Murugan v. The State of Tamil Nadu, rep. By Inspector of Police, Marandahalli Police Station, Dharmapuri District

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 13.03.2008Coram:-The Hon'ble Mr. Justice P.D.DINAKARANandThe Hon'ble Mr. Justice R.REGUPATHICriminal Appeal No.434 of 2007Murugan... Appellantvs.The State of Tamil Nadu,rep. By Inspector of Police,Marandahalli Police Station,Dharmapuri District.... RespondentAppeal against the Judgment, dated 09.04.2007, passed by AdditionalSessions Judge, Fast Track Court, Dharmapuri, in Sessions Case No.191of 2006.For Appellant: Mr.R.SelvakumarFor Respondent: Mr.N.R.Elango, Additional Public Prosecutor.J U D G M E N T (Delivered by R.REGUPATHI, J.)In a double murder case for having murdered his wife and firstdaughter, the appellant/sole accused faced trial in S.C. No.191 of2006 on the file of the Additional Sessions and Fast Track Court,Dharmapuri. By Judgment, dated 09.04.2007, passed by the trialcourt, he was convicted for the offence punishable under Section 302IPC (2 counts) and sentenced to undergo life imprisonment for eachcount and to pay a fine of Rs.1,000/- under each count. He was alsoconvicted under Section 302 read with 201 IPC. and sentenced toundergo R.I. for five years and to pay a fine of Rs.1,000/-. Thesentences were ordered to run concurrently. He was directed to pay asum of Rs.50,000/- as compensation to PW-1 for the maintenance of hisdaughters. Aggrieved against the order passed by the trial court,the appellant has preferred the present Criminal Appeal. https://hcservices.ecourts.gov.in/hcservices/

2. The appellant/accused and the first deceased LakshmiSaraswathi (referred in this Judgment as D1) are husband and wife,and the second deceased Keerthana (referred as D2) is their firstdaughter. PW-2 Lokeshwari is their second daughter. On 08.03.2004 at about 8.30 P.M., on account of a quarrelbetween the accused and D1, when she questioned the accused about hisillicit relationship with several girls, the accused, with anintention to cause the death of D1, slapped her, as a result ofwhich, she fell down unconscious and thereafter, he hanged her to theceiling fan in the bed room with a 'salvai' till her death; thereby,charge under Section 302 IPC. was framed.During the course of the same transaction, the accused, fearingthat his act would be divulged by D2, who witnessed the murder of hermother, throttled her neck with a towel, resulting in her death;thereby, charge under Section 302 IPC. (second count) came to beframed.Thereafter, he shifted the bead bodies to the residence of hisparents at Mallapuram with a view to screen the offence; thereby,charge under Section 302 read with 201 IPC. was framed.When the accused was initially questioned, he pleaded innocenceand therefore, trial of the case was taken up.The prosecution, in its endeavour to bring home the guilt of theaccused, examined PWs-1 to 13, marked Exs.P1 to P24 and producedMOs.1 to 7. The defence did not examine any witness, however, markedan attested xerox copy of the post-mortem certificate as Ex.D1.3. The case of the prosecution, in short, as unfurled by itswitnesses, runs thus:-a) PW-1 is the mother of D1. According to her, D1 was marriedto the accused and they had three female children, of whom, the firsttwo daughters were residing with the accused and the third daughteris brought up by her. The accused was running a type-writinginstitute and he often troubled D1 demanding dowry and there used tobe frequent quarrels as the accused had affair with several women.Though initially dowry was given by way of jewels, the accused soldout the same and demanded further money. In such circumstances, on08.03.2004, PW-1 received a message from a neighbour that D1committed suicide along with D2, whereupon, she went to the residenceof the accused along with PW-3/her son and finding that the accusedalready took the bodies to the residence of his parents, proceededthere and found the bodies laid at the Verandah. Though the father ofthe accused was present, the accused was not there. PW-2, the seconddaughter of the accused was present there and on enquiry by PW-1, she https://hcservices.ecourts.gov.in/hcservices/ stated that there was a quarrel in the evening between the accusedand D1, in which, the accused caused the death of D1 by throttlingher neck with a cloth piece and when D2 intervened, she was also doneto death in the same fashion. PW-2 also told PW-1 that she wasthreatened by the accused not to divulge