(Prayer: Criminal Appeal is filed under Section 374 of Cr.P.C to call for the entire records connected to the Judgment in S.C.No.37 of 2020 on the file of the Principal Sessions Court/District Court, Karur District dated 06.07.2022 and set aside the conviction and sentence imposed against the appellant.

Criminal Appeal is filed under Section 374 of Cr.P.C to call for the entire records connected to the Judgment in S.C.No.37 of 2020 on the file of the Principal Sessions Court/District Court, Karur District dated 06.07.2022 and set aside the conviction and sentence imposed against the appellant.)

Common Judgment:

G.K. Ilanthiraiyan, J.

1. These Criminal Appeals are filed to call for the entire records connected to the judgment in S.C.No.37 of 2020 on the file of the learned Principal Session Court/District Court, Karur, dated 06.07.2022, and set aside the conviction and sentence imposed against the appellants.

2. Both the appeals are arising out of the same Judgment and as such, a common order is passed.

CASE OF THE PROSECUTION:

3. The case of the prosecution is that A1 and the deceased were husband and wife. A1 and A2 were allegedly involved in an extra marital affair with each other. A3 is a friend of A2. The deceased has warned A1 several times not to be in touch with A2 but they had been continuing their relationship. At this juncture, on 23.12.2018 at about 08.30 p.m., A2 and A3 along with the deceased had consuming alcohol. At that time due to some quarrel, A2 had hit the deceased with a stone on his head and A3 had also allegedly attacked the deceased due to which the deceased died on the spot.

4. Thereafter, the VAO lodged a complaint before the respondent police and an FIR was registered in Crime No.557 of 2018 for the offence under Section 302 of IPC on 24.12.2018. After completion of investigation, a final report was filed and the same was taken cognizance by the Trial Court in S.C.No.37 of 2020.

5. On the side of the prosecution, 19 witnesses were examined as P.W.1 to P.W.19 and 24 exhibits were produced as Ex.P1 to Ex.P24 and 20 Material Objects as M.O.1 to M.O.20 were produced. On the side of the accused, no witnesses were examined, no exhibits were marked and no material objects were produced.

6. On perusal of oral and documentary evidence, the Trial Court found A1 guilty of the offences under Section 302 of IPC read with 34 of IPC and sentenced her to undergo imprisonment for life and imposed a fine of Rs.10,000/- and in default of the same, to undergo one-year simple imprisonment. A2 was found guilty for the offence under Section 302 of IPC and was sentenced to undergo imprisonment for life and was imposed a fine of Rs.10,000/- and in default of the same, to undergo one-year simple imprisonment. The Trial Court acquitted A3 from all charges. Aggrieved by the same, A1 and A2 have preferred the present appeals.

ARGUMENTS OF THE COUNSEL FOR THE APPELLANTS:

7. The learned Counsel for the appellants submitted various grounds to make his case before this Court.

8. The learned counsel appearing for the appellants states that the appellants are innocent and the respondent had foisted a false case against them.

9. It was submitted that the prosecution failed to establish the motive for the alleged occurrence to hold the appellants guilty and that the Trial Court had convicted the appellants only on the basis of circumstantial evidences. It was stated that no eye witness was examined by the prosecution who witnessed the direct involvement of the appellants in this case despite the possible presence of number of people around the place of occurrence. Further, P.W.18 has also turned hostile by not supporting the case of the prosecution.

10. It was further pointed out that there was a contradiction in the time and date of death of the deceased wherein, the prosecution states that the death had taken place on 23.12.2018 between 08.30 p.m to 11.00 p.m, but P.W.17 who is the doctor who conducted the autopsy of the deceased’s body states that the death might have taken place on 24.12.2018 between 09.00 a.m to 09.00 p.m.

11. It was stated that, the prosecution failed to prove the extra marital affair between A1 and A2. There was also no evidence that proves that the deceased was aware of the alleged extra marital affair. It was contended that the appellants had no intention to commit the alleged offence and it was pointed out that the A1 was completely unaware that the offence was going to take place. In fact, A1 was not even present in the place of occurrence and she was only waiting in the nearby bakery for the deceased to return, further, no witness that was examined by the prosecution had clearly stated that A1 and A2 had common intention to do away with the life of the deceased. But the Trial Court had erroneously found A1 guilty of the offences under Section 302 read with Section 34 of the IPC.

12. In support of his contention, he relied upon the Judgements of the Hon’ble Supreme Court of India in the case of Nathiya v. State of West Bengal [(2012) 7 SCC 646] and Virendar v. State of Haryana [(2020) 2 SCC 700].

13. Therefore, it was submitted that the prosecution has failed to prove the case beyond reasonable doubt and prosecution prays to set aside the sentence imposed by the Trial Court.

