Sermadurai vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Principal Sessions Division, Tuticorin, made in S.C. No. 329 of 2007

whereby the appellant ranked as A-1, along with A-2 stood charged u/s 302 of IPC, tried, found guilty as per the charge and awarded life

imprisonment along with a fine of Rs. 5000/- and default sentence, while A-2 who stood charged u/s 302 read with 114 of IPC, was acquitted of

the charge.

Short facts necessary for the disposal of this appeal can be stated as follows:

(a) P.W.2 is the mother of the deceased Jeyasundari who was a native of North Kovankaadu. P.W.1 is the younger sister of the deceased. P.W.3

is the son of the deceased. The deceased was given in marriage to the appellant/A-1 who was a native of nearby village. They have got two

children. Just before 2 1/2 years, due to a family quarrel, she came to the parental home and was living over there. Just two months prior to the

occurrence, she was taken to the house of A-1 husband, and she was living there with the children.

(b) On 10.7.2007 at about 7.00 P.M., due to the quarrel, the deceased came to the parental home along with P.W.3. At about 10.15 A.M. on

11.7.2007, A-1 who came in a motorbike along with his relative A-2, stopped it and was quarrelling with his wife. He called her back to the

place, and also questioned her, despite his warning, why she came to the mother''s house. The deceased tried to justify the reasons; but he was not

ready to pay heed to those words. While the wordy altercation was going on, A-1 was about to attack her. On seeing this, she was running

through a lane, and A-1 chased her, while A-2 blocked the way. At that time, she fell down, and A-1 took a knife from his waist and stabbed her.

This was witnessed by P.Ws.1 to 3. Immediately, the accused fled away from the place of occurrence leaving the motorbike. She fell down and

died instantaneously.

(c) P.W.1 proceeded to the respondent police station where P.W.22 was the Sub Inspector of Police on duty to whom she gave Ex.P1, the

report, on the strength of which a case came to be registered in Crime No. 74 of 2007 under Sections 341 and 302 of IPC. The express FIR,

Ex.P25, was despatched to the Court.

(d) On receipt of the copy of the FIR, P.W.20, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an

inspection in the presence of witnesses and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P16. Then, the bloodstained

earth, M.O.6, and sample earth, M.O.7, and the motorbike, M.O.1, were recovered from the place of occurrence. The Investigator conducted

inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P20, the inquest report. Thereafter, the dead body was

sent to the Government Hospital for the purpose of autopsy.

(e) P.W.19, the Medical Officer, attached to the Department of Forensic Medicine, Thoothukudi Government Medical College, Thoothukudi, on

receipt of the requisition, conducted autopsy on the dead body of Jeya Sundari and has issued a postmortem certificate, Ex.P14, with his opinion

that the deceased would appear to have died of haemorrhage due to stab injury to the right thigh.

(f) Pending investigation, A-1 was arrested on 15.7.2007, when he gave a confessional statement. The same was recorded in the presence of

witnesses. The admissible part is marked as Ex.P6, pursuant to which he produced M.O.2, knife, which was recovered under a cover of mahazar.

All the material objects were sent for chemical analysis which resulted in Ex.P23, the chemical analyst''s report, and Ex.P24, the serologist''s

report. P.W.21, the Inspector of Police, took up further investigation and on completion of the same, filed the final report.

The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution

examined 22 witnesses and also relied on 25 exhibits and 9 material objects. On completion of the evidence on the side of the prosecution, the trial

Court questioned the appellant/A-1 along with A-2 u/s 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the

prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on

either side, and took the view that the prosecution has proved the case beyond reasonable doubt as against A-1 and hence, found him guilty and

awarded the life imprisonment along with fine and default sentence. However the trial Judge recorded an order of acquittal as far as A-2 was

concerned. Hence this appeal at the instance of A-1.

Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution marched three

witnesses as eyewitnesses namely P.W.1, the younger sister, and P.W.2, the mother of the deceased and P.W.3, the son of the deceased and the

appellant; that it is pertinent to point out that all the three were closely related to the deceased, and thus they are all interested witnesses; that they

have clearly spoken to the fact that the appellant suspected the fidelity of his wife, the deceased, and on that account also they were also

aggrieved.

Added further the learned Counsel that P.W.1 could not have seen the occurrence at all; that she was physically challenged; that she has

candidly admitted that from the place where she was lying, she could not see the occurrence, and hence her evidence was not useful at all; that it

was she who went to the police station along with P.W.2 and gave Ex.P1, the complaint, and thus, it would be quite evident that the complaint was

given by a person who has not seen the occurrence, and the edifice of the prosecution case was actually rise to ground.

The learned Counsel would further submit that P.W.2, the mother, could not have also seen the occurrence at all; that as far as P.W.2 was

concerned, A-1 attacked the deceased only once and caused one injury; but, the postmortem certificate shows that there were four injuries; that

she was unable to account for the injuries, and thus she could not have seen the occurrence at all; and that getting information from P.W.1 and

recording the same, while P.W.2, the mother, was very well available would go to show that P.W.2 could not have seen the occurrence at all.

It is also submitted by the learned Counsel that as far as P.W.3 was concerned, he is a child witness which could not be believed, and thus the

so-called eyewitnesses'' evidence should have been rejected by the trial Court; that apart from that, number of independent witnesses were

available at the spot, and their statements were recorded u/s 161 of Cr.P.C., and their names were also found in the list, but for the reasons known

to the prosecution, they were not examined; that no explanation was forthcoming in that regard; that apart from that, it is also doubtful whether the

FIR could have come into existence as put forth by the prosecution; and that it throws suspicion on the prosecution case that P.W.1, a physically

challenged person who was lying, was taken to the police station to give a complaint while P.W.2, the mother, was very well available.

Added further the learned Counsel that in the instant case, the recovery of the weapon of crime namely knife, from A-1 as if it was made

following the confessional statement, was nothing but a cooked up story, and thus the prosecution has miserably failed to prove its case; that the

ocular testimony was not corroborated by the medical evidence, and thus the prosecution case should have been rejected by the trial Court.

Added further the learned Counsel in the second line of argument that in the instant case, even assuming that the prosecution has proved the

factual matrix that it was the appellant/A-1 who attacked his wife and caused her death, the act of A-1 would not attract the penal provision of

murder for the simple reason that he suspected her fidelity; that she was living with her parents for about 2 1/2 years; that just two months prior to

the occurrence also, she went to her husband''s house and was living with him; that he warned her not to go the parent''s house; that despite the

same, she went over there; that the appellant came there only to request her to come with him to which she refused; that further, there was a

quarrel between the spouse for half an hour as spoken to by P.W.1; that in a heat of passion and exchange of words, he has acted so; that under

the circumstances, the act of A-1 would not attract the penal provision of murder, but would be culpable homicide not amounting to murder, and it

has got to be considered by this Court if the Court believes the factual matrix put forth by the prosecution.

The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions

made.

It is not in controversy that one Jeya Sundari the daughter of P.W.2, was done to death in an incident that had taken place at 10.30 A.M. on

11.7.2007. Following the inquest made by P.W.20, the Inspector of Police, the dead body was subjected to postmortem by P.W.19, the Doctor,

who gave a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that she died out of

haemorrhage due to stab injury to the right thigh. The fact that she died out of homicidal violence was never disputed by the appellant before the

trial Court, and hence it has got to be recorded so.

In order to substantiate the charge that it was the appellant/A-1 who stabbed his wife to death, the prosecution has examined P.Ws.1 to 3.

