The appellant is a sole accused in SC.No.95 of 2009 on the file of the Additional District and Sessions Judge, Fast Track Court No.II, Ranipet. He stood charged for an offence under Section 302 IPC and by judgment dated 14.06.2010, the trial Court found her guilty of offence under Section 304 (Part-I) IPC and sentenced her to undergo rigorous imprisonment for 10 years and no fine was imposed. Aggrieved over the same, the appellant has come forward with this appeal challenging the said conviction and sentence imposed on her.
2. The case of the prosecution is as follows :
The accused Sathya is the wife of the deceased Govindasamy. They got married during 2003 and they have got no children. Three months prior to the alleged occurrence, the accused and the deceased settled down at Karivedu Village, where deceased worked as a watchman in the newly constructed house of PW.7 Selvakumar. Both the accused and her husband (deceased) lived in a small hut constructed inside the premises of PW.7 SelvaKumar. According to the prosecution, as the deceased suspected the fidelity of the accused, he quarrelled with her frequently and ill-treated her. On the fateful day, during the night hours of 2nd and 3rd August 2008, the dispute arose between the spouses, and the deceased in a fit of anger assaulted the accused with wooden reaper and in retaliation, the accused assaulted her husband - deceased Govindasamy with kinfe on his head. It is stated that after sometime, she found the deceased lying on the ground and again beat him with wooden reaper and due to the injuries caused, the said Govindasamy died at the occurrence spot itself.
3. The Village Administrative Officer of Karivedu Village, who deposed as PW.1, stated that on 03.08.2008 at about 7 a.m. while he was at his office in Karivedu Village, he was informed that one Govindasamy was lying dead in the newly constructed house of Selvakumar and immediately, he went there and found the deceased lying dead with cut injury in his head. Immediately, he went to Kaveripakkam Police Station and lodged Ex.P1 complaint.
4. The Investigating Officer of the case, who deposed as PW.22 stated that while he was in Kaveripakkam Police Station, on 03.08.2008 at about 8.30 a.m. PW.1 appeared before him and lodged a complaint and on the basis of the same, he registered a case in Crime No.590 of 2008 under Section 302 IPC and took up the case for investigation. PW.22 also stated that he reached the occurrence spot situated in the house of Selvakumar (PW.7) and prepared Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P27). He further stated that he conducted inquest on the body of the deceased from 11.00 a.m to 2.00 p.m and prepared Ex.P28 - Inquest Report. He further stated that he sent the body of the deceased to Walajah Government Hospital with request to conduct postmortem.
5. The Doctor, who conducted postmortem on the body of the deceased, deposed as PW.13 and stated that on 03.08.2008, while he was on duty at Walajah Government Hospital, a body of the deceased male person Govindasamy, aged about 27 years, relating to Kaveripakkam Police Station Crime No.590 of 2008, was brought to the hospital and she conducted postmortem on the body of the deceased. As per the evidence of PW.13 Doctor, ''a cut injury 6 cm x 2 cm x 2 cm in the vertex region of the scalp, just 1 cm below it, a laceration 6 cm x 3 cm x 1 cm, a contusion 6 cm x 4 cm in the occipital region, an abrasion in the middle of the forehead cut injury on left ear bleeding from left ear and multiple abrasions on back of the left ear were found on the deceased's body. Hyoid bone was intact, but left jaw broken. Skull fracture and intracranial bleeding was the cause of the death. The injury to skull proved fatal.'' The postmortem report given by her is produced as Ex.P14 and the Expert Opinion obtained from the Government Medical College, Vellore, relating to hyoid bone is produced as Ex.P15. The final opinion regarding the cause of death given by the Vellore Medical College is produced as Ex.P16, wherein it is stated that deceased would have died of skull fracture and intra-cramial bleed.
6. Thus, the cause of the death of the deceased, according to the prosecution, is head injury suffered by the deceased Govindasamy and the said injury, according to the prosecution, was caused by his wife, the accused herein.