SUBMISSIONS MADE BY THE LEARNED ADDITIONAL PUBLIC PROSECUTOR:

14. Per contra, the learned Additional Public Prosecutor appearing for the respondent submits that the appellants had caused the death of deceased and the minor contradictions are not fatal to the case of the prosecution. He states that the evidence of P.W.3 reveals that A1 and A2 were in an illicit relationship and P.W.6 had also stated that the deceased was last seen with the accused persons, therefore, the case of prosecution is based on a complete chain of highly incriminating circumstances which irrefutably point towards the guilt of the appellants and minor contradictions will not be fatal to the case of the prosecution and after scrutinizing the entire oral and documentary evidence on record, the Trial Court rightly convicted the appellants, and it does not warrant any interference of this Court.

DECISION AND CONCLUSION:

15. The brief facts of the case is that, on 23.12.2018, A1, the deceased and their child along with A2 and A3 had planned to go to Karur to watch a movie in a theatre. On their way, at about 08.30 p.m., A2 had asked the appellant to stop at the Tasmac to consume Alcohol. At that time due to wordy quarrel, A2 had hit the deceased with stones on his head and A3 had also allegedly attacked the deceased due to which the deceased had died. At this time, before entering the Tasmac, the deceased had made A1 and their child wait in the nearly bakery.

16. To move forward, this Court is inclined to form the following issues in furtherance of deciding the case on hand:

               “i. Whether the prosecution proved the motive of the appellants to incriminate them in the said offence?

               ii. Whether A2 had an intention to do away with the life of the deceased?

               iii. Whether A1 had a common intention with A2 to do away with the life of the deceased?”

17. On perusal of the evidences of P.W.3, P.W.8 and P.W. 12, all these witnesses, who are close relatives to the deceased, had seen A1 and A2 behave in an intimate manner and have also seen them chatting with each other over text or phone call, but none of them have revealed the same to the deceased. Perusal of the evidence of P.W.3 reveals that she had purposely kept it as a secret from the deceased. The exact words of P.W.3 is extracted hereunder:

               

18. Keeping this in mind and on perusal of the evidence of P.W.6, it is revealed that the deceased had taken A1 and their child along with A2 and A3 to the movie theatre. They have together gone in two different two wheelers, which reveals that there could not have been any possibility for the deceased to have known about the affair of A1 and A2 as it is highly unnatural for a man, with complete knowledge, to take his wife to a movie theatre along with her paramour. This proves that there is no previous enmity between the deceased and A2. Therefore, the prosecution has failed to prove the motive of the accused for committing the offence.

19. In the present case, the last seen theory is in favour of the prosecution. The evidence of P.W.6 is crucial at this juncture, wherein he had seen the deceased, A1, their child, A2 and A3 travelling in two two-wheelers at around 06.30 p.m. to 07.30 p.m. The next day morning the body of the deceased was found near the Tasmac. Though the last seen theory is a weak piece of evidence and does not in itself complete the chain of circumstantial evidences, in this present case, it corroborates well with all the other evidences produced by the prosecution. The exact words of P.W.6 is extracted hereunder:

               

                 

20. Further, it appears to this Court that the instant case is based purely on circumstantial evidence, and further the prosecution has relied upon some extra judicial confession to establish the guilt of the appellant. Needless to mention, the extra judicial confession is considered as a weak piece of evidence. However, that does not mean that conviction cannot be based on such extra judicial confession. In this present case, the recovery of certain crucial material objects was obtained by the respondent by way of the extra judicial confession. It is also pertinent to note that, A2 has neither taken the ground of alibi nor has taken sufficient defense, for this Court to eliminate his involvement in the death of the deceased. Therefore, other circumstantial evidences along with the last seen theory and the extra judicial confession irrefutably points to the guilt of A2 beyond reasonable doubt.

21. Therefore, the only point for consideration in these appeals is whether the conviction under Section 302 of I.P.C can be sustained, in the absence of any intention on the part of the A2 to do away with the life of the deceased. In order to decide the pivotal question of intention, which alone would determine whether the offence falls under Section 302 or 304 Part II of I.P.C., the facts and circumstances of the case have to be examined with care and caution.

22. Admittedly, A2 and A3 along with the deceased had stopped at a Tasmac to consume alcohol and the same has been proved on the Perusal of Ex.P17 and Ex.P18 which are the forensic report and post mortem report respectively, wherein significant amount of ethyl alcohol residue had been found in the stomach, intestine, kidney and liver of the deceased. Due to consumption of alcohol, A2 and the deceased have entered into a quarrel. The seriousness of the quarrel has increased as it was fueled by high consumption of alcohol. It is an undisputed truth that, alcohol makes a man lose his prudent senses and the case on hand is a classic example for the same.

