Gowran v. The State rep. By Inspector of Police, Kalavai Police Station, (Crime No.478/2007)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.11.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.50 of 2009Gowran.. Appellant/AccusedVs.The State rep. ByInspector of Police,Kalavai Police Station,(Crime No.478/2007).. Respondent/ComplainantThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional District and SessionsJudge at Krishnagiri made in S.C.No.190 of 2007 dated 29.9.2008.For Appellant : Mr.N.Doraisami for Mr.Y.Deva Arul PrakashFor Respondent : Mr.Babu Muthu Meeran, APPJ U D G M E N T(The judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional SessionsDivision, Krishnagiri in S.C.No.190 of 2007 whereby the soleaccused/appellant stood charged under Sections 302, 307 and 309I.P.C. and on trial, he was found guilty of all the three charges andawarded the punishment of life imprisonment, 10 years rigorousimprisonment and one year simple imprisonment respectively along withfine and default sentences.2. The short facts necessary for the disposal of this appeal canbe stated thus:(a) P.W.1 is the sister of the deceased Jeyanthi. During therelevant time, she was staying along with the accused and the https://hcservices.ecourts.gov.in/hcservices/ deceased. 12 years prior to the occurrence, the accused/appellant metwith an accident and he claimed compensation and it was awarded. Outof the amount received, he deposited a sum of Rs.40,000/- in the nameof his wife the deceased Jeyanthi and thereafter, he often demandedher to withdraw the said amount and give it to him but she refusedto do so. On account of the same, the accused often quarrelled withhis wife/deceased. On 5.12.2006 at 5.00 a.m., there was a quarrelbetween the accused and the deceased. At that time, P.W.1 was in thehouse along with the deceased and the accused. The accused demandfor the deposit amount to which course, the deceased was notamenable. Immediately, the accused took a bill hook and cut her ondifferent parts of her body and severed her head. It was witnessed byP.W.1 and the accused strangulated his child Sathyapriya aged 8 1/2years who was sleeping nearby. On seeing the same, P.W.1 raised alarmand on hearing the cry, P.W.2 neighbour ran inside the house and hewas informed about the occurrence. When the crowd gathered, theaccused attempt to commit suicide by cutting himself with bill hook.Thereafter, he ran away from the place of occurrence. (b) The 8 ½ years old child Sathyapriya was taken to KallaviGovernment Hospital and thereafter to Krishnagiri Government Hospitalfor treatment. The doctor attached to the Government HospitalKrishnagiri gave treatment to the child and the accident registercopy was marked as Ex.P.10. P.W.2 took P.W.1 to Kallavi PoliceStation where P.W.11 was the Inspector of Police to whom she gaveEx.P1 report, on the strength of which, a case came to be registeredin Crime No.478/2008 under section 302 and 307 I.P.C. The F.I.R.,Ex.P.15 was dispatched to Court.(c) On receipt of a copy of the F.I.R. P.W.13 the CircleInspector at Bargur took up investigation. He proceeded to the spot,made an inspection and prepared an Observation Mahazar, Ex.P3 in thepresence of witnesses and panchayatdars and also drew a rough sketchEx.P.19. He conducted inquest on the dead body of the deceasedJeyanthi and prepared the Inquest report Ex.P.20. Thereafter, thedead body was sent for post mortem.(d) P.W.9 doctor attached to the Government Hospital,Uthangarai, Krishnagiri District, on receipt of the requisition fromthe Investigating Officer conducted autopsy on the deceased Jeyanthiand issued Ex.P13 post mortem certificate wherein he has opined that"the deceased would appear to have died of Haemorrhage and shock dueto injury to blood vessels of neck nerves and spinal cord. 8-10 hoursprior to autposy." (e) Further, pending investigation, on 5.12.2006 at 11.00 a.m,when P.W.4 Village Administrative Officer was in his office, theaccused appeared before him and gave confessional statement as to theentire occurrence. The statement given by the accused was recorded byP.W.4 in Ex.P.5. P.W.4 took the accused to the Police station and https://hcservices.ecourts.gov.in/hcservices/ handed over the accused along with his report Ex.P.6 and theconfessional statement given by the accused to the InvestigatingOfficer. Thereafter, the accused gave confessional statement to thePolice and the same was recorded by the Investigating officer. Theadmissible part of the confessional statement given by the accusedwas marked as Ex.P7. Pursuant to which, the accused produced M.O.4,pant M.O.5, shirt and M.O.6,vest