CDJ Law Journals

(Prayer: Appeals filed under Section 374(2) of Criminal Procedure Code, against the judgment and order dated 27.04.2023 in S.C.No.386 of 2019 on the file of the Sessions Judge, (Mahila Court) Tirunelveli.)

N. Anand Venkatesh, J.

1. This criminal appeal has been filed against the judgment and order passed by the Sessions Judge, Mahila Court, Tirunelveli in SC No.386 of 2019 dated 27.04.2023, wherein the appellants were convicted and sentenced in the following manner:

Rank of the Accused	Offences for which convicted (IPC)	Sentenced to undergo
A1 to A3	294(b)	One month rigorous imprisonment each
A1 and A2	302	Life imprisonment each and to pay a fine of Rs.10,000/- each in default, to undergo simple imprisonment for three months each
A1 and A2	506(II)	Two years rigorous imprisonment each and to pay fine of Rs.1,000/- each in default to undergo simple imprisonment for three months each
A1 and A2	Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002	Rigorous imprisonment for two years each, and to pay a fine of Rs.10,000/- each in default to undergo simple imprisonment for three months each

The above sentences were ordered run concurrently.

2. The case of the prosecution is that the deceased Veyilatchi was married to A2 and there used to be frequent quarrels since she suspected A2 to have an illicit intimacy with one Valli. On 31.03.2019, at about 5.30 p.m., the deceased questioned A2 as to where he had gone for the last four days and there was a quarrel between them. On hearing the sound, A3 came to the place and abused the deceased in filthy language. A1 also abused the deceased in filthy language and tried to attack the deceased with sickle (MO1). On seeing him, the deceased ran out of the house and she was chased by A2 with a sickle (MO1). A3 is said to have wrongfully restrained the deceased and A1 attacked the deceased with sickle on her back head and it was warded off, as a result of which, she sustained cut injuries on her right hand. At this time, A2 attacked the deceased with MO1 in her neck, head and left hand. Due to this indiscriminate attack, the deceased fell down and died on the spot. PW1 to PW4, who were witnessing this incident were threatened by the accused persons with dire consequences.

3. PW1, who is the sister of the deceased, gave a complaint (Ex.P1) at 18.30 hrs., before PW17. Based on the same, an FIR (Ex.P17) came to be registered in Crime No.101/2019 for offence under Sections 341, 294(b), 323, 302 and 506(II) IPC.

4. The express FIR was handed over in the Court by PW18 by 10.30 p.m.

5. The investigation was taken over by PW19. He went to the scene of crime at 19.30 hrs., and immediately, sent the dead body of the deceased to Tirunelveli Government College and Hospital in order to prevent a potential law and order problem. PW19 prepared the observation mahazar Ex.P3 and rough sketch Ex.P19 in the presence of PW5 and PW6. PW19 also seized MO6 and MO7 under Athatchi Ex.P20. PW19 also recorded the statements of the eyewitnesses under Section 161(3) Cr.P.C. On 01.04.2019 at about 6.30 a.m., inquest was conducted on the body of the deceased at the Government Hospital, Tirunelveli in the presence of panchayatdars and the inquest report (Ex.P21) was prepared. The requisition was made for conducting postmortem through PW15 and the postmortem was conducted by the Doctor PW11, who issued the autopsy report (Ex.P11) and the following injuries were noted:

                     “APPEARANCE FOUND AT THE POST MORTEM: Moderately built and nourished body of a female.

                     THE FOLLOWING ANTEMORTEM INJURIES WERE NOTED:

                     1) A horizontal gapping heavy cut injury of size 16 x 1cm x Cavity deep seen over back of head extending from 7cm behind right ear up to 5cm above left ear. It cuts underlying soft tissues, blood vessels, skull and brain.

                     2) A horizontal gapping heavy cut injury of size 4 x 1cm x Bone deep seen over left side of the back of head. It lies 1cm below injury no. 1 and 2cm above left ear. It cuts underlying soft tissues, blood vessels and skull.

                     3) A horizontal gapping heavy cut injury of size 5 x 1cm x Bone deep seen over the back of head. It lies lem below injury no. 1 and 2cm right side to injury no.2. It cuts underlying soft tissues, blood vessels and skull.

                     4) An oblique gapping heavy cut injury of size 10 x 1cm x Cavity deep seen over back of left side neck. It lies 4cm below injury no.3, 4cm below injury no.3 and 3cm above nape of neck. It cuts underlying soft tissues, blood vessels and cervical vertebra C5.

