C.Kannan v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHICriminal Appeal.No.581 of 2007C.Kannan... Appellant/Accusedvs.State, by The Inspector of Police, C-9 NeelangaraiPolice Station, Chennai.(Cr.No.715/2004).... Respondent/ComplainantAppeal against the judgment of the learned Principal SessionsJudge, Chengalpattu, dated 24.4.2007 made in S.C.No.282 of 2006.For Appellant:Mr.T.Shanmuga BoopathiFor Respondent :Mr.N.R.ElangoAdditional Public ProsecutorJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)For having committed an offence of uxoricide, the appellant wasfound guilty under Section 302 I.P.C. and was convicted and sentencedto imprisonment for life and was also directed to pay a fine ofRs.1,000/- with a default sentence by judgment dated 24.4.2007 inSessions Case No.282 of 2006 on the file of Principal Sessions Judge,Chengalpattu and aggrieved by the said conviction and sentence, thepresent appeal has been brought forth by the appellant.2. The charge levelled against the appellant is that on the midnight of 3.10.2004, due to desparation on account of not having anyissues out of his wedlock with Jothi, the deceased, and gettingannoyed at her for not permitting him to remarry another girl, withintention and knowledge, pursuant to a quarrel on the issues, stabbedon her neck with a knife, resulting in her death and thereby, https://hcservices.ecourts.gov.in/hcservices/ committed an offence under Section 302 I.P.C.3. On the above charge, the appellant was questioned, but hedenied his complicity in the commission of offence and hence, thecase was taken up for trial. In order to prove the charge, theprosecution marched 13 witnesses and relied upon 15 exhibits and 12material objects. On the defence side, no witness was examined norany document was marked. The learned trial Judge, on scrutiny of thematerials placed on record and on hearing the arguments advanced onboth sides, spanked the impugned judgment against the appellant.4.Background facts in nutshell are as follows:-(a) P.W.1 is the mother of the deceased Jothi. The deceased wasgiven in marriage to the accused about 15 years prior to theoccurrence and they had no issues out of their wedlock. At the timeof occurrence, the deceased, the accused and P.W.1 were livingtogether in a thatched house at Chinnandikuppam. The accused used topick up quarrels with the deceased embarking on the issue ofsterility. Once, the accused arranged for his second marriage withanother girl, but that was cancelled on account of intervention bythe deceased. Thereafter, they adopted a girl child, but that toowent in vain, since the child died after few months. On account ofdesparation due to this, the accused was quarrelling with thedeceased frequently. On 3.10.2004 at about 8.00 p.m., as soon as theaccused, the deceased and P.W.1 returned to the house after attendingtheir works, the accused picked up a quarrel with the deceased on theissues of no children and for re-marriage, during which he shouted atthe deceased saying that he can live happily only when she isfinished off. On account of the quarrel, the deceased and P.W.1 didnot prepare food for dinner and P.W.1, thinking it as an usualquarrel, went out and took her bed on the pial of a nearby temple.But, the quarrel prolonged till midnight and the accused, who was onpangs of bitterness, got enraged over the deceased and suddenly, hetook a knife and stabbed her. On hearing the distressing cries ofthe deceased, P.Ws.1 to 3 came to the scene and saw the accusedstabbing the deceased. On seeing them, the accused ran away from thespot leaving the weapon. The deceased was found lying in a pool ofblood and when the witnesses tried to take her to the hospital, shebreathed her last.(b) P.W.1 drafted a complaint as to the occurrence with thehelp of P.W.4, Prathap and lodged the same with P.W.12, Sub-Inspectorof Police attached to Neelangarai Police Station, at about 2.00 a.m.on 4.10.2004. The said complaint is Ex.P.1, based on which a case inCrime No.715 of 2004 was registered against the accused under Section302 I.P.C. Ex.P.12 is the printed F.I.R. P.W.12 sent the F.I.R. toCourt and the copies to higher-ups.(c) P.W.13, Inspector of Police, on receipt of information over https://hcservices.ecourts.gov.in/hcservices/ phone, proceeded to the police station, obtained a copy of F.I.R. andtook up investigation. He reached the spot, observed it and preparedEx.P.2 observation mahazar and Ex.P.13 rough sketch in the presenceof P.W.5 and another. He seized M.Os.1 to 5 from the scene ofoccurrence under a mahazar, Ex.P.3, attested by the same witnesses.He conducted inquest over the dead body of the deceased between 5.15a.m. and 7.15 a.m. in the presence of panchayatdars and witnesses andprepared Ex.P.14, inquest report. During inquest, he examined P.Ws.1to 3 and others and recorded their statements. He sent the dead bodyto the hospital through a police constable, with a requisition toconduct autopsy.