Ethiraj v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.9.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANAND THE HONOURABLE MR. JUSTICE M.JEYAPAULCrl.A.No. 203 of 2009 Ethiraj.. Appellant/Accused Vs.StateRep. by the Inspector of Police,Baluchettichatiram Police StationKanchipuram District... Respondent/ComplainantCrime No.49/2007* * *Prayer : Appeal against the Judgment, dated 26.8.2008, passed inS.C.No. 331 of 2007 on the file of the Additional Sessions Judge,(Fast Track Court No.II), Kanchipuram. * * *For Appellant:: Mr. T.Munirathinam Naidu for Mr.S.Ananth For Respondent :: Mr. Hassan Mohamed Jinnah Addl. Public ProsecutorJ U D G M E N T(The Judgment of the Court was made by C. NAGAPPAN, J.)Appellant Ethiraj is the sole accused in Sessions CaseNo.331 of 2007 on the file of the Additional Sessions Judge(Fast Track Court-II), Kanchipuram, and he has preferred this appealchallenging the conviction and sentence imposed on him by judgmentdated 26.8.2008 in the case. For the sake of convenience, in thisJudgment, the appellant will be referred to as accused. 2. The learned Additional Sessions Judge found theaccused guilty of the charge under Sections 302 IPC and convictedand sentenced him to undergo Life Imprisonment and to pay a fine ofRs.1,000/-, in default to undergo three months Rigorous Imprisonment. https://hcservices.ecourts.gov.in/hcservices/

3. To prove its case, the prosecution examined P.Ws.1 to19 and marked Exs.P.1 to P.10. 4. The case of the prosecution, as could be discerned from oraland documentary evidence, can be briefly summarised as follows. The deceased Uma is the wife of the accused Ethiraj andP.W.11 Minor Banu Priya is their daughter. P.W.3 Saminathan is thejunior paternal uncle; P.W.5 Babu is the brother; P.W.6 Vijayan isthe cousin brother; P.W.7 Palani is the sister's husband of thedeceased Uma. P.W.12 Daniel, P.W.13 Milka, P.W.16 Shanmugham are theneighbours of the deceased Uma. The accused Ethiraj married Uma in the month of September,1996 and started living in a rented house at Sirukaveripakkam andthey were blessed with a daughter and a son. The accused Ethirajwas employed in a Rice Mill on a monthly salary of Rs.2,000/-.During the year 2006, he purchased a plot in New Colony and built ahouse and started living there. The accused Ethiraj constructedthe house by borrowing loan from financier and he was finding itdifficult to pay the dues besides meeting domestic expenses. Hepledged the jewels of his wife Uma and borrowed loan and he couldnot redeem the jewels and his wife Uma quarrelled with himfor his inability to redeem the jewels and went to her parents'house and refused to come back. A compromise talk was held on8.2.2007 and at the instance of the brother and sister-in-law of theaccused, Uma returned to her matrimonial home and further quarrelledwith the accused alleging illicit intimacy with some other lady. On 13.2.2007, the accused Ethiraj and his wife Uma alongwith their children were sleeping in their house. On 14.2.2007 at3.00 a.m., P.W.11 Minor Banu Priya woke up on hearing the scream ofher father and saw her mother lying unconscious in the kitchen. Shegot scared and called the neighbours. P.W.12 Daniel, P.W.13 Milkaand P.W.16 Shanmugham went to the house of the accused Ethiraj andfound Uma lying dead. The accused Ethiraj was found there crying. P.W.1 Venkatesan, Village Administrative Officer ofSirukaveripakkam, was in his Office at 10.00 a.m. on 14.2.2007 alongwith P.W.2 Manoharan and Devaraj, Village Menials, and the accusedEthiraj appeared before him and wanted to give a confession statementabout the occurrence. P.W.1 V.A.O. Venkatesan recorded Ex.P1Confession statement given by the accused Ethiraj in the presence ofboth the Menials in his Office and obtained the signature of theaccused Ethiraj in it and both the Menials attested the same aswitnesses. P.W.1 V.A.O. Venkatesan prepared Ex.P2 Report and tookthe accused Ethiraj to the Police Station and produced him before https://hcservices.ecourts.gov.in/hcservices/ P.W.17 Sub