Raja v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.10.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL NO.347 OF 2009Raja.. Appellant (Accused) Vs.State rep. byInspector of Police,Namakkal Police Station.Namakkal.. Respondent (Complainant)This criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Principal Sessions Judge,Namakkal, made in S.C.No.77 of 2004 dated 24.04.2009.For Appellant : Mr.R.ChandramohanFor Respondent : Mr.Babu Muthu Meeran, APPJUDGMENT(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment and convictionrendered by the learned Principal Sessions Judge made in S.C.No.77 of2004 dated 24.04.2009, convicting and sentencing the accused u/s. 498(A) and 302 I.P.C. and thereby directed to undergo life imprisonmentalong with a fine of Rs.5000/-, in default to undergo rigorousimprisonment for one year, u/s. 302 I.P.C and to undergo one yearrigorous imprisonment u/s. 498(A) I.P.C. 2. The case of the prosecution would be that the accused Rajamarried the deceased Kalaiselvi about 2½ years prior to her death andboth of them lived together as husband and wife at Sendamangalamalong with the parents of the accused Raja. The accused had suspectedher fidelity and had committed cruelty on her. The said deceasedKalaiselvi had gone to her parents at Chinnamudalaipatti one monthprior to her death and was living there.3. On 09.06.2004, at about 03.30 a.m due to the grudge over thedeceased Kalaiselvi, on her refusal to return to the matrimonialhouse the accused with an intent to murder her, took a saree keptnear their bed at the residence of the parents of Kalaiselvi andtwisted the same around her neck and caused her death by https://hcservices.ecourts.gov.in/hcservices/ strangulation and thereby committed the crime of murder. 4. The complaint was given by the mother on 09.06.2004 on thesame day and the case was registered in Cr.No.1000/2004 and the F.I.Rwas sent to the court on that day and it reached the court by 00.35a.m on 10.06.2004, in the meanwhile the Deputy Superintendent ofPolice, being the Investigating Officer had proceeded with theinvestigation of the case and prepared the Observation Mahazar-Ex.P.10 and the sketch Ex.P.15 and in the presence of Panchayatarshad conducted inquest and thereafter sent the body of deceasedKalaiselvi to Government hospital for autopsy. She had examined thewitnesses and recorded their statement and she had arrested theaccused on 12.06.2004 and had recorded the confession statement ofthe accused in the presence of the witnesses and seized M.O.3 - Sareethrough the confession leading to recovery and prepared SeizureMahazar Ex.P.12. Thereafter the Investigating Officer sent theaccused to judicial custody and subsequently recorded the statementof the witnesses and examined Doctor who had conducted autopsy andcollected the Post Mortem Certificate and obtained chemical analysisreport from Forensic lab and examined the analyst and thereafter shehanded over the investigation to the incoming Investigating Officer,who had verified everything and recorded further statement and laidthe charge sheet against the accused u/s. 498(A) and 302 I.P.Cagainst the accused. 5. On the basis of the charge sheet filed against the accused,the case was taken on file by the Judicial Magistrate Court No.1,Namakkal and he has committed the same to the Sessions Court and itwas taken on file by the Sessions Judge and he has framed thenecessary charges against the accused on 22.02.2005 u/s. 498 (A) &302 I.P.C.6. Based upon the charges framed against the accused the trialwas conducted by the lower court by examining prosecution witnessesP.W.1 to P.W.19 and had admitted the documents on the side ofprosecution Ex.P.1 to Ex.P.20 and M.Os.1 to 6. The accused wasexamined by the lower court u/s. 313 Cr.P.C in respect of importantand incriminating evidence adduced by the prosecution witnesses andhad recorded the answers furnished by the accused. The accused whiledenying such evidence as false had replied that he had got defencewitness, and his sister Mrs. Vijayalakshmi was examined accordinglyas D.W.1 to disprove the case of the prosecution.7. The lower court after appraising the evidence had come to theconclusion of convicting and sentencing the accused u/s. 498(A) and302 I.P.C and had imposed one year rigorous imprisonment and lifeimprisonment with a fine of Rs.5000/- in default to undergo rigorousimprisonment for one year, respectively.8. Aggrieved by the judgment of conviction and sentence theappellant/accused had preferred the present appeal. https://hcservices.ecourts.gov.in/hcservices/

9. The learned counsel for the appellant Mr.R.Chandramohan wouldsubmit in his argument that the learned Sessions Judge haderroneously held that the accused was guilty of both offences. Hewould further submit that the lower court erred in not finding thatthe prosecution had failed to prove the case against the accusedbeyond all reasonable doubts. The lower court ought to have foundthat the cause of death of deceased was not due to murder, for thereason that the hyoid bone was intact and there was no mark aroundthe neck of the deceased which would give the probability that thedeceased might have been died by hanging herself. He would alsosubmit in his argument that the evidence of the Doctor who conductedthe Post Mortem did not speak to the effect that the death was causedby strangulation by hands or sarre and in such circumstances thebenefit of doubt should have been awarded to the appellant. He wouldfurther submit that the lower court did not explain as to the natureof injury for the purpose of deciding the case as to whether