which were recovered under a coverof mahazar, Ex.P.9. He also produced M.O.3 bill hook which wasrecovered under a cover of mahazar Ex.P8. All the material objectsrecovered from the place of occurrence, from the dead body of thedeceased and the material objects recovered from the accused,pursuant to the confessional statement were subjected to analysis bythe Forensic Science Department pursuant to the requisition made bythe concerned Court. (f) The accused was taken to the Government where he was giventreatment by the doctor,P.W.9 and he has given statement that hesustained injuries by hurting himself. The accident register copywas marked as Ex.P.11 and the accused was sent for judicial remand.On completion of the investigation, the investigating officer filed afinal report.(g) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 13 witnesses and reliedon 22 exhibits and 14 material objects. On completion of the evidenceon the side of the prosecution, the accused was questioned undersection 313 Cr.P.C. as to the incriminating circumstances found inthe prosecution witnesses and he denied them as false. No defencewitnesses were examined. On hearing the arguments advanced on eitherside, the trial Court found the accused guilty of three charges andawarded the punishments as referred to above. Hence, this appeal atthe instance of the appellant.3. Advancing the arguments on behalf of the appellant, thelearned counsel would submit, in the instant case, the only one eyewitness examined on the side of the prosecution was P.W.1. At thetime of occurrence, P.W.1 was only 15 years old and she was a schoolgoing child. P.W.1 has categorically stated that on the date ofoccurrence, in the police station, her signature was obtained inblank papers. Hence, it should have been filled up to suit theprosecution case. Added further learned counsel, P.W.1 was a childwitness, therefore, it has to be carefully scrutinised. All thecircumstances attendant have got to be looked into. The trial Courtshould have disbelieved the evidence of P.W.1 since the occurrencehas taken place in the morning hours and naturally P.W.1 would havebeen sleeping. Baring the evidence of P.W.1, the prosecution has nofurther evidence to offer. The extra-judicial confession alleged tohave been given by the accused to P.W.4 Village AdministrativeOfficer was nothing but cook up affair in order to strengthen the https://hcservices.ecourts.gov.in/hcservices/ prosecution case. Further, the alleged confessional statement and therecovery were all created by the police. Thus, the evidence ofthese witnesses should not be given much credence or anyevidentiary value. Under such circumstances, the prosecution hasmiserably failed to prove its case beyond reasonable doubt.4. The learned counsel for the appellant, as the second line ofargument would submit that even assuming the factual positionputforth by the prosecution is said to have been taken as proved,the act of the accused would not attract the penal provision ofmurder for two reasons. Firstly, the amount which was actuallydeposited with the Bank originally belonged to the accused/appellantand it was deposited in the name of his wife, the deceased. There waslong standing demand for return of the same. Even on the date ofoccurrence, he made a demand for which she refused. Therefore, in aheat of passion, he has committed the act. Secondly, he entertainedsuspicion over her fidelity which was also spoken to by the accusedand recorded by the Police officer in the course of the confessionalstatement given by the accused. Under such circumstances, it was dueto sustained provocation, sudden quarrel and heat of passion, hehas acted so. Hence, the act of the accused cannot be termed asmurder. Under such circumstances, it has got to be looked into bythis Court.5. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.6. It is not in controversy that one Jeyanti wife of theappellant met her end at 5.00 a.m. on 5.12.2006 in her house.Following the inquest made by P.W.13, investigating officer, the deadbody was subjected to post mortem. P.W.9, doctor attached to theGovernment Hospital,Krishnagiri conducted autopsy on the dead body ofthe deceased and he has deposed before the Court and also gaveopinion through the post mortem certificate, Ex.P.13 that "thedeceased would appear to have died of Haemorrhage and shock due toinjury to blood vessels of neck nerves and spinal cord. 8-10 hoursprior to autposy" and he has stated that the head of the deceased wasfound severed. Apart from that, the cause of death as put forth bythe prosecution was never disputed by the appellant before