Chokkalingam v. State

Bail SlipCrl.Appeal No.521 of 2006The Appellant/Accused viz, Chokkalingam, S/o. Kiddappa was releasedon bail as per the order of the court dated 3.1.2007 in M.P.No.1/06.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12-06-2008THE HON'BLE MR.JUSTICE P.D.DINAKARANANDTHE HON'BLE MR.JUSTICE K.N.BASHACRIMINAL APPEAL NO: 521 OF 2006Chokkalingam.. Appellant/AccusedVsState rep.by Inspector of Police,Kelamangalam Police Station,Kelamangalam.Dharmapuri District.(Crime No.67 of 2002).. Respondent/ComplainantAppeal filed under Section 374 (2) Cr.P.C against the judgmentdated 19.4.2005 made in S.C.No.366 of 2002 on the file of the learnedI-Additional District and Sessions Judge, Dharmapuri at Krishnagiri.For appellant:Mr.B.RajamaniFor respondent :Mr.N.R.Elango,Addl.Public Prosecutor JUDGMENT(Judgement of the Court was delivered by P.D.DINAKARAN,J.,) The appellant was put up for trial in S.C.No. 366 of 2002 beforethe learned I-Additional District and Sessions Judge, DharmapuriDistrict at Krishnagiri for uxoricide and was found guilty, convictedand sentenced under Section 302 IPC to undergo imprisonment for lifeand also to pay a fine of Rs.1000/-, in default to undergo rigorous https://hcservices.ecourts.gov.in/hcservices/ imprisonment for one year. The conviction and sentence is underchallenge in the present appeal.2. The Inspector of Police, Kelamangalam Police Station, laid acharge sheet stating that between 5.30 pm., on 16.2.2002 and by2.30 a.m., on 17.2.2002, the appellant Chokkalingam suspecting thefidelity of his wife Prema, with the intention to kill, assaultedher indiscriminately with his hands and kicked her with his legs onthe abdomen and dashed her head in the wall and caused injuries tohead, abdomen, cheek and right shoulder, thereby the said Prema diedof effects of multiple injuries on 17.2.2002 at 7.00 a.m., and thus,committed the offence punishable under Section 302 IPC.3. When the accused was initially questioned with regard to thecharges levelled against him, the accused denied them and requestedfor trial. To sustain the charge levelled against the accused, theprosecution relied upon the ocular version of P.Ws.1 to 16 andadduced Exs.P1 to P.13. 4. The case of the prosecution, as unfolded by the prosecutionwitnesses, is as under:-(a)P.W.1 Venkatammal alias Saroja is the mother of thedeceased. She deposed that her deceased daughter Prema was workingas a Supervisor in a Primary School at Kelamangalam and the accusedwas working in a Bank at Kelamangalam. The children of the deceasedand the accused were put up in the Hostel since there were frequentquarrels between the father and mother which was not conducive fortheir studies. It is her evidence that her daughter very often usedto come to her residence complaining about the picking up of quarreland beating by the accused after consuming liquor. On one suchoccasion, the deceased sustained severe head injury and every time,P.W.1 and her husband used to pacify them. According to her, one dayprior to the death, she had seen the deceased doing normalactivities, and on the next day she was informed by one Watchmanabout the death of her daughter. When she went to the place ofoccurrence, she saw injuries on the chest and fore head of thedeceased and foam was discharging fromh er mouth and nose. Thereafterher husband went to the Kelamangalam Police Station and gave Ex.P.7complaint. (b)P.W.2, Sarojini is sister of the deceased residing atKrishnagiri. P.W.2 deposed that the deceased often complained of theharassment and beating by the accused and once he had broken herhands and P.W.2 gave treatment to the deceased at Krishnagiri andsent back. It is also stated by her that Panchayat was held twice.She also saw the deceased with injuries on her chest, abdomen andfore head. https://hcservices.ecourts.gov.in/hcservices/ (c)P.W.4, a nearby resident, though later turned hostile,deposed in the chief examination that he had seen the deceasedwashing the cloths at 5.00 pm., one day prior to her death and atthat time, the accused was also present. Thereafter he had not seenthe deceased and only on the next day at 3.00 pm., he came to knowabout the death of the deceased. P.W.5, who is having her residencethree houses from the house of the deceased also stated that on16.2.2002 (Saturday) she had seen the deceased in her house at 5.30p.m., and at that time the deceased was