent quarrel between them. P.W.4, the mother of the deceasedcategorically stated that after the marriage, both the accused and thedeceased were leading a happy married life and thereafter, theirrelationship was strained and she was informed by her daughter, thedeceased that she was cruelly treated by the accused. As alreadypointed out, even in Ex.P.1 it is specifically mentioned by P.W.1 thatthe accused suspected the fidelity of the deceased.11.The version of the prosecution as per Ex.P.1, the earliestdocument in respect of the accused suspecting the fidelity of thedeceased is also further strengthened and probablised by the versionof the accused in his confession recorded under section 27 of theIndian Evidence Act and the admissible portion is marked as Ex.P.5 andin pursuance of the same, the weapon M.O.1-wooden log was recovered atthe instance of the accused.12.It is well settled by a catena of decisions that in theinterest of justice it is permissible to look into the confessionrecorded under Section 27 of the Indian Evidence Act from the accusedin order to decide the nature of offence committed by the accused. This Court in Ganesan, In re (1973 L.W.(Cri.) 42) has held asfollows :"3. The evidence shows that the appellant went straight tothe police station at 9.15 a.m. and made a statement. Infact, that is the first information report in the case.It contains the confession that the appellant inflectedcuts on his wife. The learned Sessions Judge has excluded https://hcservices.ecourts.gov.in/hcservices/ this portion and marked the rest of the statement, asEx.P.6. This, however, is not correct. In Aghnoo NagesiaV. State of Bihar (AIR 1966 SC 119) it has beenobserved :-“Now, a confession may consist of several parts andmay reveal not only the actual commission of thecrime but also the motive, the preparation, theopportunity, the provocation, the weapons used, theintention, the concealment of the weapon and thesubsequent conduct of the accused. If theconfession is tainted, the taint attaches to eachpart of it. It is not permissible in law toseparate one part and to admit it in evidence as anon-confessional statement. Each part disclosessome incriminating fact, i.e., some fact which byitself or along with other admitted or proved factssuggests the inference that the accused committedthe crime, and though each part taken singly maynot amount to a confession, each of them being partof a confessional statement, partakes of thecharacter of a confession. If a statement containsan admission of an offence, not only that admissionbut also every other admission of an incriminatingfact contained in the statement is part of theconfession”.…………… Little substance and content would be left inSs.24, 25 and 26, if proof of admissions ofincriminating facts in a confessional statement ispermitted.“Some of the decided cases took the view that if apart of the report is properly severable from thestrict confessional part, then the severable partcould be tendered in evidence. We think that theseparability test is misleading, and the entireconfessional statement is hit by S.25, and save andexcept as provided by S.27, and save and except theformal part identifying the accused as the maker ofthe report, no part of it could be tendered inevidence.”The above decision has been followed in Khatri HemrajAmulkah V. State of Gujarat (AIR 1972 SC 929). Accordingto these decisions (of this Court and the Hon'ble ApexCourt), the only portion of the statement, which could beadmitted is the initial portion that he was making thestatement, which would not be of any use to theprosecution. But there is no bar to the appellant using https://hcservices.ecourts.gov.in/hcservices/ the statement in his favour – see also Mottai Theva, In re[(1951) 2 M.L.J. 605]. We are referring to this at thisstage itself, because Ex.P.6 contains statementsfavourable to the appellant. It is a long statement, butfor our purpose, it is enough to give a brief summary. Ever since the marriage, the wife has been refusing tohave conjugal relationship with him. On the other hands,he had good reason to believe that she had been carryingon with P.W.6, her elder sister’s husband. On one night,Kamala and P.W.6 had gone out for the ostensible purposeof answering calls of nature, but evidently for havingsexual relationship. On the night previous to the day ofoccurrence also she refused him conjugal felicity. On themorning of the day of occurrence according to Ex.P.6, theappellant gave ten paise to P.W.1 and asked her to getonions. But his wife, Kamala said that she should not goout. He pointed out that P.W.1 was rendering service forall, and sundry in the village, but why not for them. Inreply to that, Kamala abused him, ……. (you silly-fellow,you run away) and buried a vegatable-cutter (….) on him. He warded it off with his left hand. It felldown. But she threw it on him again with force. Hewarded it off with his right hand. This time it caused aninjury on the palmer aspect of his right little finger. It was about 8-30 a.m. He could not control his anger. He therefore took cut the koduval and inflicted cuts onher. He came out with a rope with the idea of hanginghimself that day. But on nearing Manonmani’s house hethought that it was not proper to do so and threw itaside. There used to be frequent quarrels between him andhis wife, and Andalammal (P.W.2) and Devaraja Pillai(P.W.7) knew about it. So runs Ex.P-6.