Raja v. The State of Tamil Nadu

bail SlipThe appellant/ Accused Viz, Raja was directed to be releasedon bail in and by order of this Court dated 12.2.2007 made inCrl.M.P.No.1/2007.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.07.2008CORAM :THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE K.N.BASHACrl.A.No.844 of 2006Raja... Appellant/ Accusedvs.The State of Tamil Nadu,rep. by Inspector of Police,Dharmapuri Police Station, Dharmapuri District.(Cr.No.964/2004).... Respondent/ ComplainantAppeal against the judgment of the learned AdditionalSessions Judge and Fast Track Court, Dharmapuri dated 20.9.2006made in S.C.No.152 of 2005.For Appellant:Mr.R.SelvakumarFor Respondent:Mr.N.R.ElangoAdditional Public ProsecutorJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)This appeal arises out of the judgment of conviction andsentence dated 20.9.2006 passed in S.C.No.152 of 2005 on the fileof Additional Sessions Judge and Fast Track Court, Dharmapuri,against the sole accused/appellant. By the said judgment, theappellant was convicted under Section 302 I.P.C. for havingcommitted an offence of uxoricide and sentenced to imprisonmentfor life and also to pay a fine of Rs.1,000/- with a defaultsentence of three months rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/

2. The prosecution laid the charge sheet against the appellantalleging that on 30.7.2004 at about 11.30 a.m., due to the illicitrelationship of his wife, Sivammal with another person, he causedher death by strangulating her neck with a nylon thali chain andthereby, committed an offence punishable under Section 302 I.P.C.3. The case was committed to Court of Sessions and wheninitially questioned, the accused denied the commission of offenceand hence, the case was put up for trial. To prove the charge, theprosecution marched P.Ws.1 to 15, produced Exs.P.1 to P.20 andM.Os.1 to 7. 4. The prosecution case, as unfolded by the witnesses is asfollows:(a) The accused Raja is the husband of the deceased Sivammaland they have four children out of their wedlock. P.W.10 is theirdaughter and P.W.11 is the mother of the deceased Sivammal. P.Ws.1and 2, who are husband and wife, are related to the accused, inthat, the accused is the son of junior mother-in-law of P.W.1.P.Ws.3 and 4 are the brothers-in-law of P.W.1. The accused and thedeceased were residents of Kallipuram and the accused was a coolieby profession. P.W.1 is a homeopathy doctor and P.W.2 is workingas an accountant in the Electricity Board.(b) While residing at Kallipuram, the deceased Sivammaldeveloped intimacy with one Munuswamy and about two months prior tothe occurrence, she eloped with the said Munuswamy. On coming toknow that she is residing at Bangalore, on 25.7.2004, the accusedwent to Bangalore and brought her back and out of shame, he did notgo to Kallipuram and he stayed in the house of P.Ws.1 and 2 alongwith the deceased at Nallakoundenhalli. While so, on 30.7.2004 atabout 12.00 noon, the accused went to the clinic of P.W.1 and hewas seen in an agitated mood by P.W.1 and after drinking water, theaccused left the place without saying anything to P.W.1. Afterreturning home at about 9.00 p.m., P.W.1 enquired his wife, P.W.2and his son Satishkumar and they informed him that at about 8.30p.m., the accused came there and while they were talking, theaccused, saying that somebody passed thereby, asked Satishkumar,son of P.Ws.1 and 2, to bring torch light and on finding nobody inthe house, they went to upstairs and found the dead body of thedeceased lying there and the same was informed to P.W.2, who alsowent and saw the dead body of the deceased. P.W.1 immediately wentto the terrace and found the dead body and he also noticed ligaturemarks around the neck. When P.W.1 asked for the accused, he wasnot there. https://hcservices.ecourts.gov.in/hcservices/ (c) P.Ws.3 and 4, the brothers-in-law of P.W.1, wereproceeding to the house of P.W.1 and on the way, they saw theaccused in a depressed mood and when they questioned him, theaccused replied that because his wife was having illicitrelationship with another person, he murdered her and saying so, hewent away. On seeing P.W.1 coming in front of them searching forthe accused, they informed P.W.1 about the confession made by theaccused. Thereafter, P.W.1 proceeded to the police station andlodged the complaint, Ex.P.1, implicating the accused.