Eswari vs State

S. Nagamuthu, JJ.—The appellant is the sole accused in S.C. No. 110 of 2003 on the file of the learned Principal District and Sessions Judge, Madurai. She stood charged for the offence u/s 302 IPC. By judgment, dated 29.8.2003, the trial Court convicted her u/s 302 IPC and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for one year.

Challenging the said conviction and sentence, the appellant is before this Court. The case of the prosecution in brief is as follows:

The deceased in this case was one Ramakrishnan. He was none other than the father-in-law of the accused. P.W. 1 is the wife of the deceased.

Two years prior to the occurrence, the marriage between the accused and the son of the deceased by name Sivapandi was celebrated. Though initially the marital life was joyful, later on there arose frequent quarrels between them. There was also a Panchayat in respect of the same. In the said Panchayat, it was agreed upon that they should get separated and in terms of the said arrangement, the husband of the accused should pay a sum of Rs. 20,000/- to her. Even after the said arrangement, the accused used to come to the house of the deceased and demanded, the deceased and P.W.1, to advise their son, so that she could live with him as his wife. But, the deceased did not mediate. On one occasion, the accused came to the house of the deceased and by way of protest against the deceased for his inaction to persuade his son to join the accused, to show her protest, the accused laid down on the verandha of the house of the deceased. Thus, the accused was repeatedly insisting for joining with the son of the deceased.

While so, on 2.10.2002, the deceased had gone to the local police station by around 9.30 p.m. to complain against the accused. While leaving for the police station, the deceased kept P.W. 1 inside the house, locked the house from inside and went away. The accused was still sitting on the Verandha of the house by way of protest. After some time, the deceased returned from the police station. He opened the door of the house.

Suddenly, the accused took out a wooden reaper which was lying there and gave a single blow on the head of the deceased. The deceased sustained injuries and became unconscious. The occurrence was witnessed by P.Ws. 1 and 2. P.W.2 is the brother of P.W.1.

Then, P.W. 1 took the deceased to a private hospital, run by P.W. 6, Dr. Marudupandian at Thirumangalam at 10.00 p.m. on 2.10.2002.

P.W.1 had brought the deceased in unconscious state to the hospital. P.W.6 examined him and found that he was unconscious and he was also critical. Therefore, he advised P.W. 1 to take the deceased to the Government Hospital. Accordingly, P.W.1 took him to the Thirumangalam Government Hospital. P.W.7, Dr. Amuthakumar examined the deceased at 10.15 p.m. on 2.10.2002 and he was told by P.W.1 that the deceased had been attacked by means of a wooden reaper at 9.30 p.m. on his house by a known person.

On examination, P.W.7 found the deceased unconscious. He noticed the following injuries on the deceased:

On the occipital region of the head, a big contusion measuring 10 X 5 c.m. was noticed. Hemorrhage underneath the brain was suspected.

Small abrasions were noticed on the left side of the head and right cheek.

Exhibit P-5 is the Accident Register copy. He was admitted as inpatient in the same hospital. But, unfortunately he died at 10.30 p.m. On receipt of intimation from the Government Hospital, Thirumangalam, P.W.11, the then Head Constable attached to Thirumangalam Town Police Station went to the Hospital at 10.40 p.m. By that time, the deceased was dead. P.W.11 received the death intimation from the Doctor. P.W.1 was available in the hospital. Therefore, P.W.11 recorded the statement of P.W.1 (Exhibit P-1). On returning to the Police Station, P.W. 11 registered a case in Cr. No. 397 of 2002 u/s 302 IPC. Exhibit P-7 is the First Information Report. Then, he forwarded Exhibit P-1 and Exhibit P-7 to the Court and handed over the case diary to the Inspector of Police for investigation.

P.W. 12, was the then Inspector of Police attached to Thirumangalam Police Station. Taking up the case for investigation on 3.10.2002 at about 12.45 a.m. he went to the place of occurrence and prepared observation mahazar in the presence of P.W.4 and another witness. He prepared rough sketch showing the place of occurrence. Then, he examined P.W.1 and recorded her statement. Then, he forwarded the body for postmortem. P.W.8, doctor Saravanan, conducted autopsy on the body of the deceased on 3.10.2002 at 12.45 p.m. He noticed the following injuries.

