Mahalingam v. State

BAIL SLIPThe Appellant / Accused was directed to be enlarged on bail asper order dated 06/2/2007 and made in Crl.MP 1/2007 in Crl.A 967/06on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17-06-2008THE HON'BLE MR.JUSTICE P.D.DINAKARANANDTHE HON'BLE MR.JUSTICE K.N.BASHACRIMINAL APPEAL NO: 967 OF 2006Mahalingam.. AppellantVsState rep.by Inspector of Police,Kannamangalam Police Station,Thiruvannamalai District.(Crime No.489 of 2003).. RespondentAppeal filed under Section 374 Cr.P.C against the judgment dated25.9.2006 made in S.C.No.3 of 2004 on the file of the learnedDistrict and Sessions Judge, Thiruvannamalai.For appellant:Mr.G.SankaranFor respondent :Mr.N.R.Elango,Addl.Public Prosecutor JUDGMENT (Judgement of the Court was delivered by P.D.DINAKARAN,J.,) This appeal has been preferred against the judgement made inS.C.No. 3 of 2004 on the file of the learned District and SessionsJudge, Thiruvannamalai. By the impugned judgement, the appellant wasfound guilty, convicted and sentenced under Section 302 IPC toundergo imprisonment for life and also to pay a fine of Rs.5000/-, indefault to undergo rigorous imprisonment for one year. The saidconviction and sentence is under challenge in the present appeal. https://hcservices.ecourts.gov.in/hcservices/

2. The prosecution case, as per the charge is that the deceasedhad illicit intimacy with the wife of the accused and on 13.9.2003at 10 a.m., at the cornfield, situate on the southern side of theVeera Kovil, both of them were seen together by the accused and whenthe accused tried to catch hold of them, both of them fled away andher search by the accused ended in vain and thereafter the wife ofthe accused did not return to the matrimonial home and therefore, theaccused had vengeance to wreak against the deceased, four days later,on 18.9.2003 at 3.00 a.m., when the deceased, who is a milk vendorcame with the milk can on the Padavedu-Kamandalapuram mud road, nearthe land belonging to Elumalai, the accused with an intention to killhim, took out Koduval and inflicted incised wounds on the frontsides of upper part of neck, just below the chin; on his later sideof mid left leg; later side of upper left leg; below right kneemedial side; back of mid of right forearm and on the back of lowerof left forearm and thereby caused the instantaneous death and thus,committed the offence punishable under Section 302 IPC.3. The genesis of the prosecution version, as unfolded by theprosecution witnesses during the course of trial, are as follows:-(a)P.W.1 is the Village Administrative Officer. According tohim, on 18.9.2003, at about 6.00 pm., when he was present in hisoffice, the accused Mahalingam came and confessed that he hascommitted the murder of the deceased Mahalingam. His confessionstatement was reduced into writing which is Ex.P.1 complaint. Theaccused also produced the Koduval, M.O.1, which he has used for thecommission of the crime and also stated that he has washed the samewith pipe water after committing the offence. After following theprocedures and after making an endorsement found in Ex.P.2, the VAOhas produced the accused and M.O.1 Koduval before the Sub Inspectorof Police, Santhavasal Police Station where M.Os.1 to 4, thebloodstained dress materials worn by the accused were recovered underEx.P.4. (b)P.W.2 and P.W.3 who are eye witnesses, have turned hostile.P.W.4 who is the brother of the deceased has stated that for the pastthree years from the date of occurrence both the deceased and thewife of the accused had illicit relationship and on the date ofoccurrence, i.e., 18.9.2003 at about 6.00 pm., when he was waiting inthe bus stop to board the bus along with his another brotherJagannathan, they have seen the accused washing the bloodstainedKoduval in the street pipe water. At that time, the people assembledthere were talking about the killing of the deceased by the accusedand they all went to see the body of the deceased. P.W.4 along withhis brother also went to the mud-street near the cornfield where hesaw the dead body of his brother Mahalingam with injuries on theneck, forearm and leg. https://hcservices.ecourts.gov.in/hcservices/ (c)P.W.5 is an independent witness who has stated that between3.00 a.m., and 4.00 a.m., the deceased used to come and get the milkfrom him and the deceased has purhased milk as usual on the date ofoccurrence. At about 7.00 a.m., he heard the news about the death ofthe deceased and along with the public, he also went and saw his deadbody. (d)P.W.6 is the mahazar witness for the observation mahazarEx.P.5 and for the seizure of M.Os.2,4,5,6,7 to 13 under Ex.P.6.P.W.7, who is mahazar witness for M.Os.2 to 4 turned hostile. P.W.8,another mahazar witness for seizure of M.Os.2 to 4 under Ex.P.8supported the prosecution case.