Murugan vs The State of Tamil Nadu

R. Regupathi, J.—In a double murder case for having murdered his wife and first daughter, the appellant/sole accused faced trial in S.C. No.

191 of 2006 on the file of the Additional Sessions and Fast Track Court, Dharmapuri. By Judgment, dated 09.04.2007, passed by the trial court,

he was convicted for the offence punishable u/s 302 IPC (2 counts) and sentenced to undergo life imprisonment for each count and to pay a fine of

Rs. 1,000/- under each count. He was also convicted u/s 302 read with 201 IPC. and sentenced to undergo R.I. for five years and to pay a fine of

Rs. 1,000/-. The sentences were ordered to run concurrently. He was directed to pay a sum of Rs. 50,000/- as compensation to PW-1 for the

maintenance of his daughters. Aggrieved against the order passed by the trial court, the appellant has preferred the present Criminal Appeal.

The appellant/accused and the first deceased Lakshmi Saraswathi (referred in this Judgment as D1) are husband and wife, and the second

deceased Keerthana (referred as D2) is their first daughter. PW-2 Lokeshwari is their second daughter.

On 08.03.2004 at about 8.30 P.M., on account of a quarrel between the accused and D1, when she questioned the accused about his illicit

relationship with several girls, the accused, with an intention to cause the death of D1, slapped her, as a result of which, she fell down unconscious

and thereafter, he hanged her to the ceiling fan in the bed room with a ''salvai'' till her death; thereby, charge u/s 302 IPC. was framed.

During the course of the same transaction, the accused, fearing that his act would be divulged by D2, who witnessed the murder of her mother,

throttled her neck with a towel, resulting in her death; thereby, charge u/s 302 IPC. (second count) came to be framed.

Thereafter, he shifted the bead bodies to the residence of his parents at Mallapuram with a view to screen the offence; thereby, charge u/s 302

read with 201 IPC. was framed.

When the accused was initially questioned, he pleaded innocence and therefore, trial of the case was taken up.

The prosecution, in its endeavour to bring home the guilt of the accused, examined PWs-1 to 13, marked Exs.P1 to P24 and produced MOs.1 to

The defence did not examine any witness, however, marked an attested xerox copy of the post-mortem certificate as Ex.D1.

The case of the prosecution, in short, as unfurled by its witnesses, runs thus:

a) PW-1 is the mother of D1. According to her, D1 was married to the accused and they had three female children, of whom, the first two

daughters were residing with the accused and the third daughter is brought up by her. The accused was running a type-writing institute and he often

troubled D1 demanding dowry and there used to be frequent quarrels as the accused had affair with several women. Though initially dowry was

given by way of jewels, the accused sold out the same and demanded further money. In such circumstances, on 08.03.2004, PW-1 received a

message from a neighbour that D1 committed suicide along with D2, whereupon, she went to the residence of the accused along with PW-3/her

son and finding that the accused already took the bodies to the residence of his parents, proceeded there and found the bodies laid at the

Verandah. Though the father of the accused was present, the accused was not there. PW-2, the second daughter of the accused was present there

and on enquiry by PW-1, she stated that there was a quarrel in the evening between the accused and D1, in which, the accused caused the death

of D1 by throttling her neck with a cloth piece and when D2 intervened, she was also done to death in the same fashion. PW-2 also told PW-1

that she was threatened by the accused not to divulge the same to anybody and was spared by him when she promised that she would not reveal

his act. As it was very late by then, PW-1 lodged a complaint under Ex.P1 with police on the next day.

b) PW-2 is the second daughter of the accused. While tendering evidence before court, she was aged about 8. After ascertaining the

capacity/competency of the child witness to testify, her evidence was recorded by the trial court. She deposed that, after returning to the residence

from school, she witnessed the quarrel between the accused and her mother/D1 and at that time, D2 was also present there. She stated that the

accused strangulated D1 and thereafter, did the same thing with D2, who attempted to make a phone call. She further stated that when the

accused came to assault her, she hid herself behind a bureau and thereafter, the accused brought an auto-rickshaw and shifted the bodies to his

parents'' residence at Mallapuram, where PWs-1 & 3 came and she informed PW-1 that the accused caused the death of her mother and sister.

