Murugesan... v. State, rep. by Inspector of Police, Upper - Coonoor Police Station, Udagamandalam

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHICriminal Appeal.No.845 of 2007Murugesan... Appellant / Accusedvs.State, rep. by Inspector of Police, Upper - Coonoor Police Station, Udagamandalam.(Cr.No.89/2003).... Respondent/ComplainantAppeal against the judgment of the learned District SessionsJudge, Udagamandalam, dated 24.11.2004 made in S.C.No.18 of 2004.For Appellant:Mr.S.Anantha NarayananAppointed as Amicus CuriaeFor Respondent :Mr.N.R.ElangoAdditional Public Prosecutor* * * * *J U D G M E N T(Delivered by R.REGUPATHI,J.)The appellant has been convicted for an offence punishable underSection 302 I.P.C. for 3 counts and sentenced to imprisonment forlife and a fine of Rs.1,000/- with default sentence under each count.The sentences were ordered to run consecutively. Aggrieved againstthe said conviction and sentence, the present appeal has beenpreferred.2. As per the charge framed against the appellant, it isalleged that on 22.5.2003 at 7.30 a.m., the accused committed thedeath of the deceased, who is the wife of P.W.1 by strangulation. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, on the same day, at 4.30 p.m., committed the death of histwo children by administering Gramoxone pesticide and thereby,committed the offence of murder under three counts. The accused wasquestioned initially, but he has denied his complicity in the crimeand pleaded innocence. Therefore, the trial of the case was taken upby the Court of Sessions. The prosecution, to substantiate its caseexamined P.Ws.1 to 11, marked Exs.1 to 33 and produced M.Os.1 to 11.3.(a) P.W.1 is the husband of the deceased Lakshmi. He wasliving with the deceased along with his two daughters. The accusedis his cousin and he used to come to his residence very often. Theaccused developed illicit intimacy with the deceased Lakshmi. Therewas a quarrel on account of that and therefore, he left the house andwas living alone for 2 ½ years. On the occasion of his firstdaughter's puberty ceremony prior to the occurrence, he visited hisresidence and he came to know that the accused borrowed Rs.20,000/-from the deceased and did not repay the same. On account of that,there was a quarrel between the deceased and P.W.1. While so, on22.5.2003, when he returned back from his work at 7.00 p.m. to hisresidence, he found the door closed and when it was opened, it wasdark and with the help of a match box, he lit the match stick only tofind the deceased lying dead. Shouting that somebody committedmurder of his wife, he came out and informed his neighbours.Thereafter, he went to the police station and lodged a complaint,Ex.P.1, to the police.(b) P.W.9 is the Sub-Inspector of Police, Coonoor PoliceStation, who on receipt of Ex.P.1 from P.W.1, registered a case inCrime No.89 of 2003 for an offence punishable under Section 302I.P.C. Ex.P.17 is the printed F.I.R. A copy of the same has beendespatched to the Court of Judicial Magistrate and to the superiorofficers.(c) P.W.11, Inspector of Police, took up investigation onreceipt of copy of F.I.R., Ex.P.1, at 8.00 p.m. and proceeded to thescene of occurrence, viz., residence of P.W.1, prepared observationmahazar, Ex.P.3, rough sketch, Ex.P.19, which was attested by P.W.6.He conducted inquest over the body of the deceased Lakshmi andEx.P.20 is the inquest report. He recovered the jewels found on thedead body, viz., M.Os.6 to 8, jacket, M.O.9, under-garments – M.O.11,saree – M.O.11, under a cover of mahazar, Ex.P.20 and despatched thesame to the Court.(d) P.W.2 is the wife of the accused and she was living alongwith the accused and two children, a boy and a girl aged 4 years and1 year respectively. It is her evidence that the accused was havingillicit intimacy with the deceased Lakshmi. She has also confirmedthat the accused borrowed Rs.20,000/- from the deceased and that healso borrowed money from several other persons and could not repay https://hcservices.ecourts.gov.in/hcservices/ the money. She has further stated that on 21.5.2003, during nighttime, the deceased Lakshmi came to her residence and picked upquarrel for non-payment of money. This was informed to the accusedwhen he returned from his work. The accused, thereafter, left fromher residence to the residence of the deceased for the purpose ofenquiry and stayed with the deceased during that night. It is herfurther evidence that the accused used to stay at the residence ofthe deceased on prior occasions also. On the next day, viz., on22.5.2003, the accused returned back at 11.00 a.m. The accusedaccompanied the sister of P.W.2 to the bus stand and after hereturned, he informed her that he assaulted the deceased Lakshmi andrequested her to go and see and inform him back. Accordingly, shewent to the residence of the deceased Lakshmi