Contusion of 10 cm size over the occipital region.

Abrasion of 8 x 3 cm over the left side forehead near middle.

Contusion of 10 X 2 cm over the left forehead 2 cm lateral to wound No. 2.

Abrasion of 4 X 3 cm over the left cheek.

Abrasion of 2 cm x 1 cm over the right cheek.

Exhibit P-6 is the postmortem certificate. He opined that the deceased died due to the head injury.

Continuing the investigation, P.W. 12 arrested the accused on 3.10.2002 at 9.30 a.m. in the presence of P.W.5 and another witness. On such arrest, she gave a voluntarily confession, in which she disclosed the place where he had thrown the wooden reaper. In pursuance of the same, the accused took P.W. 12 and the witnesses to Thirumangalam Meenakshi Amman temple and from a bush near the Public water tank, took out MO1 (wooden reaper) and produced the same. P.W. 12 recovered the same under a mahazar in the presence of the same witnesses. Then he sent the accused to the Court for Judicial remand and handed over the material objects to the Court. Then, he examined the doctor and collected medical records.

Finally, on completing the investigation, he laid charge sheet against the accused. Based on the above materials, the trial Court framed a lone charge u/s 302 IPC. Accused pleaded innocence. Therefore, she was put on trial. In order to prove the charge on the side of the prosecution, 12 witnesses were examined, 9 documents were exhibited and 3 material objects were marked. Out of the said witnesses P.Ws. 1 to 3 have been examined as eyewitnesses. But, P.W.3 has turned hostile and he has not supported the case of the prosecution in any manner. P.Ws.1 and 2 have vividly spoken about the occurrence. P.W.1 has further deposed to the fact that she only took the deceased to private hospital run by P.W.6 and then to the Government Hospital at Thirumangalam. She has also stated about the death of the deceased. P.W.8, Dr. Saravanan has spoken to about the cause of death. The others are official witnesses.

When the above incriminating materials were put to the accused u/s 313 Cr.P.C. she denied the same as false. However, she did not choose to examine any witness on her side or to mark any document.

Having considering the above, the Trial Court found her guilty u/s 302 IPC and accordingly punished her. That is how the appellant is before this Court with this appeal.

We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and also perused the records carefully.

The learned counsel appearing for the appellant would submit that the First Information Report in this case is a concocted document and therefore, the case of the prosecution should be viewed with suspicion and consequently, it should be rejected. The learned counsel for the appellant would further submit that P.W.1 could not say exactly the place of occurrence. Thus, according to the learned counsel, P.W. 1 would not have seen the occurrence.

So far as P.W.2 is concerned, according to him, he is only a chance witness and he happened to be brother of P.W.1 as well. The presence of P.W.1 at the place of occurrence cannot be believed at all, the learned counsel for the appellant contended. He would further submit that P.W.2 had not explained the occasion for his presence at the time of occurrence. Thus, according to the learned counsel, the evidence of P.Ws. 1 and 2 are liable to be rejected. Apart from that, according to the learned counsel, what remains is the arrest of the accused and the consequential recovery of MO1. He would further submit that the same cannot be given any weightage at all. Finally, the learned counsel would submit that assuming that the accused had attacked the deceased once, even then the offence committed by the accused would fall within the ambit of Section 304(2) IPC. So far as the sentence is concerned, the learned counsel would submit that now, the husband of the accused is no more and therefore, she is alone with her child. She is taking care of the child and if she is again sent to jail, the future of the child will be affected as he would become an orphan as there is no body to take care of the child.

The learned Additional Public Prosecutor would oppose this appeal. According to him, there are no reasons to reject the evidences of P.Ws.1 and 2. P.Ws.1 and 2 are natural witnesses and their presence cannot be doubted at all. He would further submit that P.Ws.1 and 2 have vividly spoken about the entire occurrence. He would further submit that the medical evidence duly corroborates the eyewitness account. Thus, according to the Additional Public Prosecutor, it was this accused who caused the single injury on the head of the deceased, which resulted in the death of the deceased. Therefore, the conviction of the accused u/s 302 IPC needs to be sustained, he contended.

