Kutti @ Ramalingam v. State

Bail SlipThe appellant herein viz Kutti @Ramalingam accused in S.C.No.77of 2004 on the file of Additional Sessions Judge, Dharmapuri wasdirected to be released on bail as per orders of this court dated25.7.2006 made in CRL.MP.No.3959 of 2006 in Crl.A.No.103 of 2006IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHICriminal Appeal.No.103 of 2006Kutti @ Ramalingam... Appellantvs.State, rep. by Inspector of Police, Krishnapuram.(Cr.No.600/2001).... RespondentAppeal filed under section 374 of Crpc against the judgment ofthe learned Additional Sessions Judge, Dharmapuri, dated 8.12.2005made in S.C.No.77 of 2004.For Appellant:Mr.R.SankarasubbuFor Respondent :Mr.N.R.ElangoAdditional Public ProsecutorJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)The sole accused, who was tried in Sessions Case No.77 of 2004on the file of learned Additional Sessions Judge, Dharmapuri, foruxoricide, was convicted by the impugned Judgment dated 8.12.2005under Section 302 I.P.C. and sentenced to imprisonment for life. https://hcservices.ecourts.gov.in/hcservices/

2.The charge against the appellant is that on 7.12.2001 at 4.00a.m. while Jaya, his wife, was sleeping in their residence atKathirnaickenhalli village, within the jurisdiction of Krishnapurampolice station, the appellant took an aruval and cut her neck andthus, caused her instantaneous death and thereby, committed anoffence of murder punishable under Section 302 I.P.C. 3.The genesis of the prosecution case is the extra judicialconfession, Ex.P.1, given by the accused to P.W.4, VillageAdministrative Officer, who, lodged a complaint, Ex.P.2, beforeP.W.10, Head Constable of Krishnapuram Police Station, and based onthe said complaint, P.W.10 registered a case against theappellant/accused for an offence punishable under Section 302 I.P.C.and prepared Ex.P.15, printed F.I.R. and thereafter, investigationwas taken up.4.The background facts of the case, in a nutshell, as put forthby the prosecution through oral and documentary evidence are that:(a)The accused is a resident of Kathirnaickenhalli village andhe is an agriculturist. About ten years prior to the date ofoccurrence, he married Jaya, the deceased in the case and due to thewedlock three children were born - a girl and two boys, and thechildren were aged 9, 8 and 2 ½ years respectively at the time ofoccurrence. The accused was suspecting the fidelity of his wife andhe also warned her several times, but to no avail. On account ofthat, a quarrel ensued between them which ended in the deceasedtaking heavy sleeping dose and after treatment, she was saved andeven thereafter, she continued her illicit relationship with thirdparties. While so, on the night of 6.12.2001, again a quarrel ensuedbetween them and in spite of the request of the accused not tocontinue such relationship, the deceased refused to lend ears andalleged that since he did not get any jewels or properties for her,she would continue with such relationship and so saying, went to takeher bed. Enraged over her reply, thinking that she would never changeherself, accused took an aruval, concealed underneath his pillow andat about 4.00 a.m., when the deceased and the children were in soundsleep, held her head with his left hand and inflicted a wild cut onher neck. He inflicted a second cut and blood oozed out from herhead. The children who were sleeping, woke up at the shout of theirmother and started crying, on hearing which, neighbours gathered. Theaccused opened the door and went away taking the aruval with him.(b)P.W.4 is the Village Administrative Officer, Pangunathamvillage. According to him, on 7.12.2001 at about 9.00 a.m., while hewas in his office, the accused came there and confessed that due tohis suspicion about the fidelity of his wife, he murdered her bycutting her neck with an aruval. Village Administrative Officeradopted usual procedures and reduced the confession of the accused https://hcservices.ecourts.gov.in/hcservices/ into writing and the signature of the accused was also obtained.Ex.P.1 is the said statement. Thereafter, he took the accused topolice station and handed over him, along with Ex.P.1, the statementof the accused and Ex.P.2, his report, to the police.(c) P.W.10, Head Constable of Krishnapuram Police Station, onreceipt of Exs.P.1 and P.2, registered a case in Crime No.600 of 2001under Section 302 IPC and prepared printed F.I.R., Ex.P.15. Hearrested the accused and recovered M.Os.5 and 6, the clothings of theaccused under Form 95. He sent the F.I.R. to court and copies thereofto superior officers.