the same to anybody and wasspared by him when she promised that she would not reveal his act.As it was very late by then, PW-1 lodged a complaint under Ex.P1 withpolice on the next day. b) PW-2 is the second daughter of the accused. While tenderingevidence before court, she was aged about 8. After ascertaining thecapacity/competency of the child witness to testify, her evidence wasrecorded by the trial court. She deposed that, after returning to theresidence from school, she witnessed the quarrel between the accusedand her mother/D1 and at that time, D2 was also present there. Shestated that the accused strangulated D1 and thereafter, did the samething with D2, who attempted to make a phone call. She furtherstated that when the accused came to assault her, she hid herselfbehind a bureau and thereafter, the accused brought an auto-rickshawand shifted the bodies to his parents' residence at Mallapuram, wherePWs-1 & 3 came and she informed PW-1 that the accused caused thedeath of her mother and sister. She also stated that at the timewhen PWs-1 and 3 came to Mallapuram, her father viz., the accused,was not present there. c) PW-3 is the brother of D1 and son of PW-1. He hascorroborated the evidence of PW-1.d) PW-4 is the owner of the house in which the accused wasliving with his family. She has stated that on 08.03.2004, on hearingnoise, she came out and found an auto-rickshaw, in which, the accusedwas shifting the dead bodies of the deceased and when it wasquestioned by her grandson, the accused quarrelled with him. e) PW-5 is the driver of the auto-rickshaw that was hired by theaccused to shift the dead bodies. He has stated that he was engagedby the accused on payment of Rs.700 for shifting the bodies of D1 andD2 from the residence of the accused to that of his parents. f) PW-6 is the attesting witness for preparation of theobservation mahazar/Ex.P2.g) PW-12 is the Sub Inspector of Police. On receipt of Ex.P1complaint given by PW-1 on 09.03.2004 at 9 A.M., he registered a casein Crime No.103 of 2004 for offences punishable under Sections 302and 201 IPC., prepared Ex.P20 printed F.I.R. and sent copies thereofto the court and his superiors. https://hcservices.ecourts.gov.in/hcservices/ h) PW-13, the Inspector of Police, on receiving information,reached the place where the dead bodies were laid, examined PWs-1 to3, prepared Observation Mahazar Ex.P2, attested by PW-6, and roughsketch Ex.P21, and conducted inquest over the dead bodies in thepresence of witnesses, and Exs.P-22 and P-23 are the inquest reports.Thereafter, the dead body of D1 was entrusted with PW-10 and that ofthe D2 with PW-11 for taking the same to the Hospital for autopsy. i) PW-8 is the Medical Officer, who conducted post mortem on09.03.2004 over the dead bodies of the deceased. Ex.P7 is the postmortem certificate issued in respect of D1 and in the saidCertificate, the following injuries have been noticed," 1. A contusion over the right side of the neckhorizontally below the mandible 10x4cm. 2. A contusion over the back of the neck 15x4 cm. 3. Abrasion over the right elbow 5 cm.x3cm. On dissection of injury No.1 & 2, extravasation ofblood in subcutaneous tissues present. "Ex.P10 is the post mortem certificate issued in respect of D2wherein, the Medical Officer noticed the following injuries:-" 1.Horizontal contusion over the front & sides ofthe neck over the thyroid cartilage of about 15 cm x 3 m.Abrasion over the left knee about 3 cm. X 3 cm. "The viscera of both the deceased were sent for chemical examinationand after receiving the reports, the Doctor opined that both D1 andD2 would appear to have died of asphyxia as a result ofstrangulation. j) The Inspector of Police arrested the accused on 10.03.2004 at11 A.M. in the presence of PW-7 and after recording voluntarystatement of the accused, proceeded to the place where the accusedwas residing and prepared observation mahazar Ex.P24. At theinstance of the accused, MOs-1 to 3, towels and shawl, were recoveredunder a cover of mahazar. Thereafter, the accused was remanded tojudicial custody. On conclusion of the post-mortem examination, theclothings of both the deceased were recovered under Form-95 and thesame were despatched to the court with a requisition to forward thesame for chemical examination. k) PW-9 is the court clerk, who has stated that, on receipt ofEx.P12 requisition, hyoid bones of the deceased were sent forchemical analysis along with the letter of the Magistrate underEx.P13. Exs.P14 and P15 are the Bone Case Reports received withreference to D1 and D2 respectively.l) After examination of the witnesses and receipt of medical andforensic reports and on conclusion of the investigation, theInspector of Police filed final report against the accused on https://hcservices.ecourts.gov.in/hcservices/