She also stated that at the time when PWs-1 and 3 came to Mallapuram, her father viz., the accused, was not present there.

c) PW-3 is the brother of D1 and son of PW-1. He has corroborated the evidence of PW-1.

d) PW-4 is the owner of the house in which the accused was living with his family. She has stated that on 08.03.2004, on hearing noise, she came

out and found an auto-rickshaw, in which, the accused was shifting the dead bodies of the deceased and when it was questioned by her grandson,

the accused quarrelled with him.

e) PW-5 is the driver of the auto-rickshaw that was hired by the accused to shift the dead bodies. He has stated that he was engaged by the

accused on payment of Rs. 700 for shifting the bodies of D1 and D2 from the residence of the accused to that of his parents.

f) PW-6 is the attesting witness for preparation of the observation mahazar/Ex.P2.

g) PW-12 is the Sub Inspector of Police. On receipt of Ex.P1 complaint given by PW-1 on 09.03.2004 at 9 A.M., he registered a case in Crime

No. 103 of 2004 for offences punishable under Sections 302 and 201 IPC., prepared Ex.P20 printed F.I.R. and sent copies thereof to the court

and his superiors.

h) PW-13, the Inspector of Police, on receiving information, reached the place where the dead bodies were laid, examined PWs-1 to 3, prepared

Observation Mahazar Ex.P2, attested by PW-6, and rough sketch Ex.P21, and conducted inquest over the dead bodies in the presence of

witnesses, and Exs.P-22 and P-23 are the inquest reports. Thereafter, the dead body of D1 was entrusted with PW-10 and that of the D2 with

PW-11 for taking the same to the Hospital for autopsy.

i) PW-8 is the Medical Officer, who conducted post mortem on 09.03.2004 over the dead bodies of the deceased. Ex.P7 is the post mortem

certificate issued in respect of D1 and in the said Certificate, the following injuries have been noticed,

A contusion over the right side of the neck horizontally below the mandible 10x4cm.

A contusion over the back of the neck 15x4 cm.

Abrasion over the right elbow 5 cm.x3cm.

On dissection of injury No. 1 & 2, extravasation of blood in subcutaneous tissues present.

Ex.P10 is the post mortem certificate issued in respect of D2 wherein, the Medical Officer noticed the following injuries:

1.Horizontal contusion over the front & sides of the neck over the thyroid cartilage of about 15 cm x 3 m. Abrasion over the left knee about 3 cm.

X 3 cm.

The viscera of both the deceased were sent for chemical examination and after receiving the reports, the Doctor opined that both D1 and D2

would appear to have died of asphyxia as a result of strangulation.

j) The Inspector of Police arrested the accused on 10.03.2004 at 11 A.M. in the presence of PW-7 and after recording voluntary statement of the

accused, proceeded to the place where the accused was residing and prepared observation mahazar Ex.P24. At the instance of the accused,

MOs-1 to 3, towels and shawl, were recovered under a cover of mahazar. Thereafter, the accused was remanded to judicial custody. On

conclusion of the post-mortem examination, the clothings of both the deceased were recovered under Form-95 and the same were despatched to

the court with a requisition to forward the same for chemical examination.

k) PW-9 is the court clerk, who has stated that, on receipt of Ex.P12 requisition, hyoid bones of the deceased were sent for chemical analysis

along with the letter of the Magistrate under Ex.P13. Exs.P14 and P15 are the Bone Case Reports received with reference to D1 and D2

respectively.

l) After examination of the witnesses and receipt of medical and forensic reports and on conclusion of the investigation, the Inspector of Police filed

final report against the accused on 31.05.2004 for offences punishable under Sections 302 (2 counts) and 302 read with 201 IPC.

When the accused was questioned u/s 313 Cr.P.C. regarding the incriminating materials adduced on the side of the prosecution, he pleaded

innocence and filed a written statement, wherein, it has been stated that his wife, after killing her first daughter, committed suicide and that on earlier

occasions also, she attempted for suicide. A xerox copy of the post-mortem certificate (Ex.P.7) was marked as Ex.D1. The learned trial Judge,

after hearing the arguments of both sides and on perusing the oral and documentary evidence, passed the order of conviction and sentence as

aforementioned.

Learned Counsel for the petitioner submits that PW-2, cited by the prosecution as eye witness, is none else than the daughter of the accused. At

the time when she was examined, she was 8 year old and 5 year at the time of occurrence. After the occurrence, she went to the care and custody

of PW-1, therefore, there is a strong presumption that she has been tutored by PW-1 to depose against the accused. That being so, her evidence

cannot be accepted and acted upon. It is the case of the accused that his wife committed suicide and if Ex.D1, xerox copy of the post-mortem

certificate, is accepted, it will substantiate his case. The occurrence took place on 08.03.2004 and the complaint was given on the next day at 9

A.M. It is admitted by PW-1 that even before the complaint was given by PW-1, the police came to the scene of occurrence by 6 A.M. and it is

the case of the defence that it is only the accused, who divulged the information to the police. It is also admitted that the accused was kept in the

next house locked, for production before police; in such circumstances, it is contended that the complaint came to be registered at 9 A.M. at the

instance of PW-1 cannot be taken as F.I.R. and that the arrest on the subsequent day and recovery must be disbelieved.