23. Though, intoxication as such is not a defense in a criminal charge, it shows that what started as a normal quarrel between the accused and deceased, quickly turned into a violent unfortunate situation that caused the death of the deceased. In this regard, it is relevant to reply upon judgement of the Hon'ble Supreme Court of India in the case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P [2007 (1) SCC (CRI) 500], wherein it has been observed as follows:

               “18. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters like plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:

               (i) nature of the weapon used;

               (ii) whether the weapon was carried by the accused or was picked up from the spot;

               (iii) whether the blow is aimed at a vital part of the body;

               (iv) the amount of force employed in causing injury;

               (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

               (vi) whether the incident occurs by chance or whether there was any pre- meditation;

               (vii) whether there was any prior enmity or whether the deceased was a stranger;

               (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

               (ix) Whether it was in the heat of passion;

               (x) Whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

               (xi) Whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.”

24. On a keen observation of the factual matrix of this case, it can be seen that, there was no pre-plan or preparation on the side of the accused to commit the offence. Further, there is no evidence of previous enmity between the deceased and A2. They had admittedly consumed alcohol and when a wordy quarrel ensued between the accused and the deceased, in the spur of the moment and due to sudden provocation, the accused has picked up the stones lying on the ground and have started attacking the deceased. The accused did not even carry a weapon with him all along. Therefore, the offence had taken place in the course of sudden quarrel or sudden fight without any preparation and even according to the case of the prosecution the stones/M.O.3 that used to hit the deceased were taken on spot in the place of occurrence.

25. The third issue deals with the involvement of the A1 in the said offence. As this Court has decided that A2 had no intention to commit the crime, it automatically proves that A1 had no common intention with A2 to do away with the life of the deceased.

26. Further, admittedly, A1 was not even present at the place of occurrence. No witness examined by the prosecution had whispered about her presence during the occurrence. Even according to the case of the prosecution, A1 was only waiting at the nearby bakery when the offence had taken place. There is no piece of evidence that proves the involvement of A1 in the present case. Further, A1 along with other villagers had seen the deceased lying dead only on the next day. At this juncture, is relevant to rely upon the judgement of the Hon’ble Supreme Court in the case of Virendar v. State of Haryana [(2020) 2 SCC 700], wherein it was stated as follows:

               “11. Proceeding on the basis that the appellant was present on the spot of the offence, we do not find that the commission of the offence of murder stands proved as against the appellant with the help of Section 34, IPC, either. In order to invoke the principle of joint liability in the commission of a criminal act as laid down in Section 34, the prosecution should show that the criminal act in question was done by one of the accused persons in furtherance of the common intention of all. If this is shown, the liability for the offence may be imposed on any one of the persons in the same manner as if the act was done by him alone. It may be difficult to procure direct evidence to prove the intention of an individual, and in most cases it has to be inferred from the facts and relevant circumstances of the case. The common intention may be through a prearranged plan, or it may be generated just prior to the incident. Just as a combination of persons sharing the same common object is one of the features of an unlawful assembly, so is the existence of a combination of persons sharing the same common intention one of the features of Section 34.”

27. The above case is squarely applicable to the case on hand. In this case, as discussed earlier, the prosecution has failed to prove the alleged extra marital affair between A.1 and A.2 which was portrayed as the sole motive behind the offence. Because of the same, this Court is not inclined to assume that there was a common intention between A.1 and A.2 to do away with the life of the deceased. This stand is further justified by the absence of A.1 at the scene of occurrence. Therefore, in the absence of any incriminating evidences, this Court is inclined to acquit A.1 of all charges.

28. In view of the above, for A2/appellant in Crl.A.(MD).No. 727 of 2022, the conviction and sentence imposed in S.C.No.37 of 2020, dated 06.07.2022, on the file of the Learned Principal Session Court/ District Court, Karur for the offence punishable under Section 302 of I.P.C is set aside and the appellant is convicted for the offence under Section 304 Part II of I.P.C and sentenced to undergo seven years Rigorous Imprisonment.

29. In the result, Crl.A(MD)No.727 of 2022 stands partly allowed. The fine amount, if any paid, shall be refunded to A.2 forthwith. The sentences of imprisonment shall run concurrently. The period of imprisonment already undergone by A.2 shall be set off under Section 428 of Cr.P.C. Consequently, connected Miscellaneous Petition, if any, stands closed.

30. For A1/appellant in Crl.A.(MD)No.731 of 2022, the conviction and sentence imposed in S.C.No.37 of 2020, dated 06.07.2022, on the file of the Learned Principal Session Court/ District Court, Karur is set aside.

31. In the result, Crl.A(MD)No.731 of 2022 stands allowed. The appellant/A.1 is directed to be set at liberty forthwith, unless her custody is otherwise required in connection with any other case. The fine amount, if any paid, shall be refunded to A.1 forthwith. The bail bond, if any executed, shall stand cancelled.