True it is that these three witnesses were closely related to the deceased. P.W.1 is the younger sister and P.W.2 is the mother of the deceased

while P.W.3 is the son of the appellant and the deceased. As far as P.W.1 was concerned, from her evidence it would be quite clear that she is

physically challenged. Further she has added that she could not see the occurrence from the house where she was lying. Under the circumstances,

the evidence of P.W.1 could not be relied as rightly pointed out by the learned Counsel for the appellant. But, to the extent that the criminal law

was set in motion by giving Ex.P1, the complaint, to the police, it could be relied upon by the prosecution.

Insofar as P.Ws.2 and 3, this Court is unable to agree with the contentions put forth by the learned Counsel for the appellant. P.W.2 is the

mother of the deceased, and P.W.3 is the son of the deceased and the appellant. Both of them have candidly spoken to the fact that on the day,

there was a quarrel for about half an hour; that he was about to attack her as a result of which she wanted to escape from him; that at that time, she

was running; that he was chasing her; that in a particular place, she fell down; that he took out a knife from the waist and stabbed her, and as a

direct consequence, she died. As far as this fact is concerned, P.Ws.2 and 3 have spoken in one voice. The contention put forth by the learned

Counsel for the appellant that there is some discrepancy as to the injuries sustained, in the evidence of P.W.2, and the injuries found in the

postmortem certificate were not spoken to by her properly cannot be accepted for the reason that when the daughter was actually stabbed by the

appellant, one cannot expect the mother, P.W.2, to count the injuries or note them meticulously. It is pertinent to point out that P.W.2 also

accompanied P.W.1 to the police station. P.W.1 has given the complaint which was recorded from her since P.W.2 the mother, was actually

under shock and not in a situation to give a complaint. But, merely because P.W.2 has not given the complaint, this Court is unable to see any

reason why P.W.2''s evidence should be disbelieved.

Yet another circumstance which stood against the appellant was the recovery of the weapon of crime namely knife. Following the confessional

statement, the appellant produced the knife which was recovered under a cover of mahazar and evidence was available to that effect. Thus the

recovery of the weapon of crime following the confessional statement, would be a strong piece of evidence pointing to the nexus of the crime with

the appellant/A-1. In the case on hand, the evidence put forth by the prosecution would suffice pointing to the guilt of A-1 that it was he who

stabbed his wife to death at the time and place as put forth by the prosecution. Therefore the contentions put forth by the learned Counsel for the

appellant in that regard do not carry merit, and they are liable to be rejected and accordingly rejected.

As far as the second line of argument is concerned, this Court is able to see force in the contention put forth. Admittedly, the deceased Jeya

Sundari after the marriage, was living with the husband, the appellant herein. He suspected her fidelity, and for nearly about 2 1/2 years, she was in

her parental home. At one point of time, the situation was pacified, and she was taken to the appellant''s house and was living there for about two

months. Despite the warning made by him, she came to the mother''s house again and stayed there during the relevant time. On the date of

occurrence, the accused came to her parental home with his relative A-2 and questioned her why she came despite his warning. The answer given

by her, was not accepted by him. He was actually suspecting her fidelity, and in that heat of passion and exchange of words, he stabbed her. It

would be quite clear that there was no intention or premeditation with which he acted, but when he made a request to come to the house, she

refused. He also suspected her fidelity, and he could not see any reason why she should stay in the parental home and hence stabbed her.

At this juncture, the learned Counsel would urge that if really he had the intention to cause the death of his wife, he would have attacked her on

the vital part, but he attacked her only on the lap and caused death. Under the circumstances, this Court is of the view that the act of the

appellant/A-1 would not attract the penal provision of murder, but would fall u/s 304 (Part II) of IPC and awarding a punishment of five years

Rigorous Imprisonment would meet the ends of justice.

Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant/A-1 u/s 302 of IPC, are set aside,

and instead, he is convicted u/s 304 (Part II) of IPC and is directed to suffer five years Rigorous Imprisonment. The sentence already undergone

by him, shall be given set off. The fine imposed by the trial Court, will hold good.

In the result, this criminal appeal is, accordingly, disposed of.