                     5) A cut injury of size 3 x 1cm x Muscle deep seen over back of left shoulder. It lies 9cm left side to midline and 7cm behind left side axilla.

                     6) A horizontal gapping heavy cut injury of size 20 x 7cm x Bone deep seen over back of left arm. It lies 6cm below left shoulder joint. It cuts underlying soft tissues and blood vessels.

                     7) A horizontal gapping heavy cut injury of size 19 x 1cm x Bone deep seen over back of left forearm. It lies 5cm below left elbow joint. It cuts underlying soft tissues and blood vessels.

                     8) A horizontal gapping heavy cut injury of size 7 x 2cm x Bone deep seen over back of left palm. It cuts underlying soft tissues, blood vessels, lower end of radius and other carpel bones.

                     9) A cut injury of size 3 x 1cm x Muscle deep seen over left palm.

                     10) A cut injury of size 3 x 0.5cm x Muscle deep seen over right cheek. It lies 0.5cm right side to right eye.

                     11) A horizontal gapping heavy cut injury of size 6 x 1cm x Bone deep seen over back of right palm. It cuts underlying soft tissues, blood vessels and bones.

                     OTHER FINDINGS:

                     Heart: Normal and coronary vessels patent.

                     Hyoid bone: Intact.

                     Stomach: Contains about 50gms of partially digested rice particles, no specific smell and mucosa pale.

                     Lungs, Liver, Spleen & Kidneys: Normal, c/s pale.

                     Small Intestine: Contains about 50gms of partially digested rice particles, no specific smell and mucosa pale. NO.3 17-

                     Uterus: Normal, c/s empty.”

A final opinion was given to the effect that the deceased would appear to have died due to shock and hemorrhage as a result of heavy cut injuries in the head and neck.

6. PW19 arrested A3 on 01.04.2019 at about 9.00 a.m. A3 was remanded to judicial custody. Steps were taken to record the statements of PW1 and PW3 under Section 164(5)Cr.P.C., before the Judicial Magistrate, No.III, Tirunelveli. Statement of PW3 was marked as Ex.P2 and statement of PW1 was marked as Ex.D1.

7. On 08.04.2019, A1 and A2 had surrendered before the Court and they had been confined at Central Prison, Palayamkottai. A request was made for taking police custody of A1 and A2 before the Judicial Magistrate, No.III, Tirunelveli. Permission was granted and A1 and A2 gave voluntary confession in the presence of witnesses. The admissible portion of the confession of A1 was marked as Ex.P7 and the admissible portion of the confession of A2 was marked as Ex.P8. Based on the same, the sickle used by A1 was seized under Athatchi Ex.P9. Similarly, MO2 to MO4 were also seized under the same Athatchi. Similarly based on the admissible portion of the confession of A2, sickle (MO1) was seized under Athatchi Ex.P10. Under the same Athatchi, MO3 and MO5 were also seized from A2. A1 and A2 were thereafter produced before the Court.

8. PW19 recorded the statements of the remaining witnesses under Section 161(3) Cr.P.C., The dress of the deceased was also seized under Form 91 (MO8 to MO10). All the material objects were sent to the Court with a requisition to send the same to forensic sciences Laboratory.

9. The investigation officer submitted an alteration report (Ex.P22) by altering the offences under Sections 34, 114, 302 and 506(II) IPC. After recording the statements of all the witnesses under Section 161(3) Cr.P.C., and after collecting the postmortem report (Ex.P11), biological report (Ex.P14) and serological report (Ex.P15) and on completion of investigation, the police report was filed before the Judicial Magistrate No.III, Tirunelveli, which was taken on file in PRC No.164 of 2019 against three accused persons. The committal Court on serving the copies under Section 207 Cr.P.C., committed the case under Section 209 Cr.P.C., and it was made over to the Sessions Judge, (Mahila Court) Tirunelveli and it was taken on file in SC No.386 of 2019.

10. The trial Court framed the charges in the following manner:

S.No.	Rank of the accused	Offences under Sections (IPC)
1	A1 to A3	294(b)
2	A1 and A2	302
3	A3	302 r/w 34
4	A1 to A3	506(II)
5	A1 and A2	Section 4 of TNPHW Act 2002

11. The accused persons denied the charges when questioned and pleaded not guilty.

12. The prosecution examined PW1 to PW19 and marked Exs.P1 to P22 and also relied upon MO1 to MO10. The defence also marked Ex.D1 through PW1.

13. The incriminating evidence and circumstances were put to the accused persons when they were questioned under Section 313(i)(b) of Cr.P.C. and they denied the same as false.

