CDJ Law Journals

(Prayer: Criminal Appeal is filed under Section 372 of the Code of Criminal Procedure, to call for records and allow this appeal and set aside the conviction and sentence dated 05.09.2023 passed by the Sessions Judge, Mahila Court, Tiruchirappalli in S.C.No.8 of 2019 and acquit the appellant.)

N. Anand Venkatesh, J.

1. The sole accused has filed the present appeal challenging the judgment passed by the Sessions Judge, Mahila Court, Tiruchirappalli District, made in S.C.No.8 of 2019, dated 05.09.2023, convicting and sentencing the appellant in the following manner:

Provision under which convicted	Sentence
Sec. 498A of IPC	3 years rigorous imprisonment and fine of Rs.5000/-, in default to undergo three months simple imprisonment
Sec. 302 of IPC	Life Imprisonment and fine of Rs. 10,000/-, in default to undergo 6 months simple imprisonment.

The above sentences were ordered to run concurrently.

2. The case of the prosecution is that the accused was married to the deceased in the year 2007 and they had two children. It is alleged that the accused person is a drunkard and he used to harass the deceased for physical intercourse regularly and he also used to physically abuse her. This was informed to the relatives and they attempted to pacify the parties. On 04.04.2018, the accused person is said to have once again forced the deceased for physical intercourse and since she refused, he is said to have insulted her by questioning her fidelity and also threatened her that she will be killed. This was informed by the deceased to her relatives. On the fateful day, on 09.04.2018, the accused person had again harassed the deceased to have physical intercourse and since she refused, he questioned her integrity and beat her with MO3 and the deceased fell down and thereafter, the accused attacked her with MO1 – aruval and caused her death.

3. PW4 and PW5, who are the children of the accused and deceased, found their mother lying in the floor next day morning and informed the same to PW8, who is neighbour. He came to the house and found that the deceased was lying in the floor with blood splashed all over. PW8 informed the same to PW11, who is the sister of the deceased and was also working in the Police Department. The sister of the deceased came along with her husband to the scene of occurrence.

4. PW1, who is the cousin brother of the deceased, gave a complaint (Ex.P1) to PW16 and in turn, the FIR came to be registered by PW16 in Crime No.60 of 2018 for offence under Section 302 of IPC.

5. PW18 took up investigation and went to the scene of crime at about 9.30 AM on 09.04.2018 and prepared the observation mahazar (Ex.P2) and rough sketch (Ex.P10). He also collected MO2 to MO5 from the scene of crime under Athatchi (Ex.P11). He thereafter conducted the inquest on the dead body of the deceased in the presence of panchayatars and prepared the inquest report (Ex.P18). The body of the deceased was sent for postmortem through PW17 and the postmortem was conducted by PW14, who issued the postmortem certificate (Ex.P8) wherein the following injuries were noted:

                     “Following ante mortem injuries present:

                     1.Irregular, reddish brown coloured graze abrasion 7 × 6 cm on upper part of right side of chest, 0.5 cm below right clavicular region;

                     2.Blood-stained, gaping, oblique stab injuries, three in number, 2 × 0.2 × 1 cm, 2 × 0.2 × 1 cm and 2 × 0.2 × 1 cm on front of left shoulder; all the three injuries were placed 2 cm apart; their direction was backwards and downwards;

                     3.Blood-stained, gaping, obliquely horizontal cut injury 9 × 0.2 × 2 cm on front of lower jaw region; it was 4 cm long on right side of chin and 5 cm long on left side of chin; on examination, complete cut fracture and separation of underlying mandible bone, with surrounding dark red extravasation of blood;

                     Neck:

                     4.Multiple, overlapping, linear, reddish brown coloured abrasions of various sizes on front and both outer aspects of entire neck;

                     5.Blood-stained, gaping, horizontal cut injury 11 × 0.2 × 2 cm on front of upper part of both sides of neck; it was 4 cm long on right side of neck and 7 cm long on left side of neck; it was 2 cm below Injury No. 3;

                     6.Blood-stained, gaping, stab injury 3.5 × 0.2 × 2.4 cm on front of left side of neck; it was 4 cm below lower border of lower jaw and 2 cm away from midline of neck; its direction was backwards, downwards and towards midline of the body;

                     7.Blood-stained, gaping, oblique stab injury 3 × 0.2 × 3 cm on front of left side of neck; it was 7 cm below lower border of lower jaw and 5 cm away from midline of neck; its direction was backwards, downwards and towards midline of the body;

                     8.Blood-stained, gaping, oblique stab injury 2.5 × 0.2 × 0.8 cm on outer aspect of upper part of left side of neck, 5 cm below left ear; its direction was downwards, forwards and towards midline of the body;