(e)P.W.11 is the Sub Inspector of Police. According to him, on18.9.2003 at about 6.45 a.m., the VAO produced the accused with thecomplaint Ex.P.1 and based on the complaint, he has registered a casein Crime No:489 of 2003 under Section 302 IPC and prepared FIR whichis Ex.P.11 and sent copies to the Judicial Magistrate, Polur and tothe concerned authorities. He has recovered the Koduval, M.O.1 fromthe accused under a cover of mahazar Ex.P.3 and also the dresses,M.Os.2 to 4 under Ex.P.8. (f)P.W.12 is the Investigating Officer. He has deposed that onreceipt of the FIR copy at 8.00 a.m., on 18.9.2003, visited the sceneof occurrence by 8.30 a.m., and prepared the observation mahazarEx.P.5 and drawn a rough sketch Ex.P.12 in the presence of witnesses.Recovered M.Os.5 to 13 being sample earth, bloodstained earth andmilk cans, measurement cups, torch light, lactometer, bicycle underEx.P.6 in the presence of Panchayatdars. Thereafter he conducted aninquest on the body of the deceased, which report is Ex.P.13. ThroughP.W.10, Head Constable, sent the body of the deceased with arequisition to the Government Hospital, Polur for conductingpostmortem. (g)P.W.9, Doctor who performed the autopsy on the dead body,found the following external injuries:-Antemortem External Injuries:1.A horizontal incised wound with clean edges over thefront of sides of upper part of neck just below chin. Size:16cm x 6 cm x 6cm exposing cut ends f larynx, oesophagus,muscles, blood vessels, nerves and cervical vertebra. Red. 2.A horizontal incised wound with clean edges, red,lateral side of mid 1/3 rd of left leg size 8 cm x 5 cm x 5cm exposing muscles, blood vessels and both bones cut ends. 3. A horizontal incised wound with clean eges, lateral sideof upper 1/3rd of left leg, red, 5 cm x 3 cm x 3 cm. https://hcservices.ecourts.gov.in/hcservices/

4. A horizontal incised wound with clean edges, below rightknee medial side 4 cm x 2 cm x 2 cm.5. An oblique incised wound with clean edges, red, back ofmid 1/3rd of right forearm, size 6 cm x 3 cm x 3 cm.6. An oblique incised wound with clean edges, red, back oflower 1/3rd of left forearm, size 4 cm x 2 cm x 2 cm. (h) The Doctor also opined that the deceased would appear tohave died of shock and haemorrhage due to injuries sustained 11 to 12hours prior to commencement of autopsy. (i) Continuing his investigation, P.W.12, examined and obtainedstatements from the witnesses. Also requested the JudicialMagistrate, Polur to send the material objects for chemical analysis.The Chemical Analysis Report and Serological Report are Exs.P.14 andP.15. He obtained statement from the Doctor who conducted the post-mortem on 20.11.2003 as well as from the Chemical Analyst. Aftercompleting his investigation, laid the charge sheet on 9.12.2003 forthe offence punishable under Section 302 IPC.4. After filing of the final report, the case was committed tothe Court of Sessions, which was taken up in Sessions Case No:3 of2004 by the learned Principal District and Sessions Judge,Thiruvannamalai and charge was framed by the learned Sessions Judgeagainst the accused, for which, the accused denied his complicitywith the crime and therefore the trial of the case was taken up. Inorder to substantiate its case before the Sessions court, theprosecution relied on the ocular versions of P.Ws.1 to 12 and markedExs.P.1 to P.15 and also produced M.Os.1 to 16. 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 him in the evidence of theprosecution witnesses, he 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. https://hcservices.ecourts.gov.in/hcservices/

7. Learned counsel for the appellant contended that P.Ws 2 and3, who are direct eye witnesses did not support the case of theprosecution and turned hostile, the case solely rests on theevidence of P.W.1, Village Administrative Officer, before whom, it isalleged that the accused gave extra judicial confession, and thatof the evidence of P.W.5, Milk Vendor from whom the deceased hadpurchased milk just few hours before his death. It is submitted thatconsidering the circumstantial evidence, the offence under Section302 is not proved, and at the most, it has to be brought under theFirst Exception of Section 300 and the accused can be convicted forsustained provocation in view of the inadmissible portion of theconfession made by the accused. 