Inspector Masilamani at 1.00 p.m. on 14.2.2007 and handed-over Exs.P1 and P2 Documents to him. P.W.17 Sub Inspector Masilamaniregistered a case in Crime No.49/07 under Section 302 IPC andprepared Ex.P7 Printed First Information Report and sent the same tothe Court and the Higher Officers and detained the accused afterarresting him. He also telephonically informed the Inspector-incharge and went to the occurrence place. P.W.7 Palani is thesister's husband of the deceased Uma and on receiving informationover telephone about the occurrence regarding the death of Uma, hewent to the occurrence place after informing his Officers. P.W.18 Inspector Kanniappan received the information andwent to the occurrence place at 1.45 p.m. on 14.2.2007 and took upthe investigation. He prepared Ex.P3 Observation Mahazar in thepresence of P.W.8 Barnabas and another. Ex.P8 is the Rough sketchdrawn by him. He conducted inquest on the body of Uma from3.30 pm in the presence of panchayatars and prepared Ex.P9 InquestReport. He sent the body for post-mortem through P.W.15Head Constable Vijayalakshmi by giving requisition.P.W.14 Dr. Senthilkumar and Dr. E.Vijayalakshmi conductedpost-mortem on the body of Uma at 12 noon on 15.2.2007 and found thefollowing - " A body of female lying on its back, arms bysides, Eyes closed. Eye lids swollen and blackin colour. Mouth partially opened. Tongueclenched by teeth. Blood stained discharge fromnose and mouth. Partially decomposed body, skinblack in colour. Multiple blisters with peelingof the skin, whole body swollen and distendedwith gas. White colour vaginal dischargepresent.Teeth 3 6 Mammary glands well developed. 6 6Scalp hair loose.External Injuries: 1 x 1cm triangle shape, black colour abrasionsseen Right side neck. On C/s subcut ecchymosispresent. Internal Examination: Hyoid:- Intact, preserved. https://hcservices.ecourts.gov.in/hcservices/ Thorax:– No Ribs fracture.Heart:- 300 gms. empty. Lungs:- Right 500 gms. Left 450 gms. C/s – Congested. Stomach:– Distended with gas partially digestedrice 250 ml. present.Liver:- 1200 gms. C/s – Congested.Spleen:- 120 gms. C/s - Congested.Kidneys:- Each 150 gms - Congested.Intestines:- Distended with gas. Bladder:– Empty. Uterus:– 7 x 5 x 3 cms, 60 gms. EmptyCavity. Ovaries – Normal, Cx – Normal.P/v : Vagina patulous, normal. Vaginal smear(2) and Vaginal swab (2) are taken. Skull: Intact. Brain: Liquefied. Spine: Intact.Viscera preserved:Reserving opinion as to cause of death pending receipt ofViscera Report Dr.E.Vijayalakshmi issued Ex.P6 Post-mortemCertificate stating that the death would have occurred 36-48 hoursprior to Autopsy. After receipt of Toxicology Report and Hyoid BoneReport, P.W.14 Dr. Senthilkumar expressed Final Opinion stating thatthe deceased would appear to have died of Asphyxia. P.W.18 Inspector Kanniappan examined P.Ws.1 to 8 on14.2.2007 itself and recorded their statements. At 7.00 p.m., onthe same day, he enquired the accused Ethiraj in the presence ofP.W.9 Rajendran and P.W.10 Mani and recorded the confessionstatement given by him. He examined P.W.9 Rajendran and P.W.10 Maniand recorded their statements. On 15.2.2007, P.W.19 Regular Inspector Ashok Methacontinued the investigation. He examined P.W.11 Minor Banu Priya,P.W.12 Daniel, P.W.13 Milka, P.W.16 Shanmugham and another witnessand recorded their statements. He sent the accused Ethiraj forjudicial remand. On 22.3.2007 he examined P.W.15 Head ConstableVijayalakshmi and recorded her statement. On 14.5.2007, he examinedP.W.14 Dr. Senthilkumar and Dr. Vijayalakshmi and recorded theirstatements. He completed the investigation on 15.5.2007 and filedthe Final Report against the accused. 5. The incriminating circumstances appearing against theaccused were put to him during his examination under Section 313 https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C and he denied the testimonies as false. No witness wasexamined and no document was marked on his side.6. The trial Court found the accused guilty of the chargeand sentenced him as stated earlier. Challenging the same, he haspreferred the present appeal. 