Kasirajan vs State

M. Chockalingam, J.—Challenge is made to a judgment of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur passed in S.C. No. 39 of 2008 on 29.01.2009, whereby the sole accused/appellant stood charged, tried and found guilty under Sections 341 and 302 IPC and awarded punishment of life imprisonment with a fine of Rs. 1000/- and default sentence u/s 302 IPC, and one month simple imprisonment u/s 341 IPC.

The short facts that are necessary for the disposal of this appeal can be stated thus:

a) The deceased-Dhanabackiyam was the wife of the accused/appellant. P.W.1-Kamatchi is the daughter of the deceased and the accused. The accused was an addict to drugs and also he had all illegal activities. He was torturing his wife from the time of marriage and she was forced to live with P.W.1-her daughter, and her son Solaiswamy, at her parental home. Though the accused/appellant made many attempts to take the deceased back, she was not willing to go with him. The accused entered into an agreement for sale of a piece of land owned by the family and got advance for it. When the deceased came to know about it, she convened a panchayat and also informed him that she would go for civil proceedings before the Court. The accused, aggrieved over the same, on the date of occurrence, that was on 30.09.2007 at about 7.30 a.m., when the deceased was proceeding along with P.W.1 from Melaputhur to Naranapuram Bus Stop to go to a match factory where she was working, the accused/appellant came in a cycle, got down from the same and pointing to her, uttered the words "How can you refuse to come with me to live jointly? How dare you to file a case when I sell my property according to my wish?". So saying, he cut her with M.O.1-Aruval on different parts of the body and when she fell down, he continued to cut her and severed the head. Thereafter, he ran away from the place of occurrence. P.W.1 immediately rushed to P.W.6-Visvasam and narrated the entire incident, pursuant to which Ex.P1-Complaint was prepared. Then, P.W.1 along with her uncle Arulraj, proceeded to the respondent-Police Station, where P.W.17-Sub-Inspector of Police, was on duty. He received Ex.P1 from P.W.1. On the strength of Ex.P1, a case came to be registered in Crime No. 264 of 2007 under Sections 341 and 302 IPC. Ex.P16-Express F.I.R. was despatched to the Court and the copies were sent to the higher-ups.

b) P.W.18-Inspector of Police took up the case for investigation. On receipt of the copy of F.I.R., he went to the place of occurrence, made an inspection and prepared Ex.P3-Observation Mahazar and Ex.P17-Rough Sketch. Then he conducted inquest over the dead body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P18-Inquest Report. Thereafter, he recovered M.Os.8, 9 and 10-One pair of chappal, Bloodstained earth and ordinary earth respectively, under a cover of Ex.P4-Seizure Mahazar and sent the dead body to the Government Hospital, Sathur for conducting autopsy, under a requisition marked as Ex.P10.

c) The dead body of the deceased was subjected to autopsy by P.W.13-Doctor, attached to the Government Hospital, Sathur and she issued Ex.P11-Post Mortem Certificate, wherein she gave an opinion that the deceased died 6 to 12 hours prior to autopsy due to severance of head and also the injuries sustained by her. Thereafter, material objects were recovered from the dead body of the deceased.

d) Pending the investigation, the Investigator arrested the accused on 23.10.2007. The accused came forward to give a confessional statement voluntarily and the same was recorded in the presence of P.W.10-Village Administrative Officer. Ex.P5 is the admissible portion of the confessional statement of the accused. On the basis of the confessional statement, the accused produced M.O.1-Aruval, M.O.11-Shirt and M.O.12-Kaili and the same were recovered under a cover of Ex.P6-Seizure Mahazar. Thereafter, the investigator sent the accused for judicial remand.

e) The investigator sent all the material objects to the Forensic Lab for conducting chemical examination under a requisition marked as Ex.P12, followed by another requisition sent by the Judicial Magistrate Court under Ex.P13. Two reports were received. One is Ex.P14-Chemical Analyst''s Report and the other is Ex.P15-Serologist''s Report.

