Santhi v. State rep.by Inspector of Police,Mohanur Police Station,Namakkal District

the said effect. Since blood vessels were found cut, the victim wasadvised to take treatment from Mohan Kumaramangalam GovernmentHeadquarters Hospital, Salem. However, by 8.40 a.m., the victimbecame unconscious and before the Judicial Magistrate-I, Namakkal whoarrived at 8.45 pm., she has told that the victim was not in a fitcondition to give dying declaration. Her endorsement in the form ismarked as Ex.P.17. The victim succumbed to the injuries at 9.00 a.m.,(k)P.W.21 is the Investigating Officer in this case. On receiptof FIR copy under Section 307 IPC, he visited the place of occurrenceat 10.00 a.m., and prepared Observation Mahazar Ex.P.27 and RoughSketch, Ex.P.28. He also recovered the sample cement plaster andbloodstained cement plaster from the place of occurrence which areM.O.5 and M.O.6 respectively under Ex.P.29 mahazar. He received theExpress Report at 11.30 a.m., and arrested the accused in thepresence of witnesses. The accused volunteered to give a statement,which was recorded in the presence of witnesses. The accused alsoproduced the bloodstained M.O.1 Koduval from the thorny bush situateon the northern bank of the stream. Her bloodstained Saree (M.O.2)which was worn by her was also recovered under Ex.P.7 mahazar. Heconducted inquest over the dead body of the deceased between 2.30pm., and 4.00 pm., in the presence of panchayatdars in the Hospitalmortuary. Thereafter, the Investigating officer arranged forpostmortem of the dead body and sent Requisition Letter Ex.P.20 tothe Doctor through the Head Constable Gnanadurai. (l)P.W.17, Doctor who conducted the autopsy over the dead body,found the following external injuries and issued Ex.P.21, PostmortemCertificate. "1. An incised wound over the right side neck 6 x 4 cmexposing the underlying cut vessels, muscles, tendons andbones.2. An incised wound 4 x 1 cm x ½ cm below the abovewound.3. An incised wound over the right mandible 7 x 1 cm4. An incised wound over the left shoulder 6 x 2 cm5. An incised wound over the left upper arm 4 x 2 cm6. An incised wound just above the left elbow 6 x 1 cm7. An incised wound over the left wrist 6 cm x bonedepth8. Three small incised wounds each about 1 cm in lengthseen over the left fore arm.C/s.Wound Nos.1 and 2 shows cut ends of jugular veins,muscles and II cervical vertebra injured." https://hcservices.ecourts.gov.in/hcservices/ (m) P.W.17 also gave the opinion that the deceased would appearto have died of shock and haemorrhage due to injury to major bloodvessels in the neck about 6 to 12 hours prior to the post-mortemexamination. (n) Continuing his investigation, P.W.21, examined and obtainedstatements from the witnesses and also requested the JudicialMagistrate-II, Namakkal to send the material objects for chemical analysis. The Chemical Analysis Report and Serological Report areExs.P.11 and P.12. He obtained statement from the Doctor who treatedthe victim and who conducted the post-mortem as well as from theChemical Analyst. After completing his investigation, laid the chargesheet against the accused for the offence punishable under Section302 IPC.4. After filing of the final report, the case was committed tothe Court of Sessions, which was taken up in Sessions Case No: 60 of2006 by the learned Principal District and Sessions Judge, Namakkal,and charge was framed by the learned Sessions Judge against theaccused, for which, the accused denied her complicity with the crimeand therefore the trial of the case was taken up. In order tosubstantiate its case before the Sessions court, the prosecutionrelied on the ocular versions of P.Ws.1 to 21 and marked Exs.P.1 toP.31 and also produced M.Os.1 to 6. 5. On conclusion of the examination of the prosecution witnessesas referred to above, when the accused was questioned under Section313(1)(b) of the Criminal Procedure Code with regard to theincriminating materials appearing against her in the evidence of theprosecution witnesses, she denied each and every incriminatingmaterial as false and pleaded not guilty. However, no witness wasexamined and no document was marked on the side of the defence. 6. The Learned Sessions Judge after perusal of the materials onrecord and after hearing the arguments made by both the parties,convicted and sentenced the appellant as mentioned above andaggrieved against the conviction and sentence, the present appeal ispreferred. 7. Learned counsel for the appellant contended since P.Ws 1 to4, who are direct eye witnesses and P.Ws. 8 and 9, who are mahazarwitnesses for observation mahazar and rough sketch did not supportthe case of the prosecution and turned hostile, the case solely restson the evidence of P.W.16 Doctor and P.W.18 Police Officer, beforewhom, it is alleged that the accused gave dying declaration, Ex.P.22. https://hcservices.ecourts.gov.in/hcservices/

