K.Sankar v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 7-1-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRL.A.No.830 of 2007K.Sankar.. AppellantvsState by:Inspector of PoliceSaidapet Police Station(Cr.No.2124/2002).. RespondentCriminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the PrincipalSessions Judge, Chennai, made in S.C.No.426/2003 dated30.1.2004.For Appellant: Mr.V.SairamFor Respondent: Mr.I.Paul Noble Devakumar Government Advocate(Crl. Side)JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Principal SessionsDivision, Chennai, in S.C.No.426 of 2003 whereby the soleaccused/appellant stood charged under Sec.302 of IPC, tried,found guilty as per the charge of murder and awarded lifeimprisonment along with a fine of Rs.2000/- and defaultsentence.2.The short facts necessary for the disposal of this appealcan be stated thus:(a) P.W.1 is the brother and P.W.2 is the mother of thedeceased Amudha. She was given in marriage to the accused 1 ½years prior to the occurrence. There was frequent quarrelbetween the spouses since he suspected her fidelity. She waspregnant, and hence she was brought to the parental home.During the relevant time, she was staying with P.Ws.1 and 2 intheir house. On 27.9.2002, the accused came to P.W.1's houseand also staying over there. On 28.9.2002 at about 11.00 A.M.,both P.Ws.1 and 2 were sitting outside, while the accused andthe deceased were inside. They heard the sound of quarrel. https://hcservices.ecourts.gov.in/hcservices/ When they got inside, they found the accused actually attackinghis wife with M.O.1 knife, on her neck. He immediately fledaway from the place of occurrence, and she died instantaneously.(b) P.W.1 proceeded to J1 Saidapet Police Station, therespondent herein, and gave a complaint at 12.15 P.M., which ismarked as Ex.P1, and P.W.7, the Inspector of Police, on thestrength of Ex.P1, the complaint, received by him, registered acase in Crime No.2124 of 2002 under Sec.302 of IPC. The printedFIR, Ex.P11 was sent to the Court along with Ex.P1. Then, hetook up investigation, proceeded to the spot, made aninspection, prepared an observation mahazar, Ex.P2, and drew arough sketch, Ex.P12. He conducted inquest on the dead body ofAmudha in the presence of witnesses and panchayatdars andprepared an inquest report, Ex.P13. Then, he recovered thematerial objects including the bloodstained earth and sampleearth, from the place of occurrence under a cover of mahazar.The dead body was sent to the Government Hospital along with arequisition, Ex.P7, for the purpose of postmortem.(c) On receipt of the said requisition, P.W.6, theTutor/Assistant Professor, Department of Forensic Medicine,G.R.H., Chennai, conducted autopsy on the dead body of Admudhaand has given his opinion that the deceased would appear to havedied of shock due to cut throat injury. He has issued apostmortem certificate which is marked as Ex.P8. (d) Pending the investigation, the accused was arrested on29.9.2002 at about 11.00 A.M. when he came forward to give aconfessional statement voluntarily. The same was recorded inthe presence of witnesses, and the admissible part is marked asEx.P4, pursuant to which he produced M.O.1 knife, which wasrecovered under a cover of mahazar. He was sent for judicialremand. The material objects recovered from the place ofoccurrence and from the dead body, and M.O.1, knife, weresubjected to chemical analysis. The serology report, Ex.P10,was produced before the Court. On completion of investigation,the Investigating Officer filed the final report.3.The case was committed to Court of Sessions, andnecessary charge was framed. The prosecution examined 7witnesses and also relied on 15 exhibits and 10 material objectsin order to prove its case. On completion of the evidence onthe side of the prosecution, the accused was questioned underSec.313 of Cr.P.C. as to the incriminating circumstances foundin the evidence of the prosecution witnesses, which he flatlydenied as false. No defence witness was examined. The lowerCourt heard the arguments advanced and took the view that theprosecution has proved the case beyond reasonable doubt andhence found him guilty and awarded the punishment which is thesubject matter of challenge before this Court.4.Advancing the arguments on behalf of the appellant, thelearned Counsel would