it was asuicide by hanging or death by strangulation. He would insist in hisargument that there was no eye witness available for the occurrence,and the circumstantial evidence are not adequate to end inconviction, therefore certainly there should be an acquittal bygiving benefit of doubt to the accused. He would further submit thatthe evidence of D.W.1 to the effect that the appellant was present ather house during the relevant time, would falsify the case of theprosecution. He would further submit that the evidence of D.W.1 thatthe accused was staying at the house of D.W.1 at Rasipuram two daysprior to the date of death of the deceased and he was taken by thepolice and the case was foisted against him by converting the case ofsuicide by hanging to a case of murder by strangulation. The generalstatement by the witness as to the relationship between the appellantand deceased and the alleged cruelty committed by the appellantagainst the deceased were wrongly accepted by the lower court butthose witnesses are interested witnesses. He would further submitthat the prosecution has also not proved the motive for the allegedoffence committed. The evidence of P.W.1 and P.W.2 should not havebeen relied upon by the lower court as they happened to be very closerelatives to the deceased. He would also insist in his argument thatthe delay in giving the complaint was not accepted by the lower courtbut it had ended the case with the conviction. He would thereforerequest the court to set aside the judgment passed by the lower courtand thereby to acquit the accused from the charges framed against himu/s.498(A) and 302 I.P.C.10. The learned Additional Public Prosecutor has submitted hisarguments. On giving anxious considerations to the arguments advancedby both sides, we have to see as to whether the judgment andconviction and sentence passed by the lower court against theappellant/accused u/s. 498(A) and 302 I.P.C is sustainable.11. The accused was married to the deceased Kalaiselvi some fivemonths prior to the date of her death on 09.06.2004, they were livingat the house of the accused for sometime and one month prior to the https://hcservices.ecourts.gov.in/hcservices/ death of Kalaiselvi she had come to her mother's house atChinnamudalaipatti and was living there. P.W.1 was the mother ofKalaiselvi, who had spoken to the effect that immediately after themarriage of the deceased Kalaiselvi with the accused, she was livinghappily and thereafter the accused used to go in an inebriatedcondition and quarrelled with her on suspecting her fidelity. Hermother used to convince Kalaiselvi and ask her to live with herhusband at matrimonial house. However the said Kalaiselvi had toreturn to her house by saying that he would kill her, if she go overand live with him. She left her daughter Kalaiselvi at her sisterP.W.6s house. On 08.06.2004, the accused had come to the house of hersister near Murugan temple at Salem road and took the deceasedKalaiselvi in his TVS 50 vehicle and P.W.1 came opposite to them atabout 06.00 p.m on the same day the mother of P.W.1 was also with herand the deceased Kalaiselvi told P.W.1 that they were going for afilm and she wanted a ring for her mother and accordingly P.W.2 hadgiven the ring and they thought that they would begin the new leaseof life thereafter the cinema was over and they returned to thehouse of P.W.1 and she prepared food for them and they had the dinnerand in the room situated on the western side of the house. P.W.1 andP.W.2 were having their bed. In the eastern room the accused andKalaiselvi were having their bed at about 03.00 a.m during thatnight, P.W.1 heard some voice calling her and she went and knocked atthe door, where the deceased Kalaiselvi and the accused were stayingand since there was silence she went and continued sleeping. When shewoke up by 06.00 clock in the morning P.W.1 sprayed cow dung water infront of her house and she returned back. She could not see the TVS50 vehicle and also the accused and she could also see that the doorof the eastern room was removed and was found open and the deceasedKalaiselvi was on her bed with opened mouth and on verification shewas found dead. Immediately she (P.W.1) called P.W.2 and theneighbours. She approached the police and gave complaint which isrecorded and produced as Ex.P.1. The said version of P.W.1 mother ofthe deceased Kalaiselvi was corroborated by P.W.2 grandmother ofKalaiselvi and other evidence namely P.W.5 and P.W.6 would also go along way to show that the accused had come to their house and stayedwith the deceased Kalaiselvi on the fateful night.12. According to the case of the accused, he was not availableat the house of P.W.1 and P.W.2 and the accused was falselyimplicated in the case. For that, learned counsel for the appellantwould rely upon the evidence of D.W.1-sister of the accused. It hasalso been argued that the death of Kalaiselvi was only a suicide andit is not the case of murder by strangulation. Therefore the accusedis said to be a innocent person. Now we have to see whether theversion of the accused could be accepted. 