screaming unable to bear thebeating by the accused. (d)P.W.6, brother of the deceased, deposed about the frequentquarrel between the accused and the deceased and Panchayats done bythe parents of the accused. He also stated that the accused isaddicted to drink and whenever he drinks he used to pick up quarrelwith the deceased. It is only P.W.6 who had first seen the dead bodyof the deceased on 18.2.2002 at 3.30 pm., when he went there to getsome money. (e)P.W.7 is the daughter of the deceased and accused. P.W.7stated that her father used to beat her mother whenever he drinks andher mother would go to the grandmother's house. She had also seenthe deceased mother with injuries on her head and chest. (f)P.W.8 is another independent witness who is residing 40feet away from the place of occurrence. According to this witness, hehas seen the deceased both in the morning and evening on 17.2.2002.He heard the heated wordy quarrel between the accused and thedeceased between 7.00 p.m., to 12.00 p.m., and thereafter he did nothear anything. Only on the next day at about 3.30 pm., he came toknow about the death of the deceased. He also went along with othersand saw the body with injuries on the head and chest. (g)P.W.9, who is a friend to the father of the deceaseddeposed that after marriage, there were frequent quarrels between theaccused and the deceased and many times he used to pacify them. Onthe fateful day, when he was standing in the Morappur Bus stand at1.00 pm., along with one Krishnan to go to Pallikonda, the deceasedin an inebriated mood came near them and told that he had killed hiswife after beating her severely. As he was in a drunken mood, P.W.9did not believe his statement and left for Pallikonda. (h) P.W.14 is the Police Constable who registered thecomplaint of Thimmarayan, father of the deceased in Crime No: 67 of2002 under Section 174 Cr.P.C., as a suspicious death and forwardedthe FIR Ex.P.8 to the Inspector of Police, Rayakkottai PoliceStation. P.W.16 is the Investigating Officer. On receipt of the FIRcopy on 18.2.2002 at about 6.15 a.m., P.W.16 visited the place of https://hcservices.ecourts.gov.in/hcservices/ occurrence at 7.00 a.m., and prepared Observation Mahazar Ex.P.3 andRough Sketch Ex.P.11 in the presence of witnesses. He conducted aninquest on the body of the deceased in the presence of the witnessesand obtained statements from them. Ex.P.12 is the inquest report.Thereafter he arranged to send the body for autopsy to the GovernmentHospital, Denkanikottai through Head Constable, P.W.12. (i)P.W.15, Doctor who conducted post-mortem over the dead bodyof the deceased found the following external and internal injuries:-External Injuries:-1. A bluish contusion 4 cm dia over the rightcheek below eye.2. A bluish contusion 30 x 20 cm on the righttemporal parietal region3. A bluish contusion of 10 cms dia on the leftand lateral side of abdomen.4. Abnormal mobility of the right shoulder jointfelt. Dislocation of right shoulder joint c/s. Rightshoulder dislocated.Internal Injuries:1. There is collection of clotted blood 10ml diameter seen on the peritoneal cavity ofthe (n.c) of the small intestine in theabdomen.2. Heart – 225 gms c/s. Empty3. Lungs: Right 350 gms. Left – 300 gms c/s congested.4. Hyoid Bone: Intact5. Stomach: contain 250 ml of brownish fluid with rice particles. 6. Liver: 1000 gms c/s. Congested7. Spleen: 90 gms c/s. Congested8. Kidneys: 100 gms c/s congested9. Uterus: Normal in size. Not Pregnant.On opening Skull:On opening the vault of skull collection of bloodclot present from frontal to occipital region.Membranes intact.Brain: Right hemisphere smeared with blood. Collectionof clotted blood on the posterior cranical fossa ofright side. Weight 1000 gms. (j)P.W.15, issued Ex.P.10 Post-mortem certificate and alsoopined that the deceased would have died of shock and haemorrhage due https://hcservices.ecourts.gov.in/hcservices/ to injuries to vital organs like brain, peritoneum. (k)P.W.16, Investigating Officer, while continuing hisinvestigation obtained statements from the witnesses including theDoctor who conducted Post-mortem and also the Post-mortem certificateEx.P.10 from him. Thereafter altered the crime from Section 174Cr.P.C.,into Section 302 I.P.C., and sent report to the concernedJudicial Magistrate's Court. He also enquired the father of thedeceased Thimmarayan and other witnesses. On receiving