submit that P.W.1 is the brother and P.W.4is the mother of the deceased; that before accepting theirevidence, it should have been scrutinized carefully; that fromtheir evidence, it would be quite clear that they could not have https://hcservices.ecourts.gov.in/hcservices/ been in the place of occurrence at all; that the occurrence hastaken place, according to the prosecution, inside the house ofP.W.2; that P.Ws.1 and 2 would claim that they were actuallysitting outside; that both of them have given statements to theeffect that when they saw, there was a quarrel between thespouses, and when they got inside, they saw the accused actuallycutting her neck with the knife; but, it is contrary to thepostmortem certificate and the evidence adduced by the Doctor;that the postmortem certificate, Ex.P8, if perused, wouldclearly indicate that there are number of injuries; that had itbeen true that P.Ws.1 and 2 witnessed the occurrence, they wouldhave accounted for the injuries, but not done so; that both ofthem have deposed that they found him cutting only on the neck,and hence, it would be quite indicative of the fact that theycould not have seen the occurrence at all; that both thewitnesses are interested since they are closely related to thedeceased; that apart from that, he suspected her fidelity; thatthe quarrel arose between the spouses in the past also, andhence, they came forward to give false evidence. 5.The learned Counsel would further add that the arrest,confession and recovery of M.O.1 knife, from the accused werenothing but cooked up affairs; that the documents were actuallycreated in order to strengthen the prosecution case, but invain; and that under the circumstances, he is entitled foracquittal since the lower Court has taken an erroneous view. 6.The learned Counsel in the second line of argument wouldadd that even if the Court comes to the conclusion that theevidence of P.Ws.1 and 2 has got to be accepted for the factthat it was the accused who caused the death of his wife, theact of the accused would not attract the penal provision ofmurder; that even according to P.Ws.1 and 2, they have witnessedthe quarrel between the spouses inside the house as a result ofwhich the occurrence has taken place; that under thecircumstances, there was a sudden quarrel which resulted in theoccurrence; that the accused was staying more than a day in thesame house; that it cannot be stated that it was premeditated orintentional, but only due to the sudden quarrel between thespouses, and hence the act of the accused would fall under theexceptions to Sec.300 of IPC, and it has got to be considered bythe Court.7.The Court heard the learned Additional Public Prosecutoron the above contentions and paid its anxious consideration onthe same.8.It is not in controversy that one Amudha the daughter ofP.W.2, was done to death in an incident that had taken place on28.9.2002 in the house of P.W.2. Following the inquest made bythe Investigator, the dead body was subjected to postmortem byP.W.6, the Doctor, who has issued a postmortem certificate underEx.P8. He was also examined as a witness, and he has alsocategorically deposed that she died out of shock due to cut https://hcservices.ecourts.gov.in/hcservices/ throat injury. The postmortem certificate was also placedbefore the trial Court to that effect. The fact that she diedout of homicidal violence was never disputed by the appellantbefore the trial Court, and hence factually it could be recordedso.9.In order to substantiate that it was the accused whostabbed her to death, the prosecution examined two witnesses whoare P.Ws.1 and 2. True it is, P.W.1 is the brother and P.W.2 isthe mother. It is settled principle of law that merely becauseof the relationship of the witnesses with the deceased, theirevidence cannot be discarded. But, before accepting theevidence, the Court must apply the test of careful scrutiny andsatisfy itself. In the instant case, even if the test isapplied, the Court is satisfied that the evidence of P.Ws.1 and2 has got to be accepted. P.Ws.1 and 2 have categoricallydeposed in one voice that they were actually in the house on theday at about 11.00 A.M. They have further stated that theaccused came to the house and stayed even on the previous nightwith his wife, and on 28.9.2002, when they were sitting outside,they heard