and found her lyingdead. When she returned back, he found the accused at the bus standat Coonoor at 7.30 p.m. and when she enquired about the children, itwas replied by the accused that they are at home. When she enteredher residence, she saw her two children lying dead and on enquiry,the accused replied that it was he, who administered pesticide to thechildren. Further, he has also confessed that he has done so, sincehe was facing problems on account of debts. P.W.2 shouted at him andcrowd collected. P.W.3, who is the Secretary of the Village Sangamand other neighbours also collected at her residence. The accusedrepeated the confession to those persons also. She identified M.O.1as the container of the pesticide and M.O.2 as the blanket which wascovered over the bodies of the children.(e) P.W.3 took the accused and went to Aruvangadu police stationand lodged a complaint, Ex.P.2 at about 2.30 a.m. P.W.10, Sub-Inspector of Police, on receipt of the complaint, registered a casein Crime No.54 of 2003 for an offence punishable under Section 302I.P.C. Ex.P.18 is the printed F.I.R. and the same has beendespatched to the Court and superior officers.(f) P.Ws.4 and 5 are the neighbours of P.W.1 and it is theevidence of P.W.4 that he had seen the accused on 21.5.2003 at 8.45p.m. and on the next day also at 7.15 a.m. near the house of P.W.1.According to P.W.5, he had seen the accused on 22.5.2003 at 7.30 a.m.outside the house of P.W.1. (g) On 23.5.2003, the investigating officer, P.W.11, who wasinvestigating the case in Crime No.89 of 2003, on receipt of theF.I.R. in Crime No.54 of 2003, reached the spot, viz., residence ofP.W.2 and the accused and prepared observation mahazar, Ex.P.5, roughsketch, Ex.P.22 and conducted inquest over the dead bodies of thedeceased children. Exs.P.23 and P.24 are the inquest reports. Theseized material objects were sent to Court with a requisition,Ex.P.25 to forward them for chemical analysis. The viscera of thedeceased Lakshmi was also sent to Court with a requisition Ex.P.26for receiving the opinion of chemical analyst. The photographs of https://hcservices.ecourts.gov.in/hcservices/ the deceased Lakshmi and the deceased children were caused to betaken and Exs.P.30 to 33 series are the photographs and negativesrespectively. Thereafter, the bodies were sent to the hospital witha requisition to the medical officer to conduct autopsy.(h) P.W.7, on receipt of the dead bodies of the deceased as wellas the respective requisitions on 23.5.2003, commenced post-mortem onthe dead body of deceased Parthiban, aged 4 years, at 1.00 p.m. andfound a contusion 2 x 2 cm. over right cheek and 1 x 1 cm. abrasionover left cheek. He issued post-mortem certificate, Ex.P.11.Thereafter, he commenced post-mortem on the dead body of deceasedKousalya, aged 1 year and no external injuries were found. Ex.P.13is the post-mortem certificate issued by the doctor. Lastly, hecommenced the post-mortem on the dead body of deceased Lakshmi at3.00 p.m. and found the following external injuries:-"1. Contusion and haematoma over mid neck 1 x 1 cm.2. Abrasion 1 x 1 cm. over right cheek.3. Abrasion 6 x 1/2 x 1/2 cm. extending from the mid lineto below right ear.Ex.P.8 is the post-mortem certificate issued in respect of theinjuries found on the deceased Lakshmi. The doctor reserved hisopinion as to the cause of death of the deceased pending viscerareports and on receipt of the same, viz., Exs.P.9, P.12 and P.14,respectively, he opined that the deceased Lakshmi died due toasphyxia on account of throttling and the deceased children,Parthiban and Kousalya, died due to paraquat-di-chloride (gramoxone)poisoning.(i) In continuation of investigation, P.W.11 on 23.5.2003 atabout 7.30 a.m., arrested the accused and recorded his confessionstatement in the presence of witnesses. He examined other witnessesand recorded their statements. On conclusion of investigation, hefiled the final report against the accused under Section 302 I.P.C.(3 counts) on 25.8.2003.(j) The accused was questioned under Section 313 Cr.P.C. withregard to the incriminating materials, oral and documentary, producedby the prosecution, for which he denied the complicity of commissionof crime and pleaded innocence. Neither oral nor documentaryevidence was produced on the side of defence. The learned trialJudge, on perusal of the materials and on hearing the submissions ofboth sides, convicted and sentenced the accused as aforementioned.Hence, the present appeal.4.1. Learned counsel appearing for the appellant submits thatinsofar as the occurrence which took place at the residence of P.W.1is concerned, eye witnesses were not examined and though the https://hcservices.ecourts.gov.in/hcservices/ prosecution made an attempt to establish its case through theevidence of P.Ws.1 to 5, at the most, it would only establish themotive part of the