Bose vs State

P. Murgesen, J.—This appeal is directed against the conviction and sentences imposed on the appellant by judgment of the Principal

Sessions Judge, Madurai dated 05.10.2001 made in Sessions Case No. 598 of 1999.

The appellant is the accused and the respondent is the complainant.

The case of the prosecution is as under:

P.W.1-Paramasivam is the resident of Ulagani Village in Thirumangalam. He is the brother of the deceased Azhagumalai. P.W.2-Murugeswari is

the daughter of the deceased Azhagumalai. P.W.3-Murugeswari is the daughter of the first wife of P.W.2''s father. P.W.4-Vellaisami is the

resident of Ulagani village. P.W.5-Vijayakumari is the sister of the deceased Azhagumalai. The accused is the uncle of P.W.2. The deceased

Azhagumalai was a widow. She was residing with the first wife of her husband.

After the death of the husband of the victim, there was a dispute between the accused and the victim. The accused wanted the victim to be his

concubine. On the fateful day, i.e. on 14.05.1999 at 11.00 p.m., the accused entered the house of the victim. At that time, P.W.1 came there to

visit his sister''s house and he was sleeping outside the house of the victim. The accused entered the house and placed a cloth over the mouth of the

victim telling her not to shout. When she refused to adhere to the desire of the accused, the accused kicked her at the bottom of the stomach two

times. At that time, a Kanda Vilakku was burning. This incident was seen by the witnesses. The victim was taken over to the Doctor by P.W.1 on

15.05.1999 at about 1''O Clock afternoon as in-patient. P.W.8- Dr. Ravindran gave treatment to the victim. Ex.P13 is the scan film. Ex.P14 is the

scan report. Ex.P15 are the case sheets. After examining the victim, the Doctor advised to undergo surgery, but since they wanted to secure

money for treatment, the victim was admitted in the Government Rajaji Hospital, Madurai. In the Government Rajaji Hospital, Madurai, the victim

was treated by P.W.9-Dr. Vijayan. Ex.P5 is the Accident Register.

The accused came to the Hospital and poured the poison Organo Phosphorus into the mouth of the victim on the ground that she will be cured.

The victim died. An intimation was sent to the Police and a complaint was lodged with the Police.

P.W.15-Gajendran registered the complaint on the file of Koodakovil Police Station in Crime No. 66 of 1999 under Sections 354 and 302

IPC. Ex.P12 is the printed First Information Report.

The investigation was taken over by P.W.16-Rajendran. When he was working as Inspector of Police in Thirumangalam Taluk Police Station,

on 17.05.1999 at about 10.30 a.m., he received the First Information Report from P.W.15-Gajendran. He went to the Government Rajaji

Hospital and examined P.W.1 and P.W.2 and also other witnesses and recorded their statements. He conducted inquest over the body of the

deceased in the presence of Panchayatars and prepared Ex.P16-Inquest Report and he sent the body for post-mortem with a requisition, through

P.W.14-Jeyaraj, P.C. P.W.10-Dr.Thiyagarajan conducted post mortem over the body of the deceased. The relevant portion of the post-mortem

Certificate is extracted as under:

Bleeding from both nostrils present. Froth seen in the mouth. Following ante-mortem injuries noted over the body.

Sutured inter costal drainage wounds on both sides of lateral chest in the 5th inter costal space 4 x 1 cms. each - Surgical Treatment.

On dissection of thorax:

Contusion posterior surface of anterior chest wall 8 x 6 cms. on right side, 6 x 5 cms, on left side. Fracture ribs 2, 3, 4 on right side and 6 to 8 on

left side at the costo chondral junction. Laceration upper lobe of right lung 3 x 2 x 1 cms. and lower lobe of left lung 2 x 1 x 1 cms. Right Pleural

cavity contain 150 ml of blood with clots and left side pleural cavity contains 200 ml of blood with clots.

On dissection of Abdomen:

On posterior surface of anterior abdominal wall 2 contusion dark in colour, one on the upper abdomen close to centre 6 x 4 cms, another on the

lower abdomen close to the centre on right side 5 x 3 cms.

Peritoneal cavity contains 800 ml of foul smelling, turbid purulent pusmaterial. Peritoneum adherent and hyperenic. Perforantion of size 3 x 2 cm in

the small intestine 160 cms. away from the ileo-caecal junction. Proximal portion contains 30 ml of turbid fluid, nil specific smell, other areas no

pathological changes appears normal. Pancreas-destroyed with foul smelling turbid pus autodigistion.

The final opinion given by Dr. Thiyagarajan is that the deceased would have died due to injuries in the abdomen (injuries to ribs and lungs -

Pancreas - small intestine and the complications there of (peritonitis)).