7. The Investigating Officer of the case, who deposed as PW.22, further stated that on 03.08.2008 itself, he examined the witnesses and recorded their statements. He further stated that as the accused also suffered with injury in the same incident and was under treatment in the hospital, he was not able to examine her. Subsequenly, on 13.08.2008 at 11 a.m, he recovered from the house of the accused, the bloodstained dresses of the accused. PW.22 further stated that on 18.08.2008 at 9 a.m, Village Administrative Officer of Panapakkam village – PW.17, Kuppu Raman came to the police station along with the accused and her mother and submitted his report with the confession statement of the accused herein. PW.22 also stated that thereafter, he examined the accused and recorded her statement in the presence of PW.18 - Kannan and one Shankar. The confession statement of the accused recorded by PW.17 Village Administrative Officer and the report given by Village Administrative Officer are presented as Ex.P.22 and P.23 respectively. The admissible portion of the confession given by the accused before the Investigating Officer in the presence of witness PW.18 is marked as Ex.P24. On the basis of the said confession given by the accused, the Investigating Officer recovered MO.15 - reaper, MO.16 - kinfe under Ex.P25 Mahazar. PW.22 also stated that he gave requisition to record the statement of the accused under Section 164 Cr.P.C and produced the same as Ex.P30. The order passed by the Chief Judicial Magistrate in that regard is Ex.P.31, but the accused refused to give statment before the concerned Judicial Magistrate and the report given by the concerned Judicial Magistrate is Ex.P.32. PW.22 further stated that he sent the recovered items for chemical analysis and obtained report from the Forensic Department. The dress materials recovered from the house of the accused are produced as MO.17 series and the dresses recovered from the body of the deceased are produced as MO.18 series and the respective Form-95 for the same are produced as Exs.P33 and 34 respectively.
8. PW.10 – Scientific Assistant stated that while he was working in the Regional Forensic Laboratory, Vellore on 09.09.2008, he received the articles relating to Kaveripakkam Police Station Crime No.590 of 2008 and after analysing the same, submitted his report, which is marked as Ex.P10. According to him, bloodstain was found on all the items, except item Nos.2,6,8 and 10. Thus, according to him, bloodstain was found in the weapons, viz., knife and wooden reaper, marked as MO.15 and MO.16 respectively, which were allegedly used in the alleged occurrence.
9. Likewise, PW.11 deposed that she is working as Scientific Assistant in the Forensic Laboratory at Chennai and she received the articles relating to Kaveripakkam Police Station Crime No.590 of 2008 for chemical analysis and as per the test conducted by her, she gave Ex.P11 report and according to her, she found Capsaicin and Curcumin in each of the items 1,2 and 3 and they were found to be similar to one another with respect to their extractable colour.
10. Likewise, the other witness PW.12 also stated that she is working in the Forensic Lab, Government of Tamil Nadu, Chennai and the Serology Report given by her is Ex.P12. She also stated that human blood was found in number of items submitted to her for chemical analysis. Thus, after getting the said Chemical Analysis report and the Serology Report, the Investigating Officer of the case, who deposed as PW.22 stated that he completed the investigation and filed final report under Section 302 IPC against the accused.
11. Based on the above materials, the trial Court framed charges as detailed in its judgment and the accused denied the same. In order to prove the case, the prosecution examined PWs.1 to 22 and produced Exs.P1 to P34 and MOs.1 to 18. The trial Court, after analysing the oral and documentary evidence, found the accused guilty of the offence not under Section 302 IPC as charged, but under Section 304 (Part-I) IPC and convicted and sentenced her to undergo rigorous imprisonment for 10 years.
12. Aggrieved over the same, the appellant has come forward with this appeal challenging the finding of the trial Court as illogical and improper.