31.05.2004 for offences punishable under Sections 302 (2 counts) and302 read with 201 IPC. 4) When the accused was questioned under Section 313 Cr.P.C.regarding the incriminating materials adduced on the side of theprosecution, he pleaded innocence and filed a written statement,wherein, it has been stated that his wife, after killing her firstdaughter, committed suicide and that on earlier occasions also, sheattempted for suicide. A xerox copy of the post-mortem certificate(Ex.P.7) was marked as Ex.D1. The learned trial Judge, after hearingthe arguments of both sides and on perusing the oral and documentaryevidence, passed the order of conviction and sentence asaforementioned. 5. Learned counsel for the petitioner submits that PW-2, citedby the prosecution as eye witness, is none else than the daughter ofthe accused. At the time when she was examined, she was 8 year oldand 5 year at the time of occurrence. After the occurrence, she wentto the care and custody of PW-1, therefore, there is a strongpresumption that she has been tutored by PW-1 to depose against theaccused. That being so, her evidence cannot be accepted and actedupon. It is the case of the accused that his wife committed suicideand if Ex.D1, xerox copy of the post-mortem certificate, is accepted,it will substantiate his case. The occurrence took place on08.03.2004 and the complaint was given on the next day at 9 A.M. Itis admitted by PW-1 that even before the complaint was given by PW-1,the police came to the scene of occurrence by 6 A.M. and it is thecase of the defence that it is only the accused, who divulged theinformation to the police. It is also admitted that the accused waskept in the next house locked, for production before police; in suchcircumstances, it is contended that the complaint came to beregistered at 9 A.M. at the instance of PW-1 cannot be taken asF.I.R. and that the arrest on the subsequent day and recovery must bedisbelieved. Referring to Ex.D1/post-mortem certificate, it is submittedthat the word 'horizontally' has been interpolated in Ex.P7 apartfrom adding a sentence, which reads as follows:-" On dissection of injury No.1 & 2, extravasation ofblood in sub cutaneous tissues present. ".According to the learned counsel, both these aspects are not presentin Ex.D1 which is the copy of Ex.P7; thus, it is clear that there isan apparent fabrication of records on the side of the prosecution. Insuch circumstances, the case put forth by the appellant/accused mustbe believed. By stating that in Ex.P7, it is mentioned 'Hyoid bonefractured', whereas, in the Bone Case Report under Ex.P8, it is noted'hyoid bone - in tact', learned counsel would argue that the saidaspect would falsify the prosecution version of murder and probablisethe theory of suicide as put forth by the defence. https://hcservices.ecourts.gov.in/hcservices/ At the time when the accused was questioned under Section 313Cr.P.C., a written statement was given wherein it has beenemphatically stated by the accused that his wife committed suicideafter killing D2. Along with the written statement, a letter said tohave been written by the deceased, has also been attached, wherein,it has been stated that D1 had taken sleeping pills to commit suicideand also administered the same to her daughters. By stating that thesaid letter is in the handwriting of the deceased, learned counselsubmitted that it is a case of suicide and a false case has beenfoisted on the accused.It is further submitted that PW-2, a child witness, is nottrustworthy and sufficient corroboration is not available. He reliedon the decisions reported in 2005 SCC (Cri) 166 (Orsu Venkat Rao v.State of A.P.), 2003 (1) Supreme 698 (Bhagwan Singh @ Others v. Stateof M.P.), AIR 1994 SC 1068 (Arbind Singh v. State of Bihar), AIR1994 SC 454 (Chhagan Dame v. State of Gujarat), 1993 Supp (1) SCC 510and 1978 (4) SCC 371 (Ganesh Bhavan Patel v. State of Maharashtra),in support of his contention that the child/PW2, being a highlyinterested witness, the amenability to tutoring of a girl of suchtender age by PW-1, cannot be ruled out. 6. Per contra, learned Additional Public Prosecutor submitsthat, on perusal of the evidence of PW-2, it will be