(d) P.W.14, Sub-Inspector of Police, Dharmapuri PoliceStation, on receipt of the complaint at about 3.30 a.m. on31.7.2004, registered a case in Crime No.964 of 2004 under Section302 I.P.C. against the accused. Ex.P.1 is the said complaint andEx.P.18 is the printed F.I.R. and the same were sent to Court andcopies to higher officials. (e) P.W.15, Inspector of Police, took up investigation in thecase on receipt of a copy of the F.I.R. and proceeded to the sceneof crime, observed it and prepared Ex.P.3, observation mahazar andEx.P.19, rough sketch. He caused the photographs of the dead bodyto be taken by P.W.12. He held inquest in the presence ofpanchayatdars and witnesses and examined P.Ws.1, 2 and others andrecorded their statements. Ex.P.20 is the inquest report. Thedead body was thereafter sent to the hospital through a policeconstable, P.W.13, with a requisition to conduct autopsy.(f) P.W.8, Civil Assistant Surgeon, Government Head QuartersHospital, Dharmapuri, conducted post-mortem on the dead body ofSivammal and noticed a black coloured contusion in front of theneck extending on both sides up to and below the occipital - length38 cm. and breadth 3/4 cm. He issued Ex.P.6, post-mortemcertificate, reserving his opinion as to the cause of death pendinghypopathological report and on receipt of Ex.P.15, he opined thatthe death was on account of asphyxia due to compression over thetrachea and it would have occurred about 24 to 36 hours prior toautopsy.(g) Continuing with the investigation, P.W.15 recovered a pairof chappal - M.O.1 from the scene of occurrence. He examinedP.Ws.3, 4 and others and recorded their statements. He arrested theaccused at about 3.00 p.m. and pursuant to the confession statementgiven by the accused, the nylon thali rope - M.O.3 was recoveredunder a mahazar attested by P.W.5 and another. The accused wassent for judicial remand and the material objects were sent toCourt with a request to forward them for chemical examination. Heexamined witnesses on various dates and recorded their statements.P.W.9, magisterial clerk sent the material objects to laboratory https://hcservices.ecourts.gov.in/hcservices/ and received Exs.P.11 to 14, chemical examiner's reports andserologist reports. The investigating officer, on receipt ofmedical reports, questioned the doctor and recorded his statement.After completing the formalities, he laid the charge sheet againstthe accused on 10.9.2004.(h) On completion of evidence on the side of the prosecution,the accused was questioned under Section 313 Cr.P.C. as to theincriminating materials, which he denied as false and stated that afalse case has been foisted against him. Neither a witness wasexamined nor any document was marked on the side of defence.(i) The trial Court, appreciating the evidence on record, bothoral and documentary, found the appellant guilty of the charge andaccordingly, convicted and sentenced him as referred to earlier.Hence, this appeal.5. The learned counsel for the appellant submits that as thecase rests solely on circumstantial evidence, the circumstancesbrought forth by the prosecution are not consistent with the guiltof the accused and even if the entire facts are taken to be true,the offence would not fall within the ambit of Section 302 I.P.C.and that the accused has caused the death of the deceased onaccount of sustained provocation due to the deceased having illicitrelationship with another person.6. Learned Additional Public Prosecutor, per contra, submitsthat the circumstances clinchingly point out to the guilt of theaccused and they form a complete chain without any missing link andhence, the judgment of the trial Court warrants no interference bythis Court.7. The cause of death of Sivammal is not in dispute. Theevidence of the doctor, P.W.8, who conducted post-mortem and whoissued Ex.P.6, the post-mortem certificate opining that thedeceased Sivammal died on account of asphyxia due to compressionover trachea, proves that Sivammal died on account ofstrangulation. The only question that is to be decided by thisCourt is whether the said strangulation is suicidal or homicidaland if it is homicidal, whether it was committed by the appellant.8. The case of the prosecution hinges upon circumstantialevidence. It is well settled that the circumstances forming thatevidence must be conclusively established and even when soestablished, they must form such a complete chain that it is notonly consistent with his guilt but is inconsistent with anyreasonable hypothesis of his innocence. 