8. Learned counsel also submitted that when the Police Officer(P.W.18) recorded the dying declaration between 8.00 a.m., and 8.30a.m., the victim was in a sound state of mind, but just 15 minutesthereafter, when the Judicial Magistrate came to record the dyingdeclaration, the victim was not in a position to give dyingdeclaration, the very recording of dying declaration by the PoliceOfficer itself, particularly in a very detailed and coherent manner,is unbelievable. In the absence of any independent eye witness tothe occurrence, considering the circumstantial evidence, the offenceunder Section 302 is not proved, and at the most, it has to bebrought under the First Exception of Section 300 IPC and the accusedcan be sentenced for sudden and grave provocation under Section 304(I) IPC. 9. On the other hand, the learned Additional Public Prosecutor,arguing to sustain the conviction and sentence, submitted that thecase of the prosecution has been proved beyond any reasonable doubtbased on the dying declaration and ocular versions of the prosecutionwitnesses, particularly, VAO and Doctors and P.W.17, Police Officer,who has recorded the dying declaration and also the serologicalreport. 10. 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. 11. The evidence of P.W.17, Doctor and the PostmortemCertificate, Ex.P.9 issued by him would show that the deceased dieddue to shock and haemorrhage because of the major injury on the neck.The Doctor also stated in his evidence that the injuries could havebeen caused by a weapon like, M.O.1 Koduval. Thus, the externalinjuries found on the body of the deceased would lead to the definiteconclusion that it is a homicidal death. 12. Now, the point that arises for consideration in this appealis whether the prosecution has brought home the guilt of the accusedbeyond all reasonable doubts? 13. It is not in dispute that conviction can be based solely onthe dying declaration given by the deceased himself before the SubInspector of Police, in the presence of the Doctor. Though, theadmissibility and reliability of the dying declaration is beingchallenged by the learned counsel for the appellant, it is wellsettled law that a dying declaration made to a police officer isadmissible in evidence under Section 32 of the Indian Evidence Act.However in view of the exception provided in Sub-section (2) ofSection 162 of the Code of Criminal Procedure, 1973, it is better to https://hcservices.ecourts.gov.in/hcservices/ leave such practice of recording the dying declaration being done byavailing the services of a Magistrate, if it was possible to do soand the only exception is when the deceased was in such a precariouscondition that there was no other alternative left, except thestatement being recorded by the Investigating Officer or the PoliceOfficer.14. In the present case, P.W.16, Doctor, who admitted thevictim in the Emergency Ward, at 7.20 a.m., gave initial treatmentand advised his successive Duty Doctor, P.W.17 to arrange forrecording of the dying declaration considering the serious conditionof the victim. Accordingly, P.W.17 also sent intimation to theJudicial Magistrate, Namakkal, under Ex.P.16, and on such intimationthe Judicial Magistrate came to the Hospital by 8.45 a.m., In themeanwhile, between 8.00 a.m., and 8.30 a.m., the P.W.18, the SubInspector of Police, came to the Hospital and in the usual course ofinvestigation, recorded the complaint Ex.P.22 from the victim in thepresence of P.W.1 and P.W.17 Doctor who has confirmed the consciousstate of the injured victim at the time of recording the statement asseen from her endorsement in Ex.P.15, and based on such complaint,the FIR came to be registered at 9.00 a.m., for the offencepunishable under Section 307 IPC. According to the evidence of P.W.17Doctor, by 8.40 pm., the victim became unconscious and he died at9.00 a.m., Therefore, in Ex.P.17, dying declaration recorded by theJudicial Magistrate, she has made an endorsement that "since thepatient become unconscious, dying declaration could not be taken".Therefore, it is clear that even though the Judicial Magistrate waspresent in the Hospital soon before the death of the deceased torecord his dying declaration, since the deceased became unconsciousand was not in a position to give a dying declaration, the complaintrecorded by the Police Officer, soon before the arrival of theJudicial Magistrate is very much admissible in evidence and the samecan be treated as the dying declaration. 15.As regards the contention that the dying declarationrecorded by the Police Officer is in a detailed and coherent mannerand therefore it is highly doubtful, particularly, when the victimwas reeling under pain and sufferings due to several injuries, it isto be noticed that P.W.17, the Doctor who stood throughout the timewhen the complaint was recorded, has deposed and made endorsement tothe effect that the victim was in a conscious state of mind to givesuch statement, which cannot be doubted or brushed aside. Thereforethe main test of reliability of a dying declaration viz., the mentaland physical fitness and capability to make the statement at thatpoint of time is fulfilled. 