Referring to Ex.D1/post-mortem certificate, it is submitted that the word ''horizontally'' has been interpolated in Ex.P7 apart from adding a

sentence, which reads as follows:

On dissection of injury No. 1 & 2, extravasation of blood in sub cutaneous tissues present.

According to the learned Counsel, both these aspects are not present in Ex.D1 which is the copy of Ex.P7; thus, it is clear that there is an apparent

fabrication of records on the side of the prosecution. In such circumstances, the case put forth by the appellant/accused must be believed. By

stating that in Ex.P7, it is mentioned ''Hyoid bone fractured'', whereas, in the Bone Case Report under Ex.P8, it is noted ''hyoid bone - in tact'',

learned Counsel would argue that the said aspect would falsify the prosecution version of murder and probablise the theory of suicide as put forth

by the defence.

At the time when the accused was questioned u/s 313 Cr.P.C., a written statement was given wherein it has been emphatically stated by the

accused that his wife committed suicide after killing D2. Along with the written statement, a letter said to have been written by the deceased, has

also been attached, wherein, it has been stated that D1 had taken sleeping pills to commit suicide and also administered the same to her daughters.

By stating that the said letter is in the handwriting of the deceased, learned Counsel submitted that it is a case of suicide and a false case has been

foisted on the accused.

It is further submitted that PW-2, a child witness, is not trustworthy and sufficient corroboration is not available. He relied on the decisions

reported in 2005 SCC (Cri) 166 (Orsu Venkat Rao v. State of A.P.), 2003 (1) Sup 698 (Bhagwan Singh @ Others v. State of M.P.) Arbind

Singh and Krishna Nandan Singh and Others Vs. State of Bihar, Chhagan Dame Vs. The State of Gujarat, , 1993 Supp (1) SCC 510 and Ganesh

Bhavan Patel and Another Vs. State of Maharashtra, , in support of his contention that the child/PW2, being a highly interested witness, the

amenability to tutoring of a girl of such tender age by PW-1, cannot be ruled out.

Per contra, learned Additional Public Prosecutor submits that, on perusal of the evidence of PW-2, it will be quite apparent that her evidence is

trustworthy. She has even withstood the rigour of cross examination and stated in her evidence positively that it is the appellant, who had

committed the murder of both the deceased. She has further stated that the appellant threatened her not to inform PW-1 as to what she had

witnessed. Relying on the decisions reported in 2004 SCC (Cri) 7 (Ratansingh Dalsukhbhai Nayak v. State of Gujarat) and 2003 SCC (cri) 561

(State of Karnataka v. Shariff), he submitted that the evidence of a child witness and credibility thereof would depend upon the circumstances of

each case and in the present case, the evidence of PW-2 is quite natural, cogent, convincing and trustworthy. It is the case of the prosecution that

the accused, after shifting the dead bodies of the deceased to the residence of his parents, absconded and was arrested only subsequently. The

occurrence took place inside the residence of the accused wherein no one was living except the accused, D-1 and their children D-2 and PW-2.

The evidence of PW-5/owner of the house wherein the family was residing and that of PW-6, the driver of the auto rickshaw, will sufficiently

substantiate that both the deceased were dead even at the time when they were shifted from the residence of the accused. In all probability, if really

the wife of the accused had committed suicide by hanging on her own after killing D2, the accused would have immediately informed the same to

the police without even shifting the dead bodies; on the contrary, he carried the dead bodies to the residence of his parents by travelling through the

place where the police station is situated. The case of the appellant is that his wife was alive and only for the purpose of taking her to the hospital,

he engaged the auto-rickshaw of PW-5, however, the emphatic evidence of PW-5/Auto driver is that the deceased were dead even at the time

they were removed from the residence of the accused. The case projected by the appellant is totally contrary to what has been stated in the written

statement of the accused viz., his wife, after killing her first daughter, had committed suicide; therefore, he himself had stated that both the deceased

were already dead. EX.D1 cannot be looked into in view of the reason that it is only a xerox copy. Though it is stated that attestation of PW8 has

been obtained therein, it is the evidence of PW-8 that such attestation has been given by her since she was convicted that her signature was found

in the xerox copy. No such interpolation as put forward by the defence is available. Though on perusal of Ex.P8, the original post mortem

certificate, it may appear that those aspects have been written specifically, it would in no way alter the nature of the certificate and the case of the

prosecution. Through the testimonies of PWs-1 and 2, the prosecution has substantiated its case beyond reasonable doubt. Their evidence has

been sufficiently corroborated through other materials including medical evidence. The letter alleged to have been written by D1, produced by the

accused along with his written statement, is unbelievable. If such a letter was available at the inception, the same would have been produced during

the course of investigation or at least would have been put to PWs-1 and 2 when they were examined before court. The veracity of the same and

the handwriting therein having not been established, the said letter has to be simply ignored. Thus, according to the learned Additional Public