7. The prosecution case is that the accused Ethirajthrottled the neck of his wife Uma resulting in her death at the timeof occurrence. There are no eye-witnesses to the occurrence and thecase is based on circumstantial evidence. 8. The accused Ethiraj is the husband of deceased Uma.PW.11 Selvi Banupriya is their daughter. PW.3 Saminathan, P.W.5Babu, PW.6 Vijayan and PW.7 Palani are their family members and theydid not support the prosecution case and were declared hostile. PW.4Gopal is a relative of the deceased Uma and PW.12 Daniel, PW.13Milka and PW.16 Shanmugam are the neighbours of the deceased Uma andall of them turned hostile. Of course, the daughter PW.11Banupriya also was treated as hostile. PW.9 Rajendran and PW.10 Maniare the witnesses who were examined as having witnessed the recordingof confession statement given by the accused and they also weretreated as hostile. 9. The incriminating circumstances relied on by theprosecution against the accused are as follows."1) The accused Ethiraj and the deceased Umawere together in their dwelling house on the occurrencenight and the accused husband offers noexplanation as to injuries received by his wife. 2) Homicidal death of Uma. 3) The accused Ethiraj at 10 am on 14.2.2007presented himself before PW.1 VAO Venkatesan and gaveEx.P1 Extra judicial confession in the presence ofVillage menial PW.2 Manoharan.10. On the occurrence night, the accused Ethiraj was in hishouse with his wife Uma and children. Their daughter PW.11Banupriya, though treated hostile, in her testimony inchief-examination has stated that she slept with her parents on theoccurrence night and she woke up at about 3 am in the early morningon hearing the scream of his father and she found her mother Umalying unconscious in the kitchen and she got scared and called theneighbours and they sprinkled water on the face of her mother andtold that Uma is dead. PW.12 Daniel, PW.13 Milka and PW.16 https://hcservices.ecourts.gov.in/hcservices/ Shanmugam, who were neighbours of the deceased Uma, though declaredhostile, have stated in their examination in chief that PW.11Banupriya was crying and calling them and they went inside and sawUma lying dead in the house and the accused was sitting near thebody and crying. Though the above witnesses were declared ashostile, their testimonies to the extent referred above can berelied on, which would establish that the accused was present in thedwelling house on the occurrence night. 11. The settled position of law is that where an accused isalleged to have committed the murder of his wife and the prosecutionsucceeds in leading evidence to show that the offence took place inthe dwelling home where the husband was found present with his wifeand if the accused does not offer any explanation as to how his wifereceived injuries, it would be non-explanation and it is a strongcircumstance which indicates that the accused is responsible for thecommission of the crime. In the present case, the accused whenexamined under Section 313 Cr.P.C., has merely stated that thetestimonies of the witnesses are false and did not offer anyexplanation as to how his wife Uma received injuries. He did notalso file any written statement. The husband cannot get away bysimply keeping quiet and offering no explanation, since a burden iscast on him to give a cogent explanation as to how the crime wascommitted. The mere denial of the prosecution case coupled withabsence of any explanation is inconsistent with the innocence of theaccused, but consistent with the hypothesis that the accusedcommitted the murder of his wife. The prosecution has establishedthe first circumstance relied on by it. 12. Uma suffered homicidal death is established by thetestimony of the post-mortem doctor. PW.14 Dr.Senthilkumar alongwith Dr.Vijayalakshmi conducted autopsy on the body of Uma at12 noon on 15.2.2007. PW.14 Dr.Senthilkumar has testifiedthat he found eye lids were swollen and black in colour; tongueclenched by teeth; blood stained