16. As already stated, though conviction can be based on thedying declaration alone, we have sufficient circumstantial evidence https://hcservices.ecourts.gov.in/hcservices/ in the case on hand which unerringly point out the guilt of theaccused. 17. 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." 18. Thus, it is well settled by the decisions of the SupremeCourt that the circumstances from which the conclusion of guilt hasto be drawn should be fully proved and circumstances must beconclusive in nature to connect the accused with the crime. 19. 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.20. In the case on hand, the prosecution placed reliance on thefollowing circumstances:(a)The accused/wife suspected that there wasillicit intimacy between the deceased/husband and oneRajarajeswari, (P.W.6) co-worker in the previous RiceMill;(b)there were frequent quarrels betweenaccused and the deceased as deposed by P.Ws.5 and 7;(c)the hue and cry heard by P.Ws.1 to 4, ofwhich, P.Ws 3 and 4 are daughter and son of theaccused and deceased who were also sleeping along withthem on the date of occurrence and subsequently sawthe victim with multiple bleeding injuries and alsosaw the accused/wife sitting by his side weeping;(d) the victim himself told before thePanchayatdars https://hcservices.ecourts.gov.in/hcservices/ that it is only his wife who had caused the injuries,as deposed by P.W.5 and P.W.14, independentwitnesses; and before P.W.16, the Doctor who admittedin the Emergency Ward;(e) the complaint, Ex.P.22, recorded by P.W.18, S.I.ofPolice, from the victim himself, which is latertreated as dying declaration, which statement isattested and endorsed by the Doctor authenticatingthat it has been obtained when the victim was in aconscious and sound state of mind;(f)the admissible portion of extra judicialconfession given by the accused himself to theInvestigating Officer and based on which subsequentrecovery of bloodstained M.O.1, Koduval as well asbloodstained dress materials which all contain thesame group of human blood. 21. It is true that four eye witnesses namely, P.Ws.1 to 4 haveturned hostile. Even, if we discard the evidence of P.Ws.1 to 4, wecan still rely on their chief examination to some certain extent,namely, they heard the noise from the house of the accused soonafter the occurrence and they also saw the presence of theaccused/wife sitting and weeping by the side of the injured husband.The suspicion by the accused/wife, as to the illicit relationshipbetween the deceased and one Rajarajeswari, is spoken to by thedeceased himself before P.Ws.5,14 who are independent witnesses andP.W.16 Doctor who admitted and gave treatment and P.W.18 the S.I.ofPolice, who recorded the complaint. In Ex.P.22, complaint/dyingdeclaration itself, it is stated by the victim/deceased that on thedate of occurrence, when there was a wordy quarrel between them as tothe illicit intimacy of the deceased with the said Rajarajeswari, thedeceased uttered that "he would continue such relationship" (mg;goj;jhd;oitj;jpUg;ngd;) and on hearing the same, the accused saying that "youdie at last" (,j;njhL eP xHpe;J ngh) indiscriminately cut with the Koduvalon various parts of his body. The medical evidence also disclosesthat there were 8 incised injuries. Therefore, it is well establishedthat there is a strong motive and there is intention on the part ofthe accused to commit the crime. 22.As regards the last seen theory, in the instant case, P.Ws.3and 4 being the daughter and son of the accused and deceased, havedeposed that all of them were sleeping together and when they awokeon hearing the hue and cry, they saw their father lying in a pool ofblood and their mother was sitting by his side. It is the evidenceof P.Ws 1, 2, 5,11 and 14 that between 4.30 a.m., and 6.30 a.m.,they came to know about the death of the deceased, and they alsowent and saw the dead body at the scene of occurrence with multiple bleeding injuries. https://hcservices.ecourts.gov.in/hcservices/

23. As regards the admissible portion of extra judicialconfession, it is the evidence of P.W.1, Village AdministrativeOfficer, that on the date of occurrence itself at about 11.30 am.,when he was proceeding to Manappalli Village for collection of taxalong with the Village Assistant, P.W.21, Investigating Officer hasarrested the accused in their presence and the accused confessedthat she has committed the murder of the deceased/husband. Heradmissible portion of confession is marked as Ex.P.5. Based on herconfession, the accused also produced the bloodstained Koduval,M.O.1, which she has used for the commission of the crime and alsothe bloodstained saree, M.O.2. In the recovery mahazars, the VAO andthe Village Assistant have signed as mahazar witnesses. It is notalso established that the independent witnesses have any grudge tofalsely implicate the accused. The Serological Report also is to theeffect that M.Os.1,2, and 6 contain human blood of B group and thereis no explanation offered by the accused for the presence of blood onher Saree. 