13. Admittedly there is no direct eye witness to the occurrence. The relationship of the deceased and the accused is that of husband and wife. According to the prosecution, the deceased suspecting the fidelity of his wife, the accused herein, was frequently quarrelling with her and also abusing her in filthy language and also physically assaulted her. It is stated that on the fateful day, there was a quarrel between the spouses and the deceased first assaulted the accused and therefore, in retaliation the deceased was attacked by the accused herein with the knife marked as MO.16 causing the injuries found in the postmortem report, which ultimately caused the death of the deceased. The said issue of doubtful fidelity and questioning the same by the deceased is stated to be the motive or cause for the occurrence. It is to be seen whether any acceptable evidence was let in by the prosecution to prove the motive factor.
14. Admittedly the deceased and the accused were living together in a small hut situated in the premises of PW.7 Selvakumar. PW.7, in his evidence, stated that the accused and the deceased were introduced to him by one Electrician Mohan and he employed the deceased as Watchman in his house. PW.7 also stated that 10 days prior to the occurrence, mother of one Ramesh, residing next to his house, informed him that the character of the accused is not good. She also informed that number of male persons were coming to meet the accused and requested him to terminate her from employment. PW.7 questioned the accused about the same, but she denied and stated that only his uncle used to come and meet her. Even though PW.7 stated about the mother of one Ramesh informing him about the character and conduct of the accused, the said Ramesh or his mother is not examined. PW.7 also stated in his cross examination that he did not remember the date and day in which, he was informed by the mother of said Ramesh about the accused conduct. While in the chief examination, PW.7 stated that 10 days prior to the occurrence, he was informed by the mother of Ramesh, in the cross examination, he has stated that only 4 days prior to the occurrence, he was informed by the mother of Ramesh about the conduct of the accused. Thus, on which date, he was informed about the conduct of the accused by the mother of Ramesh is doubtful. PW.22 - Investigating Officer also has not stated any reason for not examining the said person, mother of Ramesh, to prove about the conduct and character of the accused. On the other hand, the said allegation is denied by the accused. The father of the deceased, who deposed as PW.2 stated that his son, the deceased Govindasamy and daughter-in-law, the accused Sathya were married 5 years earlier and there was no issues for them. He also stated that there was no enmity between them, and the accused alone did the religious rights for the deceased. Similarly, the sister of the deceased Govindasamy, who deposed as PW.3 stated that the accused is the wife of her brother, the deceased Govindasamy and they lived together happily as husband and wife. She also stated that the accused was brought home from the hospital to do religious rights associated with the death of her brother and they have special affection to the accused herein. She also stated that the deceased and the accused lived together happily as husband and wife and relatives of both family jointly performed the religious rights of the deceased. Thus, the evidence of PWs.2 and 3 is clearcut in stating that the accused and the deceased lived together happily and even after the demise of Govindasamy, there is no ill-will between the family members of the deceased Govindasamy and his wife, the accused herein. The trial Court while acknowledging the evidence, however, concluded that the deceased and the accused lived separately and as the issue of fidelity is a personal matter, the witnesses P.Ws.2 and 3 would not have known about the same. The learned counsel for the accused contended that the conclusion of the trial Court in that regard is not acceptable when the evidence of P.Ws.2 and 3 categorily stating that the spouses lived together happily and the same has to be accepted. As stated above, there is a clearcut evidence of the accused and the deceased living together happily as husband and wife, but there is no other evidence to doubt the fidelity of the accused as alleged by the prosecution. In such circumstances, the prosecution has not established clearly any motive or cause which made the accused to commit the crime as alleged by the prosecution.