(d) P.W.13, Inspector of Police, took up investigation onreceipt of copy of the F.I.R. and proceeded to the scene ofoccurrence, where he prepared observation mahazar, Ex.P.3 and roughsketch, Ex.P.19 in the presence of witnesses. He seized M.Os.1 to 3from the scene of occurrence and conducted inquest over the dead bodyin the presence of panchayatdars and witnesses. Ex.P.20 is theinquest report. The body was sent to hospital with a request toconduct autopsy.(e) P.W.11 is the medical officer who conducted autopsy on thedead body on 7.12.2001 at 4.15 p.m. and issued Ex.P.18, post-mortemcertificate, opining that the deceased would appear to have died ofshock and hemorrhage due to injury to major vessels about 10 to 16hours prior to autopsy.(f) P.W.13, continuing with his investigation, examinedwitnesses and recorded their statements. He enquired the accused andrecorded his statement and pursuant to the admissible portion,Ex.P.5, M.O.4, aruval was recovered under a mahazar, Ex.P.6. He sentthe material objects to the Court with a request to send them forchemical analysis and received Exs.P.13 and 14, biology report andserologist report, to the effect that the material objects were foundto contain human blood of 'B' group. He issued a requisition to thelearned Magistrate, P.W.8, to record the statements of P.Ws.1 and 3under Section 164 Cr.P.C. Exs.P.9 and 10 are the said statements.P.W.17, after examining the post-mortem doctor and other witnesses,completed his investigation and filed the final report against theaccused on 4.2.2002.(g) As the accused denied the charges, he was tried in S.C.No.77of 2004 on the file of learned Additional Sessions Judge, Dharmapuri.In order to substantiate the charge against the accused, theprosecution examined P.Ws.1 to 13 and marked Exs.P1 to P20 and M.Os.1to 14, as already referred to above.(h) When the accused was questioned under Section 313 Cr.P.C. onthe incriminating circumstances appearing against him in the evidenceof prosecution witnesses, he denied the same as false. He neither https://hcservices.ecourts.gov.in/hcservices/ examined any witness, nor marked any document.(i) The trial Court, appreciating the evidence on record, bothoral and documentary, convicted and sentenced the accused as statedearlier. Exasperated by the judgment of conviction and sentence, theaccused has preferred this appeal.5.1. Mr.R.Sankarasubbu, learned counsel appearing for theappellant, assailing the impugned judgment, contends that there is noeye witness to the occurrence and that P.W.3, the daughter of theaccused and the deceased, who was alleged to have seen the accusedwith the blood-stained aruval near the dead body of the deceased, andP.W.1, a neighbour to whom P.W.3 informed about the commission ofoffence by the accused, having turned hostile, the conviction of theaccused cannot be based solely on the extra judicial confession,Ex.P.1, given by the accused to P.W.4, Village AdministrativeOfficer, as it is a weak piece of evidence and hence, theappellant/accused is entitled for acquittal. 5.2. Alternatively, he submits that even if the extra judicialconfession, Ex.P.1, is accepted, as it is the case of the prosecutionthat the deceased was of lose-character having illicit relationshipwith several persons in the village and that there was a provocationgiven by the deceased to the accused prior to the occurrence and dueto which, the accused committed the offence, the offence of murder isnot made out and at best, the accused could only be convicted eitherunder 304 Part-I or Part-II I.P.C. The learned counsel producing theaffidavits of the parents-in-law of the appellant submits that theappellant/accused has already settled all his properties in the nameof his children and hence, some leniency can be shown in thesentence. 6.1. Per contra, Mr.N.R.Elango, learned Additional PublicProsecutor submits that the extra judicial confession cannot betermed as a tainted evidence inasmuch as it has been given by theaccused voluntarily within a short span of time to the VillageAdministrative Officer, who has no axe to grind against the accusedand in fact, there are other circumstances by way of corroboration tothe said confession and hence, it can be safely relied upon toconvict the accused.6.2. To the alternative submission, the learned AdditionalPublic Prosecutor submits that it cannot be said that the accused hadno premeditation at all nor it is in the heat of passion or in asudden fight to attract Exception 4 to Section 300 I.P.C., becauseeven as per Ex.P.1, after a wordy altercation between the accused andthe deceased centering the lose-character of the deceased, thequarrel got intensified and the accused waited for the deceased tofall into deep slumber and in the early hours, he took out thearuval, which he kept concealed underneath his pillow and caused her https://hcservices.ecourts.gov.in/hcservices/ instantaneous death. Therefore, there was sufficient time for theheat of passion to cool down and hence, the ingredients of Exception4 to Section 300 I.P.C. are not satisfied and therefore, the accusedwould not be entitled to this relief. 