information hearrested the accused on 22.2.2002 at 9.30 a.m., near Kelamangalam-Uthanappalli Koot Road in the presence of witnesses who volunteeredto give confession statement. He sent the Viscera of the deceased forchemical examination. After completing his investigation, P.W.16laid the final report on 15.3.2002 for the offence punishable underSection 302 IPC. 5. After conclusion of the prosecution evidence, the appellantwas questioned under Section 313 Cr.P.C., with regard to theincriminating materials adduced by the prosecution against him, forwhich, the appellant denied complicity of the commission of theoffence. Neither oral, nor documentary material has been produced onthe side of the defence. The learned Sessions Judge after hearing theoral arguments of both sides, documentary evidence and materialobject, convicted and sentenced the appellant as mentioned earlier.Aggrieved against the same, the present appeal is preferred. 6. Learned counsel for the appellant contended that this casebeing purely based on circumstantial evidence alone, no one speaksabout the motive and thus the very charge of fidelity being the causefor the frequent quarrel is not supported by any evidence. Further,there is no external injuries on the deceased to conclude that theaccused had caused the death of the deceased. He also contended thatP.Ws 3,5 and 6 have turned hostile and there is contradiction withregard to time in obtaining the statement from P.W.8. 7. However, the learned Additional Public Prosecutor, contendedthat the motive as well as the commission of the offence by theaccused has been established beyond all reasonable doubts by theprosecution. He has placed reliance on the oral evidence of theprosecution witnesses and also the medical evidence. 8. We have given our careful and anxious consideration to therival contentions put forward by either side and also perused theentire materials available on record and considered each and everycircumstance put forward by the prosecution. 9. A perusal of Ex.P.10, Post-mortem certificate would show thatthe deceased had contusions in her cheek,right temporal parietalregion, left and lateral side of abdomen and dislocation of rightshoulder. There was collection of blood clot present from frontal to https://hcservices.ecourts.gov.in/hcservices/ occipital region and the Right hemisphere smeared with blood. Therewas also collection of clotted blood on the posterior cranical fossaof right side. P.W.15, the Doctor who conducted the post-mortem alsoopined that the deceased would have died of effects of multipleinjuries to vital organs like brain and intestine. Thus, theexternal and internal injuries found on the body of the deceasedwould lead to the inescapable conclusion that it is a homicidaldeath. 10. Now, the point that arises for consideration in this appealis whether the prosecution has brought home the guilt of the accusedbeyond all reasonable doubts?11. The entire prosecution case rests on the circumstantialevidence. The law on the circumstantial evidence is now well settledby the Apex Court in a number of judgments. In Sharad BirdhichandSarda v. State of Maharashtra (1984) 4 SCC 116, the Apex Court hasheld that while dealing with circumstantial evidence, beforearriving at the finding that the accused is guilty of the offence,the following circumstances must be established:-(i)the circumstances from which the conclusion of the guilt isto be drawn should be fully established;(ii)the facts so established should be consistent only with thehypothesis of the guilt of the accused and could not be explainableon any other hypothesis except that accused is guilty;(iii)the circumstances should be of conclusive in nature; and(iv)there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withinnocence of the accused on preponderance of probability. 12. In Padala Veera Reddy v. State of Andhra Pradesh (1989 Supp(2) SCC 706), the Apex Court has laid down the following tests forconsideration in a case of circumstantial evidence:"(1) the circumstances from which an inference ofguilt is sought to be drawn, must be cogently andfirmly established;(2) those circumstances should be of a definitetendency unerringly pointing towards guilt of theaccused;(3) the circumstances, taken cumulatively, shouldform a chain so complete that there is no escape fromthe conclusion that within all human probability thecrime was committed by the accused and none else; and(4) the circumstantial evidence in order tosustain conviction must be complete and incapable ofexplanation of any other hypothesis than that of theguilt of the accused and such evidence should not onlybe consistent with the guilt of the accused but shouldbe inconsistent with his innocence." https://hcservices.ecourts.gov.in/hcservices/

