Kasimuthu @ KasiS/o Raman v. State by Asst. Commissioner of PoliceAshok Nagar CircleK.K.Nagar Police StationChennai(Crime No.723

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03.03.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.556 of 2007Kasimuthu @ KasiS/o Raman ..Appellant-vs-State by Asst. Commissioner of PoliceAshok Nagar CircleK.K.Nagar Police StationChennai(Crime No.723 of 2004)..RespondentMemorandum of Grounds of Criminal Appeal under Section 374(2)of the Criminal Procedure Code against the judgment dated 28.7.2006made in S.C.No.624 of 2005 on the file of the learned SessionsJudge (Mahila Court), Chennai.For Appellant::Mr.T.R.RaviFor Respondent::Mr.P.KumaresanAddl. Public Prosecutor JUDGMENT(Judgment of the Court was delivered by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment of convictionand sentence passed by the learned Sessions Judge (Mahila Court),Chennai against the appellant/accused to undergo rigorousimprisonment for one year for the offence under Section 498(A) IPCand to undergo imprisonment for life and also to pay a fine ofRs.1,000/-, in default to undergo imprisonment for one year for theoffence under Section 302 IPC and both the sentences have beenordered to run concurrently.2. The appellant/accused was put on trial on the followingprosecution case:-P.W.1 is the father, P.W.2 is the mother and P.W.3 is thebrother of the deceased-Amudha and were residing at No.36, AyyavuNaicken Third Street, Jaffarkhanpet, Chennai-83. The accused andthe deceased got married on 14.5.2003 without the consent of their https://hcservices.ecourts.gov.in/hcservices/ parents in pursuance of the love affairs and were living at No.53,Kamaraj Street, Annai Sathya Nagar, Chennai-83. Though the accusedwas working as a Carpenter, he used to go to his work only for twodays in a week and he used to scold and beat the deceased for notgiving him money to drink alcohol. Hence the deceased informed herparents that she was not taken care of properly by her husband andshe was even starving for food. Therefore, P.W.1 used to giveRs.200/- or Rs.300/- every week to her daughter. Likewise, thedeceased was sent to her parental home three times and she alsobrought, ear stud, nose stud and cash from her parents and gavethem to the accused. In continuance of the above quarrel, one weekprior to the occurrence, the accused beat the deceased and sent herto her parental home for bringing cash and jewels. As thedeceased did not return from her parental home, on 2.7.2004, theaccused went to her house and brought the deceased to his house.As the deceased did not pay the accused money and also he suspectedher fidelity, on 3.7.2004 at about 4.00 p.m., when the accused andthe deceased were in their residence, a quarrel erupted in betweenthem and with an intention to kill the deceased, the accusedstrangulated the neck of the deceased with a thupatta, as a resultof which the deceased died due to asphyxia. Thereafter, the accusedtook the deceased to Government K.K.Nagar Hospital around 9.05p.m., where she was examined by the doctor, P.W.9. He issued theAccident Register, Ex.P-5 with his opinion that the deceased wasbrought dead.3. In the meanwhile, P.W.1 went to the house of the deceasedfor giving her money one Saturday, but the neighbours informed himthat his daughter had been taken to Government K.K.Nagar Hospitalfor treatment of stomachache. When P.W.1 went to the hospital, hesaw the body of the deceased with strangulated injury on the neckof the deceased due to tightening of the thuppatta. Thereafter, hecame and enquired the neighbours and they informed him that therewas a quarrel in between the accused and the deceased. Thereafter,P.W.1 went to R-7 K.K.Nagar Police Station and gave a writtencomplaint, Ex.P-1 before P.W.10, the Sub Inspector of Police at10.30 p.m., on 3.7.2004 and the same was registered in Cr.No.723 of2004 under Section 174 Cr.P.C. The printed First InformationReport is Ex.P-6. As P.W.1 informed P.W.10 that the body was in thehospital, P.W.10 along with the Head Constable, P.W.11 went to thehospital and saw the body of the deceased as well the bloodstainson her clothes. As the deceased had died within seven years of hermarriage, he sent intimation to the Assistant Commissioner ofPolice. Thereafter, he sent the body of the deceased through theHead Constable, P.W.11 to the Government Royapettah Hospital forpost-mortem. 4. P.W.17, the Assistant Commissioner of Police, Ashok Nagartook up investigation. He gave a requisition under Ex.P-15 to thePA to the Collector, P.W.13 for conducting inquest on the body ofthe deceased. On 4.7.2004 around 7.30 a.m., he proceeded to thescene of occurrence and prepared an Observation Mahazar, Ex.P-4 andalso drew a rough sketch, Ex.P-16 in the presence of P.Ws.3 & 8.He also examined P.Ws.1,2,3,4 & 5 and recorded their statements. https://hcservices.ecourts.gov.in/hcservices/