15. Admittedly, the occurrence took place on 02.08.2008 night hours and the report to the police was lodged by PW.1 on 03.08.2008 at about 7 a.m. It is an admitted case of both sides that the accused was also injured on that day and she took treatment in the Government Hospital, Walajah. The father of the deceased PW.2 Subban stated that when he reached the occurrence spot, he found his son lying dead, but the accused was not there. He was informed that the accused has gone to the hospital for treatment. Likewise, the Sister of the deceased, who deposed as PW.3, also stated that when she reached the occurrence spot the accused was not there and she was not aware as to where she went. The Doctor, who deposed as PW.13, stated that on 03.08.2008 while she was on duty at Wallajah Government Hospital at 9.30 a.m. one Sathya, wife of Govindasamy was brought to the hospital for treatment by Kaveripakkam Police Constable with police memo. PW.13 Doctor stated that the said Sathya informed her about getting assaulted by 3 unknown persons with wooden log at about 1.00 a.m on 03.08.2008. According to PW.13 Doctor, she found the following injuries on the said Sathya.
"1. Deep lacerated wound over the scalp in the vertex region, each limb of lacerated wound measuring 8 x 2 x 2 cm.
2. Left Wrist – Swollen. Movements restricted. Left Elbow.
3. Abrasion over Right index and middle finger swollen."
The Accident Register copy is produced as Ex.P.13. It is evident from the evidence of the said Doctor that there was an injury on the head of the said Sathya and there was a fracture in the third finger of her left hand. As per Ex.P.13, the injury is stated to be a grievous injury. PW.13 also stated that she recommeded further treatment at Vellore Government Hospital. As per the treatment given by Vellore Government Hospital, it was conclued that there was no damage to the brain of the said Sathya. Thus, it is clear that the accused suffered injuries and she was taken to Government Hospital for treatment with police memo on 03.08.2008 itself. However, the Investigating Officer of the case, PW.22 stated that when he reached the occurrence spot, the accused was not there and she was not sent for treatment with police memo. He also stated that he was unaware about the accused going to hospital with police constable. PW.22 also stated that the accused was admitted in Vellore Government Hospital on 04.08.2008 for further treatment and when he met her for the first time at Vellore Government Hospital, she was not in a condition to give any statement. He also stated that as the health condition of the accused was not good enough to give statement, he did not record any statement. He further stated that the accused was affected both physically and mentally and he did not provide any police escort for her. PW.22 also admitted in his cross examination that the accused first took treatment at Government Hospital, Wallajah and on the same date, she was referred to Government Hospital, Vellore for further treatment and she took treatment upto 13.08.2008 in the said hospital. Pointing out, the learned counsel for the accused contended that the accused having suffered injuries on the same date, when the alleged offence is stated to have taken place, was taken to the hospital by the police constable and she was in the hospital till 13.08.2008, but the fact of sending the accused for treatment is denied by the Investigating Officer and there is no explanation for the injuries suffered by the accused and that itself will create doubt about the genuineness of the prosecution case. The learned counsel for the accused relying upon the ruling of the Apex Court reported in 1976 (4) SCC 394 (Lakshmi Singh and others ..vs.. State of Bihar) contended that non-explanation of the injuries found on the accused is fatal to the prosecution case and that will go to show that the prosecution has not come out with correct details of the occurrence. In the said ruling, it is held as follows :
"12. ...... It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence."
16. In the case on hand also, the Investigating Officer of the case PW.22 has denied knowledge of the accused going to Government Hospital, Wallajah with police memo for treatment in chief examination, but admitted the same in his cross examination. There is no explanation by the prosecution as to how and when the accused suffered injuries. In such circumstances, considering the evidence of PW.13 Doctor that she was informed by the accused about being assaulted by 3 unknown persons on the night hours of 02.08.2008 appears to be acceptable. Following the above said ruling, in the absence of any explanation being offered by the prosecution regarding the injuries found on the accused, doubt arises as to whether the occurrence as alleged took place at all. In such circumstance, the finding of the trial Court contrary to same is not acceptable, in view of the above said discussion.