9.1. In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 709],it was laid down that when a case rests upon circumstantialevidence, such evidence must satisfy the following tests: (SCC pp. https://hcservices.ecourts.gov.in/hcservices/ 710-11, para 10):"(1) the circumstances from which an inference of guiltis sought to be drawn, must be cogently and firmlyestablished; (2) those circumstances should be of a definite tendencyunerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form achain so complete that there is no escape from theconclusion that within all human probability the crimewas committed by the accused and none else; and (4) the circumstantial evidence in order to sustainconviction must be complete and incapable of explanationof any other hypothesis than that of the guilt of theaccused and such evidence should not only be consistentwith the guilt of the accused but should be inconsistentwith his innocence."9.2. In the light of the above, let us analyse the evidence tofind out whether the circumstances brought forth by the prosecutionare consistent only with the guilt of the accused and inconsistentwith any hypothesis of his innocence.10. The circumstances, which the prosecution relied upon tobring home the guilt of the accused are:(i)motive - accused and deceased are husband and wife;deceased developed intimacy with another person by nameMunusamy; deceased eloped with the said Munusamy toBangalore and she was brought back by the accused a fewdays prior to the occurrence;(ii)averments in the inquest report leading to the causeof death of the deceased;(iii)evidence of P.W.1 with regard to the nervousnessexpressed by the accused to P.W.1 immediately after theoccurrence;(iv)evidence of P.W.2 about the conduct of the accusedin revealing the crime and in absconding immediatelythereafter and therefore, principle of res gestae applies;(v) extra judicial confession given by the accused toP.Ws.3 and 4 on the same day at 8.30 p.m.;(vi)immediately after the extra judicial confession,complaint was lodged and the law was set in motion; https://hcservices.ecourts.gov.in/hcservices/ (vii)medical evidence through P.W.8, post-mortem doctorand Ex.P.6, post-mortem certificate; and(viii)recovery of M.O.3, nylon thali chain, from theaccused after his arrest.11. In the instant case, P.Ws.1 and 2 are closely related tothe accused, in that, the accused is the son of junior mother-in-law of P.W.1. P.Ws.3 and 4 are the brothers-in-law of P.W.1 andhence, they are also related to the accused. The motive alleged bythe prosecution is the immoral character of the deceased in havingillicit relationship with another person by name Munusamy. It isthe categorical evidence of P.Ws.1 and 2 that the deceased, afterher marriage with the accused, developed intimacy with oneMunusamy, who used to come to the house of the deceased, due towhich there was no love-lost between the deceased and the accusedand hence, they got separated in a panchayat and that two monthsprior to the occurrence, she eloped with the said Munusamy andstayed with him at Bangalore. It is their further evidence thatthe accused on coming to know about the whereabouts of thedeceased, went to Bangalore and brought her back and both stayed inthe house of P.Ws.1 and 2, instead of going to their village out ofshame. The above evidence also gets reflected in Ex.P.1,complaint, the first document to come into existence and though itis not a substantive piece of evidence, it can be used either tocorroborate or to contradict the maker thereof. That apart,P.W.10, the daughter of the accused and the deceased, though turnedhostile with regard to the illicit intimacy, admits the frequentvisits of Munusamy to their house. It is, therefore, clear thatall was not well with the accused and the deceased.12. The next circumstance is the evidence of P.W.1, accordingto whom, on the date of occurrence at about 12.00 noon, the accusedcame to his clinic and he was seen nervous and when questioned, hedid not reply and after drinking water, he left the clinic. Thisshows that the accused, after committing the murder of his wife,became nervous and he went to the clinic of P.W.1 to confess thesame, but out of fear did not do so and he left the place.13. The next piece of evidence is the evidence of P.W.2.P.W.2 returned to the house at about 7.00 p.m. after her work andafter finishing her household chores, she was standing in front ofher house along with her son Satishkumar awaiting for the return ofP.W.1. At that time, according to P.W.2, the accused came thereand they were talking with each other. Suddenly, the accused askedSatishkumar to bring a torch light stating that somebody passedthat side and that both went to the terrace and came down and herson Satishkumar told P.W.2 that the deceased was lying dead andP.W.2 also went and saw the dead body and she found compression of https://hcservices.ecourts.gov.in/hcservices/ her neck. When she returned back to the downstairs, the