14. The accused persons did not examine any witnesses, however, marked Ex.D1.

15. The trial Court, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the prosecution has proved the case beyond reasonable doubts as against A1 and A2 and accordingly convicted and sentenced the accused persons in the manner stated supra. Aggrieved by the same, the present appeal has been filed before this Court.

16. Insofar as A3 is concerned, she was convicted only for offence under Section 294(b) and was acquitted from the charge of 302 r/w 34 and 506(II) IPC. A3 has not filed any appeal.

17. The learned Senior Counsel appearing on behalf of the appellants made his submissions broadly on two grounds and they are:

(a) PW1 to PW4 are interested witnesses, who are inimical to the accused person and they could not have seen the occurrence, since none of them were residing at Manakaadu where the occurrence had occurred and at the best, they can be treated as chance witnesses and their evidence cannot be entirely acted upon without corroboration and;

(b) The very genesis of the case of the prosecution is doubtful.

18. Insofar as the first ground is concerned, the learned Senior Counsel submitted that PW1 is the wife of one Manikandan, who is the brother of A1 and A2. She had a misunderstanding with her husband and she was living at Thoothukudi. The incident had taken place at Manakaadu and the rough sketch that was relied upon does not anywhere indicate as to where PW1 was residing at the time of occurrence.

19. Insofar as PW2 is concerned, she is the mother of the deceased and she was residing at Nochikulam, which was six kilometers away from the place of occurrence and there is absolutely no explanation as to how she was present in the scene of crime.

20. Insofar as PW3 is concerned, she is the daughter of the deceased and A2. There was a misunderstanding between the deceased and A2 and hence, the deceased along with PW3 were residing with PW1. Therefore, if PW3 was residing at Thoothukudi, there is no explanation as to how she was present at the scene of crime when the incident took place. Apart from that, the presence of PW3 has not been spoken to by PW1, PW2 or PW4.

21. Insofar as PW4 is concerned, he is the brother of the deceased and he was also residing at Nochikulam, which was six kilometers away from the place of incident. Hence, even his presence at the time of occurrence is highly doubtful.

22. It is therefore contended that the evidence of PW1 to PW4, who have described the incident parrot-like, were never in the scene of crime and their evidence cannot be acted upon without independent corroboration, which is not available in this case.

23. Insofar as the second ground is concerned, the very presence of PW1 to PW4 in the scene of crime is in question and therefore, the genesis of the case of the prosecution, as projected by it, is highly doubtful.

24. Per contra, the learned counsel appearing for the State (Crl.Side) submitted that the eyewitness account of PW1 to PW4 has not been assailed on the side of the appellants in any manner and it does not stand discredited. It is further submitted that PW3 is none other than the daughter of the deceased and A2 and there was no need for PW3 to give evidence against her own father, if really the incident had not taken place. The learned counsel also submitted that there was no delay in the registration of the FIR after the incident and the same reaching the Court and therefore, there was no deliberation to rope in accused persons other than those who are involved in the commission of the offence. It is further submitted that the eyewitness account is sufficiently corroborated through medical evidence. The learned counsel further submitted that, in view of the same, all the charges have been proved by the prosecution and the conviction and sentence rendered by the trial Court does not warrant interference by this Court.

25. This Court has carefully considered the submissions made on either side and the materials available on record.

26. PW1 is the sister of the deceased. She has stated in her evidence that A2 developed an illicit relationship with one Valli as a result of which there were frequent quarrels between A2 and the deceased. A complaint was also given against A2 at Taluk Police Station. She separated from A2 and came along with her children to the residence of her mother (PW2). After two months, A2 called the elders at Manakaadu and pacified PW2 and brought back the deceased and two children to Manakaadu. Two to three months thereafter, A2 went out for work and returned back after four days. This was questioned by the deceased and there was a wordy quarrel pursuant to which the murderous attack took place.

27. One of the main ground that was taken by the learned senior counsel appearing on behalf of the appellants is that PW1 had a misunderstanding with her husband Manikandan and she belongs to Tuticorin and therefore, her very presence in the scene of crime is doubtful.

28. The incident took place at about 5.30 p.m., on 31.03.2019 and the complaint was given by PW1 to PW17 at 6.30 p.m., An FIR was registered in Crime No.101 of 2019 and it reached the Court at 10.30 p.m. The 161 statement recorded from PW1 has reached the Court on 01.04.2019.

29. PW2 is the mother of the deceased. She also talks about the matrimonial dispute between A2 and the deceased and the manner in which the incident took place.