We have considered the above submissions. Admittedly, the occurrence has taken place at the house of P.W. 1 and the deceased. The time of the occurrence was around 9.30 p.m. Therefore, it is quite natural that P.W.1 would have been available at her house. It is her further evidence that the accused had come to her house and staged a dharna by sitting on the pial of the house. Out of fear, the deceased locked the house leaving P.W.1 inside the house and then, went to the Police Station to complain against the accused. When he returned to the place of occurrence and when he opened the door, the accused suddenly attacked him. In our considered opinion, P.W. 1 would have certainly witnessed the said occurrence. P.W.2 is the brother of P.W. 1. His presence has also been probabilised and he has also spoken about the occurrence. His evidence duly corroborates the evidence of P.W.1. Thus, from the evidences of P.Ws. 1 and 2, the prosecution has clearly proved that it was this accused who caused the single injury on the head of the deceased.

Coming to the contention of the learned counsel for the appellant that P.W.1 had not categorically stated about the place of occurrence, we find no force at all in the said argument. After all, the occurrence had taken place at the house of the accused. Therefore, mere contradiction in respect of the place of occurrence in the evidence of P.W.1 cannot be a ground to disbelieve the very presence of P.W.1.

Now turning to the medical evidence, according to P.W.6, it was P.W.1, who had brought the deceased to the hospital. According to P.W.6, the deceased was brought to him at 10.00 p.m. It is crystal clear that within half an hour, P.W. 1 had rushed the deceased to the hospital. Since P.W.6 advised her to take him to the Government Hospital, at 10.15 p.m. she reached the Government Hospital along with the deceased. P.W.7 examined the deceased at 10.15 p.m. on 2.10.2002. The deceased died around 10.30 p.m. The First Information Report itself came to be registered on the same day at 11.30 p.m. itself and there is no delay. However, there is delay in forwarding the same to the Court. In our considered opinion on this score, the evidence of P.Ws.1 and 2 cannot be rejected.

But, the learned counsel for the appellant would submit that the First Information Report had reached the Court at 10 a.m. on the next day.

This delay, according to the learned counsel, is fatal to the case of the prosecution. Though attractive, we find no force in the said argument, because the presence of P.W. 1 at the place of occurrence cannot be doubted, because she was a natural witness to the occurrence, as the occurrence has taken place in her house.

P.W.8, Doctor Saravanan, had conducted postmortem and according to him, the death was due to the head injury. Thus, the death of the deceased was caused by the act of the accused and it is a culpable homicide.

Now, turning to the last argument of the learned counsel that even assuming that it was this accused who caused the death of the deceased, according to him, the offence would fall u/s 304(2) IPC. We find some force in the argument of the learned counsel for the appellant. From the narration of facts, we are able to cull out from the evidence of P.Ws. 1 and 2, that occurrence was not a premeditated occurrence. The accused had gone to the house of the deceased only to demand for the reunion of her husband so that she could live with him. Since the deceased did not come forward with an amicable settlement, the accused sat on the pial of the house by way of protest. The deceased went to the Police Station and returned, at that time, again the accused wanted him to tell as to where her husband had been hidden. This resulted in a wordy quarrel. Only in that quarrel, that accused had taken the wooden reaper lying there and attacked him only once. From the narration of facts, culled out from the evidences, we are of the firm view that the act of the accused satisfies the 4th limb of Section 300 IPC, it would fall under Exception 1 to Section

300 IPC. Thus, the act of the accused is only a culpable homicide not amounting to murder, punishable u/s 304(2) IPC. The accused is a woman and she has got a young child to be looked after and her husband is no more. Her mother is also no more and she has no other person to take care of the child. If these mitigating circumstances are taken into account, in our considered opinion besides the other facts and circumstances of the case, it would be appropriate, just fair and reasonable to impose the sentence of rigorous imprisonment for a period of three years together with a fine of Rs. 1,000/-. In the result, the appeal is partly allowed, the conviction and sentence imposed on the appellant in S.C. No. 110 of 2003 by the learned Principal District and Sessions Judge, Madurai is set aside and instead she is convicted u/s 304(2) IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for two weeks. The period of sentence already undergone shall be given set off. The trial Court shall take steps to secure the accused in order to undergo the remaining period of sentence, if any. The bail bond executed shall stand cancelled.