f) P.W.18-Inspector of Police, on completion of the investigation, filed the final report on 07.01.2008 under Sections 341 and 302 of IPC against the accused before the concerned court, which in turn committed the case to the Court of sessions and necessary charges were framed.

g) In order to substantiate the charges, at the time of trial, the prosecution examined 18 witnesses and relied on 18 exhibits and 14 material objects. On completion of the evidence adduced on the side of the prosecution, the accused was questioned u/s 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. On the side of the defence, Ex.D1 was marked. After hearing the arguments of the Counsel and looking into the available materials, the Trial Court took the view that the prosecution has proved the case beyond reasonable doubt, found the accused guilty and awarded the punishments as referred to above. Hence, this Criminal Appeal at the instance of the accused/appellant.

Advancing arguments on behalf of the accused/appellant, the learned Counsel would submit that, in the instant case, the prosecution has miserably failed to prove the case. Though the prosecution marched 3 witnesses, i.e. P.Ws.1 to 3, P.W.2 turned hostile and P.W.3 was not believed by the Trial Judge, and thus, the prosecution had only one evidence before the Trial Court. Insofar as P.W.1 is concerned, the Trial Judge should have rejected the testimony of P.W.1, since she could not have been present in the occurrence place, when the occurrence took place. According to Ex.P1, when they were proceeding to a match factory where they were working, the occurrence took place, but P.W.1, in her evidence, has candidly admitted that the match factory was on leave on Sundays. Therefore, according to the Counsel for the accused/appellant, since the date of occurrence happened to be a Sunday, it would be quite clear that P.W.1 and her mother could not have gone to the match factory on that day.

Added further the learned Counsel for the accused/appellant that P.W.1 has categorically stated in the cross-examination that the complaint contained only two pages where she signed, but Ex.P1 actually contains three pages. Apart from that, the occurrence has taken place at 8''O clock in the morning, but the complaint reached the Police Station only at 11.00 a.m., and thus there was a delay and the delay remained unexplained by the prosecution.

Learned Counsel for the accused/appellant would further add that it was claimed by the Investigator that the accused was arrested on 23.10.2007 pursuant to which, he gave a confessional statement voluntarily and on the basis of the confessional statement, 3 material objects were recovered, namely, M.Os.1, 11 and 12-Aruval, Shirt and Kaili respectively, under a cover of Ex.P6-Seizure Mahazar, and all these material objects were recovered from a public place on 23.10.2007. Therefore, according to the Counsel, when the occurrence has taken place on 30.09.2007, it is highly artificial that all these material objects were kept in a public place for about 23 days and therefore, the alleged recovery of M.Os.1, 11 and 12, as put forth by the prosecution, cannot be believed.

Added further the learned Counsel for the accused/appellant that in the instant case, though all the material objects were sent to the forensic lab for conducting chemical analysis, the blood group was found to be disintegrated and hence, it could not be relied upon. He further submitted that though P.W.1 claimed that all her clothes were drenched with blood, the investigator did not recover any one of the clothes from P.W.1. Therefore, the evidence of P.W.1 cannot be believed. If it be so, according to the counsel, the prosecution must lose its case since it relied only on the sole testimony of P.W.1. Therefore, the accused/appellant is entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.

It is not in controversy that the deceased-Dhanabackiyam, who was the wife of the accused/appellant was done to death in an incident that had taken place on 30.09.2007 at about 7.30 a.m. Following the inquest made by P.W.18-Inspector of Police, the dead body of the deceased was subjected to post mortem by P.W.13-Doctor, attached to the Government Hospital, Sathur, who has given a categorical opinion in Ex.P11-Post Mortem Certificate, that the deceased died 6 to 12 hours prior to autopsy due to severance of head and also the injuries sustained by her. These facts were not disputed by the accused/appellant before the Trial Court and hence the Trial Court had no legal impediment in recording so.