quite apparentthat her evidence is trustworthy. She has even withstood the rigourof cross examination and stated in her evidence positively that it isthe appellant, who had committed the murder of both the deceased.She has further stated that the appellant threatened her not toinform PW-1 as to what she had witnessed. Relying on the decisionsreported in 2004 SCC (Cri) 7 (Ratansingh Dalsukhbhai Nayak v. Stateof Gujarat) and 2003 SCC (cri) 561 (State of Karnataka v. Shariff),he submitted that the evidence of a child witness and credibilitythereof would depend upon the circumstances of each case and in thepresent case, the evidence of PW-2 is quite natural, cogent,convincing and trustworthy. It is the case of the prosecution thatthe accused, after shifting the dead bodies of the deceased to theresidence of his parents, absconded and was arrested onlysubsequently. The occurrence took place inside the residence of theaccused wherein no one was living except the accused, D-1 and theirchildren D-2 and PW-2. The evidence of PW-5/owner of the housewherein the family was residing and that of PW-6, the driver of theauto rickshaw, will sufficiently substantiate that both the deceasedwere dead even at the time when they were shifted from the residenceof the accused. In all probability, if really the wife of theaccused had committed suicide by hanging on her own after killing D2,the accused would have immediately informed the same to the policewithout even shifting the dead bodies; on the contrary, he carriedthe dead bodies to the residence of his parents by travelling throughthe place where the police station is situated. The case of the https://hcservices.ecourts.gov.in/hcservices/ appellant is that his wife was alive and only for the purpose oftaking her to the hospital, he engaged the auto-rickshaw of PW-5,however, the emphatic evidence of PW-5/Auto driver is that thedeceased were dead even at the time they were removed from theresidence of the accused. The case projected by the appellant istotally contrary to what has been stated in the written statement ofthe accused viz., his wife, after killing her first daughter, hadcommitted suicide; therefore, he himself had stated that both thedeceased were already dead. EX.D1 cannot be looked into in view ofthe reason that it is only a xerox copy. Though it is stated thatattestation of PW8 has been obtained therein, it is the evidence ofPW-8 that such attestation has been given by her since she wasconvicted that her signature was found in the xerox copy. No suchinterpolation as put forward by the defence is available. Though onperusal of Ex.P8, the original post mortem certificate, it may appearthat those aspects have been written specifically, it would in no wayalter the nature of the certificate and the case of the prosecution.Through the testimonies of PWs-1 and 2, the prosecution hassubstantiated its case beyond reasonable doubt. Their evidence hasbeen sufficiently corroborated through other materials includingmedical evidence. The letter alleged to have been written by D1,produced by the accused along with his written statement, isunbelievable. If such a letter was available at the inception, thesame would have been produced during the course of investigation orat least would have been put to PWs-1 and 2 when they were examinedbefore court. The veracity of the same and the handwriting thereinhaving not been established, the said letter has to be simplyignored. Thus, according to the learned Additional Public Prosecutor,the prosecution has established its case beyond all reasonabledoubts. 7. We have carefully gone through the materials available beforeus having regard to the rival contentions projected on either side. 8. The prosecution case rests mainly on the evidence of PW-2, achild witness. Therefore, it is pertinent to proceed further afterassessing the quality/credibility of her evidence. Section 118 ofthe Evidence Act seeks to exclude the evidence of those who maysuffer from intellectual weakness and therefore, in terms of the saidprovision, all persons shall be competent to testify unless by reasonof tender years, the court considers that they are incapable ofunderstanding the questions put to them and of giving rationalanswers. Undoubtedly, it is for the trial Judge to satisfy himself asregards fulfilment of the requirements of the said provision.Admittedly, it is not the case of the appellant herein that the trialcourt had failed to comply with the statutory obligations in