13. There is no doubt that the complaint given by P.W.1 wasregistered and the police had come to the spot and had collected theevidence. Observation Mahazar would come to show that at the time of https://hcservices.ecourts.gov.in/hcservices/ occurrence inquest was conducted by the Investigating Officer and itwas produced as Ex.P.16. The accused was arrested and the confessionstatement recorded by the Investigating Officer and the admissibleportion of the confession statement was produced as Ex.P.11 andM.O.3- Saree was recovered through Seizure Mahazar Ex.P.12. Thewitness who was present at the time of recording confession statementand the Seizure Mahazar was examined as P.W.14. The evidence ofP.W.14 would clearly prove the recovery of M.O.3 – Saree which wasused to strangulate the deceased Kalaiselvi through the confessionof accused leading to its recovery. Nothing shown to reject theevidence of P.W.14. P.W.14 was working as V.A.O at the time of hisexamination. Therefore the evidence of P.W.14 cannot be rejected. Theautopsy conducted by the Doctor- P.W.10 would go to show that he hadconducted the autopsy on the body of Kalaiselvi and he produced thePost Mortem Certificate- Ex.P.5. According to the evidence of P.W.10the death of kalaiselvi was caused due to vago vagal attack due tostrangulation on her neck. He would again explain in his evidencethat the death of Kalaiselvi would have been caused due to theconstriction of the arteries and veins in the neck and due to shock.In his evidence it has been categorically elicited that the death wascaused due to the strangulation of neck and it is possible that thestrangulation could be caused by M.O.3.14. He has ruled out that the death would have been causedthrough commission of suicide. Therefore the death of Kalaiselvi atthe house of P.W.1 should have been caused by strangulation of herneck by some other person than herself and not by suicide.15. Considering the evidence of P.W.1 and P.W.2, they are theclose relative witness of the deceased Kalaiselvi and they are agedpersons they are very much concerned in welfare of the deceasedKalaiselvi. Whether their evidence to the effect that the deceasedKalaiselvi and appellant/accused were sleeping at the eastern roombelonging to the house of P.W.1 on the fateful night are reliable hasto be decided.16. Merely because P.W.1 and 2 are the relative and interestedwitnesses, it cannot be said that their evidence should have beenrejected. The saree which was used for strangulating the deceasedKalaiselvi was recovered only on the confession leading to therecovery from the mouth of the accused. The evidence of P.W.14proving the confession and Seizure Mahazar of the said saree used forstrangulation cannot be challenged.17. In such circumstances, the evidence of P.W.5 would come toshow that on 08.06.2004 at about 05.00 p.m the appellant had come toher house and took the deceased Kalaiselvi, left by her mother at herresidence. He would also speak that he promised not to drink orharass the deceased Kalaiselvi and went to the house of P.W.1 withKalaiselvi in his TVS 50. The evidence of P.W.6, namely the sister of https://hcservices.ecourts.gov.in/hcservices/ P.W.1 where Kalaiselvi was left for her stay for sometime, had alsocorroborated the evidence of P.W.5. In such circumstances, theevidence of P.W.1 and 2 are strengthened with the evidence of P.W.5and P.W.6. The evidence of P.W.5 and 6 would also go to show thatthey had lastly seen Kalaiselvi with the appellant/accused.18. The evidence of P.W.1 was further supported by the evidenceof P.W.5 and P.W.6 in lastly seeing Kalaiselvi with appellant stayingat at the eastern room of their house during the fateful night andtherefore the evidence of P.W.1 cannot be rejected.19. When the evidence of P.Ws.1, 2, 5 and 6 are reliable thedefence evidence adduced by D.W.1 that the accused was at her housetwo days prior to the date of death of Kalaiselvi cannot be a trueversion. D.W.1 did not say any specific date, but she had mentionedthe date of death of Kalaiselvi and had spoken to the dates of stay.Therefore the evidence of D.W.1 is not at all reliable evidence andit should have been adduced falsely for the purpose of the helpingthe case of the defence. Therefore the evidence adduced on the sideof the prosecution to the effect that the accused and the deceasedKalaiselvi were seen at the room lastly before the death ofKalaiselvi, has proved the prosecution's case beyond reasonabledoubt. It is the appellant who had lastly stayed with the deceasedKalaiselvi to explain the casue death of his wife. It has beencategorically spoken by the prosecution witnesses that the accusedwas having the habit of consuming liquor and was harassing his wifethe deceased Kalaiselvi. In such circumstances, the death ofKalaiselvi through strangulation on her neck by M.O.3, should havebeen caused by the accused only and by none else. Therefore thefinding of the lower court that the prosecution had proved its casebeyond all reasonable doubt cannot be interfered. However it wasbrought to the notice that there was no specific evidence to theeffect that the accused had demanded dowry and caused cruelty againstthe deceased Kalaiselvi and therefore the conviction u/s.498(A)cannot be sustained. Even though the conviction against 498(A) isunsustainable, the conviction and sentence passed against the accusedu/s. 302 I.P.C is unassailable and therefore the judgment of thelower court in respect of 302 I.P.C is upheld and the appeal isdismissed. 20. Accordingly the conviction and sentence passed against theaccused u/s. 498(A) is set aside and the conviction and sentencepassed by the lower court in respect of 302 I.P.C is confirmed andaccordingly the appeal is dismissed.kprSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sessions Judge, Namakkal.2. The District Collector, Namakkal.3. The Director General of Police, Chennai.4. The Inspector of Police, Namakkal Police STation, Namakkal.5. The Public Prosecutor, High court, Madras.6. The Superintendent, Central Prison, Coimbatore.1 cc To Mr.R.Chandramohan, Advocate, SR.57583 Crl.A.No.347 of 2009JRG (CO)SS (19.11.2009)