24.Failure to give any explanation by the accused to theincriminating circumstances put against her is also fatal to defencecase and can be treated as an additional link. In Trimukh MarotiKirkan Vs. State of Maharashtra, reported in (2006) 10 SCC 681, itwas 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. 25. Admittedly, in the case on hand, when the accused wasquestioned under Section 313 Cr.P.C., with regard to theincriminating circumstances appearing against her in the evidence ofthe prosecution witnesses, she has baldly denied them as falsehoodand pleaded not guilty. Since no explanation was offered by theaccused, it is a strong circumstance against the accused by drawingadverse inference against her. 26. As already stated, the medical evidence shows that thedeceased sustained 8 incised injuries on various parts of his bodyand that he died due to shock and haemorrhage caused by such multipleinjuries. Hence, we are of the definite view that the medicalevidence also corroborates with the evidence of ocular witnesses. https://hcservices.ecourts.gov.in/hcservices/

27. Therefore, we are of the opinion that apart from the dyingdeclaration, the prosecution has also 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 thedecisive conclusion that it is only the accused who had committed theoffence without giving room to any other hypothesis. 28. The ultimate issue for consideration is whether the accusedis liable to be convicted under Section 302 of the Indian Penal Code.According to the learned counsel for the appellant, the offencecommitted would fall under First Exception to Section 300 IPC as theoffence has been committed upon a sudden and grave provocationwithout any premeditation which would attract punishment only underSection 304 (I) IPC. 29. Even as per Ex.P.22, complaint/dying declaration itself, itis stated by the victim/deceased that on the date of occurrence, inthe early morning at 4.30 a.m., the accused picked up a quarrel withhim and when the accused questioned him as to the illicit intimacywith the said Rajarajeswari, he has stated that "he would continuesuch relationship" (mg;goj;jhd;o itj;jpUg;ngd;); and provoked by thatanswer, the accused replied "to do away him at once" (,j;njhL eP xHpe;Jngh) and indiscriminately cut with M.O.1, Koduval, which was availablein the house itself, on various parts of the body. The medicalevidence disclose that there were 8 incised injuries which goes toshow the intention on the part of the accused to cause the death ofthe deceased by inflicting such bodily injury which is likely tocause death. Thus, it could be seen that only provoked by the wordsuttered by the deceased/husband that he would continue such illicitintimacy with the said Rajarajeswari, the accused/wife due to suddenand grave provocation, lost her self control and took the Koduvalavailable in the house itself and inflicted the cut injuries on theneck, shoulder and other parts of the body in a fit of anger withoutany premeditation. Hence, we are of the confirmed opinion that theoffence committed by the accused can be brought down under Exception1 to Section 300 I.P.C. Accordingly, the conviction of theappellant/accused under Section 302 I.P.C., is modified to Section304 Part-I I.P.C. 30. As far as the sentence part is concerned, considering themental agony of the accused and also considering the paramountinterest of the two children, we are of the view that a sentence ofSeven Years rigourous imprisonment would meet the ends of justice.31. In result, (i) the conviction of the appellant/accused underSection 302 I.P.C. is set aside and instead, she isconvicted under Section 304 Part-I I.P.C.; https://hcservices.ecourts.gov.in/hcservices/ (ii) for the said conviction, the accused is sentencedto seven years rigourous imprisonment;(iii) as the accused is reported to be on bail, thebail bonds shall stand cancelled and the learned SessionsJudge shall take steps to commit her to jail to undergo theremaining period of sentence;(iv) with the above modification in conviction andsentence, the appeal is allowed in part. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gkvTo1. The Principal District and Sessions Judge, Namakkal. 2. The Judicial Magistrate-II, Namakkal.3. -do- thru' the Chief Judicial Magistrate, Namakkal District4. The Superintendent, Sub Jail for women, Vellore. 5. The Public Prosecutor, High Court, Madras6. The District Collector, Namakkal District7. The Director General of Police, Chennai8.The Inspector of Police, Mohanur Police Station. + 1 CC To Mr.B.Vasudevan Advocate SR NO.31606 Judgment in Crl.A.No.811 of 2006SSV {CO}TP/8.7.08.