6.3. With regard to the plea to bring the offence underException 1 to Section 300 I.P.C., he submits that even Exception 1does not deserve any consideration because even though there was acause of provocation centering on the immoral character of thedeceased, looking at the conduct of the accused that he having keptconcealed the weapon of offence underneath his pillow and havingwaited for the deceased and the children to fall into sound sleep,there was sufficient time for the accused to calm down and plan andit cannot be contended that the accused while deprived of his powerof self-control due to such provocation, caused the death of thedeceased. The learned Additional Public Prosecutor therefore,emphasized that the conviction of the appellant/accused is well basedand no interference is called for.7. We have given our anxious consideration to the rivalsubmissions of both sides and also perused the entire materialsavailable on record.8. There can be no dispute that the deceased Jaya died onaccount of homicidal violence. The said fact stands establishedthrough the evidence of the doctor, P.W.12, who did post-mortem onthe dead body and the post-mortem certificate, Ex.P.18, to the effectthat the deceased died due to shock and hemorrhage on account of theinjury to major vessels.9. The main points for consideration are:(i) Whether Ex.P.1, the extra judicial confession givenby the accused to P.W.4, the Village Administrative Officer,can be relied upon for convicting the accused ?;(ii) Whether the prosecution has proved its case beyondall reasonable doubts ?; and (iii) Whether the nature of offence committed by theaccused attracts lesser punishment? 10. To prove the case against the accused, the prosecutionrelied upon Ex.P.1, the extra judicial confession given by theaccused as well as the evidence of P.Ws.1 to 6, of whom, exceptP.Ws.2, junior paternal uncle of the deceased and P.W.4, VillageAdminstrative Officer, to whom the accused confessed to his guilt,others have turned hostile. Before considering the evidence of thewitnesses, let us first take up the contention that since Ex.P.1, the https://hcservices.ecourts.gov.in/hcservices/ extra judicial confession is a weak piece of evidence, conviction forthe offence under Section 302 I.P.C. cannot be based upon suchconfession.11.1. The law on the point is well settled that on the basis ofthe extra judicial confession, conviction can be sustained, but onsatisfaction of three tests, viz.,"1.To whom the said extra judicial confession is made?;2.Whether the evidence of the person to whom the extrajudicial confession is made inspires the confidence ofthe Court?; and3.Whether the extra judicial confession is consistent with the prosecution case?11.2.That apart, the Apex Court in GURA SINGH -vs- STATE OFRAJASTHAN (2001 Supreme Court Cases (Crl.) 323), held thus:-".. the extra judicial confession, if true and voluntary,can be relied upon by the court to convict the accused forthe commission of the crime alleged. Despite inherentweakness of extra-judicial confession as an item ofevidence, it cannot be ignored when shown that suchconfession was made before a person who has no reason tostate falsely and to whom it is made in the circumstanceswhich tend to support the statement. The Supreme Courtfurther held that the evidence in the form of extra-judicialconfession made by the accused to witnesses cannot be alwaystermed to be a tainted evidence and corroboration of suchevidence is required only by way of abundant caution. TheSupreme Court further observed that if the court believesthe witness before whom the confession is made and issatisfied that the confession was true and voluntarily made,then the conviction can be founded on such evidence aloneand it is not open to the court trying the criminal case tostart with a presumption that extrajudicial confession isalways a weak type of