………Taking all these circumstances together we hold thatKamala threw the vegetable cutter on the appellant andcaused injury on the right little finger. In our opinion,this cannot afford a ground for self defence underException II because after throwing it at her husband,Kamala, did not try to attack him with it and it was notjustifiable for the appellant to inflict cuts on Kamala. But at the same time it seems to us that her act inthrowing the vegetable cutter at him constituted grave andsudden provocation which deprived him of the power ofself-control within the meaning of Exception I.” (Emphasissupplied."13.The perusal of the entire statement of the accused including https://hcservices.ecourts.gov.in/hcservices/ the admissible as well as the inadmissible portion recorded undersection 27 of the Evidence Act clearly shows that the accused attackedthe deceased only due to grave and sudden provocation. It is stated bythe accused in that statement that the deceased was having illicitintimacy with one Moorthy, S/o.Rajamanickam and the accused condemnedand warned her for several times. But the deceased did not listenedto him. Thereafter, the accused was compelled to shift his house andeven thereafter, the deceased continued the illicit intimacy with thesaid Moorthy which resulted in frequent quarrel between them. It isseen that the accused further stated that the deceased fixed a housenearer to the house of Moorthy for rent which was objected by theaccused which resulted in a wordy quarrel between them. Added to suchversions, it is further specifically stated by the accused that thedeceased informed that she has already spoken to the said Moorthy andhe would finish of the accused within a week. Thereafter, the accusedtook the wooden log [karla kattai] purchased for his son and beat thedeceased on her head. Therefore, it is crystal clear that the accusedattacked the deceased only due to grave and sudden provocation. Thefact remains as per the evidence of P.Ws.1 to 4 and coupled with theentire statement of the accused recorded under section 27 of theEvidence Act clearly shows that the deceased only caused provocationto the accused by continuing her illicit intimacy with the saidMoorthy and the ultimate conduct of the deceased by fetching a housefor rent nearer to the house of Moorthy and further threatening theaccused to the effect that she has already spoken to the said Moorthyand the said Moorthy informed her that he would finish the accusedwithin a week which added fuel into fire which was sufficiently graveas to deprive him of the power of self-control culminating into theact of attacking the deceased with a wooden log resulting her death.14.In a landmark decision in K.M.NANAVATI VS. STATE OFMAHARASHTRA reported in A.I.R. 1962 S.C. 605, the Hon'ble SupremeCourt of India has laid down the following principles regarding theException 1 to Section 300 I.P.C. :"1. The test of grave sudden provocation iswhether a reasonable man, belonging to the sameclass of society as the accused, placed in situationin which the accused was placed would be provoked asto lose his self-control.2. In India, words and gestures may also, undercertain circumstances, cause gave and suddenprovocation to an accused so as to bring his actwith the first Exception of Section 300 I.P.C.3. The mental background created by the previousact of the victim may be taken into consideration inascertaining whether the subsequent act caused graveand sudden provocation for committing the offence. https://hcservices.ecourts.gov.in/hcservices/

4. The fatal blow should be clearly traced tothe influence of passion arising from thatprovocation and not after the passion has cooleddown by lapse of time, or otherwise giving room andscope for premeditation and calculation."15.If the evidence of P.Ws.1 to 3 and 4 and coupled with theversion of the accused in his statement recorded under section 27 ofthe Evidence Act is considered in the light of the above said wellsettled principles of law laid down by the Honourable Apex Court aswell as this Court, the inevitable conclusion of this Court is thatthe accused is entitled to the benefit of Exception [1] to Section 300I.P.C., and as such, he is liable to be convicted under section 304[Part I] IPC. 16.Accordingly, the appeal is allowed in part and theconviction and sentence imposed on the appellant for the offence undersection 302 IPC by the learned Additional District and Sessions Judge,Fast Track Court No.3, Dharapuram, in S.C.No.199/2006 is hereby setaside and instead, the appellant is convicted under section 304[I] IPCand sentenced to undergo 7 years rigorous imprisonment. Any sentencealready undergone by the appellant pursuant to his original convictionwould be set off against him. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarapTo1. THE ADDITIONAL DISTRICT ANDSESSIONS JUDGE, FAST TRACK COURTNO.3, DHARAPURAM.2. -do- Thro'THE PRINCIPAL SESSIONS JUDGE,ERODE.3. THE JUDICIAL MAGISTRATE,DHARAPURAM. https://hcservices.ecourts.gov.in/hcservices/

4. -do- Thro' THE CHIEF JUDICIAL MAGISTRATE,ERODE.5. THE SUPERINTENDENT,CENTRAL PRISON,COIMBATORE.6. THE DISTRICT COLLECTOR,ERODE.7. THE DIRECTOR GENERAL OF POLICEMYLAPORE, CHENNAI 4.8. THE INSPECTOR OF POLICEDHARAPURAM POLICE STATION.9. THE Public Prosecutor,HIGH COURT, CHENNAI.+1cc to Mr.S.Kalyanaraman, Advocate Sr 28215CK (CO)km/17.6.Crl.A.No.1050/2007