17. The prosecution examined, PW.9 – Munusami, who stated that he is doing milk vending business and he knew the accused and her husband, who were employed as gardeners in the terraced house on the way to Sitthanji Village. According to him, while he was going to Sitthanji Village at 5.30 a.m on 03.08.2008, he was called by the accused from the terrace of the house and as he waited for her to come and get milk, the accused informed him that three unknown persons assaulted herself and her husband and the accused was with bleeding injuries in her head. PW.9 also stated that the accused wanted him to inform her brother and he called the person in the number given by the accused and after she spoke, he went away with his phone since he was in hurry to supply milk. Thus, PW.9 also stated that he saw the accused at 5.30 a.m on 03.08.2008 with bleeding head injuries and he was informed by the accused about being attacked by three unknown persons in the night hours. Thus, the evidence of PW.9 corroborated the statement given by the accused to PW13 Doctor, at the time of her admission in Government Hospital, Walajah, about getting assaulted by three unknown persons. The trial Court disbelieved the statement of the accused about being assaulted by three unknown persons on the ground that she should have informed the police atleast after meeting PW.9 and failure to do so, creates doubt about the genuineness of being attacked by three persons. The trial Court stated that there was no scope for three unknown persons to assault the deceased, who was only a poor watchman as no enmity existed. Hence, the trial Court concluded that the circumstances of the case are absolutely inconsistent with the accused innocence and held the accused guilty of the offence under Section 304 (Part-1) IPC. Pointing out, the learned counsel for the accused contended that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt and it is not proper for the trial Court to conclude that the failure of the accused to inform the police will go to disprove the defence version of being assaulted by three unknown persons. As stated above, the prosecution has not established any motive for the alleged occurrence. The fact of any dispute between the spouses is also not established. On the other hand, as stated earlier, the evidience of PW.2 and PW.3 will only go to show that there was good relationship not only between the spouses, but also between the families of the deceased and the accused. Further, the fact of the injuries suffered by the accused is not explained by the prosecution properly. In such circumstances, as rightly contended by the learned counsel for the accused, doubt arises as to whether, really, the prosecution has come forward with full facts of the occurrence, which took place on the fateful date. In such circumstances, doubt arises about the veracity of the prosecution version of the occurrence.
18. It is claimed by the prosecution that the accused gave confession statement to PW.17 – Village Administrative Officer on 18.08.2008 nearly after 15 days of the alleged occurrence. PW.17 – Village Administrative Officer stated that while he was at his office on 18.08.2008 at 9.00 a.m, the accused and her mother came there and gave statement, which was recorded by him and attested by his Assistant as well as the mother of the accused. The said statement is produced as Ex.P22 along with the report given by the Village Administrative Officer Ex.P23. Thus, the Village Administrative Officer stated that the accused came to his office on her own and stated about the occurrence, which took place on 02.08.2008 night hours around 10 p.m, 11 p.m and gave her statement. However, the same is disputed by the accused. The Village Administrative Officer – PW.17 in his cross examination stated that he do not know about the accused except meeting her on that date. According to him, the accused came with her mother at 9 a.m to his office and he wrote down the statement for one hour. PW.17 also stated that Kaveripakkam Police Station is 13 Km away from his office and after recording the statement, he took the accused in a bus to the Police Station and handed over the accused along with the statement and his report to the police. However, PW.22 Investigating Officer of the case stated that on 18.08.2008, Village Administrative Officer of Panapakkam Village, Kuppuraman along with the accused Sathya came to the Station at 9 a.m and handed over the confession statement of the accused along with his report. Thus, what PW.17 stated that the accused came to his office at 9 a.m and he wrote down the statement for one hour and then travelled to Kaveripakkam Police Station situated 13 Km away by bus and produced the accused with the report, the same is contrary to what the Investigating Officer PW.22 has stated. As rightly pointed out by the learned counsel for the accused, it is impossible for anyone to be present at both places at the same time and that itself will disprove the claim of the prosecution about the accused giving confession statement to PW.17. Further, PW.17 admitted that normally he will put the seal in the statement recorded in his office and he did not remember as to whether he put the seal in Ex.P22 statement. The learned counsel for the accused contended that in Ex.P22 Confession Statement, no such office seal is found and this, according to the defence counsel, will go to show that the statement was not recorded as claimed by PW.17 and the same was recorded only at the Police Station as directed by the police. In support of the same, he also pointed out the evidences of PW.2 and PW.3. The father of the deceased, who deposed as PW.2, stated in his evidence that the police took the accused and her mother from his house, on the date of religious ceremonies held in his house and detained them in the Police Station. Similarly, PW.3 - Sister of the deceased also stated that after the religious function was completed, the accused and her mother were taken away by the police stating they alone had committed the offence. In such circumstances, doubt arises as to whether really the accused went to the Office of PW.17 – Village Administrative Officer and gave the statement as claimed by him.