(d) On receipt of the requisition and the dead body, P.W.11,Civil Surgeon, Department of Forensic Medicine, Government RoyapettahHosital, Chennai, conducted autopsy and noticed the followinginjuries:-"1. An oblique incised wound 0.5 x 0.5 cm. x skin deep onfront of middle of neck 5 cm. below the chin on midline.2. An oblique, oval shaped stab wound 2 x 0.5 cm. with atailing 0.2 cm. over the lower end, and 2.5 cm. below theangle of the mandible on right side. The upper end is 7 cm.below the right mastoid process and the lower end is 3 cm.away from the midline.On dissection: The margins of the wound are clean andclear cut extensive bruising of underlying tissues with cut2 cm. over the underlying tissues and platysma muscle. Onfurther dissection there is a cut 2 cm. long over the rightsterno-mastoid muscle 6.5 cm. below the mastoid processwith extensive bruising of surrounding tissues and withseverance of underlying nerves and vessels. The depth ofthe wound is 1.5 cm. and the direction of the wound isdownwards and backwards.3. A horizontal stab wound 3.5 x 0.5 cm. with tailing 0.3cm. over the outer end seen 4 cm. above the right collarbone and 6.5 cm. below the mandible on right side. Theinner end is 2 cm. away from the midline.On dissection: The margins of the wound are clean and clearcut. Extensive bruising of underlying tissues with cut 3cm. over the platysma muscle. On further dissection, thereis a cut 3 cm. long over the right sterno-mastoid muscle3.5 cm. above the right collar bone, with severance ofunderlying vessels and nerves. On further dissection, thewound enters into the right thoracic cavity piercing to alength of 2 cm. On further dissection, the thoracic cavitycontains 20 grms of clotted blood and 400 ml. of fluidblood. A cut over the apex of upper lobe of right lung isfound collapsed. The depth of the wound is 7 cm. anddirection of the wound is downwards and inwards." https://hcservices.ecourts.gov.in/hcservices/ The doctor issued Ex.P.11, post-mortem certificate, opining that thedeceased would appear to have died of shock and haemorrhage due tostab injury to right lung.(e) P.W.13, continuing with his investigation, recorded thestatement of the post-mortem doctor, P.W.11, by showing M.O.1, knife.He recovered M.Os.8 to 10 under Form 95 on being produced by thepolice constable who was present at the time of post-mortem. Hearrested the accused at about 7.20 p.m. on 4.10.2004 when he wasproduced by P.W.6, Village Administrative Officer and his menial andwhen questioned, the accused gave a confession statement andthereafter, M.Os.11 and 12, clothings of the accused were recoveredunder Form 95, which is marked as Ex.P.15 in the case. All thematerial objects were sent for chemical examination and they werefound to contain human blood. Exs.P.7 and P.8 are the biology reportand serology report respectively. After obtaining the post-mortemreport, Ex.P.11, from the doctor, P.W.11, the investigating officerlaid the charge sheet against the accused on 29.10.2004 under Section302 I.P.C.(f) The accused was questioned under Section 313 Cr.P.C. on theincriminating materials and he made a bald denial of the same. Hedid not examine any witness nor marked any document on his side. Onconsideration of materials and on hearing the submissions of bothsides, the learned trial Judge passed the impugned judgmentconvicting and sentencing the accused as referred to earlier. Hence,the present appeal.5.Mr.Shanmuga Boopathi, learned counsel for theappellant/accused took us to the contradictions in the evidence ofP.W.1 and other witnesses as well as in the inquest report, Ex.P.14and post-mortem report, Ex.P.11, with regard to the injury whichproved to be fatal as well as the presence of food particles in thestomach of the deceased, contends that the trial Court has erred inappreciating the evidence in proper perspective and hence, theappellant/accused is entitled for acquittal. Alternatively, he alsoargues for modification of conviction by giving him the benefit ofException 1 to Section 300 I.P.C. on the ground of sustainedprovocation.6.Mr.N.R.Elango, learned Additional Public Prosecutor, opposingthe above said contentions, submits that the ocular testimony ofP.Ws.1 to 3 and 7 about the motive and the occurrence proper coupledwith the medical evidence clearly bring home the guilt of the accusedand more so, the accused being the husband of the deceased and bothresiding under one roof, it is for him to come out with anexplanation as to how his wife met her end. In the absence of anyexplanation and in view of the available evidence, which isoverwhelming in nature, the impugned judgment is well-founded andinterference, much less, bringing the offence under the exception is https://hcservices.ecourts.gov.in/hcservices/ not at all warranted at the hands of this Court.7.Heard the submissions of both sides and perused the entirematerials placed on record.8.There can be no dispute that the deceased Jothi was done todeath. The medical evidence through P.W.11, post-mortem doctor andEx.P.11, post-mortem certificate, clearly shows that the deceaseddied due to shock and haemorrhage on