accusedwas not available and thereafter, P.W.1 came and she disclosedeverything to him. The above evidence of P.W.2 depicts that theaccused wanted to unmask the crime committed by him by taking thewitnesses to the scene of crime and thereafter, left the scenewithout informing the witnesses, which would be admissible as it isa res gestae evidence relevant under Section 6 of the Evidence Act.14. Another circumstance which is a strong piece of evidenceis the oral extra judicial confession given by the accused toP.Ws.3 and 4, who are the brothers-in-law of P.W.1. It is theevidence of P.Ws.3 and 4 that at about 8.30 p.m., when they were ontheir way to the house of P.W.1, they saw the accused coming in theopposite direction. They questioned the accused as to theavailability of P.W.1 in the house, for which the accused repliedin the negative. Again they asked the accused why he is looking sotensed and the accused confessed to them that because of theimmoral character of his wife, the deceased, he beat her and causedher death. When they asked him whether he revealed the same toP.W.1, without saying anything, he went away from the place. 15. The law is well settled on the point that the extrajudicial confession, if true and voluntary, can be relied upon bythe court to convict the accused for the commission of the crimealleged. Despite inherent weakness of extra judicial confession asan item of evidence, it cannot be ignored when shown that suchconfession was made before a person who has no reason to statefalsely and to whom it is made in the circumstances which tend tosupport the statement. The evidence in the form of extra judicialconfession made by the accused to witnesses cannot be always termedto be a tainted evidence and corroboration of such evidence isrequired only by way of abundant caution. If the court believesthe witness before whom the confession is made and is satisfiedthat the confession was true and voluntarily made, then theconviction can be founded on such evidence alone and it is not opento the court trying the criminal case to start with a presumptionthat extra judicial confession is always a weak type of evidenceand it would depend on the nature of the circumstances, the timewhen the confession is made and the credibility of the witnesseswho speak for such a confession. An unambiguous extra judicialconfession possesses high probative value force as it emanates fromthe person who committed the crime and is admissible in evidenceprovided it is free from suspicion and suggestion of any falsity,vide GURA SINGH -vs- STATE OF RAJASTHAN (2001 Supreme Court Cases(Crl.) 323), State of Rajasthan v. Raja Ram (2003 SCC Crl. 1965)and Sivakumar v. State [(2006) 1 SCC Crl. 470].16. When we analyse the evidence of P.Ws.3 and 4, in thecontext of the principle laid down by the Apex Court, we could see https://hcservices.ecourts.gov.in/hcservices/ that it comes from the mouth of the witnesses who are totallyunbiased and not even remotely inimical to the accused and nothingconcrete was elicited in the cross-examination, which may tend toindicate that the witnesses may have a motive of attributing anuntruthful statement to the accused. Their evidence is natural,cogent, reliable and would undoubtedly convey that it was theaccused who after having committed the murder of his wife,confessed the same to the witnesses and nothing was omitted by thewitnesses which may militate against it. Further, it was pursuantto the information given by the above witnesses, P.W.1 went andlodged the complaint, Ex.P.1, based on which, the law was set inmotion. Hence, we are of the view that their evidence can beaccepted as true and voluntary and hence, reliable.17. The next piece of evidence is the recovery of nylon thalichain, M.O.3 at the instance of the accused. During the course ofinvestigation, the investigating officer, P.W.16 arrested theaccused in the presence of P.W.5 and another and pursuant to thevoluntary confession statement given by the accused, M.O.3 - nylonthali chain was recovered, which was found to contain hair piecesand when the same was sent for chemical examination, the hairpieces were found to be similar to the bunch of hairs sent forcomparison, as is evident from Ex.P.11, chemical analyst's report.It is the case of the prosecution that the accused used the saidnylon thali chain to strangulate the neck of the deceased and thewitnesses, P.Ws.1 and 2 have also stated to the effect that theyfound some marks over the neck of the deceased. The doctor, P.W.8,who conducted post-mortem, has stated in his evidence thatstrangulation by using M.O.3 could have caused the death on accountof asphyxia. Ex.P.6, the post-mortem certificate also reveals thatthe ligature mark found on the neck is antemortem and would havebeen produced by the said nylon thread. Thus, the medical evidencealso fortifies that the deceased died due to strangulation by nylonthread and the said nylon thread being produced by the accusedafter his arrest by the investigating officer, proves thecomplicity of the accused in the crime. 