Balamurugan v. State by Inspector of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 5-1-2006CoramThe Honourable Mr.Justice P.SATHASIVAMandThe Honourable Mr.Justice N.PAUL VASANTHAKUMARCriminal Appeal No.948 of 2003 Balamurugan...Appellant/ Accused 1Vs.State by Inspector of Police, Brammadesam Police Station, BrammadesamVillupuram District(Crime No.518 of 2000)...RespondentThis criminal appeal has been filed under Section 374 of Codeof Criminal Procedure against the conviction under Section 302 IPCand sentence of imprisonment for life and to pay a fine ofRs.1,000/- made in S.C.No.157 of 2001 on 19.12.2002 on the file of the Principal District and Sessions Court, Villupuram. For Appellant: Mr.Parthiban forMr.Philip Ravindran JesudossFor Respondent: Mr.V.M.R.Rajendran, Additional Public ProsecutorJ U D G M E N T(Judgment of the Court was delivered byN.PAUL VASANTHAKUMAR,J.)The first accused in S.C.No.157 of 2001 on the file of Principal Sessions Court, Villupuram, challenges his conviction under Section 302 I.P.C. and the sentence of imprisonment for life and fine of Rs.1,000/-, in default to undergo rigorous imprisonment for six months, imposed on him, by judgment dated 19.12.2002.

To prove its case, the prosecution examined PW-1 to PW-14, marked Exs.P-1 to P-18 and produced Mo-1 to MO-10 series.

The case of the prosecution as could be seen from the oral and documentary evidence is briefly narratted as follows: https://hcservices.ecourts.gov.in/hcservices/ (a)The deceased Kala is the wife of A-1 Balamurugan. A-2Muniyammal is the mother of A-1. A-3 Iyappan is the son-in-law ofA-2. PW-1 Saradambal and PW-2 Vijaya are mother and elder sister of the deceased Kala respectively. PW-4 Raji is the husband of PW-2.(b)The marriage between A-1 and the deceased Kala was a love marriage. The second and third accused had been insisting the first accused for second marriage with a woman, who would come with10 sovereigns of gold jewels and on their instigation, A-1 used to harass his wife Kala by demanding dowry and money from her house. The matter was reported to the ex-President Aranganathan and oneMurugan, who reprimanded the appellant herein. About six months back A-1 asked his wife Kala whether she knew swimming for which she replied that she did not know swimming.

When questioned under Section 313 Crl.P.C., A-1 denied his complicity in the crime and pleaded innocence.

The Trial Court, after going through the materials on record, found that the prosecution has proved the charge against the appellant beyond any reasonable doubt and convicted him under section 302 IPC and imposed sentence as stated above.

The learned counsel appearing for the appellant contended that the prosecution has failed to establish the guilt of the appellant and argued that the victim viz., Kala, wife of the appellant committed suicide and therefore the appellant is innocent of the offence and consequently the conviction and sentence imposed by the learned Sessions Judge is not sustainable.

The learned Additional Public Prosecutor on the contrary argued that on the date when the occurrence took place, i.e, on17.9.2000 at about 3.30 a.m., the appellant alone was in the house and he has not given any report with regard to the alleged suicide of his wife Kala either to the Village Administrative Officer or to the Police and he was absconding till his arrest on 22.9.2000 and https://hcservices.ecourts.gov.in/hcservices/ therefore the conduct of the appellant itself clearly establishes his guilt. It is further pointed out that in the 313 questioning before the learned Sessions Judge, the appellant merely denied his involvement and no explanation was given for the death of his wife, which is also a vital factor for deciding the guilt of the appellant. The Additional Public Prosecutor, in support of his submissions, relied on the judgment of a Division Bench of this Court reported in 1997 Criminal Law Journal 499 (Shunmugasundaramv. State), in paragraph 19, the Bench held,"... If some occurrence happens inside the residential portion of the appellant, wherein he was also available, at or about the time of the incident, he is bound to offer his version as to how the occurrence had taken place. ...Further, the conduct of the appellant immediately after occurrence, is consistent only with his guilt. Assuming that this was a case of suicide, would not have been the conduct of the appellant different? He would then have certainly been present at the scene and attempted to set the law in motion. ...The third circumstance also links the appellant with the crime, more so, when he had not chosen to offer any explanation, whatever, as to how the occurrence had happened. When he was examined under Section 313 Cr.P.C., to every question addressed to him, his answer was either"false" or "I do not know". ... He never sought to offer an explanation about this crime or even claim that he was not present at the time of the incident. More so when several prosecution witnesses had seen him together with his wife fairly late on the earlier night. "