8. On the other hand, the learned Additional Public Prosecutor,arguing to sustain the conviction and sentence, submitted that nocase has been made out for sustained provocation as there was a hugetime gap between the incident in which the accused saw the deceasedand his wife together which infuriated him to wreak vengeance, andthe time of occurrence, which had taken place 4 days thereafter, andtherefore there is enough time for the accused to cool down.According to the learned Additional Public Prosecutor, this is adeliberate murder with premeditation as the accused had intention tokill the deceased and he had taken with him the Koduval, waiting andwas hiding behind a tree in the early morning on the date ofoccurrence and when the deceased came near him in the road, heintercepted and inflicted the injuries. The learned Additional PublicProsecutor has placed reliance on the oral evidence of theprosecution witnesses and also the medical evidence. 9. 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. 10. A perusal of Ex.P.9, Post-mortem Certificate would show thatthe deceased had four incised wounds and two oblique sized incisedwounds in his front sides of upper part of neck, just below thechin, on his later side of mid left leg, later side of upper leftleg, below right knee medial side, back of mid of right forearm andon the back of lower of left forearm. P.W.9, the Doctor whoconducted the post-mortem also opined that the deceased would havedied due to shock and hammorrhage because of the multiple injuriescaused by M.O.1 Koduval. Thus, the external injuries found on thebody of the deceased would lead to the definite conclusion that it isa homicidal death. 11. Now, the point that arises for consideration in this appealis whether the prosecution has brought home the guilt of the accusedbeyond all reasonable doubts? https://hcservices.ecourts.gov.in/hcservices/

12. It is true that the two eye witnesses viz., P.Ws.2 and 3have turned hostile and we are only left with the circumstantialevidence. In such a situation, lack of positive evidence by theprosecution would not result in throwing out the entire prosecutioncase, if the other circumstantial evidence clearly point out theguilt of the accused thereby establishing the link between the chainof circumstances. Further, in such cases, the court should notinsist upon the evidence regarding the exact manner in which thedeath was caused. 13. 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, the onus wason the prosecution to prove that the chain is complete and theinfirmity or lacuna in prosecution cannot be cured by false defenceor plea".14. 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." 15. 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. 16. 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. https://hcservices.ecourts.gov.in/hcservices/

17. In the case on hand, the prosecution placed reliance on thefollowing circumstances:(a)The deceased is the paramour of the wifeof the accused for several years. Four days prior tothe occurrence, the deceased and the wife of theaccused were seen together by the accused and onseeing the accused, both of them ran away, and when hetried to catch hold of them both of them escaped fromthe clutches of the accused and all the efforts insearch of his wife ended in vain. His wife also didnot return to his house till the date of occurrence.Therefore, the accused had developed animosity (towreak vengeance) against the deceased who had illicitintimacy with his wife for the past three years whichis also admitted by P.W.4, brother of the deceased;(b)the last seen theory spoken to by P.W.5Milk Vendor from whom the deceased used to purchasemilk at the early hours; and(c) extra judicial confession given by theaccused himself to the VAO, an independent witnessand subsequent recovery of weapon as well as dressmaterials.18. According to P.W.2, an independent eye witness, the illicitrelationship between the deceased and the wife of the accused existedfor about 10 years prior to the date of occurrence, and 8 yearsbefore, the accused had caught both of them red-handed and warned andinspite of that, they continued the illicit intimacy and on the dateof occurrence the accused told before P.W.2 that he had killed thedeceased and while washing the Koduval P.W.4 and his brotherJagannathan had seen him. Thereafter, P.W.2 advised the accused tosurrender before the VAO. However, P.W.2 has turned hostile. Likewise, P.W.3 an independent eye witness to the commission of the crimewho turned hostile, speaks about the motive and intention. Even ifwe eschew the evidence of P.Ws.2 and 3 who have turned hostile, wecan rely on the version of P.W.4, who is the brother of the deceasedhimself, who had admitted the illicit relationship between thedeceased and the wife of the accused existed for three years.Therefore, it is well established that there is a strong motive andintention for the accused to commit the crime. 