In order to substantiate that it was the accused/appellant who severed the head of his wife Dhanabackiyam and caused her death instantaneously, the prosecution marched 3 witnesses before the Trial Court, out of whom P.W.2 turned hostile and P.W.3 was not believed by the Trial Judge. Thus, the prosecution was left with the evidence of P.W.1 only. At the outset, it has to be pointed out that Indian Criminal Jurisprudence does not require quantity of evidence, but it requires only quality of evidence. True it is that P.W.1 is the daughter of the deceased. At the same time, it must be stated that she is also the daughter of the accused/appellant. The accused/appellant has no reason to attribute against his own daughter, examined as P.W.1 and hence, she cannot be termed as an interested witness. According to P.W.1, during the relevant time, she was living with her mother separately, eking their livelihood by working in a match factory and on the date of occurrence, when they were proceeding nearby the place of occurrence at about 8.00 a.m., the accused/appellant who came there in a cycle, uttered the words "How can you refuse to come with me to live jointly? How dare you to file a case when I sell my property according to my wish?", and cut her, and when she fell down, he continued to cut her and severed her head. The evidence of P.W.1 is natural and it is also cogent. Therefore, the Court is unable to find any reason to look at the evidence of P.W.1 with suspicion or doubt her testimony. Apart from that, the evidence of P.W.1 is fully corroborated by the medical opinion canvassed through Ex.P11-Post Mortem Certificate issued by P.W.13-Doctor.

The contention of the learned Counsel for the accused/appellant that there was a delay in lodging the complaint cannot be countenanced. According to the prosecution, the occurrence has taken place at 8.00 a.m. and the complaint was lodged at the Police Station at 11.00 a.m. P.W.1 has categorically stated that immediately after the occurrence, P.W.6 came to the place of occurrence after half an hour, and with the help of P.W.6 the complaint was prepared and thereafter, they took the complaint to the Police Station and lodged the same, and thus, the Court is unable to find any delay in the process.

Insofar as the contention of the learned Counsel for the appellant/accused that the occurrence has taken place on Sunday, and according to P.W.1 it was a holiday in the match factory and if to be so, there was no occasion for P.W.1 to accompany her mother, cannot be countenanced, because when such a question was put to P.W.1, she gave an explanation therefor. It is true that it was a Sunday, but the explanation given was that they went to the match factory to do some other work. Once a reason has been brought forth and it has been correctly spoken to by P.W.1, no further explanation is required.

Insofar as how many pages Ex.P1-complaint contained, even though the Court finds some discrepancy in the evidence of P.W.1, in the considered opinion of this Court, it will not affect the truth of the prosecution case.

Insofar as the recovery of M.Os.1, 11 and 12 is concerned, the investigator would claim that they were recovered on 23.10.2007, but as rightly contended by the learned Counsel for the accused/appellant, it was a public place, and therefore this Court cannot accept that those material objects were kept in a public place for nearly 23 days. Therefore, that part of the evidence cannot be accepted. True it is that some irregularities on the part of the Investigator have been brought to the notice of this Court, but in view of the clear evidence available through P.W.1, these irregularities cannot be given much weight. Under the circumstances, this Court is of the considered opinion that the prosecution has brought home the guilt of the accused/appellant that it was he who severed the head of his wife, the deceased, and caused her death. In the instant case, the Court is unable to notice any reason or circumstance to show that the act of the accused does not amount to murder. The Trial Court has rightly found the accused guilty under Sections 341 and 302 of IPC and awarded the punishments as referred to above.

In view of the foregoing reasons, this Court is unable to find any reason either factually or legally to disturb the findings of the Trial Court. Therefore, the conviction and sentences imposed by the Trial Court on the accused/appellant are liable to be confirmed and accordingly confirmed, and the Criminal Appeal is dismissed.

The Court places its appreciation on record for the assistance rendered by the learned Counsel appointed as Amicus Curiae in putting forth the case in a detailed manner, after going through the materials available on record. The Amicus Curiae is entitled to get remuneration from the Legal Aid, Madurai.