5. In pursuance of the directions of P.W.13, the PA to theCollector, P.W.12, the Tahsildar and Executive Magistrate, Guindy-Mambalam Taluk proceeded to Government Royapettah Hospital on5.7.2004 and conducted inquest on the body of the deceased in thepresence of panchayatdars between 10.30 a.m., and 12.30 p.m., andprepared the inquest report, Ex.P-7. He also examined P.W.2 andrecorded her statement under Ex.P-3. P.W.1 has also endorsed thestatement given by P.W.2 under Ex.P-2. He thereafter examined theaccused and recorded his statement under Ex.P-8. He gave arequisition to the medical team for conducting post-mortem on thebody of the deceased. He forwarded his report dated 29.7.2004 underEx.P-9 to the PA to the Collector, who in turn forwarded the sameto the Assistant Commissioner of Police, P.W.17 along with hisreport, Ex.P-10.6. P.W.15, Assistant Professor along with Dr.A.N.Shanmugham,Civil Surgeon, Dept. of Forensic Medicine attached to GovernmentRoyapettah Hospital commenced post-mortem on the body of thedeceased at 1.45 p.m., on 5.7.2004 and they noted the followinginjuries:-"1. Reddish brown abrasions seen in thefollowing areas of the body:2 x 1 - 0.5 cms on the outer aspect of frontof left elbow.2 - 3 x 1 - 0.5 cms on the outer aspect ofleft elbow.0.5 x 0.5 cm on back of left elbow.2 - 8 x 0.4 cms on the upper part of chin.2. Burns like injury reddish brown in colourmeasuring 2 x 3 - 1 cms over back of left elbow.3. Dark brown horizontal ligature mark seenaround the neck at the level of thyroid cartilege.The ligature mark lies 6 cms above the supra-sternal notch on front.On the right side the ligature mark lies 8cms below the right mastoid process.On the left side the ligature mark lies 8 cmsbelow the mastoid process.Posteriorly the ligature mark lies 4 cmsabove the C7 vertebra. The length of the ligaturemark is 23 cms. The breadth of the ligature mark is3.5 - 1.5 cms.On dissection of neck: Bluish black contusionmeasuring 5 x 4 x 1 cms seen in the subcutaneoustissues underlying the ligature mark on the leftside of the neck.Bluish black contusion measuring 4 x 3 x 1cms seen in the subcutaneous tissues underlying theligature mark on the right side of neck.Hyoid bone: intact.Thyroid cartilege : intact.Heart: Normal in size. Chambers containedfluid blood.Coronaries - patent. Valves - NormalGreat Vessels - Normal https://hcservices.ecourts.gov.in/hcservices/ Lungs: Multiple sub-pleural patechialhaemorrhage seen over both lungs near theintersurface of lobes. Cut section congested.The mucuous membrane of larynx and trachesfound congested. Stomach: Contained 240 gms of partly digestedrice particles.Mucuous - Normal.Liver - Spleen and Kidneys; Normal in size -congested.Intestines: Distended with gas. Bladder: emptyUterus: Normal in size. Empty.Brain : Dedematous. Surface vessels tortuous.Viscera preserved for chemical analysis.Swab taken from mouth for detection ofpoisons.Vaginal swab taken for detection of sperm andseminal enzyma."They issued the post-mortem certificate, Ex.P-13 with their opinionthat the deceased would appear to have died of asphyxia due tostrangulation.7. P.W.17, the Assistant Commissioner of Police, in themeanwhile examined the post-mortem doctor, P.W.15 and recorded hisstatement. As he found during investigation that the deceased hadbeen murdered, he altered the offence to one under Section 302 IPCand sent the altered report, Ex.P-17 to the Court. He arrested theaccused on 15.7.2004 at 6.00 p.m., near the ESI bus stop at AshokPillar and recorded his confessional statement in the presence ofthe witnesses. He remanded the accused to judicial custody on thenext day. He also seized the bloodstained thupatta, M.O.3,chudithar top, M.O.4, chudithar pant, M.O.5 and brascier, M.O.6produced by the Head Constable, P.W.16 from the body of thedeceased under Form-95 and sent the same to the Court. Afterreceipt of the report of the Tahsildar on 16.8.2004 as well aftertaking photographs of the scene place on 3.7.2004 with the help ofthe photographer, P.W.14 and after completing investigation on1.11.2004, he laid the final report against the accused for theoffence under Sections 498(A), 302 & 304(B) IPC before the Court.8. When the accused was questioned under Section 313 of theCriminal Procedure Code as to the incriminating materials appearingagainst him, he denied the prosecution case as false. The Courtbelow examined P.Ws.1 to 17 and admitted Exhibits P-1 to P-17 andmaterial objects 1 to 6 and had come to the conclusion after afull-fledged trial that the accused is guilty of the offence underSections 498(A) and 302 IPC, but acquitted him of the charge underSection 304(B) IPC, and awarded the sentence as aforesaid. 