19.As regards the last seen theory, it is the evidence ofP.W.5, the Milk Vendor that on 18.9.2003 between 3.00 a.m., and 4.00a.m., i.e., few hours prior to the death, the deceased came to him https://hcservices.ecourts.gov.in/hcservices/ and purchased milk and went back in his usual route. Later, at 7.00a.m., he came to know about the death of the deceased, killed by theaccused and he also went and saw the dead body at the scene ofoccurrence with multiple injuries. So also, P.W.4, who is the brotherof the deceased, deposed that when he was waiting for the bus in thebus-stop along with his another brother Jagannathan, they saw theaccused washing the bloodstained Koduval M.O.1 in the street pipewater. Thereafter along with other public, they went to the place ofoccurrence and saw the dead body of their brother with multipleinjuries. 20. As regards the extra judicial confession, it is the evidenceof P.W.1, Village Administrative Officer, that on 18.9.2003, at about6.00 pm., when he was present in his office, along with the VillageAssistant, the accused Mahalingam came and confessed that he hascommitted the murder of the deceased Mahalingam. His confessionstatement was reduced into writing which is Ex.P.1 complaint. Theaccused also produced the Koduval, M.O.1, which he has used for thecommission of the crime and also stated that he has washed the sameafter committing the offence. After making an endorsement underEx.P.2, the VAO has produced the accused and M.O.1 Koduval before theSub Inspector of Police, Santhavasal Police Station where M.Os.2 to4, being the bloodstained dress material worn by the accused wererecovered under Ex.P.4. P.W.8, who stood as a mahazar witness forthe recovery of M.Os. 2 to 4 for the same corroborates the evidenceof P.W.1. So also, P.W.6, another mahazar witness supports theprosecution case for the recovery of M.Os.5 to 16 under Ex.P.6. TheSerological Report also is to the effect that M.Os.2,3,4,5,7,8 and 9contain human blood of A group and there is no explanation offered bythe accused for the presence of blood on his cloths. It is notestablished that the independent witnesses have any grudge tofalsely implicate the accused. It is well settled law that aconfession given to the Village Administrative Officer, who is not aPolice Officer, is admissible in evidence. Therefore, the evidence ofP.W.1, before whom the extra judicial confession has been given, andP.Ws.6 and 8 in whose presence the material objects were recoveredand the medical evidence cannot be discarded. 21.Failure to give any explanation by the accused to theincriminating circumstances put against him is also fatal to hisdefence. 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 explanation https://hcservices.ecourts.gov.in/hcservices/ or 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. 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 them as falsehood andpleaded not guilty. Since no explanation was offered by the accused,it is a strong circumstance against the accused by drawing adverseinference against him and in favour of the prosecution case. 23. Therefore, we are of the firm opinion that the prosecutionhas established beyond any reasonable doubt that the accused haddeveloped enmity with the deceased as he had illicit relationshipwith his wife which is admitted by P.W.4, who is none other than thebrother of the deceased, four days prior to the date of occurrencethe accused saw both his wife and the deceased together and on seeinghim both of them ran away and his wife did not return to the housetill the date of occurrence, enraged by that, the accused wasnurturing sustained provocation and on the date of occurrence whenthe deceased was returning from P.W.5's house after purchasingmilk, the accused with M.O.1 Koduval, inflicted several incisedwounds, P.W.5 has last seen the deceased i.e., 3 to 5 hours prior tothe time of occurrence, and at 7.00 a.m., P.Ws 4 and 5 have seen thedeceased with injuries, P.W.4 seen the accused washing thebloodstained Koduval in the pipe water and before P.W.1 VAO, theaccused himself gave extra judicial confession, based on which,M.Os.1 to 4 were recovered. P.Ws.6 and 8 are mahazar witnesses forthe recovery of M.Os.2 to 16. A perusal of the postmortem reportwould show that there were 6 external injuries caused by the accusedwith M.O.1 Koduval. According to the doctor, the death was due toshock and hemorrhage and consequential severe bleeding. Thus, theprosecution has proved the motive, as well as the intention on thepart of the accused. Therefore, we are of the opinion that theprosecution has proved each and every link in a complete manner so asto complete the chain of circumstance. Thus, all the circumstancesnarrated above, put together, would lead to the conclusion that itis only the accused who committed the offence without giving room toany other hypothesis. 24. The remaining issue to be decided is whether the accused isliable 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. https://hcservices.ecourts.gov.in/hcservices/