13. Thus, it is well settled by the decisions of the Hon'bleSupreme Court that the circumstances from which the conclusion ofguilt has to be drawn should be fully proved and circumstances mustbe conclusive in nature to connect the accused with the crime. 14. In the light of the above well settled principle of lawregarding the circumstantial evidence, let us now consider thecircumstances put forward by the prosecution against the accused.15. The prosecution placed reliance on the followingcircumstances :(a)there were frequent quarrel between theaccused and the deceased which is substantiated by theversion of the prosecution witnesses;(b)the last seen theory spoken by P.W.4 and P.W.8in respect of the presence of the accused in thecompany of the deceased ; and(c)giving extra judicial confession to anindependent witness and arrest after four days andvoluntary confession.16. Though in the charge it is alleged that the accused had beenquarrelling with the deceased suspecting her fidelity, none of theprosecution witnesses speak about the motive of the accused withreference to fidelity. In fact, there is also no reference as tosuspecting the fidelity in the FIR also. But, all the witnessesspeak about the frequent quarrels between the accused and deceasedthat ensued whenever the accused consumes alcohol. P.W.1 is themother of the deceased. P.W.2 is the sister of the deceased. Theydepose about the frequent quarrel between the accused and thedeceased and in fact the accused on the earlier occasions had brokenthe hands and caused severe injury on the head of the deceased, forwhich, she had taken treatment from her mother and sister. P.W.9, anindependent witness also speaks about the frequent quarrel andPanchayats done by him. In Ex.P.8, complaint also there is a mentionabout the frequent quarrel. P.Ws 3 to 6 and 8 being neighbours alsodepose about the frequent quarrel between the accused and thedeceased. Above all, P.W.7, the daughter of the deceased also statedthat whenever she comes to the house from the hostel on holidays, shehad seen the accused-father beating the deceased-mother very often.It is the prosecution evidence that the two female children were leftin the Hostel only due to the frequent quarrels which may not beconducive for their studies. Therefore, it cannot be said that thereis no motive for the accused to kill the deceased. Though thecomplainant, namely the father of the deceased could not be examined,since he was not alive at the time of trial, the non examination ofthe complainant is not fatal to the case, when there are otherincriminating evidence against the accused. https://hcservices.ecourts.gov.in/hcservices/

17.As regards the last seen theory, it is the evidence ofP.W.4, a neighbour, that on 16.2.2002 i.e., one day prior to thedate of occurrence at 5.00 p.m., he had seen the deceased washing thecloths in her house and at that time, the accused was also present.P.W.8, who is also a neighbour, stated that he had seen the deceasedon 16.2.2002 both in the morning and in the evening and that between7.00 p.m., to 12.00 p.m., there was a quarrel between the accused andthe deceased and he heard the screaming voice for some time. Both,P.W.4 and P.W.8 saw the dead body of the deceased on the next day at3.30 pm., with multiple injuries. 18.It has been clearly established that the accused and thedeceased were residing in the occurrence house at the time when theoccurrence took place. Though they had two children they were in theHostel at the occurrence time. It is not the case of the prosecutionor the defence that some third person was living with them. So onlythey two were living in the house. The dead body of the deceased-wifewas found with multiple injuries inside the house where the accused-husband and deceased-wife alone were residing there. P.W.4 and P.W.8have last seen both the accused and deceased on the previous dayevening i.e., Saturday. In such a circumstance, it is for theaccused to explain as to how the body of Kannammal was buried insidethe