9. Mr.T.R.Ravi, learned counsel for the appellant wouldsubmit in his arguments that the Court below had framed chargesunder Sections 498(A) and 302 IPC and in the alternative underSection 304(B) IPC and had come to a conclusion that the offence https://hcservices.ecourts.gov.in/hcservices/ under Section 304(B) IPC was not made out, as the offence underSections 498(A) and 302 IPC has been made out, and in such a case,the charges framed are not in accordance with law. However, he hasnot pressed the said point as the ingredients of both the chargesare one and the same. 10. The learned counsel would further submit that when thecomplaint, Ex.P-1 made by P.W.1, the father of the deceased toP.W.10, the Sub Inspector of Police was initially registered underSection 174 Cr.P.C., the accused had given a statement to theTahsildar and Executive Magistrate, P.W.12 placing categoricallythat the fidelity of his wife, the deceased, was doubtful from thedate of their marriage, as the accused found the relative mancoming to his house and talking with the deceased and on one suchoccasion he witnessed the deceased sharing the bed with the saidrelative man, since he happened to return to the house on accountof his illness, and when the said act was questioned by him, he wasbeaten by the deceased with a broomstick and thereafter when theaccused and the deceased were in the house on 3.7.2004 at about4.00 p.m., the accused purchased briyani for both of them and aftereating the briyani, when they were in the bed, he advised thedeceased not to talk to any person muchless the relative man andfor that, the deceased provocatively replied that the relative manwas better than the accused and enraged upon that statement, he hadstrangulated the neck of the deceased with the thupatta and whenshe became unconscious, he had taken her to the GovernmentK.K.Nagar Hospital and thereafter he went to his aunt's house.Therefore, the learned counsel would submit that the offence hasbeen committed by the accused only out of a sudden provocationenraged by the statement of the deceased and hence the offencewould not fall under Section 302 IPC but only under Section 304(Part-I) IPC and in these circumstances, the learned counselpleaded for the lesser sentence be imposed on the accused.11. Mr.P.Kumaresan, learned Additional Public Prosecutor forthe respondent would submit in his arguments that the stand takenby the defence before the Tahsildar is that the offence has beencommitted out of a sudden provocation enraged by the derogatingreply as well suspecting the fidelity of the deceased, whereas, inthe trial, the accused had taken a stand that the deceased hadcommitted suicide due to mental agony and he has not murdered her.The said suggestion made by the accused to the witnesses-P.Ws.1 & 2is quite contrary to the statement of the accused before theTahsildar. That apart, the suggestion put to the Tahsildar, P.W.12that the deceased committed suicide due to the suspicion of theaccused over her fidelity was also rightly denied by him.Therefore, the learned Additional Public Prosecutor would submitthat the case of the prosecution that the accused had committed themurder of his wife with premeditation and the harassment meted outby him has been established. He would also submit that the medicalevidence adduced by the prosecution through the doctor, P.W.15would go a long way to show that the accused had strangulated thedeceased and therefore it is purely a case of murder. Hence thelearned Additional Public Prosecutor submitted that the convictionand sentence passed by the Court below under Sections 498(A) and https://hcservices.ecourts.gov.in/hcservices/ 302 IPC need not be interfered with and the appeal may bedismissed.12. We have anxiously considered the arguments advanced bythe learned counsel for both sides. The case of the prosecution asput forth through the witnesses is that the accused and thedeceased were living together after their marriage on 14.5.2003 inpursuance of the love affairs at their house. Thereafter, theaccused was harassing the deceased for bringing cash and jewelsfrom her parental home and accordingly, the cash and jewels worn bythe deceased were also taken by the accused, as he was penniless,and was also telling the deceased that he was perfectly employedand was earning money and in spite of all these, the accused hadharassed his wife-Amudha and on the fateful day i.e., on 3.7.2004at about 4.00 p.m., when both were in the house, the accused withan intention to kill the deceased-wife had strangulated the neck ofthe deceased with a thupatta and thereafter when the deceased fellunconscious, he had taken her to the hospital where she wasdeclared dead. Hence the prosecution has put forth the case forthe offence under Section 302 IPC and in the alternative underSection 304(B) IPC, as it was a case of dowry death. In thejudgment of the Court below, it has been categorically found thatthe case is proved only under Section 302 IPC apart from Section498(A) IPC. The complaint, Ex.P-1 was given by P.W.1, the fatherof the deceased, to P.W.10, the Sub Inspector of Police and thesame was registered under Section 174 Cr.P.C., and the inquest wasdone by the Tahsildar and Executive Magistrate, P.W.12. In themeantime, the accused had given a