the trialCourt and hence, no impediment is felt by this Court in recording thefinding that the deceased died out of homicidal violence as recordedby the trial Court.7. In order to substantiate the act of the accused that it washe who attacked his wife with bill hook and caused her deathinstantaneously, attempted to commit murder by strangulating hischild Sathyapriya and further attempted to commit suicide, theprosecution had rested its entire case on the eye witness of P.W.1.It is well settled principle of law that the evidence of child https://hcservices.ecourts.gov.in/hcservices/ witness when happens to be a singular evidence, the Court must applycareful scrutiny test, apart from looking for other corroboratedpiece of evidence. In the instant case, the trial Court has testedthe maturity of the child by recording questions and answers andfound her matured. Thereafter, the evidence of P.W.1 was recorded.8. Though P.W.1 was 15 years old, when her evidence waslooked into, it was found cogent and it inspired the confidence ofthe Court. According to P.W.1, she is the sister of the deceased andduring the relevant she was doing 8th standard; that the accused wasvery affectionate towards his sister/deceased and the amount which hereceived in the motor accident case was deposited in the Bank in thename of his wife/deceased; that thereafter, there was quarrelbetween them and the accused asked her to withdraw the amount whichwas deposited in her name to which, she was not amenable; that onthe date of occurrence, at 5.00 a.m., when she woke up, she saw theaccused demanding money from her sister to which she refused; thatthe accused took a billhook and cut her indiscriminately and severedher head; that he further strangulated his child Sathyapriya, aged 8½ years old and thereafter, it was P.W.1 who raised alarm and theneighbours gathered there.9. It is true that the accused attempt to commit suicide bycutting himself with the bill hook. Despite cross examination infull, the evidence of P.W.1 remains unskaky. The only contentionputforth by the learned counsel for the appellant is that P.W.1 hasdeposed that she had put her signature in blank paper. At thisjuncture, the evidence of P.W.2 has got to be looked into. It wasP.W.2 who took P.W.1 to the Police Station. P.W.2 has categoricallystated that the statement was given by P.W.1 and recorded by the Sub-Inspector of Police and only thereafter P.W.2 has signed in the sameas a witness thereto. The evidence of P.W.2 is cogent and natural,hence, the same has got to be accepted. Therefore, the abovecontention of the learned counsel for the appellant has got to berejected.10. So far as the evidence of P.W.1 is concerned, her evidencecorroborates with the medical evidence also. P.W.9 doctor conductedpost mortem on the deceased Jeyanthi and he has categorically deposedthat the injuries found in the body could have been caused by M.O.3,bill hook.11. Yet another circumstances which stood against the accusedwas the recovery of M.O.3 bill hook, M.O.4 pant M.O.5 shirt andM.O.6.,vest. They were found to contain blood stains. It ispertinent to point out that on the very day at 11.00 a.m. the accusedappeared before P.W.4,V.A.O and gave confessional statement andafter recording the confessional statement which was marked as Ex.P5,P.W.4 took him to the Police station. Regarding the confessionalstatement given by the accused, P.W.4 has given evidence. In a given https://hcservices.ecourts.gov.in/hcservices/ case, even the extra judicial confession would be suffice to sustainthe conviction but before accepting the extra judicial confession,the Court must apply two tests viz.,(i) To whom and under whatcircumstances the extra judicial confession was given? (ii) Whetherthe evidence of the person to whom the extra judicial confession wasgiven inspires the confidence of the Court. P.W.4 was an Officer towhom the accused has given the extra judicial confession. Theconfessional statement was given at 11.00 a.m and the occurrence hastaken place at 5.00 a.m. Within a short span of five hours, theaccused has given the extra judicial confession. The evidence ofP.W.4 was acceptable, since it was natural. 