On the basis of the above submissions, we have perused the oral and documentary evidence and the circumstances under which the victim died on the fateful day. It is the definite case of the prosecution that the appellant/A-1 killed his wife Kala with an intention of contracting second marriage with another women and toget dowry. PW-1 and PW-2 are mother and elder sister of the deceased Kala respectively and PW-4 is the husband of PW-2. PW-1in her complaint Ex.P-1 clearly narrated the incidents that took place prior to the occurrence, which establishes the motive of the appellant to commit the murder of his wife. In Ex.P-1, PW-1 has stated that the appellant used to harass his wife demanding dowry in the form of jewels and cash, with an intention to have second marriage at the instigation of A-2 and A-3 in the Sessions Case. In her oral evidence, PW-1 has stated that prior to the occurrence, the appellant pushed his wife in a well asking her whether she knew swimming. He pushed her, even though she answered that she does https://hcservices.ecourts.gov.in/hcservices/ not know swimming and replied that he did it for a fun. PW-1further stated that the deceased used to report the activities of the appellant/A-1 to PW-3 Murugan and others. PW-3 in his evidence stated that he mediated the dispute in their family at the time when the appellant insisted for the second marraige. PW-3 has no motive against the appellant to depose against him.

Pws.1 to 4 have narrated about the harassment upon the deceased by the appellant demanding dowry. PW-1 narrated the incident that happened on 17.9.2000 at 3.30 a.m. in Ex.P-1 which was elaborated in her oral evidence. In her oral evidence she has stated that when she went to the house of the deceased at 3.00a.m., the appellant sat on the chest of the deceased and was strangulating her with a rope (fw; whiH ehh;) and at that time A-2 andA-3 in the Sessions case were also present. PW-1 further stated that she went outside for bringing the neighbours, during which time the appellant tied the neck of the deceased and set up as if she hung herself in the bamboo beam in the house. This version ofPW-1 is fully supported by PW-2.

It is contended that Pws.1 and 2 are close relatives of the deceased Kala and their version should be approached with great caution. Apart from the evidence of Pws.1 and 2, there are corroborative evidence available in this case, particularly the evidence of PW-3. PW-3 has no motive to come to the witness box to depose against the appellant. It is the clear evidence of Pws.1 and2 that after witnessing the occurrence, they came out and raised alarm and brought PW-3 Ex-President and others inside the house.PW-3 has stated that on the date of occurrence at about 4.30 a.m.,Pws.1 and 2 came and informed that Kala was murdered and that he went to the house of the appellant and found Kala in hanging position. The oral evidence of PW-3 corroborates the evidence of Pws.1 and 2, which clearly establishes the fact that Pws.1 and 2witnessed the occurrence. After going through the evidence of Pws.1 to 3, we find that their statements are cogent, trustworthy and reliable.

The motive for the appellant to do away with the deceasedKala is clearly spoken to by PW-4, the husband of PW-2. Theprevious incident of assault on the deceased Kala by the appellant is also stated in Ex.P-2 complaint dated 12.10.1999 given to Brammadesam Police Station, in which it is alleged that the accused was demanding dowry from his wife, the deceased herein. The said matter was settled by a written compromise through Ex.P-3. Ex.P-2clearly shows that even in the year 1999 there was demand of dowry by the appellant. The alleged illicit intimacy of the deceasedKala with PW-4 was clearly denied by Pws.1 to 4. The evidence of Pws.1 to 4, thus clearly establish the motive for the occurrence aswell as the commission of the offence by the appellant. https://hcservices.ecourts.gov.in/hcservices/