house where only they two were living. Ordinarily, if the wifewas found missing, the husband would search for her. However, in thiscase, the husband after commission of the crime, absconded till hisarrest after three days by the police. Therefore, it is for thehusband to offer explanation as to how the dead body of his wife cameto be found inside the house. Lack of such explanation on the part ofthe appellant itself would be an additional link in the chain ofcircumstances put against him. 19.In Trimukh Maroti Kirkan Vs. State of Maharashtra, reportedin (2006) 10 SCC 681, it was observed:-"21. In a case based on circumstantial evidence whereno eyewitness account is available, there is anotherprinciple of law which must be kept in mind. The principleis that when an incriminating circumstance is put to theaccused and the said accused either offers no explanationor offers an explanation which is found to be untrue, thenthe same becomes an additional link in the chain ofcircumstances to make it complete. This view has been takenin a catena of decisions of this Court. 22. Where an accused is alleged to have committed themurder of his wife and the prosecution succeeds in leadingevidence to show that shortly before the commission ofcrime they were seen together or the offence takes placedin the dwelling home where the husband also normallyresided, it has been consistently held that if the accuseddoes not offer any explanation how the wife received https://hcservices.ecourts.gov.in/hcservices/ injuries or offers an explanation which is found to befalse, it is a strong circumstance which indicates that heis responsible for commission of the crime". 20. Admittedly, in the case on hand, when the accused wasquestioned under Section 313 Cr.P.C., with regard to theincriminating circumstances appearing against him in the evidence ofthe prosecution witnesses, he has baldly denied the same exceptstating "untrue" and "do not know". Since no explanation beingoffered by the accused, it is a strong circumstance against theaccused by drawing adverse inference against him and in favour of theprosecution case. 21. As regards the extra judicial confession, it is the evidenceof P.W.9, an independent witness, that after marriage, there werefrequent quarrels between the accused and the deceased and many timeshe used to pacify them. When he was standing on 17.2.2002 at 1.00p.m., in the Morappur Bus stand along with one Krishnan to go toPallikonda, the deceased in an drunken mood came near them and toldthat he had killed his wife after beating her. As he was in anintoxicated condition, P.W.9 did not believe his statement and leftfor Pallikonda. P.W.16 is the Investigating Officer who also deposedthat on 22.2.2002 at 9.30 a.m., the accused was arrested in theKelamangalam-Uthanapalli Koot Road and he gave the confessionalstatement voluntarily in the presence of witnesses. P.W.11, VillageAdministrative Officer, who stood as a mahazar witness for the samecorroborates the voluntary confession statement given by the accused.There is no necessity for the independent witnesses, who have no axeto grind, to falsely implicate the accused. 22.As regards the contention that no external injuries werefound even as seen from the postmortem certificate, particularlyhyoid bone was also found to be intact, it is to be seen that therewere three contusions and the nose and mouth of the deceased werefilled with foam due to internal injuries sustained in the smallintestine and brain. According to P.W.15, Doctor, there was bloodclotting present from the frontal to occipital region and the righthemisphere smeared with blood. Clotted blood found on the posteriorcranical fossa of right side of the brain. The Doctor opined thatthe deceased died of shock and haemorrhage due to bleeding injuriesto vital organs like brain and peritoneum. Therefore, it cannot beconcluded that merely because there is no severe external injuryfound on the body, the death is not probable. As regards thecontention that hyoid bone was intact, it is not the case of theprosecution that the deceased was strangulated by the accused tocause her death. Further it is not necessary that fracture of hyoidbone is a must in all the cases of strangulation as held by the ApexCourt in Ponnusamy Vs. State of Tamil Nadu reported in 2008 AIR SCW3184. The prosecution case that the accused had severely beaten thedeceased with his hands and legs on the abdomen, chest, face and https://hcservices.ecourts.gov.in/hcservices/ thrashed her head in the wall has been corroborated by medicalevidence. 