evidence and it would depend on thenature of the circumstances, the time when the confession ismade and the credibility of the witnesses who speak for sucha confession. The Supreme Court further held that retractionof extra judicial confession which is a usual phenomenon incriminal cases by itself will not weaken the case of theprosecution based upon such a confession and an unambiguousextrajudicial confession possesses high probative valueforce as it emanates from the person who committed the crimeand is admissible in evidence provided it is free fromsuspicion and suggestion of any falsity." https://hcservices.ecourts.gov.in/hcservices/ The Supreme Court has further held that" .., before relying on the alleged confession, the Courthas to be satisfied that it is voluntary and is not theresult of inducement, threat or promise envisaged underSection 24 of the Evidence Act or was brought about insuspicion circumstances to circumvent Sections 25 and 26.The Court is required to look into the surroundingcircumstances to find out as to whether such confession isnot inspired by any improper or collateral consideration orcircumvention of law suggesting that it may not be true.All relevant circumstances such as the person to whom theconfession is made, the time and place of making it, thecircumstances in which it was made have to be scrutinised."11.3. The ratio laid down in the above decision has beenreiterated by the Apex Court in its subsequent decisions, viz. inState of Rajasthan v. Raja Ram (2003 SCC Crl. 1965) and in Sivakumarv. State [(2006) 1 SCC Crl. 470] and thus, the law is well settled onthe point.12. In the case on hand, the occurrence had taken place at about4.00 a.m. and the alleged extra judicial confession, Ex.P.1, wasgiven by the accused around 7.00 a.m. to P.W.4, VillageAdministrative Officer. In Ex.P.1, the accused has stated that hiswife was having illicit relationship with several persons in thevillage and in spite of his repeated requests and warning, thedeceased did not heed to such requests and retorted that since he didnot get any jewels or properties for her, she would continue withsuch relationships. Piqued at her reply, the accused thinking thatshe would never turn a good leaf, took an aruval, concealedunderneath his pillow and after the deceased and the children fellinto deep sleep, in the early hours, caused her instantaneous deathby cutting her neck twice. The accused has further stated in Ex.P.1that after committing the murder of his wife, he came out of thehouse and though initially thought to escape from the clutches oflaw, later decided to surrender before the Village AdministrativeOfficer instead of the police out of fear. On a careful scrutiny ofEx.P.1, we find that it is true and voluntarily given by the accusedand hence, cannot be termed as tainted evidence. That apart, thesubstance of Ex.P.1 stands corroborated by the evidence of P.W.4,Village Administrative Officer. According to P.W.4, around 7.00a.m., when he was in his office, the accused appeared before him andconfessed to him that due to his suspicion on the fidelity of hiswife, he murdered her by cutting her neck twice with an aruval. Thesaid statement of the accused was reduced into writing and P.W.4handed over the same to the police along with his report, on thebasis of which, the law was set in motion. On going through theevidence of P.W.4, we find no reason to disbelieve the same, as itcomes from the mouth of a witness who is totally unbiased and not https://hcservices.ecourts.gov.in/hcservices/ even remotely inimical to the accused. Moreover, no favourableanswer was elicited from the witness on the side of defence that hehas any axe to grind against the accused. The evidence of P.W.4 isclear, unambiguous and unmistakably convey that it was theappellant/accused who committed murder of his wife.13. As laid down by the Apex Court, as an abundant caution, letus see whether there is any other material available to corroboratethe extra judicial confession, Ex.P.1 and the evidence of P.W.4.Though the prosecution examined P.W.1, a neighbour and P.W.3,daughter of accused and deceased, to establish that it was theaccused who committed murder of his wife, they did not support theprosecution version and hence, they were treated hostile. However,on perusal of materials, we could see that the prosecution hasestablished the motive part of the occurrence through the evidence ofP.W.2, junior paternal uncle of the deceased. It is his evidencethat there was no love-lost between the