Muthiah vs State

Mr. S. Nagamuthu, J. - The appellant is the sole accused in S.C. No. 324 of 2007, on the file of the learned Sessions Judge, Mahila Court/Mahalir Neethimandram, Madurai. He stood charged for the offence under Sections 302, 201 I.P.C. and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. By Judgment, dated 13.06.2011, the Trial Court convicted the appellant under Sections 302 and 201 I.P.C. alone and acquitted him from the charge under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. The Trial Court sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months for the offence under Section 302 I.P.C. and to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for one month, for the offence under Section 201 I.P.C. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is before this Court, with this Criminal Appeal.

The case of the prosecution, in brief, is as follows:

(i) The deceased in this case was one Mrs. Valarmathi, aged 25 years. The appellant is her husband. They were residing together at Managiri in Madurai. It is alleged that there were frequent quarrels between the accused and the deceased. While so, it is further alleged that on 26.03.2005, at 04.00 a.m., the deceased manually strangulated the deceased to death at his house. Then, he informed the family members of the deceased about the same. It is further alleged that the appellant removed the pillow and other materials used for the commission of the crime and thereby causing disappearance of the evidence. It is alleged that the said act of the accused also amounts to an offence under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. It is alleged that after the said occurrence, on getting information, P.W.1, the sister''s husband of the deceased, came to the house of the deceased. At that time, it was found that there were injuries on her neck. When P.W.1 was preparing to go to the Police Station for making a complaint, it is alleged that the accused confessed to him that he killed the deceased by pressing a pillow against her face. P.W.1 thereafter went to Anna Nagar Police Station and made a complaint under Ex.P.1 on 26.03.2005 at 02.00 p.m. P.W.11, the then Sub Inspector of Police, Anna Nagar Police Station, registered a case in Crime No. 565 of 2015 under Section 302 I.P.C. Ex.P.5 is the First Information Report. He forwarded both the documents to the Court. Then, he handed over the Case Diary to the Inspector of Police for investigation.

(ii) P.W.18, the then Inspector of Police, Anna Nagar Police Station, took up the case for investigation at 02.25 p.m. on 26.03.2005. At 03.30 p.m., he visited the place of occurrence and prepared an Observation Mahazer in the presence of P.W.17 and another witness. He also prepared a Rough Sketch showing the place of occurrence. Then, he conducted inquest on the body of the deceased in the presence of panchayatdars and forwarded the body for postmortem.

(iii) P.W.12, Dr. S. Babu, conducted autopsy on the body of the deceased on 27.03.2005 at 11.45 a.m. He found the following injuries:

The following antemortem injuries noted in the body:

(1) Contusion 6 cm x 4 cm over the left side mandible, 3 cm below and in front of left ear lobule.

(2) Three linear lacerated wounds noted on the inner aspect of lower lip each measuring 0.75 cm x linear x muscle deep.

On dissection: Nose:

Fracture of the nasal septum. The fractured site is reddish in colour with evidence of bruising.

On dissection: Thorax:

Fracture of ribs 4,5,6 on the left side in the mid clavicular line with soft tissues bruising around the fractured segments of the ribs seen.

Other findings:

Peritoneal and pleural cavity � empty. Pericardium � contains 15 ml of straw coloured fluid. Heart � left side empty. Right side � contains 20 ml of fluid blood. Coronaries � patent. Lungs, Liver, Spleen and Kidneys � Normal. Cut section congested. Larynx and trachea � normal. Hyoid bone � intact. Stomach � about 200 gms of partially digested food. Mucosa normal. Nil specific smell. Small intestine � contains 20 ml of Yellow coloured fluid Nil specific smell. Mucosa � normal. Bladder � empty Normal. Uterus � normal. Cut section Copper "T" present in uterine cavity. Brain � pulpy".

Ex.P.6 is the Postmortem Certificate. He gave opinion that the deceased would appear to have died of asphyxia due to closure of the mouth and nostrils smothering. He further opined that the death would have occurred between 32 to 36 hours prior to autopsy.

(iv) During the course of investigation, P.W.18 arrested the accused on 27.03.2005 at 11.15 a.m. near Thiyagarajar College at Madurai in the presence of P.W.7 and another witness. On such arrest, he gave a voluntary confession, in which, he disclosed the place where he had hidden a pillow, pillow cover and a shirt. In pursuance of the same, he took the police to the said place and produced the said material objects. They were all recovered under a mahazer. Then, P.W.18 forwarded the accused to the hospital for treatment, as he had injuries on his limbs. P.W.14, Dr. Murugalakshmi examined him and found the following injuries:

Nature of injury and treatment: Alleged to have been injured while he was lying to kill his wife with pillow. She made scratching in his forearm & body with nails at about 4.15 a.m. 26.3.05 in his house, conscious oriented. PR 80/mit. B.P.100/70 mmhg. Nail marking present in the left forearm. 1 x .5 cm".

Ex.P.7 is the Accident Register.

(v) Thereafter, P.W.18 forwarded the accused to the Court for judicial remand. He made a request to the learned Judicial Magistrate to record the statements of the witnesses under Section 164 Cr.P.C. Accordingly, it was done. Finally, he laid charge sheet against the accused on 24.06.2005.

Based on the above materials, the Trial Court framed charges as detailed in the first paragraph of this Judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as, 18 witnesses were examined and 15 documents were exhibited, besides 6 Material Objects.