thisbehalf. A child indisputably is competent to testify if he/sheunderstands the questions put to him/her and gives rational answersthereto. PW-2 was not found by the trial court to be suffering fromany intellectual incapacity to understand the questions and give https://hcservices.ecourts.gov.in/hcservices/ rational answers. If after careful scrutiny of the evidence of thechild witness, the court comes to the conclusion that there is animpress of truth in it, there is no obstacle in the way of acceptingsuch evidence and acting on the same. On gauging the evidence of PW-2and the reasons given by the trial court to accept her testimony, wedo not find any substance in the argument of the learned counsel forthe appellant to discard her testimony on the flimsy ground that shemight have been tutored by PW-1. The mere fact that PW-2 was asked byPW-1 to tell about the occurrence or that PW-2 was taken care of byPW-1 after the death of D1 can, at no stretch of imagination, be areason to jump to a conclusion that she yielded to tutoring anddeposed accordingly. Learned counsel for the appellant took muchpains to impeach her evidence by pointing out certain triflingdiscrepancies which are of very minor nature and in no way affect thecredibility of the prosecution version. 9. Admittedly, the occurrence took place inside the residence ofthe accused and no one lived therein except the accused, D-1, D-2 andPW-2. PW-2 emphatically stated that it was the appellant whocommitted the murder of D-1 by throttling her neck with a cloth pieceand that D-2 was also done to death in the same fashion as sheattempted to make a phone call. According to her, she hid herselfbehind a bureau when the accused tried to assault her. Thenarration given by PW-2 is quite natural, impressive and trustworthy.The other sequences narrated through PW-1 corroborate her testimony.On perusal of the evidence of PW-1, it is seen that there used to befrequent quarrels between the accused and D1 as the accused hadillicit relationship with several girls and was frequently demandingdowry. PW-3 corroborated the evidence of PW-1. Further, the plea ofthe defence that D1 had committed suicide has no basis since it hasbeen substantiated through medical evidence that the death was due tohomicidal violence. In the light of the opinion of the Post-mortemDoctor to the effect that the death was due to asphyxia as a resultof strangulation and of the fact that neck injury noticed in thePost Mortem was horizontal and not slanting or oblique, the arduousattempt made to project the murder of D1 as suicide is of no use.The witnesses who speak about arrest and recovery also corroboratethe prosecution case. The letter produced along with the writtenstatement of the accused, on the face of it, appears to be aconcocted document. If such letter of the deceased had alreadyexisted, the same would have been produced during the course ofinvestigation or at least put to the prosecution witnesses during thecourse of trial. Further more, such a letter was not subjected toopinion of the handwriting expert so as to prove the authenticitythereof in a manner known to law. In the said letter, it is statedthat D-1 committed suicide by consuming sleeping pills. If that beso, there is no explanation at all on the side of the defence for theinjuries sustained on the neck of both the deceased. Even if it isconstrued that such a letter has been written on the earlier occasionwhen D1 attempted to commit suicide, it may not help the defence in https://hcservices.ecourts.gov.in/hcservices/ view of the reason that the occurrence took place subsequently andfor such commission of the offence at the hands of the accused, thereare wealth of materials available. In such circumstances, we do notfind any merit in the contentions raised by the learned counsel forthe appellant and therefore, the order of conviction and sentencepassed by the trial court is upheld. 10. Criminal Appeal fails and the same stands dismissed. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarJI.To1. Additional Sessions Judge, Fast Track Court, Dharmapuri.2.-do-Thro' The Principal Sessions Judge,Dharmapuri .3. The District Collector,Dharmapuri District.4. The Director General of Police,Mylapore, Chennai-4.5. The Superintendent, Central Prison, Vellore.6. The Public Prosecutor, High Court, Madras.7. The Inspector of Police, Marandahalli Police Station, Dharmapuri District.+1 cc To Mr.R.Selvaraj, Advocate, SR.14516 Crl. Appeal No.434/07.mdr [co]gkg/10.4