accused and the deceased dueto the illicit relationship developed by the deceased with severalpersons in the village. He has further stated that some time priorto the occurrence, a quarrel ensued leading to the deceasedattempting to commit suicide by consuming sleeping pills and it washe and the accused, who took her to the hospital and saved her. Thispiece of evidence stands corroborated with Ex.P.1, the extra judicialconfession. As already stated and with the risk of repetition, theextra judicial confession was given by the accused voluntarily withina short span of time and the evidence of P.W.4, VillageAdministrative Officer, to whom it was given is also clear andreliable. Thus, we are very much convinced that the prosecution hasestablished its case against the accused that it was he, who murderedhis wife.14. The question that is to be decided is whether the offencecommitted by the accused can be brought under Exceptions 1 or 4 toSection 300 I.P.C. The Apex Court, in Sandhya Jadhav v. State ofMaharashtra, (2006) 4 SCC 653 noticed the distinction between Section300 Exception 1 and Section 300 Exception 4 and came to theconclusion that the Court is bound to consider a large number offactors for arriving at an opinion as to whether the fight was suddenor not and/or whether the deceased has taken undue advantage of thesituation in the following words: “9. The Fourth Exception to Section 300 IPC covers actsdone in a sudden fight. The said Exception deals with acase of prosecution not covered by the First Exception,after which its place would have been more appropriate. TheException is founded upon the same principle, for in boththere is absence of premeditation. But, while in the caseof Exception 1 there is total deprivation of self-control,in case of Exception 4, there is only that heat of passionwhich clouds men’s sober reasons and urges them to deeds https://hcservices.ecourts.gov.in/hcservices/ which they would not otherwise do. There is provocation inException 4 as in Exception 1; but the injury done is notthe direct consequence of that provocation. In factException 4 deals with cases in which notwithstanding thata blow may have been struck, or some provocation given inthe origin of the dispute or in whatever way the quarrelmay have originated, yet the subsequent conduct of bothparties puts them in respect of guilt upon equal footing. A‘sudden fight’ implies mutual provocation and blows on eachside. The homicide committed is then clearly not traceableto unilateral provocation, nor in such cases could thewhole blame be placed on one side. For if it were so, theException more appropriately applicable would be Exception1. There is no previous deliberation or determination tofight. A fight suddenly takes place, for which both partiesare more or less to be blamed. It may be that one of themstarts it, but if the other had not aggravated it by hisown conduct it would not have taken the serious turn itdid. There is then mutual provocation and aggravation, andit is difficult to apportion the share of blame whichattaches to each fighter. The help of Exception 4 can beinvoked if death is caused (a) without premeditation; (b)in a sudden fight; (c) without the offender having takenundue advantage or acted in a cruel or unusual manner; and(d) the fight must have been with the person killed. Tobring a case within Exception 4, all the ingredientsmentioned in it must be found. It is to be noted that the‘fight’ occurring in Exception 4 to Section 300 IPC is notdefined in IPC. It takes two to make a fight. Heat ofpassion requires that there must be no time for thepassions to cool down and in this case, the parties haveworked themselves into a fury on account of the verbalaltercation in the beginning. A fight is a combat betweentwo or more persons whether with or without weapons. It isnot possible to enunciate any general rule as to what shallbe deemed to be a sudden quarrel. It is a question of factand whether a quarrel is sudden or not must necessarilydepend upon the proved facts of each case. For theapplication of Exception 4, it is not sufficient to showthat there was a sudden quarrel and there was nopremeditation. It must further be shown that the offenderhas not taken undue advantage or acted in cruel or unusualmanner. The expression ‘undue advantage’ as used in theprovision means ‘unfair advantage’.”15.1. It is clear from the principle laid down by the Apex Courtin the decision cited supra that to invoke Exception 4 to Section 300I.P.C., four ingredients must be