P.W.16 went to the scene of occurrence and prepared Ex.P2-Observation Mahazar and Ex.P17-Rough Sketch. Then he recovered M.O.1-

Kanda Vilakku under Ex.P3-Athatchi. Thereafter he examined P.Ws.3, 4, 5, 6, 7, 13, 14 and 15 and other witnesses. Then he searched for the

accused. On 18.05.1999, he again examined the witness P.W.2. On 19.05.1999, he arrested the accused in the presence of P.W.11 and one

Ganesan. Thereafter, he recorded the confession statement of the accused. Ex.P8 is the admissible portion of the confession statement of the

accused. On the basis of the confession statement, P.W.16 took the accused to the village and recovered M.O.2-torned cloth under Ex.P9-

Athatchi in the presence of same witnesses. Thereafter, the accused was brought to the Koodakovil Police Station and sent to judicial custody.

Then, after completing the investigation on 28.05.1999, the files were handed over to P.W.17-Adhinarayanan, who was the Inspector in

Thirumangalam Taluk Circle, at that time.

P.W.17-Adhinarayanan took up the investigation. He recorded the statement of witnesses and also P.W.10-Dr.Thiyagarajan. After completing

the investigation, on 08.10.1999, he filed charge sheet against the accused under Sections 449 and 302 IPC.

Before the Trial Court, P.W.1 to P.W.17 were examined and Ex.P1 to P17 and M.Os.1 to 4 were marked. On consideration of the evidence

adduced on record, the Trial Court convicted the accused under Sections 452 IPC and 302 IPC and sentenced to undergo R.I. for 5 years and to

pay a fine of Rs. 2,000/- in default to undergo S.I. for 3 months for offence u/s 452 IPC; and to undergo imprisonment for life and to pay a fine of

Rs. 2,000/- in default to undergo S.I. for 3 months for the offence u/s 302 IPC.

Challenging the judgment of the Trial Court, the present appeal has been filed by the appellant/accused.

Heard the learned Counsel on either side.

The point to be decided in this appeal is whether the accused is guilty under Sections 452 and 302 IPC.

P.W.1-Paramasivam is the resident of Ulagani Village in Thirumangalam. He is the brother of the deceased Azhagumalai and P.W.5-

Vijayakumari. P.W.2-Murugeswari is the daughter of the deceased Azhagumalai. Azhagumalai''s husband had two wives and Azhagumalai is the

second wife of her husband. P.W.3-Murugeswari is the daughter of the first wife of P.W.2''s father. P.W.4-Vellaisami is also the resident of

Ulagani village. P.W.5-Vijayakumari is the sister of the deceased Azhagumalai. P.W.6-Rajakumaran is a relative of the deceased Azhagumalai.

The deceased Azhagulamai was a widow. The accused is also a relative to the deceased victim. The accused had an eye over the deceased. He

compelled her to be his concubine. Since she was not willing for his desire, there was a quarrel between the accused and the deceased.

According to the Prosecution, on the fateful day, the accused entered into the house of the victim, and put the M.O.2-torned cloth into the

mouth of the victim and attempted to molest her. When she resisted she was attacked, P.W.2 woke up and she saw the occurrence. On hearing

the sound, P.W.1 came inside the house, but the victim ran away. The occurrence took place on 14.05.1999. The First Information Report was

filed on 17.05.1999.

Learned Counsel for the appellant has submitted that there was delay in the complaint and registration of F.I.R. and therefore, the prosecution

is bound to fail. He relied on the following judgments in support of his contention,

a) Ramesh v. State 2009 1 L.W.(Crl.) 714,

b) Sivagami and 3 Ors. v. State 2009 1 L.W.(Crl.) 666,

c) Palani v. State rep. by S.H.O., Panruti Police Station (2006) 2 MLJ (Crl.) 404,

d) State of Punjab v. Sucha Singh 1973 Scc (Cri) 1079) and

e) Ramji Surjya Padvi and Another Vs. State of Maharashtra,

and argued that there was delay in lodging the complaint and registration of F.I.R. and therefore, the prosecution is bound to fail.

No doubt, there was delay in the registration of F.I.R. In the F.I.R. it is stated that since there was no external injury over the body of the

victim and that the accused is the relative of the deceased, they did not prefer the complaint immediately. P.W.8-Dr.Ravindran advised that a

surgery should be done on the victim on 16.05.1999 at 9.30 a.m. and the persons who were accompanying the deceased went out to collect

money for the operation. Since they were not able to pay the amount till 1''O clock on that day, they wanted to take the victim to the Government

Hospital. They went to the Government Hospital only because they were not able to collect money for the sugery. First P.W.8-Dr.Ravindran gave

treatment to the victim. Ex.P13 is the scan film. Ex.P14 is the scan report. Ex.P15 are the case sheets. This all would go to show that treatment

was first given by Dr.Ravindran. Further his evidence would disclose that since the people accompanying the victim requested him not to give any

information to the Police, he did not prefer any complaint. When the victim died in the Government Hospital, a report was given to the Police. But

P.W.9-Dr.Vijayan, who treated her previously in the Government Rajaji Hospital had categorically stated that the condition of the victim was

informed to the Police and one Constable by name Pandian, signed and received the Accident Register on 17.05.1999. He said that when the

victim was admitted in the hospital, it was well informed to the Police Station. Sometimes, the Police in Tamil Nadu will not take action quickly. In

spite of that, a report was given by the Doctor, but the complaint was not received by the concerned Police. Only after P.W.1 had given a

complaint, the F.I.R. was registered. So, it is clear that there was inaction on the part of the Police. This will not affect the case of the prosecution.