23.With regard to the contention that there are contradictionsin the evidence of the Investigating Officer and P.W.8 as to the dateof examination of P.W.8 by the Investigating Officer, it must betaken into consideration that depositions in the trial were takenafter three years of the date of occurrence and further this trivialcontradiction will not tilt the prosecution case in any manner asthere are ample corroborative materials available against the accusedto convict the accused. It is well settled principle of law that thecourts should not get swayed by minor contradictions or insignificantdiscrepancies in the statement of the witnesses.24. Therefore, we are of the firm opinion that the prosecutionhas established beyond any reasonable doubt that the accused andthe deceased were living together, there were frequent quarrelsbetween them, which is spoken to by the neighbours and prosecutionwitnesses; and on the date of occurrence i.e., between 5.30 pm., on16.2.2002 and 2.00 a.m., on 17.2.2002, there was a quarrel andP.W.4 and P.W.8, have last seen the deceased in the company of theaccused on 16.2.2002 at about 5.30 p.m., on the date of occurrenceitself the accused gave extra judicial confession before P.W.9, anindependent witness; thereafter the deceased was not seen alive byanyone and on the next day when P.W.6, brother of the deceased, wentinside the house, found the deceased with injuries on her abdomen,head and chest, and three days later accused was arrested whoconfessed the truth which was reduced into writing under Ex.P.12.Therefore, the prosecution has proved each and every link in acomplete manner so as to complete the chain of circumstance. Thus,all the circumstances narrated above, put together, would lead to theunassailable inference that it is only the accused who committed theoffence without giving room to any other hypothesis. 25. The next question is whether the accused is liable to beconvicted under Section 302 of the Indian Penal Code. A perusal ofthe postmortem report would show that there was no severe externalinjuries and all the internal organs were found normal. According tothe doctor, the death could be due to shock and haemorrhage and bloodclotting in the brain and intestine. This is a case where deathbecame the consequence because of bleeding of blood and bloodclotting in the inner vital organs of the body. Even according to theprosecution, the accused had not used any weapon for committing thecrime. There were frequent quarrels between the accused and thedeceased on account of the suspicion on the fidelity of thedeceased/wife. On the fateful day, there was a quarrel and at thespur of moment, without any premeditation, losing his self control,in a fit of anger, the accused caught hold of the head of thedeceased and dashed against the wall, which resulted in the death. Inthat process, he had not used any dreadful weapon. It is therefore https://hcservices.ecourts.gov.in/hcservices/ evident that the accused had no intention to kill, but he had theknowledge that his act of dashing the head of the deceased againstthe wall would certainly cause the death. Hence, we are of the viewthat the appropriate conviction would be in terms of Section 304 PartII IPC. In the circumstances of the case, we impose a sentence ofrigorous imprisonment for five years. 26. In the result, the appeal is disposed of with the abovemodification of the conviction and sentence. The bail bond executedby the accused shall stand cancelled and the trial court shall takesteps to secure the accused, to sent him to prison to undergo theremaining period of sentence. sd/-Asst.Registrar/true copy/Sub Asst.RegistrargkvTo1. The I Additional Sessions Judge, Dharmapuri at Krishnagiri.2. -do- thru' the Principal Sessions Judge, Dhamapuri Dist.3. The Judicial Magistrate, Denkanikottai.4. -do- thru' the Chief Judicial Magistrate, Dharmapuri Dist5. The Superintendent, Central Prison, Vellore. 6. The Public Prosecutor, High Court, Madras7. The District Collector, Dharmapuri District8. The Director General of Police, Chennai9.The Inspector of Police, Keelamangalam Police Station,Keelamangalam, Dharmapuri District.+1 cc To Mr.B.Rajamani, Advocate, SR.28580Crl.A.No.521 of 2006ksk [co]gkg/30.6