discharge from nose and mouth andhe saw external injury 1 x 1 cm triangle shape, black colourabrasions on right side neck and on dissection subcut ecchymosispresent. Opinion as to cause of death was kept reserved pendingreceipt of viscera report and they issued Ex.P6 Post-mortemCertificate stating that death would have occurred 36-48 hours priorto Autopsy. On receipt of Ex.P10 Viscera Report and the Hyoid bonereport, PW.14 Dr.Senthilkumar expressed final opinion that thedeceased would appear to have died of asphyxia. In his testimonyin examination in chief, PW.14 Dr.Senthilkumar has deposed that theasphyxia found on the body could have occurred by pressing the neckwith hands resulting in death. 13. The learned counsel for the appellant submitsthat the post-mortem doctor PW.14 Dr.Senthilkumar in hiscross-examination has deposed that he has mentioned in his https://hcservices.ecourts.gov.in/hcservices/ Post-mortem Report that the death had not occurred due tothrottling with hands and hence the prosecution has not establishedthe cause of death as throttling. Per contra, the learnedAdditional Public Prosecutor submits that the opinion expressed inthe post-mortem certificate is only that the death has occurred dueto asphyxia and in the examination in chief, PW.14 Dr.Senthilkumarhas deposed that the death has occurred due to throttling with handsand he has reiterated the same during his cross-examination byreferring to the symptoms. 14. PW.14 Dr.Senthilkumar was examined and cross-examined on22.7.2008 itself. In the chief-examination on that date, he hasstated that asphyxia found on the body of the deceased couldhave occurred due to throttling with hands and in thecross-examination on the same day, he has testified that the eye-lidswere found swollen and black in colour and the tongue was clenched byteeth and these symptoms would indicate the death due to throttlingof the neck with hands. PW.14 Dr.Senthilkumar was re-calledon 13.8.2008 and in his cross-examination, he has deposed that in thepost-mortem certificate he has mentioned that the death has occurrednot due to throttling of neck. The above testimony is factuallywrong. Ex.P6 is the Post-mortem Certificate, in which, he hasopined that the deceased would appear to have died of asphyxia. Nofurther opinion is expressed. Moreover, as already seen, in histestimony given on 22.7.2008, he has categorically stated that thedeath could have occurred due to asphyxia by throttling with hands byreferring to the symptoms found on the body. In such circumstances,a factually erroneous stray reply given in the further cross-examination of PW.14 Dr.Senthilkumar pales into insignificance.Accepting the medical testimony, it is clear that Uma died ofhomicidal violence and this circumstance stands established. 15. The accused is said to have given an extra judicialconfession to the Village Administrative Officer admitting the guiltin the presence of Village menial. PW.1 Venkatesan is the VillageAdministrative Officer of the occurrence place viz., Sirukaveripakkamand he has testified that on 14.2.2007 when he was present in hisoffice along with Village menials PW.2 Manoharan and Devaraj, theaccused Ethiraj came there at 10 'O' clock in the morning andexpressed his wish to give confession statement about theoccurrence and he, in the presence of village menials, recordedEx.P1 Confession Statement given by the accused and obtained hissignature in it and also obtained the signatures of PW.2 Manoharanand Devaraj as witnesses in Ex.P1 Confession Statement and preparedEx.P2 Report and took the accused Ethiraj to BaluchettichatiramPolice Station and produced him before the Sub Inspector along withExs.P1 and P2 documents. PW.2 Manoharan in his testimony hasconfirmed that he was with PW.1 VAO Venkatesan in his office at 10am on 14.2.2007 and the accused came there and gave Ex.P1 extra https://hcservices.ecourts.gov.in/hcservices/ judicial confession to the Village Administrative Officer in hispresence and it was recorded by the Village Administrative Officerand he