occurrence. Insofar as the actual occurrence isconcerned, it is the case of the prosecution that it had taken placeinside the residence of P.W.1 and that the accused, after quarrellingwith the wife of P.W.1, strangulated her and left the place afterlocking the door. For this purpose, the extra judicial confessionallegedly given to P.W.2 and other witnesses were relied upon. Butfor the extra judicial confessions, there is no other materialavailable and therefore, he submits that the prosecution has notsubstantiated its case.4.2. In the alternative, he submits that even as per the case ofthe prosecution there was a quarrel prior to the commission of crimeand if the extra judicial confession is accepted, it is the versionof the accused that the deceased made an attempt to assault him witha reaper and only on provocation, he strangulated her and left herinside the residence and came out. Under such circumstances, sincethere are no other materials available to substantiate the actualpart of the prosecution case with regard to the killing of wife ofP.W.1 is concerned, if the extra judicial confession is believed,then the deceased, wife of P.W.1, would be the aggressor and onlyunder such circumstances, the accused committed the offence andtherefore, the offence under Section 302 I.P.C. is not substantiated.4.3. Coming to the second part of the occurrence, viz.,administering pesticide to the children of the accused is concerned,again, the prosecution relies on the extra judicial confession givento the wife as well as to the Secretary of Village Sangam, viz.,P.Ws.2 and 3 respectively. If such confession statement of theaccused is accepted, it is the version of the accused that he did soonly on account of the pressure exerted due to non-payment of debts.Since the accused was not in normal mental condition, it must bepresumed that he has done so on account of sustained provocationgiven by the creditors and the wife of P.W.1 and others and hence, anoffence under Section 302 I.P.C. will not be made out. The learnedcounsel further submits that though it is a case of triple murder,one must not lose sight of the fact that the accused is a victim ofcircumstances and in a fit of anger, losing self-control, committedthe offence and under such circumstances, since there is nopremeditation and intention to commit the offence, though the accusedwas convicted and sentenced to imprisonment for life thrice, theorder passed by the learned trial Judge to undergo the imprisonmentconsecutively is erroneous and thus, the learned counsel prayed forconcurrent sentence.5. Per contra, learned Additional Public Prosecutor submits thatthe first part of the occurrence, viz., killing of the wife of P.W.1has been established not only through the motive put forth by theprosecution, but also through the evidence of P.Ws.4 and 5. They are https://hcservices.ecourts.gov.in/hcservices/ natural witnesses and they do not have any axe to grind against theaccused. P.W.4 speaks about the presence of the accused on the dayof occurrence in the morning as well as on the previous night. Forthe presence of the accused in front of the residence of P.W.1, ithas been corroborated through the evidence of P.W.2, who is noneother than the wife of the accused. Under normal circumstances, awife will not support a prosecution against her husband and she maysupport the version of the prosecution though she would not divulgein full. But, in the case on hand, P.W.2 has given materials for thecommission of offence in both the places. The extra judicialconfession given by the accused to P.W.2 cannot be easily brushedaside. It is P.W.2, who ascertained the death of the deceasedLakshmi, wife of P.W.1 and after sending P.W.2 to the residence ofP.W.1, the accused committed the death of his children byadministering pesticide in her absence. She came to know about thedeath of her children only on returning back and at the time when shequestioned the accused, the accused confessed that it was he, whokilled the children due to the pressure of non-payment of debts.Immediately P.W.2 cried and a crowd collected, which attracted thenotice of P.W.3 also. Even with whom, the accused confessed and itis P.W.3, who reported the occurrence to the police by taking theaccused along with him. Through the medical officers, it has beenproved beyond reasonable doubt that the death of the deceased, wifeof P.W.1, was due to homicidal violence and the death of two childrenof the accused was due to pesticide poisoning. Therefore, it issubmitted that the prosecution has proved its case beyond reasonabledoubt and in view of the reason that he has committed triple murder,it is a fit case where the trial Court has convicted the appellant byimposing imprisonment for life thrice and it is also submitted thatit is a fit case where the sentences must run consecutively.6. We