On a careful consideration of the evidence on record, it is clear that there was only a reasonable delay in filing the complaint and the registration of

the F.I.R. in the present case. The delay in F.I.R. is properly explained. Therefore, we find that the explanation given by the learned Additional

Public Prosecutor is acceptable, on this point.

Learned Counsel for the appellant has submitted that there was no motive for the accused to commit the alleged offence towards the victim,

who was a widow and the theory of Panchayat to pull up the accused is not true. He further argued that the Panchayatars were not examined. It is

true that the Panchayatars were not examined, but that is not a substantial ground to reject the case of the prosecution. P.W.5-Vijayakumari is the

sister of the deceased Azhagumalai. She categorically asserted that the accused expressed his improper desire to the victim and the same was

rejected by the victim and they warned the accused two to three times. Evidence of P.W.1, 2 and 5 would show that the accused had an eye over

the victim and he made attempts on the helpless widow to force her to his desire. Further there was a quarrel between the accused and the victim.

These all would go to show that there was motive for the accused to commit the offence towards the victim. After hearing the noise, the accused

ran away from the scene of occurrence on the fateful day. The running of the accused was seen by P.Ws.1, 2, 3 and 4. Here, it should also be

noted that was no necessity for the accused to enter into the house of the victim during odd hours. Even P.W.3-Murugeswari had categorically

asserted that the accused ran from the scene of occurrence. There was also enough light in the scene of occurrence. P.W.7-Muthaiah was the

wireman at that time. His evidence would disclose that no electricity failure for the street lights in the area where the offence was committed. It was

also stated by P.W.2 in the cross-examination that her mother used to burn the Kanda Vilakku in the house for attending to the nature''s call during

night hours. So, it is clear from the evidence of P.W.2 that Kanda Vilakku was burning during the night time. So there was sufficient light in that

area and only because there was sufficient light in that area, the running of the accused from the scene of occurrence was seen by the witnesses.

Therefore, it is crystal clear that the presence of the accused at the place of occurrence is established properly.

The occurrence was spoken by P.W.2 and P.W.4. The victim spoke to P.W.4 that the accused kicked her. The conduct of the accused was

spoken by P.W.2.

Learned Counsel for the appellant submitted that questions were not put to P.W.2 who was 14 years old at the time of giving evidence, by the

Trial Judge to satisfy himself whether P.W.2 was competent to give evidence. It is true that questions were not put to P.W.2 as regards the

satisfaction of the Trial Judge, whether P.W.2 is competent to give evidence. The Hon''ble Supreme Court has pointed out that it is the duty of the

Court to remove the chaff from the grain to find out the truth. On a careful consideration of the evidence on record, we are of the considered view

that the evidence of P.W.2 can be considered. She has categorically narrated the incident stating that the accused put a cloth in her mother''s

mouth asking her not to shout and when her mother resisted, he kicked her.

Evidence on record would show that the accused kicked the victim and left the scene of occurrence. The final opinion given by the Doctor also

would show that the death of the victim was due to injury in the abdomen (Injury to ribs and lungs - Pancreas - small intestine and the

complications thereof (peritonitis)). Further the accused went to the hospital and poured poison.

Learned Counsel for the appellant argued that it is not possible to enter into a Government Hospital and pour poison, as there will be

movement of number of people inside the hospital. This submission of the learned Counsel for the appellant is not acceptable. Anybody can enter

the Government Hospital at any time. That is the painful condition of the Government Hospital. The subsequent conduct of the accused would

show that he had an intention to murder the victim.

Though the death is not due to the poison, as per the final opinion of the Doctor, the poison by name Monocromotopas (Organophosphorous

insecticide) was found in the viscera of the victim. Results of the Post Mortem Certificate as seen above, corroborated with the evidence of P.W.2

would disclose that the accused poured the poison into the mouth of the victim when she was in the hospital on the ground that she would be

cured. Further the evidence of P.W.2 would show that the victim was seriously assaulted by the accused.

On a careful scanning of the evidence on record, we are of the considered view that the accused committed the offence wilfully on the victim,

when she refused to adhere to his desire. Even when she was admitted in the hospital, he went to the extent of going to the hospital and poured

poison into her mouth. So, it is clear that there was intention on the part of the accused to murder the victim.

Evidence on record would further disclose that the delay in lodging complaint and registration of the F.I.R. are properly explained; there was

enough light at the time of occurrence and the presence of the accused in the scene of occurrence is properly established; the conduct of the victim

has been clearly established; the assault of the victim by the accused is properly supported by evidence; the intention on the part of the accused to

commit murder has been clearly established in the manner known to law.

In view of all the above stated reasons, we are of the considered opinion that the conviction and sentences imposed on the accused by the

Trial Court is liable to be confirmed and accordingly they are confirmed, as the Trial Court had properly gone into the evidence available on record

and came to the correct conclusion.

In the result, the Criminal Appeal is dismissed. Consequently, M.P.(MD) No. 1 of 2009 is also dismissed.