and Devaraj attested the same and PW.1 VAO Venkatesanprepared his report and they all took the accused to the PoliceStation and produced him along with the documents. PW.17 Masilamaniis the Sub Inspector of Baluchettichatiram Police Station and he hasstated that on 14.2.2007 at 1 pm, PW.1 VAO Venkatesan produced theaccused Ethiraj and handed over Exs.P1 and P2 documents and heregistered a case in Crime No.49 of 2007 under Section 302 IPC andprepared Ex.P7 First Information Report and despatched the same tothe Court and higher officers and he arrested the accused anddetained him in the police station. PW.18 Kanniappan was theInspector In-charge on 14.2.2007 for Baluchettichatiram PoliceStation and he has deposed about taking up investigation in thecase. 16. The learned counsel for the appellant contends that theaccused would not have come to the office of Village AdministrativeOfficer as stated by P.Ws.1 and 2 and Exs.P1 and P2 documents couldnot have come into existence as spoken to by the witnesses and theycame into being in the police station after the arrival ofPW.18 Inspector Kanniappan and the counsel points out a contradictionin this regard in the testimonies of P.Ws.1 and 2 and that ofInvestigation Officer. 17. It is true that P.Ws.1 and 2, in their cross-examination,have stated that when they went to Baluchettichatiram Police station,both Sub Inspector and Inspector were present there andPW.2 Manoharan had also mentioned the Inspector's name asKanniappan; whereas PW.18 Inspector Kanniappan in his testimony hasstated that the regular Inspector of the Police Station had gone onother duty on 14.2.2007 and he was in-charge Inspector and hereceived information about the registering of the case and he wentto the occurrence place, namely, New Colony at Sirukaveripakkam at1.45 pm and obtained the express report from PW.17 Sub Inspector andtook up the investigation. The contradiction with regard to thepresence of the Inspector in the police station at the relevant timeis not a material one which would go to the root of the matter.Admittedly, PW.1 VAO Venkatesan had produced the accused Ethirajalong with Exs.P1 and P2 documents only before the Sub InspectorPW.17 Masilamani and he had registered the case. On 14.2.2007, theregular Inspector PW.19 Ashok Metha had gone to Panruti Court togive evidence in a case and he returned to BaluchettichatiramPolice Station only on 15.2.2007. The Deputy Superintendent ofPolice, Kanchipuram had put PW.18 Inspector Kanniappan as in chargeInspector and as directed he went to the occurrence place and took upthe investigation. Hence there is no possibility of PW.18Inspector Kanniappan present in the police station at the relevanttime. Therefore, the contention that Exs.P1 and P2 documents cameinto being in the police station in the presence of PW.18 Inspector https://hcservices.ecourts.gov.in/hcservices/ Kanniappan, is devoid of merit and liable to be rejected. 18. PW.1 Venkatesan is the jurisdictional VillageAdministrative Officer of the occurrence place and his office islocated one kilometre from the occurrence house. From thetestimonies of witnesses, it is seen that the accused Ethiraj wasfound crying near the body of his wife in the morning on 14.2.2007.Fearing apprehension by the police, the accused had gone to theoffice of the Village Administrative Officer and had expressed hiswish to give confession statement about the occurrence and that hasbeen recorded as Ex.P1 Confession Statement by PW.1 Venkatesan.PW.2 Manoharan is one of the witnesses present during the recordingof the confession statement and he has also corroborated thetestimony of PW.1 VAO Venkatesan. Ex.P2 is the Report prepared byPW.1 Venkatesan about the recording of the confession and he hadproduced the accused along with Exs.P1 and P2 documents in thepolice station. In the averments in Ex.P1 Confession Statement, theaccused Ethiraj has stated that he obtained loan from financier forconstructing the house and he could not pay the dues and meet thedomestic expenses and on account of