satisfied and they are: https://hcservices.ecourts.gov.in/hcservices/ (a)no premeditation; (b)in a sudden fight; (c)without the offender having taken undue advantageor acted in a cruel or unusual manner; and (d) the fight must have been with the person killed.15.2. In the case on hand, as per Ex.P.1, though there was aquarrel on the previous night between the accused and the deceased,the accused, after deciding himself that she should not be left alivebecause of her immoral character, took an aruval and concealed itunderneath his pillow and after having waited for the deceased andthe children to fall in deep slumber, in the early hours, woke up;held the head of the deceased with his left hand and inflicted twowild cuts on her neck. This shows the conduct of the accused thatafter having decided to finish her off, he pre-planned himself tocommit murder by using deadly weapon, viz., aruval and concealed it;there was ample of time for his passions to cool down and thereafter,he inflicted cuts over her neck with the aruval. Hence, we are fullyconvinced that Exception 4 cannot be applied in the present case, asthere was premeditation and the accused had taken undue advantage andacted in a cruel and unusual manner.16. Now, let us see whether Exception 1 to Section 300 I.P.C.can be invoked, for which there must be a grave and suddenprovocation. The undisputed facts as evident from the evidence ofwitnesses and Ex.P.1, the extra judicial confession are:(i)there were quarrels centering on the immoralcharacter of the deceased and the accused was repeatedlymaking requests not to indulge in such immoral acts;(ii)on the earlier occasion, on account of suchquarrel, the deceased consumed sleeping pills and it was theaccused, who took her to hospital and saved her;(iii)on the fateful day also, there was a quarrel andduring such quarrel, the deceased provoked the accused bysaying that since the accused did not get any jewels orproperties in her name, she would continue indulging in suchimmoral acts;(iv) so saying, the deceased justified her immoral wayof life; and(v) in view of such immediate provocation as well asdue to sustained provocation, the accused caused her deathby inflicting such bodily injury which is likely to causedeath. https://hcservices.ecourts.gov.in/hcservices/ From the above, an inference could easily be drawn that there was aburning uncontrolled provocation in the mind of the accused becauseof the justification made by the deceased that she would continue todo such acts. It may not possible for any prudent man to cool downfrom such passions and hence, we are of the confirmed opinion thatthe accused is entitled to get Exception 1 to Section 300 I.P.C. Itis also clear from the factual scenerio that the accused had a clearintention to cause the death of the deceased by inflicting suchbodily injury which is likely to cause death, and hence, he could beconvicted only under Section 304 Part-I I.P.C. Accordingly, theconviction of the appellant/accused under Section 302 I.P.C. ismodified to Section 304 Part-I I.P.C.17. Insofar as the sentence of imprisonment is concerned,considering the paramount interest of three tender children, aged 9,8 and 2 ½ years at the time of occurrence, and also taking note ofthe affidavits filed by the parents-in-law of the appellant/accusedto the effect that the appellant/accused has already settled all hisproperties in the name of his children, we are of the opinion thatsentence of five years rirorous imprisonment would meet the ends ofjustice.18. In result,(i)the conviction of the appellant/accusedunder Section302 I.P.C. stands modified toSection 304 Part-I I.P.C.;(ii)for the said conviction, theappellant/accused issentenced to five years rigorous imprisonment:(iii)As the appellant/accused is reported to beon bail;the bail bonds shall standcancelled and the learnedSessions Judgeshall take steps to commit him to jail himto undergo the remaining period ofsentence;(iv)the affidavit filed by the parents-in-law shallform part of the records; and(v) the appeal is partly allowed.sd/-Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sraTo1. The Additional Sessions Judge, Dharmapuri.2. -do- Thro' The Principal Sessions Judge, Dharmapuri.3. The Chief Judicial Magistrate, Dharmapuri at Krishnagiri.4. The District Collector, Dharmapuri.5. The Director General of Police, Chennai.6. The Inspector of Police, Krishnapuram.7. The Superintendent, Central Prison, Vellore.8. The Public Prosecutor, High Court, Madras.Crl.A.No.103 of 2006rs [co]gkg/21.5