19. Further, PW.1 - Village Administrative Officer, Karivedu Village, stated in his evidence that on intimation, he went to the occurrence spot at 7 a.m on 03.08.2008 and the police also reached the occurrence spot at the same time. According to PW.1, he thereafter went to Kaveripakkam Police Station and lodged Ex.P1 complaint. The Investigating Officer of the case PW.22 stated that on 03.08.2008 at 8.30 a.m, PW.1 – Village Administrative Officer came to the station and lodged the complaint and thereafter, he went to the occurrence spot at 9 a.m. Thus, doubt arises as to when the police got information and reached the occurrence spot, in view of the above said contradictory evidence of PW.1 and PW.22.
20. Admittedly, the accused was in hospital from 03.08.2008 to 13.08.2008. The Investigating Officer of the case PW.22 stated that he met the accused on 04.08.2008, but he did not examine her since she was not in a fit condition to give statement. He also stated that even though he had doubt about the accused regarding the occurrence, he did not examine the accused from 03.08.2008 to 13.08.2008. There is no medical evidence to show that the accused was not in a fit condition to give statement throughout the entire period. Admittedly, the accused attended the religious rights of the deceased after taking treatment and in such circumstances, it is surprising that the prosecution had not examined her on its own, but the accused on her own, went to PW.17 – Village Administrative Officer to give statement and on that basis, the Material Objects were subsequenly recovered. According to PW.22 Investigating Officer, on 18.08.2008 after the accused was produced by PW.17, he examined her, recorded the statement in the presence of PW.18 and recovered MO.14 and MO.15 on the basis of Ex.P24 confession of the accused. However, PW.18 Kannan stated in his cross-examination that himself and other witness Shankar used to come to the Police Station regularly, and that he has signed as witness in earlier cases laid by the police. PW.18 Kannan stated that after signing as witness in Ex.P24 confession statement around 12 noon, he went home and thereafter, on summons by police by 1 p.m, he came back to the police station and signed in Ex.P25 Mahazar in the Police Station itself. He also admitted that he signed in the confession in the Police Station and the last four lines of the same is written closely and he is not aware as to when the same was written. Thus, the evidence of PW.18 Kannan does not inspire the confidence and in view of he being a regular attestor to statements, his evidence cannot be relied upon in support of proving the prosecution case. In the light of the above said discussion, it is clear that the Prosecution has not established the guilt of the accused beyond reasonable doubt and the finding of the trial Court contrary to the same and the reasons stated for such conclusion is unacceptable and the same is liable to be set aside.
21. In fine, the Criminal Appeal is allowed and the Judgment of conviction and sentence imposed by the trial Court is set aside. The appellant/accused is acquitted and fine amount already paid, if any, shall be refunded to her. The bail bond shall stand terminated.
Mra .01.2017 Index : yes / no To
1. The Additional District and Sessions Judge, Fast Track Court No.II, Ranipet.
2. The Inspector of Police Kaveripakkam Police Station Vellore District.
3. The Public Prosecutor High Court, Madras.
S.BASKARAN, J.
mra Pre-delivery Judgment in Crl.A.No.463 of 2010 30.01.2017 Pre-delivery Judgment in Crl.A.No.463 of 2010 To The Hon'ble Mr.Justice S.BASKARAN humbly submitted mra P.A.
http://www.judis.nic.in