It is seen PW-13 Sub-Inspector of Police registered the case and PW-14 Inspector of Police took up the investigation. PW-9Head Constable produced the body of the deceased before the MedicalOfficer, Government Hospital, Tindivanam and after autopsy, he entrusted the remains to the relatives of the deceased. Theevidence of PW-12 Doctor that poisoning and fracture of hyoid bone was ruled out by Exs.P-8 and P-9 Viscera report and Hyoid Bonereport. PW-12 offered her opinion that the cause of death is respiratory arrest. It is the prosecution case that at about 3.30a.m. on 17.9.2000, the occurrence took place and the post mortemwas conducted at 2.00 p.m. on 18.9.2000. The statement of the Doctor that the death would have occurred about 48 hours prior to post mortem would not make the case of the prosecution unbelievable because the rigor mortis starts spreading all over the body which would take 12 hours and it would persist in the body for 12 hours. Hence no rigor mortis would be available in the dead body about 36hours after the death. The post mortem having been conducted after about 34 to 36 hours, it cannot be concluded that there is any discrepancy in the time of death.

The Doctor's evidence should be looked into in another angle. As per the Modi's Medical Jurisprudence and Toxicology (22ndEdition) at page 237 it is stated that the brain becomes soft and pulpy within 24 to 48 hours in summer and becomes a liquified mass from 3 to 4 days. Therefore, it is clear that after 24 hours from the time of death, the brain would become softy and pulpy and lose its shape. Hence it cannot be definitely stated that the time of death could be prior to 48 hours. The Doctor in her cross examination stated that the death would have happened prior to 2.00p.m. on 16.9.2000. In view of the above observations, the occurrence could have taken place at the wee hours of 17.9.2000 asport mortem was conducted between 34 to 36 hours after the death.

The circumstance of availability of external injuries on the person of the deceased, spoken to by PW-12 would show that there was violent action on the part of the appellant on the deceased at the time of occurrence as spoken to by Pws.1 and 2.

It is the case of the prosecution that the appellant strangulated and roped up his wife Kala so as to appear that she committed suicide by hanging in a beam. The Doctor's evidence says that the tongue of the deceased was found protruding and the Doctorrefrained that the said protrusion may arise even after strangulation. The strangulation is further established due to the availability of contusion of sternomestoid of muscle on both sides, which is common in strangulation and will not occur in hanging. The above fact prove that it is certainly the case of strangulation and not suicide by hanging. Thus the medical evidence also corroborates with the oral evidence of Pws.1 and 2. https://hcservices.ecourts.gov.in/hcservices/

The presence of Chimney lamp was proved by the seizure under mahazar Ex.P-5. The presence of broken pieces of bangles found in the scene of occurrence, which was seized and established by Ex.P-5 also shows that there was some scuffle between the spouse prior to the occurrence. These aspects would also corroborate the evidence of Pws.1 and 2. Hence the offence against the appellant is clearly established beyond reasonable doubt.

As rightly contended by the learned Additional PublicProsecutor, the appellant alone was present at the time of occurrence and he failed to explain the cause of death not only instantaneously but also at a later point of time. It is normal human conduct that if any suicide takes place, the same would be reported to the neighbours, Village Administrative Officer or to the Police by the person living in the house. Instead of doing so, the appellant ran away from the scene of occurrence and he could bearrested only on 22.9.2005, that is after five days from the date of incident, which is another clinching evidence against the appellant, particularly his conduct. Even during 313 questioning, the appellant failed to give any explanation for the cause of death, more so the alleged story of suicidal death of his wife.

As held by the Division Bench of this Court in the decision reported in 1997 Criminal Law Journal 499 (cited supra),this Court is of the firm view that the conduct of the appellant immediately after the occurrence is consistent only with the guilt. Hence this Court is of the considered view that the appellant committed the gruesome murder of his wife Kala on the fateful day and the prosecution has proved the guilt of the appellant beyond any reasonable doubt.