12. Added circumstances is the recovery of the blood stainedmaterial objects produced by the accused, following the confessionalstatement given by him, which would also indicate the nexus betweenthe accused and the crime. All put together would point to the guiltof the accused. Therefore, the Court is of the considered opinionthat the prosecution has proved its case that it was the accused whohas caused the death of his wife, attempted to kill his childSathyapriya, aged 8 1/2 years by strangulating her and alsoattempted to commit suicide.13. Insofar as the second line of argument that the accused hadsustained provocation since his wife refused to give back his moneywhich he deposited in his wife's name and he also entertainedsuspicion over her fidelity, therefore, the act of the accused wouldnot come under the provision of murder but culpable homicide notamounting to murder is concerned, the Court has to necessarily rejectthe same. The accused and the deceased were actually livingtogether. The accused received compensation in a motor accident caseand it is also an admitted position that he deposited Rs.40,000/- inthe name of his wife but at the same time, there was demand forwithdrawal of the amount all along the period for which the deceasedrefused. The accused was a drunkard and they are having a child,aged8 ½ years. Hence, quite naturally she felt that if she withdraw theamount and give it to him, he would spend it for his illegalactivities. Under such circumstances, in order to avoid the same,she has refused to withdraw the amount from the Bank. 14. It is pertinent to point out that the occurrence had takenplace at 5.00 a.m. i.e., early morning. When the deceased Jeyanthiwoke up, the accused had demanded money, for which, the deceasedrefused. The accused had taken a billhook and caused a heinous crimeof severing her head. The Court is unable to notice any quarrel orprovocation preceding the occurrence, for the accused to do so.According to the learned counsel, the accused was having sustainedprovocation and in the confessional statement given to theInvestigating officer he has stated that he suspected the conductof his wife. Mere suspicion, which he entertained, was only animpression created by him without any material whatsoever. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, that material cannot be given any credence to bringdown the act of the accused from murder. The accused has done aheinous crime of severing the head of his wife. The abovecircumstances, can be termed only as murder. He has strangulated his8 1/2 years old child who was examined by P.W.9 doctor which wasalso witnessed by P.W.1. The injuries found therein would show thathe attempted to commit murder of his child. In that regard, thetrial Court has correctly found him guilty under section 307 ofI.P.C. In so far as the attempt of committing suicide was concerned,it was also proved by necessary medical evidence. The doctor hadrecorded the statement of the accused in Ex.P.11 Accident registerwherein he has stated that the injuries are self made. All would goto show that the prosecution has proved it case beyond reasonable. 15. Under such circumstances, the Court is of the consideredopinion that the judgment of the trial Court so far as the convictionand sentence under section 302 IPC, the same hase got to beconfirmed. Insofar as the sentence of 10 years rigorous imprisonmentfor the offence under section 307 IPC is concerned, it has got to bereduced to 7 years rigorous imprisonment and insofar as the sentenceof one year simple imprisonment for the offence under section 309 IPCis concerned, it has got to be reduced to one month simpleimprisonment. Accordingly, the conviction under sections 302, 307 and309 I.P.C is confirmed. Coming to the question of sentence, thesentence awarded by the trial Court under Section 302 IPC isconfirmed; the sentence of 10 years rigorous imprisonment awarded bythe trial court under section 307 is reduced to 7 years rigorousimprisonment and the sentence of one year simple imprisonment awardedby the trial Court under section 309 I.P.C. is reduced to one monthsimple imprisonment. The sentences are ordered to run concurrently.The fine amount and the default sentence imposed by the trial Courtwill hold good. 16. With the above modification in sentence, the appeal isdismissed. vsi Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. The Additional District and Sessions Judge at Krishnagiri https://hcservices.ecourts.gov.in/hcservices/

2. -do- Through the Principal Sessions Judge, Krishnagiri.3. The District Munsif-cum- Judicial Magistrate, Uthangarai. 4. -do- Through The Chief Judicial Magistrate, Krishnagiri.5. The Inspector of Police, Kalavai Police Station.6. The Superintendent, Cnetral Prison, Salem.7. The District Collector, Krishnagiri.8. The Director General of Police, Mylapore, Chennai-4.9. The Public Prosecutor, High Court, Chennai.Copy to the Section Officer, Criminal Section, High Court, Madras.+ 1 cc to Mr. Y. Deva Arul Prakash, Advocate SR.39505.CRL. APPEAL No.50 of 2009CK(CO)EU 23.11.2009.