                     9.Blood-stained, gaping, oblique stab injury 3 × 0.2 × 4 cm on outer aspect of upper part of left side of neck; it was 1 cm below left angle of lower jaw bone and 7 cm away from midline of neck; its direction was downwards, forwards and towards midline of the body; on dissection of neck, multiple fractured fragments of laryngeal cartilages with surrounding dark red extravasation of blood in the soft tissues of the neck; hyoid bone: intact; trachea: intact and c/s: empty;

                     Head:

                     10.Blood-stained, obliquely vertical, gaping laceration 3.5 × 0.5 × 0.5 cm on upper part of right side of temporal region of scalp; its upper end was towards front and lower end was towards back; on dissection of head, dark red bruising 8 × 4 × 0.5 cm on upper part of right temporal region and 9 × 5 × 0.5 cm on left temporal region of scalp; skull bone, dura mater and brain: intact; c/s: brain: normal;

                     In the above mentioned injuries, Nos. 2, 3, 5, 6, 7, 8 and 11, the margins were regular, well-defined, everted and clean-cut; there were no marginal abrasions or contusions;

                     No other external or internal ante mortem injuries anywhere on the body; on dissection of the body, all the soft tissues were pale; External genital organs: intact;

                     Heart: c/s: all chambers empty; no other abnormalities;

                     Lungs: c/s: pale; no other abnormalities;

                     Stomach: c/s: contained 25 ml of thin, light brownish coffee-like fluid with no definite smell; mucosa: pale;

                     All other internal organs: c/s: pale; no other abnormalities; Bladder: empty;

                     Uterus: normal in size; c/s: cavity contained intrauterine contraceptive device;

                     Pelvis and spinal column: intact;

                     Viscera preserved for chemical examination;

                     Blood in gauze piece preserved for blood grouping test;

                     The deceased would appear to have died 24 to 36 hours prior to the time of autopsy.

                     Opinion as to the Cause of Death:

                     The deceased would appear to have died of shock and haemorrhage due to the above mentioned multiple sharp force injuries sustained.”

6. The cause of death was opined as death due to shock and haemorrhage due to multiple injuries sustained.

7. PW18 thereafter arrested the accused person on 10.04.2018 at 7 AM and based on his confession, MO1 was seized under Athatchi (Ex.P11). PW18 also recorded the statements of the witnesses under Section 161 of CrPC. After the completion of the postmortem, MO6 to MO8 which were the clothes of the deceased was handed over and it was sent to the Court under Form 91 to get the Serological Report.

8. PW19 thereafter took up further investigation from PW18 and he collected the relevant reports from the Forensic Sciences Department and also recorded the statements of some of the witnesses under Section 161 of Cr.P.C. On completion of investigation, the police report was filed before the Judicial Magistrate No.V, Thiruchirappalli, which was taken on file in PRC No.65 of 2018. After serving the copies to the accused person under Section 207 of Cr.P.C., the case was committed and made over to the Sessions Court, Mahila Neethimandram, Tiruchirappalli, which was taken on file in S.C. No. 8 of 2019.

9. The trial Court framed the charges under Sections 498A and 302 of IPC and on questioning, the accused denied the charges.

10. The incriminating evidence and circumstances was put to the accused person while he was questioned under Section 313 of CrPC and he denied the same as false.

11. The prosecution examined PW1 to PW19 and marked Exhibits P1 to P21 and also relied upon MO1 to MO8. No witnesses were examined on the side of the accused person and no documents were marked.

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

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

14. The appellant had initially engaged a counsel, who represented him and subsequently the counsel returned the bundle by giving change of vakalat. The same was informed to this Court on 05.03.2026 and hence, this Court appointed Ms.A.Banumathi, as a legal aid counsel to appear on behalf of the appellant. In order to inform this fact to the appellant, the appeal was posted on 24.03.2026 and the appellant was present through video conferencing made from Central Prison, Tiruchirappalli. He was informed that his mother and sister had also met the counsel appointed by this Court and they wanted the said counsel to appear for the appellant. The appellant was informed to have a discussion with his mother and sister so that this Court can proceed further to hear the main appeal with the appellant being assisted by the legal aid counsel appointed by this Court.

15. When the matter was taken up for hearing, the appellant informed this Court that he has no objection in the legal aid counsel appearing on his behalf. Accordingly, we heard the learned counsel for the appellant and also the learned Additional Public Prosecutor appearing on behalf of the respondent.

16. The learned counsel for the appellant submitted that PW4 and PW5, who are the children of the appellant and the deceased, could not have seen the incident and to substantiate this submission, the learned counsel brought to our notice the complaint marked as Ex.P1 and also the evidence of PW1. It was submitted that both PW4 and PW5 were sleeping in the terrace portion and they saw the body of the mother only in the morning and had informed about the same to PW8. The learned counsel therefore submitted that the eyewitness account of PW4 and PW5 is not true. In the absence of any eyewitness, unless the the accused person was seen in the house before the incident, it cannot be assumed that the accused was involved in the commission of the crime. Learned counsel submitted that when PW8 and PW11 came to the house, the accused person was not there. Hence, it was contended that the benefit of doubt must be extended to the accused person.