that he pledged the jewels ofhis wife and borrowed loan and he could not redeem the jewels and hiswife Uma quarrelled with him for his inability to redeem the jewelsand had gone to her parents' house and refused to come back andthere was compromise talk on 8.2.2007 and at the instance of hisbrother and sister-in-law, his wife Uma returned to her matrimonialhome, and Uma was quarrelling with him alleging illicit intimacy withsome other lady and on the occurrence night, his wife Uma picked upquarrel by pointing out his inability to redeem the jewels and hisillicit intimacy and hence he throttled her neck with hands whenshe was asleep and committed the murder. 19. P.W.1 V.A.O. Venkatesan was subjected to lengthycross-examination and nothing was elicited to discredit histestimony. We are satisfied that Ex.P1 Extra-judicial confession isvoluntary and is not the result of any inducement, threat or promiseor brought about in suspicious circumstances. It is settled positionof law that if the extra-judicial confession is true and voluntary,it can be relied upon by the Court to find the accused guilty ofthe commission of crime. In this context, the recent decision ofthe Supreme Court in VELAYUDA PULAVAR V. STATE BY SUB-INSPECTOR OF POLICE [2009 (6) SCALE 537] is relevant and for betterappreciation it is extracted below - " 9. In the instant case, the extra judicialconfession was made before the Village AdministrativeOfficer who is not a stranger to the first accused and heknew him for quite some time. The evidence on recordclearly establishes that Ex.P.1 was recorded by the VillageAdministrative Officer PW.1 in the Panchayat Office in thepresence of many persons. The evidence of PW.3 also https://hcservices.ecourts.gov.in/hcservices/ corroborates the version of PW.1 that the present appellantmade extra judicial confession (Ex.P.1) in the PanchayatOffice and he is one of the attestors to Ex.P1. So far asplea relating to corroboration is concerned, if the courtlooks for such corroboration of a judicial confession or anextra judicial confession, same need not be in materialparticulars. It can be and will have to be onlycorroboration in general. Each and every piece ofinformation mentioned in the extra-judicial confession neednot be corroborated by independent evidence. It is wellsettled that conviction can be recorded solely on thebasis of the extra judicial confession if it is found to becredible and worthy of acceptance. PW.1's evidence coupledwith that of PW.3 makes the position clear that there was avoluntary extra-judicial confession made by the appellantbefore the Village Administrative Officer (PW.1). Thatbeing so, we find no scope for interference in this appeal.The appeal is, accordingly, dismissed."Tested on the touchstone of the above decision, we have no hesitationin concluding that Ex.P1 Extra-judicial confession is voluntary andtrue and the prosecution has established this circumstance. 20. The case of the prosecution rests on circumstantialevidence and the prosecution has firmly established the circumstanceswhich have a definite tendency unerringly pointing towards theguilt of the accused and taken cumulatively, they form a completechain to conclude that the crime was committed by the accused.The Trial Court has rightly found the accused guilty of the chargeand the sentence imposed is also proper. 21. There are no merits in the appeal and the same isdismissed. pb/vksSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Additional District and Sessions Judge (Fast Track Court No.II), Kanchipuram.2.-do- through the Principal District and Sessions Judge, Chengleput.3.The Inspector of Police, Baluchettichathiram Police Station, Kanchipuram District.4.The Superintendent of Prisons, Central Prison, Puzhal, Chennai-600 066.5.The Director General of Police, Mylapore, Chennai-600 004.6.The District Collector, Kanchipuram District, Kanchipuram.7.The Public Prosecutor, High Court, Madras. 8.The Section Officer, Criminal Section, High Court, Madras 104.AKR(CO)SR/24.9.2009Crl.A.No.203 of 2009