the noise of quarrel between the spouses which wasactually inside the house, and then they immediately got insidewhen they witnessed the occurrence, and at that time, he wasactually cutting her neck. Now, the contention put forth by thelearned Counsel for the appellant that there are number ofinjuries found in the postmortem certificate; but, the witnesseshave spoken to the fact that there was only one injury, and hewas cutting her neck, and hence they could not have seen theoccurrence at all cannot be countenanced for the simple reasonthat they found the accused cutting her neck. Both of them havefurther added that he has actually threatened them. Under thecircumstances, there are no occasions for them to see thecontinuing part of the occurrence. It would be quite clear thatthey have witnessed the occurrence since their testimony stoodthe test despite full cross-examination. Further, the postmortemDoctor's opinion has been canvassed. The postmortem certificatehas also been marked where from it is clear that she died ofshock due to cut throat injury. 10.Yet another circumstance in favour of the prosecutionwas the recovery of M.O.1 knife, from the accused pursuant tothe confessional statement given by him on arrest. The saidweapon of crime along with the other material objects recoveredfrom the place of occurrence, and the clothes recovered from thedead body, were subjected to analysis, and they are found tohave contained human blood. A witness has been examined withregard to the recovery of M.O.1, and his evidence remained intact despite cross-examination in full. 11.Further, in the instant case, the occurrence has takenplace at about 11.30 A.M., and the report was given within ashort span of time. The case was registered at 12.15 P.M.within a short span of 45 minutes. The FIR has reached theJudicial Magistrate at 4.00 P.M. on the very day. The https://hcservices.ecourts.gov.in/hcservices/ investigation was commenced at 1.00 P.M., and the major part ofthe investigation was over that evening. All would speak of thetruth of the prosecution case that was placed before the trialCourt. In view of the evidence available, the contention putforth by the appellant's Counsel do not carry merit, and theyare liable to be rejected and accordingly, rejected.12.Insofar as the second line of argument, this Court isable to see force in the same. Even according to P.Ws.1 and 2,there was frequent quarrel between the spouses in the past sincethe accused suspected her fidelity, and he came to the house andalso stayed with his wife even on 27.9.2002, the previous day,and the occurrence has taken place the next day. On that day,when both P.Ws.1 and 2 were sitting outside, the quarrel hastaken place inside the house as a result of which, he stabbedher. Under the circumstances, it would be quite indicative ofthe fact that since he has stayed throughout the night and onthe next day morning also, it is not his intention to murder hiswife. Under the circumstances, no premeditation could benoticed; but, it was due to sudden quarrel. Hence the act ofthe accused cannot be termed as murder, but it would fall underthe exception to Sec.300 of IPC. This Court is of the view thatthe act of the accused would attract the provisions of Sec.304(Part I) of IPC, and awarding 10 years Rigorous Imprisonmentwould meet the ends of justice. 13.Accordingly, the conviction and sentence of lifeimprisonment imposed by the trial Court on the appellant/accusedunder Sec.302 of IPC are set aside, and instead, he is convictedunder Sec.304 (Part I) of IPC for which he is directed to suffer10 years Rigorous Imprisonment. The sentence already undergoneby him shall be given set off. The fine and the defaultsentence imposed by the trial Court will hold good.14.In the result, with the above modification in convictionand sentence, this criminal appeal is dismissed.Nsv/Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1.The Principal Sessions Judge Chennai https://hcservices.ecourts.gov.in/hcservices/

2.The Inspector of Police Saidapet Police Station (Cr.No.2124/2002)3.The Public Prosecutor High Court, Madras.4.The Superintendent Central Prison, Vellore.5.The District Collector, Chennai.6.The Director General of Police, Mylapore, Chennai.+ 1 cc to Mr. V. Sairam, Advocate SR No.1282CRL.A.No.830 of 2007KSJ(CO)SR/27.1.2009