17. In the alternative, the learned counsel for the appellant submitted that even as per the evidence of PW4 and PW5, there was a wordy quarrel between the deceased and the accused just before the incident and therefore, the death was not caused due to any premeditation and the facts of this case can be brought within the Exceptions to Section 300 of IPC and consequently, the punishment can be imposed under Section 304 of IPC.

18. The learned Additional Public Prosecutor submitted that the deceased was repeatedly subjected to physical abuse by the accused person and the same has been spoken to by not only PW4 and PW5 but by many other witnesses, namely, PW1, PW2, PW6, PW7, PW11, PW12 and PW13. On the fateful day, the incident was witnessed by the children/PW4 and PW5 and there is no ground to discredit their evidence and the deceased has been killed in a brutal manner. It was, therefore, contended that it is a clear case of murder and there is no ground to interfere with the judgment of the trial court.

19. The star witnesses in the present case are PW4 and PW5,who are the children of the deceased and the accused person. Both of them explained about the manner in which the accused person quarrelled with the deceased and beat her and thereafter attacked with the weapon. They also deposed that they had informed about their mother lying down in the floor to PW8. On a careful scrutiny of the evidence of PW4 and PW5, there is absolutely no doubt in the mind of this Court that they specifically talked about the presence of the accused person in the house at the time of the incident and the accused person when he was questioned under Section 313(1)(b) of Cr.P.C. of this incriminating circumstance, did not offer any explanation and he had merely denied by stating as false.

20. The statement of PW4 and PW5 was recorded under Section 161 of Cr.P.C., on 09.04.2018 and the same reached the court the very next day. Therefore, there is no question of developing the case of the prosecution at a later stage with the help of the evidence of PW4 and PW5.

21. The manner in which the accused person used to pester the deceased to have physical intercourse in an inebriated state has been spoken to by PW1, Pw2, PW3, PW6, PW7, PW10, PW11, PW12 and PW13. Therefore, the cruelty that was meted by the accused person both physically and mentally to the deceased has also been made out by the prosecution.

22. The nature of injury that was sustained by the deceased, as explained in the postmortem report, also falls in line with the ocular evidence of PW4 and PW5.

23. The other relevant evidence is that of PW8, who was first informed about the incident by PW4 and PW5. This witness was the neighbour and he, in turn, had informed the same to PW11. PW8, PW11 and her husband had rushed to the house after hearing about the incident. Curiously, PW8 has not even been cross-examined on the side of the accused person.

24. The evidence of PW1 and what was stated in the complaint (Ex.P1), as if the children came to know about the incident only in the next day morning, cannot be taken to be the gospel truth, since PW1 came to the scene of crime only after the incident, after he was informed by the relatives. His statement by itself will not take away the credibility of the child witnesses, namely PW4 and PW5.

25. In the light of the above discussion, there is no doubt that it is only the appellant who had caused the death of the deceased by homicide.

26. The next issue is as to whether the facts of the present case fall into any of the exceptions to Section 300 of IPC and can be brought within the category of culpable homicide not amounting to murder.

27. The evidence of PW4 and PW5 makes it very clear that there was a wordy quarrel between the deceased and the accused and the accused person was compelling the deceased to have sexual intercourse and on being refused by the deceased, he started abusing the deceased by questioning her character and ultimately, it ended in the deceased being attacked with the weapon.

28. The facts of the present case can be brought within Exception 1 to Section 300 of IPC. It is quite clear that the accused person lost his power of self-control and he was provoked, since the deceased was refusing to comply with his demands and as a result, he attacked the deceased. Consequently, the conviction can be modified to Section 304(1) of IPC.

29. The learned counsel for the appellant made a feeble attempt by contending that the offence under Section 498A of IPC has not been made out. The above submission made by the learned counsel for the appellant is not sustainable. The evidence that has been let in on the side of the prosecution clearly brings this case under Explanation (a) to Section 498A of IPC. Certainly, the deceased has been subjected to physical and mental cruelty by the accused person. Therefore, the charge under Section 498A of IPC has been proved and the judgment of the trial court in this regard has to be sustained.

30. It is brought to the notice of this Court that out of two children born to the accused and the deceased, one child is taken care by the relative of the deceased and the other child is taken care by the mother of the accused person. This factor is considered as a mitigating circumstance while deciding the sentence.

31. In the light of the above discussion, this criminal appeal is partly allowed and the conviction and sentence imposed by the Sessions Judge, Mahila Court, Tiruchirappalli in S.C.No.8 of 2019, dated 05.09.2023, is modified to Section 304(1) of IPC and the appellant is sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.10,000/- and in default of which he shall undergo six months simple imprisonment. Insofar as the charge under Section 498 of IPC is concerned, the conviction and sentence is confirmed. The sentences shall run concurrently.

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