have perused the entire materials placed on record andheard the rival submissions made by the learned counsel appearing onboth sides.7. It is unfortunate that it is a case of triple murder. Theaccused after killing his concubine, on the same day committed murderof his tender children. The accused was having illicit intimacy withthe wife of P.W.1 and in spite of persuasion by P.W.1, such arelationship continued and that is the reason why P.W.1 was livingaway from his wife for about 2 ½ years. P.W.1 returned back to thehouse thinking of his children by using the occasion of the pubertyceremony of his first daughter. It was only at that time, thepresent occurrence had taken place. The accused had borrowed moneynot only from the deceased Lakshmi, wife of P.W.1, but also fromseveral other persons. On the previous day of the occurrence, thedeceased Lakshmi, wife of P.W.1, visited the residence of P.W.2 andpicked up quarrel for non-payment of the money due to her. When thiswas informed by P.W.2 to the accused, the accused left home to meetand persuade the deceased Lakshmi, wife of P.W.1. Though it is https://hcservices.ecourts.gov.in/hcservices/ stated in the extra judicial confession that the accused throttledthe neck of the deceased Lakshmi since she made an attempt to assaulthim with a reaper, on persual of the materials, we find that theaccused did not sustain any injury and moreover, in the confession ofthe accused, there is no whisper about such a reaper in the place ofoccurrence nor there is any material to show that it was recoveredduring the course of investigation. We also find corroborativematerial through the medical evidence that the death of the deceasedLakshmi was due to homicidal violence. The presence of the accusedhas been proved through the examination of neighbours, P.Ws.4 and 5.Under such circumstances, the presence and the overt act attributedto the accused with regard to the first occurrence has beenestablished.8. Insofar as the second part of the occurrence is concerned, wecould see that the accused pre-planned before committing such an act.He administered poison on the children after sending P.W.2, his wife,out of her residence. Even when he met P.W.2 again, he did notdivulge and only when P.W.2 returned home, she found the death of hertwo children and it was only at that time, the accused divulged abouthis commission of offence due to worries of non-payment of dues. Onhearing the cries of P.W.2, P.W.3 and others gathered and even toP.W.3, the accused confessed the same. The extra judicialconfessions given to P.Ws.2 and 3 are quite natural and convincingand in the present facts and circumstances of the case, we are of theconsidered view that the same could be accepted. While accepting theextra judicial confessions, we find abundant materials by way ofcorroboration through the evidence of P.Ws.1 to 5. We do not findany major contradictions between the extra judicial confession andthe evidence of P.Ws.1 to 5. Under such circumstances, we are of theconsidered view that the conviction passed by the trial Court iswell-founded and therefore, we have no hesitation to confirm theconviction.9. Even insofar as the sentence part of it is concerned, once anoffence of 302 I.P.C. is confirmed, imprisonment for life is normal.While looking at the mental background of the appellant on the day ofoccurrence and of the previous day, he was in a fit of pressure andworries due to non-payment of debts. Even on the previous day, heleft his home to meet the deceased Lakshmi, wife of P.W.1, only topersuade her. It is a case of circumstantial evidence and as per theextra judicial confession, a quarrel ensued prior to the occurrenceand under such circumstances, the first occurrence took place. It isalso the case of the accused that due to the pressure exerted onaccount of non-payment of debts, he has administered the pesticide tohis children. While considering all the facts and circumstances ofthe case, we are of the considered view that all thesentences of imprisonment for life could be ordered to runconcurrently instead of consecutively. https://hcservices.ecourts.gov.in/hcservices/

10. With the above modification in the sentence part of theimpugned judgment, the appeal is dismissed. At this juncture, weplace on record our encomium to Mr.S.Ananthanarayanan, learnedcounsel, for extending his assistance to this Court as amicus curiaein the disposal of this appeal.Sd/- Assistant Registrar/True Copy/Sub Assistant RegistrarSraTo1. The District Sessions Judge, Udagamandalam.2. The District Collector, Nilgiris District at Udagamandalam.3. The Director General of Police, Chennai.4. The Inspector of Police, Upper-Coonoor Police Station, Udagamandalam.5. The Superintendent, Central Prison, Coimbatore.6. The Public Prosecutor, High Court, Madras.Crl.A.No.845 of 2007AKR(CO)SRA (29/04/2008)