account of the stab injury toright lung. Hence, we have no hesitation to hold that the deceaseddied due to homicidal violence.9.The points for consideration are:(i) Whether the prosecution has established beyondreasonable doubt that it was the accused who caused thedeath of the deceased by inflicting stab injuries ? and(ii) Whether the accused is entitled for the benefit ofException 1 to Section 300 I.P.C. ?10.1. To prove the case, the prosecution examined P.Ws.1 to 3and 7 as witnesses, of whom, P.W.1 is the mother of the deceased andshe speaks about the motive as well as the occurrence proper. P.Ws.2and 3 are the house owners, of whom P.W.2 saw the accused runningaway from the scene and P.W.3, wife of P.W.2, is a hear-say witnessand she also speaks about the quarrel between the accused and thedeceased. P.W.7 is the previous house owner and he speaks about thequarrel. 10.2. With regard to the motive part of the occurrence, it isthe evidence of P.W.1 that after the deceased was given in marriageto the accused, who is nonetheless the sister-in-law's son of P.W.1,the accused was finding fault with P.W.1 and the deceased for notgiving enough jewels at the time of marriage and hence, the deceasedleft the matrimonial home and came to her house at Vadalur and aftersome time, the accused also came and stayed with them. It is herfurther evidence that the accused was jobless and hence, she was onlytaking care of the family and after pacifying the deceased and theaccused, she set up a separate residence for them at Ariyur and thedeceased and accused were eking their livelihood by the deceasedselling some eatables in a school. According to P.W.1, the deceasedagain returned back to her house and stayed with her, since theaccused picked up a quarrel for the late coming of the deceased tothe house after her work and also beat her. P.W.1 and the deceased,thereafter, shifted the residence to Chinnandikuppam and stayed atthe house of P.W.7 for rent and were working as a 'sithal' and againshifted to Ariyur to the residence of P.W.1's brother, where oncoming to know about the engagement of the accused with another girl,both P.W.1 and the deceased went to the bride's residence and https://hcservices.ecourts.gov.in/hcservices/ persuaded the bride not to marry the accused, on account of which,the marriage was cancelled. Thereafter, the accused came and joinedthe deceased and they all lived at Chinnandikuppam. It is thefurther evidence of P.W.1 that the accused frequently used to engagein quarrels with the deceased harassing her for not giving birth to achild and hence, P.W.1 arranged for an adoption of a girl child.But, since that girl child also died within 4 ½ months, the accusedgot enraged over the deceased and frequently accused her for thebarrenness and also for not permitting him for second marriage,because of which, the house-owner P.W.7 asked them to vacate thehouse and hence, they shifted the residence to a thatched housebelonging to P.Ws.2 and 3. Even thereafter also, the accused engagedin frequent quarrels with the deceased during night. 10.3. The above evidence of P.W.1 about the frequent quarrelsbetween the accused and the deceased on account of the barrenness andon account of the death of the adopted child, stands corroborated bythe evidence of P.W.7, the previous house-owner, who has spoken onsimilar lines and he has further stated that on account of suchquarrels, he made them to vacate his house. P.W.3, wife of P.W.2,also corroborates the evidence of P.W.1 with regard to the quarrelcentering on the issue of sterility. From the above, we have nodoubt at all that all was not well with the accused and the deceasedand the accused used to engage in frequent quarrels and thus, we areconvinced that the prosecution has succeeded in establishing themotive part of the occurrence.11.As regards the occurrence proper, according to P.W.1, on thefateful day, again the accused picked up a quarrel and thinking thatit as an usual quarrel, she went to take her bed in the nearby templeand during midnight, she woke up on hearing the distressing cries ofthe deceased and when she went to the house, she saw the accusedstabbing the deceased. She raised alarm, on hearing which, P.Ws.2and 3 rushed to the scene. According to P.W.2, when he was nearingthe house, he saw the accused coming out of the house and runningaway. Immediately, P.W.2 went into the house only to see thedeceased in a pool of blood and on enquiry, he was informed by P.W.1that it was the accused who caused the death of the deceased bystabbing her. P.W.3 also corroborated the evidence of P.W.2 that onhearing the cries of P.W.1, she rushed to the scene along with P.W.2and saw the deceased with bleeding injuries. When the witnessesattempted to take the deceased to the hospital, the deceased breathedher last and hence, P.W.1 proceeded to police station and lodged thecomplaint inculpating the accused with the crime. The evidence ofP.Ws.1, 2, 3 and 7 with regard to motive and occurrence proper iscategorical, cogent, natural and trustworthy and we find no reason todisbelieve their evidence. 