18. It is to be remembered that the witnesses, P.Ws.1 to 4 areclosely related to the accused. The fact that they are relativesto the accused and the deceased indicates that they had no reasonto come out with a false version implicating the accused with thecrime. The accused also did not make out any case to show thatthey were aggrieved against him for giving false evidence in Court;on the contrary, their evidence is supported by the othercircumstances, viz., medical evidence and recovery of nylon thalichain at the instance of the accused. https://hcservices.ecourts.gov.in/hcservices/

19. That apart, in Column XV of the inquest report, Ex.P.20,prepared by the investigating officer in the presence ofpanchayatdars and witnesses, it is found mentioned that on hearingthe information from the son of P.W.1 that the deceased left thehouse of P.W.1, at about 9.00 a.m. on 30.7.2004, the accused wentin search of her and brought her back to the house of P.W.1. It isfurther stated that finding the house of P.W.1 locked, both went tothe terrace and were talking to each other, which resulted in awordy quarrel and that because the deceased left the accused andher four children to go astray and eloped with Munusamy toBangalore and that even after she was brought back, she againeloped, the accused would have been enraged over the act of thedeceased and would have strangulated the deceased with the nylonthali chain and thereby, caused her death. From the aboveaverments found in the inquest report, it could be inferred thatthere was a wordy quarrel between the accused and the deceased justprior to the occurrence, due to which, the accused got annoyed overthe act of the deceased and caused her death by strangulation.Though the inquest report, which was prepared by the investigatingofficer is not admissible in nature, it was the earliest documentto come into existence and from the said report, the cause of deathof the deceased could be arrived at, based on which, the officerproceeded with the investigation. 20.1. At this juncture, it is apt to refer the decisions ofthe Apex Court on the point of admissibility of the inquest report.In Baladin v. State of U.P. (A.I.R. 1956 SC 181) it was observed asfollows:“Statements made by prosecution witnesses before theinvestigating police officer being the earlieststatements made by them with reference to the facts ofthe occurrence are valuable material for testing theveracity of the witnesses examined in court ... but thestatements made during police investigation are notsubstantive evidence.”20.2. The above ratio has been reiterated by the Apex Court inRameshwar Dayal v. State of U.P., (1978) 2 SCC 518, wherein it hasbeen observed that the statement in the inquest report was made bythe Investigating Officer soon after the occurrence and was,therefore, the earliest statement regarding a fact which he foundand observed and the earlier statement, therefore, is a valuablematerial for testing the veracity of the witness.20.3. Again in George v. State of Kerala, (1998) 4 SCC 605,it has been held thus: https://hcservices.ecourts.gov.in/hcservices/ " 30. .... Statements contained in an inquest report, tothe extent they relate to what the Investigating Officersaw and found are admissible but any statement madeherein on the basis of what he heard from others, wouldbe hit by Section 162 CrPC. 31. The whole purpose of preparing an inquest reportunder Section 174(1) CrPC is to investigate into and drawup a report of the apparent cause of death, describingsuch wounds as may be found on the body of the deceasedand stating in what manner, or by what weapon orinstrument, if any, such wounds appear to have beeninflicted. In other words, for the purpose of holding theinquest it is neither necessary nor obligatory on thepart of the Investigating Officer to investigate into orascertain who were the persons responsible for the death.