Out of the said witnesses, P.W.1, is the sister''s husband of the deceased, who has spoken about the information that he received about the death of the deceased and the alleged oral extra judicial confession given to him by the accused. P.W.2 is the father of the deceased. He has spoken about the fact that the accused and the deceased were living together as husband and wife and the frequent quarrels between them. P.W.3 is the brother of the deceased. He has also stated about the same. P.W.4 is the wife of P.W.1 and the sister of the deceased. She has also stated about the frequent quarrels between the accused and the deceased. P.W.5 is the brother of P.W.1. He has stated that on 26.03.2005 on receiving the information that the deceased was dead, he along with his wife had gone to the house of the deceased. He has further stated that he found some injuries on the neck of the deceased. He has also stated about the extra judicial confession made by the accused to P.W.1. P.W.6 has spoken about the arrest of the accused, the disclosure statement made by him and the consequential discovery of the material objects. P.W.7 has also spoken about the same facts. P.W.8 is the owner of the house, where the deceased and the accused were residing. He has stated that on the day of occurrence, at 06.00 a.m., he returned to his house after his work. At that time, the accused also came to his house. On going into the house, the accused came and informed him that the deceased was no more. He wanted P.W.8 to pass the information to P.W.2. Accordingly, he informed P.W.2, he has stated. P.W.9, Police Constable, has stated that he handed over the complaint and the First Information Report to the learned Judicial Magistrate at 08.00 p.m. P.W.10 is the Constable, who carried the body for postmortem. P.W.11 has stated about the registration of the case. P.W.12 has spoken about the postmortem conducted by him and his final opinion regarding the cause of death. P.W.13 was the Sub Inspector of Police, who took the accused to the hospital after his arrest. P.W.14, Dr. Murugalakshmi, has spoken about the injuries found on the accused. P.W.15 is the learned Judicial Magistrate No. 1 at Madurai. He has stated about the recording of statements under Section 164 Cr.P.C. from the witnesses 1 to 4. P.W.16 is the sister of the deceased, who has also spoken about the frequent quarrels between the accused and the deceased. P.W.17 has spoken about the observation Mahazer and the Rough Sketch prepared. P.W.18 has spoken about the investigation done.

When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness on his side nor to mark any document. His defence was that on the crucial date, on account of his job, he had gone to his work shop. In the morning between 05.00 to 06.00 a.m., when he came to his house, he found his wife dead and bangles were found broken. He would state that he asked P.W.8 to inform about the same to P.W.2. He would further state that he was taken into custody on the very same day by the police. He would further state that he had not given any extra judicial confession to P.W.1 and also to the police.

Having considered all the above materials, the Trial Court convicted the appellant under Sections 302 and 201 I.P.C. as detailed in the first paragraph of this Judgment, and sentenced him accordingly. That is how, the appellant is before this Court with this Criminal Appeal.

We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.

The learned counsel for the appellant would submit that the prosecution relies only on three circumstances; the first one is that there were frequent quarrels between the accused and the deceased; the second one is that the accused gave a voluntary confession to P.W.1; and the third one is that out of the disclosure statement made to P.W.18, the pillow was recovered and these circumstances have not been proved on the side of the prosecution and even assuming that they have been proved, they would not go to prove the guilt of the accused.

The learned Additional Public Prosecutor would however oppose this appeal. According to him, the prosecution has clearly established the fact that it was this accused, who caused, the death of the deceased.

We have considered the above submissions.

So far as the extra judicial confession given to P.W.1 is concerned, we have got every doubt. It is in the evidence of P.W.8 that the accused was not at his house during night hours, when the deceased was done to death. P.W.8 has stated that on the day of occurrence, at 06.00 a.m. he returned to his house after his work. After seeing P.W.8, the accused had gone into his house and then he cried saying that his wife was dead. The bangles were broken. He asked P.W.8 to inform the same to P.W.2. From the evidence of P.W.8, it has been clearly established that on the crucial time, the accused was not at his house. After getting the information from P.W.8, P.W.1 and other family members had gone to the house of the deceased. At that time, they also noticed the injuries found on the neck of the deceased. Then it is stated that he gave voluntary extra judicial confession at or about 06.00 a.m. It is too difficult to believe that at that juncture, the accused would have made such a confession to P.W.1. Above all, assuming that the accused had made such a confession at that time, it is a very weak piece of evidence and based on the same alone, conviction cannot be sustained. Apart from this circumstance, the only piece of evidence available is that on the disclosure statement made by the accused, a pillow was recovered. But, the connection between the pillow and the crime has not been established. It is needless to point out that it is not every discovery of a fact that makes the disclosure statement admissible, it is only the discovery of a relevant fact that makes the information leading to the discovery admissible. Thus, relationship between the discovered fact and the crime is to be established by the prosecution. In this case, the connection between the crime and the pillow, which was recovered on the disclosure statement made by the accused, has not been established. Therefore, the very statement made by the accused is not admissible under Section 27 of the Indian Evidence Act, 1872. Therefore, this part of the evidence, upon which, much reliance is made by the prosecution, is rejected.

Apart from these two circumstances, there is no other evidence against the accused. There is no evidence that the accused was seen anywhere near the place of occurrence at the time of occurrence. There is no reason to disbelieve the evidence of P.W.8, who has stated that the accused was not at his house on the crucial date as he had gone to his factory for work. The prosecution has of-course succeeded in establishing that the deceased was manually smothered to death. But, the prosecution has failed to prove that it was, this accused, who smothered her to death. Thus, in our considered view, the prosecution has failed to prove the case beyond all reasonable doubts and therefore the Judgment of the Trial Court is not sustainable.

In the result, the Criminal Appeal is allowed; the conviction and sentence imposed on the appellant by the learned Sessions Judge, Mahila Court/Mahalir Neethimandram, Madurai, made in S.C. No.324 of 2007, dated 13.06.2011, is set aside and the appellant/accused is acquitted. The fine amount, if any, paid by him shall be refunded to him.