30. The most important witness in this case is PW3, who is the daughter of the deceased and A2. Initially her statement under Section 164 (5) Cr.P.C., was recorded when she was about 12 years old on 10.04.2019. She has given a graphic description as to how her mother was attacked indiscriminately by A1 and A2. She also speaks about the 108 Ambulance coming to the scene of crime and taking the body of her mother to the Government hospital.

31. PW3 was examined in the Court as a witness when she was 13 years. She specifically states that she was playing in the house of PW1 and at that point of time, she heard the sound due to the quarrel between A2 and the deceased, immediately she along with PW1 came to the house. She has described the manner in which the deceased was abused and attacked with sickle by the accused persons.

32. During cross-examination a lot of effort was taken to establish that she was residing in the house of PW2 and therefore, she could not have been present in the scene of occurrence. However, PW3 has clearly stated that she was playing in the house of PW1 and she along with PW1 came to the scene of occurrence and she reiterates the manner in which the deceased was attacked by A1 and A2.

33. PW4 is the brother of the deceased. He has stated in his evidence that he along with PW2 had gone to the house of the deceased on 31.03.2019 and they saw the deceased being attacked by the accused persons with deadly weapons.

34. It is clear from the above that the prosecution has examined four eye witnesses in this case to substantiate their case. A careful reading of the evidence of PW3, who is the daughter of the deceased and A2 clearly establishes the manner in which the incident had taken place. Her evidence is natural and cogent and it is corroborated by the 164 statement recorded from her in the course of investigation. There was no reason for PW3 to falsely implicate her father A2 in this incident. The evidence of PW3 certainly inspires the confidence of this Court and it is wholly reliable.

35. The above evidence of PW3 is further corroborated by the evidence of PW1. PW1 is the wife of Manikandan and the house of Manikandan is shown in the rough sketch (Ex.P19) and it is right opposite to the scene of crime. Just because, PW1 had a dispute with her husband, that does not mean that she is permanently separated from him and therefore, she was residing at Tuticorin. This finding gets buttressed by the fact that she had given the complaint within one hour from the time of incident and the FIR had reached the Court on the same day at 10.30 p.m. The 161 statement recorded from PW1 has also reached the Court the next day on 01.04.2019. Hence, the evidence of PW1 cannot be doubted more particularly since PW3 also talks about the presence of PW1.

36. Even if on a demurer the presence of PW2 and PW4 is doubted, the evidence of PW1 and PW3 certainly clinches the case of the prosecution and their eyewitness account remains intact and it has not been discredited.

37. The evidence of PW1 and PW3 gets further corroborated by the postmortem certificate issued by PW11. The injuries recorded is perfectly in line with the eyewitness account of PW1 and PW3.

38. A1 and A2 in this case had surrendered before the Court and police custody was taken by PW19 and based on the admissible portion of their confession, the sickle that was used for committing the murder and the blood soaked dress were recovered under Athatchi Ex.P9.

39. In a case based on eyewitness account, motive takes a back seat. However, in this case, the motive has also been established not only by examining the close relatives but also by examining PW16, who had enquired the earlier complaint given. Ex.P16 was marked through PW16. It shows that a complaint was given by the deceased against A2 to the effect that he drinks and beats the deceased regularly and apart from that he is also having an illicit relationship with another lady. A2 gave an undertaking that he will not behave with his wife in the same manner and if he causes any further trouble, action can be taken against him. This incident had taken place during February 2018. Subsequently a compromise was arrived at and the deceased along with the children came back and were living with A2. The whole issue got triggered when the deceased once again questioned A2 as to why he did not return back home for four days.

40. It is now too well settled that just because the witnesses happened to be the family members of the deceased and they are categorized as interested witnesses that by itself is not a ground to reject their testimony. Useful reference can be made to the judgment of the Apex Court Salim Saheb v. State of Madhya Pradesh reported in 2007 (1) SCC 699. Reference can also be made in Muniyandi @ Muniraj and others v. State reported in 2019 (1) MWN (Crl.) 489.

41. The trial Court has properly appreciated the evidence of the eyewitnesses and also the medical evidence and has come to a correct conclusion that the prosecution has proved the case beyond reasonable doubts against A1 and A2. The judgment of the trial Court does not require the interference of this Court.

42. In the result, the criminal appeal stands dismissed and the conviction and sentence imposed in SC No.386 of 2019 by the Sessions Judge, (Mahila Court), Tirunelveli stands affirmed.

This Product is Licensed to ,

Change Font Style & Size Show / Hide