(emphasis supplied)21. It is, therefore, clear that the inquest report is not aninadmissible piece of evidence and anything found therein is avaluable material to the extent what the investigating officer sawand observed at the scene of occurrence. In the case on hand, theinquest was conducted by the investigating officer between 7.00a.m. and 10.00 a.m. on 31.7.2004 and it being the first andearliest document to come into existence, could certainly give alead to the investigating officer as to the cause of death, whetherit is suicide or homicide.22. Above all, when the above circumstances were put againstthe accused during his questioning under Section 313 Cr.P.C., hehad no explanation to offer and he made bald denial of the same,which provides an additional link in the chain of circumstances, asheld by the Apex Court in Joseph v. State of Kerala (2000 SCC(Cri.) 926).23. The above circumstances, in our considered opinion,manifestly demonstrate the complicity of the appellant/ accused inthe commission of crime and we have no doubt at all that it was theappellant/accused alone and none else, who has caused the death ofhis wife Sivammal by strangulating her neck.24. The question that is left to be decided by us is thenature of offence committed by the appellant/accused. The motivepart of the occurrence, as already stated above, is the factum ofinfidelity of the deceased/wife. It is the categorical and cogentevidence of the witnesses that the deceased developed illicitintimacy with one Munusamy while he used to visit the house of the https://hcservices.ecourts.gov.in/hcservices/ deceased at Kallipuram and at one point of time, the deceasedeloped with the said Munusamy and lived with him at Bangalore. Oncoming to know about the same, the accused went to Bangalore on25.7.2004 and brought the deceased back and out of shame, he stayedin the house of P.Ws.1 and 2 instead of going to his village. Itis their further evidence that on 29.7.2004, when the accused hadgone to his village to leave his last son with his parents, thedeceased informing the son of P.W.1 that she is going to her seniormaternal aunt's house, left the house of P.W.1 and on hearing thisinformation after return, the accused left the house of P.W.1 tobring the deceased back.25. As already stated earlier, the inquest report, which isthe earliest document prepared by the investigating officer,clearly reveals that on returning back, the accused found the houseof P.W.1 locked and therefore, both went to the upstairs, wherethere was a wordy quarrel between the accused and the deceased withregard to the illicit intimacy that the deceased had developed withMunusamy and that even after she was brought back from Bangalore bythe accused, she again eloped and thus, enraged over the act of thedeceased, the accused has committed her murder. Thus, undoubtedlyit is clear that due to the burning uncontrolled provocation givenby the deceased because of her behaviour and due to the wordyquarrel that ensued between them at that point of time, the accuseddeprived of his power of self-control, with the nylon thali chainstrangulated her neck and thereby, caused her death and hence, weare of the confirmed opinion that the accused is entitled to getthe benefit of Exception 1 to Section 300 I.P.C. on account ofsustained provocation. But, however, by strangulating the neck ofthe deceased, the accused had shown his intention to cause herdeath and hence, we are inclined to convict him under Section 304Part-I I.P.C. Accordingly, the conviction of the appellant/accusedis modified from one under Section 302 I.P.C. to Section 304 Part-II.P.C. and for the said conviction, he is sentenced to seven yearsrigorous imprisonment.In result, (i)the conviction of the appellant/accused underSection 302 I.P.C. is set aside and instead, he isconvicted under Section 304 Part-I I.P.C.;(ii)for the said conviction, the appellant/ accused issentenced to seven years rigorous imprisonment;(iii)It is reported that the appellant/accused is onbail. The bail bonds, if any executed, shall standcancelled forthwith and the learned Sessions Judge isdirected to secure the presence of the appellant/accusedand commit him to jail in order to undergo the remainingperiod of sentence; https://hcservices.ecourts.gov.in/hcservices/ (iv) the appeal is, accordingly, partly allowed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sraTo1. The Additional Sessions Judge, Dharmapuri.2. -do- Thro' The Principal Sessions Judge, Dharmapuri District.3. The District Collector, Dharmapuri.4. The Director General of Police, Chennai.5. The Inspector of Police, Dharmapuri Police Station, Dharmapuri District. 6. The Superintendent, Central Prison, Vellore.7. The Public Prosecutor, High Court, Madras.8. The Judicial Magistrate IDharmapuri.9. Do thro the Chief Judicial Magistrate, Dharmapuri.1 cc to Mr.R. Selvakumar, Advocate, SR. 37890Crl.A.No.844 of 2006VSV (CO)kk 5/8