12.The learned counsel for the appellant pointed out certaindiscrepancies that in chief P.W.1 has stated that she accompanied the https://hcservices.ecourts.gov.in/hcservices/ deceased to the house of the bride with whom the accused arranged forsecond marriage, whereas in cross she has stated that the deceasedalone went to the house; that the post-mortem doctor, P.W.11, noticedthree injuries on the dead body, but in the inquest report, Ex.P.14,only two injuries were noted. But, in view of the ocular testimony ofP.W.1 as well as the evidence of P.Ws.2, 3 and 7, independentwitnesses who have no axe to grind against the accused, more so, whenthe motive part of the occurrence has also been strongly established,the above contradictions are only trivial in nature and hold no waterto discredit the case of the prosecution. Therefore, we are of theconfirmed opinion that the prosecution has succeeded in establishingthat it was the accused and none else who has caused the death of thedeceased by inflicing stab injuries.13. The only question that is to be decided is under whatcircumstances the accused has caused the death of the deceased andwhether he is entitled to get the benefit of Exception 1 to Section300 I.P.C. To invoke Exception 1, there must be a grave and suddenprovocation and the offender, while deprived of his power of self-control, should have committed the offence. The undisputed factsare that there were frequent quarrels between the deceased and theaccused as spoken to by P.Ws.1, 2, 3 and 7. It is the categoricalevidence of P.W.1 that whenever there was a quarrel between theaccused and the deceased, the deceased used to leave her matrimonialhome and join her mother, P.W.1 and even much prior to the date ofoccurrence, the deceased deserted the accused and was living withP.W.1 and later, the accused joined the deceased. As already stated,it is the evidence of P.W.1 that even on the fateful day, a quarrelensued between them even at 8.00 p.m. and hence, they have not cookeddinner on that day and thinking it as an usual quarrel, she went tothe nearby temple to take her bed, loaded with thoughts of herdaughter's fateful life. She has further stated that duringmidnight, on hearing the cries of her daughter, she woke up and wentto the house only to see her daughter being stabbed by the accused.It is, thus, clear that the quarrel which started around 8.00 p.m. onthat day continued till midnight and since it was a quarrel betweenhusband and wife, we cannot expect any outsider, even if it is themother, to poke his/her nose into such quarrel and hence, apresumption can easily be drawn that the deceased must have givensome provocation for the accused to take a knife and inflict stabinjuries on her. In other words, the quarrel being not an unusualone between them and they have been quarrelling throughout theirmarital life, a prudent man cannot go to such an extent of killinghis wife. It is to be noted here that the deceased refused to cookdinner on that night, due to which there is every possibility for theaccused to get rancor at the deceased. That apart, as per theevidence of the post-mortem doctor and Ex.P.11, post-mortemcertificate, some food particles were found in the stomach of thedeceased, which prompted us to come to a conclusion that before theaccused could reach the house after his work, the deceased would have https://hcservices.ecourts.gov.in/hcservices/ taken her dinner, which also would have added fuel to the fire.Hence, considering the facts and circumstances of the case, we havedecided to give the benefit of Exception 1 to Section 300 I.P.C.But, however, in view of the words uttered by the accused at thattime that only if the deceased is finished off, he could live happilyby performing another marriage and also taking note of the weaponused by him for committing the crime as well as the situs of the bodyon which he inflicted the stab injuries, we are of the view that hehad the intention to cause such bodily injury which is likely tocause the death and hence, we are inclined to modify the convictionof the appellant under Section 304 Part-I I.P.C., instead of holdinghim guilty for the offence under Section 299 I.P.C. and for the saidconviction, he is sentenced to undergo rigorous imprisonment for aperiod of seven years.In result,(i) the conviction of the appellant/accused is modified fromSection 302 I.P.C. to Section 304 Part-I I.P.C.;(ii)for the said conviction, he is sentenced to undergorigorous imprisonment for a period of seven years;(iii)the appeal is accordingly partly allowed with the abovemodification.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sraTo1. The Principal Sessions Judge, Chengalpattu.2. The District Collector, Chengalpattu.3. The Director General of Police, Chennai.4. The Inspector of Police, C-9 Neelangarai Police Station, Chennai. 5. The Superintendent, Central Prison, Puzhal, Chennai.6. The Public Prosecutor, High Court, Madras. Crl.A.No.581 of 2007RA(CO)JJM(21.05.08)