statement under Ex.P-8 before theTahsildar. In the said statement, he has categorically stated thatone Friday, a relative man came to his house and was talking withhis wife and when he was about to leave for his employment, thedeceased asked him as to when he would return and he had answeredthat he would come late and went away. However, on the way whenhis stomach was upset, he returned to his house and at that time hesaw the relative man sharing the bed with his wife and on seeingthe accused, the relative man went in a bicycle. He had also beatenthe deceased for that incident and on the next day (Saturday),after compromise, he had purchased briyani for both of them andafter eating briyani, around 4.00 p.m., when they were in the bed,a dispute erupted in between them and when the deceased gave aprovocative answer that the relative man is better than theaccused, the accused had strangulated the neck of the deceased witha 'thupatta' and since she became unconscious, he took her toGovernment K.K.Nagar Hospital and he gave a false statement beforethe doctor that his wife had consumed poison and thereafter hesecreted himself by going over to his aunt’s house and since hiswife answered in such a way lowering his sexual capacity, he had totake the decision to kill her. The said statement of the accusedto the Tahsildar, P.W.12 would go a long way to show that theaccused had caused the death of the deceased suspecting herfidelity and enraged upon her provocative answer touching thecharacter of the accused. 13. Whether this enragement could be true is the question tobe answered after going through the evidence. According to the https://hcservices.ecourts.gov.in/hcservices/ prosecution, the case of the defence was that the deceased hadcommitted suicide out of mental agony and due to the suspicion ofhis husband namely, the accused over her fidelity. The saidsuggestion was put to P.Ws.1 & 2. On the other hand, it was notsuggested to the prosecution witnesses about what he had stated tothe Tahsildar for the cause of the death of the deceased. On acareful perusal of the evidence of the prosecution, it is seen thatthe death of the deceased has been caused by the accused. Thequestion is as to whether such reason assigned by the accused couldbe believed for the purpose of considering the nature of offencecommitted by him. On a careful perusal of the post-mortemcertificate, Ex.P-13 and the forensic lab reports, Exs.P-11 & P-12of the deceased, we could see that there is no detection of semenon the vaginal swab of the deceased. In these circumstances, thestand taken by the accused in the statement, Ex.P-8 that aftereating the briyani and after having the sexual intercourse, thedeceased had provoked the accused by saying that the relative manis better than the accused cannot be taken as true and the theoryof enragement on the part of the deceased for committing the murderof the deceased as submitted by the learned counsel for theappellant is not sustainable. As already discussed, it is theevidence of the prosecution that the accused had committed themurder of the deceased-wife at his residence. The stand taken bythe accused in his statement, Ex.P-8 as to the place of occurenceis also the same. Therefore, the suggestion made by the accusedduring the course of trial that she had committed suicide cannot beaccepted. Moreover, the false explanation given by the accused asto the cause of the death of the deceased could be taken as anadditional link in the circumstantial evidence so as to form achain against the accused. In this regard, we may usefully refer tothe judgment of the Apex Court in Harendra Narain Singh v. State ofBihar (AIR 1991 SC 1842), where the Apex Court has held that thefalse explanation by the accused can also be considered as anadditional link to accept the case of the prosecution. In thiscase, the accused had given a false statement regarding the causeof death of the deceased and therefore the case of the prosecutionthat the accused had committed the murder of his wife is provedbeyond reasonable doubt. 14. For the foregoing reasons, we are of the considered viewthat the learned Sessions Judge (Mahalir Court), Chennai isperfectly justified in coming to the conclusion that the accused isguilty of the offence under Sections 498(A) and 302 IPC and theconsequential sentence imposed on him is also justified.Accordingly, the criminal appeal fails and it is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ss https://hcservices.ecourts.gov.in/hcservices/ To1. The Sessions Judge (Mahila Court), Chennai2. -do- thru' the Principal Sessions Judge, Chennai3. The Superintendent, Central Prison, Puzhal, Chennai4. The Public Prosecutor, High Court, Madras5. The Asst. Commissioner of Police, Ashok Nagar Circle, K.K.Nagar Police Station, Chennai6. The District Collector, Chennai7. The Director General of Police, Chennai+ 1 CC To Mr. T.R.Ravi, Advocate SR NO.11518Crl.A.No.556 of 2007la[co]gp/18.3.