Prosecutor, the prosecution has established its case beyond all reasonable doubts.

We have carefully gone through the materials available before us having regard to the rival contentions projected on either side.

The prosecution case rests mainly on the evidence of PW-2, a child witness. Therefore, it is pertinent to proceed further after assessing the

quality/credibility of her evidence. Section 118 of the Evidence Act seeks to exclude the evidence of those who may suffer from intellectual

weakness and therefore, in terms of the said provision, all persons shall be competent to testify unless by reason of tender years, the court

considers that they are incapable of understanding the questions put to them and of giving rational answers. Undoubtedly, it is for the trial Judge to

satisfy himself as regards fulfilment of the requirements of the said provision. Admittedly, it is not the case of the appellant herein that the trial court

had failed to comply with the statutory obligations in this behalf. A child indisputably is competent to testify if he/she understands the questions put

to him/her and gives rational answers thereto. PW-2 was not found by the trial court to be suffering from any intellectual incapacity to understand

the questions and give rational answers. If after careful scrutiny of the evidence of the child witness, the court comes to the conclusion that there is

an impress of truth in it, there is no obstacle in the way of accepting such evidence and acting on the same. On gauging the evidence of PW-2 and

the reasons given by the trial court to accept her testimony, we do not find any substance in the argument of the learned Counsel for the appellant

to discard her testimony on the flimsy ground that she might have been tutored by PW-1. The mere fact that PW-2 was asked by PW-1 to tell

about the occurrence or that PW-2 was taken care of by PW-1 after the death of D1 can, at no stretch of imagination, be a reason to jump to a

conclusion that she yielded to tutoring and deposed accordingly. Learned Counsel for the appellant took much pains to impeach her evidence by

pointing out certain trifling discrepancies which are of very minor nature and in no way affect the credibility of the prosecution version.

Admittedly, the occurrence took place inside the residence of the accused and no one lived therein except the accused, D-1, D-2 and PW-2.

PW-2 emphatically stated that it was the appellant who committed the murder of D-1 by throttling her neck with a cloth piece and that D-2 was

also done to death in the same fashion as she attempted to make a phone call. According to her, she hid herself behind a bureau when the accused

tried to assault her. The narration given by PW-2 is quite natural, impressive and trustworthy. The other sequences narrated through PW-1

corroborate her testimony. On perusal of the evidence of PW-1, it is seen that there used to be frequent quarrels between the accused and D1 as

the accused had illicit relationship with several girls and was frequently demanding dowry. PW-3 corroborated the evidence of PW-1. Further, the

plea of the defence that D1 had committed suicide has no basis since it has been substantiated through medical evidence that the death was due to

homicidal violence. In the light of the opinion of the Post-mortem Doctor to the effect that the death was due to asphyxia as a result of strangulation

and of the fact that neck injury noticed in the Post Mortem was horizontal and not slanting or oblique, the arduous attempt made to project the

murder of D1 as suicide is of no use. The witnesses who speak about arrest and recovery also corroborate the prosecution case. The letter

produced along with the written statement of the accused, on the face of it, appears to be a concocted document. If such letter of the deceased

had already existed, the same would have been produced during the course of investigation or at least put to the prosecution witnesses during the

course of trial. Further more, such a letter was not subjected to opinion of the handwriting expert so as to prove the authenticity thereof in a

manner known to law. In the said letter, it is stated that D-1 committed suicide by consuming sleeping pills. If that be so, there is no explanation at

all on the side of the defence for the injuries sustained on the neck of both the deceased. Even if it is construed that such a letter has been written

on the earlier occasion when D1 attempted to commit suicide, it may not help the defence in view of the reason that the occurrence took place

subsequently and for such commission of the offence at the hands of the accused, there are wealth of materials available. In such circumstances, we

do not find any merit in the contentions raised by the learned Counsel for the appellant and therefore, the order of conviction and sentence passed

by the trial court is upheld.

Criminal Appeal fails and the same stands dismissed.