25. In a decision in K.M.NANAVATI VS. STATE OF MAHARASHTRAreported in A.I.R. 1962 S.C. 605, the Hon'ble Supreme Court of Indiahas laid down the following principles regarding the Exception 1 toSection 300 I.P.C. :"1. The test of grave sudden provocation iswhether a reasonable man, belonging to the sameclass of society as the accused, placed in situationin which the accused was placed would be provoked asto lose his self-control.2. In India, words and gestures may also, undercertain circumstances, cause gave and suddenprovocation to an accused so as to bring his actwithin the first Exception of Section 300 I.P.C.3. The mental background created by theprevious act of the victim may be taken intoconsideration in ascertaining whether the subsequentact caused grave and sudden provocation forcommitting the offence.4. The fatal blow should be clearly traced tothe influence of passion arising from thatprovocation and not after the passion has cooleddown by lapse of time, or otherwise giving room andscope for premeditation and calculation."26. From the above decision, it is very clear that Exception 1to Section 300 IPC could be invoked considering the mentalbackground created by the previous act of the victim, coupled withthe subsequent event. In the instant case, as already pointed out,there were overwhelming materials to show that the deceased washaving illicit intimacy with the wife of the accused. The continuanceof such illicit relationship is admitted by the brother of thedeceased also. Even as per Ex.P.1, Extra Judicial Confession of theaccused, four days prior to the date of occurrence, i.e., on13.9.2003 at 10.00 a.m., the accused seen the deceased along withhis wife in the cornfield situate on the southern side of theVeerakovil and on seeing the accused, both of them fled away from thescene and thereafter the whereabouts of the wife of the accused wasnot known to the accused and on the fateful day of occurrence, whenthe deceased was returning on the Padavedu-Kamandalapuram Mud Road,after purchasing milk from P.W.5, the accused on seeing the deceasedthe accused attacked him with the Koduval. From the above sequence ofevents, it is quite clear that the accused was nurturing sustainedprovocation in view of the previous act, namely, continued illicitintimacy of the deceased with his wife and coupled with thesubsequent act, namely, four days prior to the date of occurrence, https://hcservices.ecourts.gov.in/hcservices/ the accused seen both the deceased and his wife together in thecornfield and thereafter both of them fled away from the scene andthe whereabouts of the wife was not known to the accused andultimately, the accused on seeing the deceased on the fateful day ofoccurrence, which added fuel into the fire, due to the sudden andgrave provocation, attacked the deceased with the Koduval. In theabove circumstances, an inference could easily be drawn that therewas a burning uncontrolled provocation in the mind of the accusedbecause of the lascivious character of his wife and the deceased andit may not possible for any prudent man to cool down from suchpassions even though he had seen them four days ago, since his wifedid not return home thereafter, and on the date of occurrence, themoment he saw the deceased, he got further grave and suddenprovocation, lost his self control, because he was already nurturingsustained provocation and in a fit of anger, committed the crime.Therefore, we are of the confirmed opinion that the accused isentitled to get Exception 1 to Section 300 I.P.C., and as such theappellant is liable to be convicted for the offence punishable underSection 304 Part-I I.P.C. 27. As far as the sentence part is concerned, considering themental agony of the accused and also considering the paramountinterest of the two female children, we are of the view that asentence of Seven Years rigourous imprisonment would meet the ends ofjustice.28. In result, (i) the conviction of the appellant/accused underSection 302 I.P.C. is set aside and instead, he is convictedunder Section 304 Part-I I.P.C.;(ii) for the said conviction, he is sentenced to sevenyears 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 him 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.Registrargkv https://hcservices.ecourts.gov.in/hcservices/ Copy to1.The Principal District and Sessions Judge, Thiruvannamalai 3. The Judicial Magistrate, Polur.4. -do- thru' the Chief Judicial Magistrate, Thiruvannamalai District5. The Superintendent, Central Prison, Vellore. 7. The Public Prosecutor, High Court, Madras8. The District Collector, Thiruvannamalai District9. The Director General of Police, Chennai10.The Inspector of Police, Kannamangalam Police Station.1 CC To Mr.R.Balakrishnan, Advocate, SR NO.29757Crl.A.No.967 of 2006SSV (CO)SMK/11.7.08