Sarojini Age 29 Years v. The State By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 22-11-2016

CORAM:

THE HONOURABLE MR. JUSTICE A. SELVAM AND THE HONOURABLE MR. JUSTICE P. KALAIYARASAN Criminal Appeal No.686 of 2016 and Crl.M.P.No.9700 of 2016 Sarojini ... Appellant / 1st Accused Vs.

State by Inspector of Police Maangadu Police Station Kancheepuram District ... Respondent / Complainant Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the convictions and sentences dated 29-072016 in Sessions Case No.4 of 2016 on the file of the District and Sessions Court No.II, Kancheepuram and to set aside the same. For appellant ::

Mr. R. Ezhilarasan For respondent ::

Mr. E. Raja, Addl. PP.

JUDGMENT

(Judgment of the Court was delivered by A.SELVAM, J) Challenge in this Criminal Appeal is to the convictions and sentences dated 29-07-2016 passed in Sessions Case No.4 of 2016 by the District and Sessions Court No.II, Kancheepuram. 2.

The case of the prosecution is that the defacto complainant is the wife of the second accused and both of them have been blessed with two children, namely Mallika and Esthak. During subsistence of their marriage, the second accused has used to keep the first accused as his concubine. After deserting the defacto complainant, the second accused has used to live with the first

accused. After sometime, the second accused has brought the children to the house, where he resided along with the first accused. On 0201-2006, at about 12 noon, the first accused has jugulated the deceased, viz., Mallika by using a belt and due to her overtacts, she passed away. After occurrence, both the accused have colluded together and even without informing to the Police, have buried the dead body. The defacto complainant has given a complaint and the same has been registered in Crime No.12 of 2006. The complaint given by the defacto complainant has been marked as Ex-P1. 3.

On receipt of Ex-P1, the Investigating Officer (P.W.11) has taken up investigation, examined connected witnesses and also made arrangements to exhumate the dead body and made further arragements for conducting autopsy and accordingly, the Doctor by name Srinivasa Raghavan (P.W.9) has conducted the post-mortem and given Post-mortem Report (Ex-P4). After transfer of P.W.11, his successor-in-office viz., P.W.12 has continued investigation and after his transfer, his successor-in-office viz., P.W.13 has completed investigation and laid a final report on the file of the Judicial Magistrate No.I, Poonamallee and the same has been taken on file in P.R.C.No.7 of 2007.

4.

The Judicial Magistrate-I, Poonamallee after considering the fact that the offences alleged to have been committed by both the accused are triable by Sessions Court has committed the case to the Court of Sessions, Tiruvallur Division and subsequently, transferred to Kancheepuram Division and the same has been taken on file in Sessions Case No.4 of 2016 and thereafter made over to the Trial Court.

5.

The Trial Court, after hearing arguments of both sides and upon perusing the relevant records, has framed the first charge against the first accused under Section 302 and second charge against her under Section 201 of the Indian Penal Code. Likewise, the trial court has framed a separate charge under Section 201 of the Indian Penal Code against the second accused. The charges framed against both the accused have been read over and explained to them. The accused have denied the charges and claimed to be tried. 6.

On the side of the prosecution, P.Ws.1 to 13 have been examined and Exs-P1 to P18 and M.Os.1 to 3 have been marked. 7.

When the accused have been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused.

8.

The Trial Court, after hearing arguments of both sides and upon perusing the oral and documentary evidence available on record, has found the first accused guilty under Section 302 of the Indian

Penal Code and sentenced her to undergo imprisonment for life and also imposed a fine of Rs.5000/-(Rupees Five thousand only) with usual default clause. The first accused has also been found guilty under Section 201 of the Indian Penal Code and sentenced to undergo three years rigorous imprisonment and also imposed a fine of Rs.1000/- with usual default clause. The second accused has been found guilty under Section 201 of the Indian Penal Code and sentenced to undergo three years rigorous imprisonment and also imposed a fine of Rs.1,000/- with usual default clause. Against the convictions and sentences passed by the Trial Court, the present Criminal Appeal has been preferred at the instance of the first accused, as appellant.

9.

The consistent case of the prosecution is that the defacto complainant is the legally wedded wife of the second accused and both of them have been blessed with two children, namely Mallika and Esthak. During subsistence of their marriage, the second accused has developed illicit intimacy with the first accused and started to live with her. After some time, the second accused has brought his children to the house where he and the first accused have resided together. On 02-01-2006, at about 12:00 noon, the first accused has jugulated the deceased Mallika by using a belt and due to her overtacts, she passed away. After knowing the factum of death, the accused, without informing to anybody, have buried the body of the deceased.

10.

The defacto complainant has been examined as P.W.1. The brother of the deceased, by name Esthak, has been examined as P.W.2 and the neighbours have been examined as P.Ws.3 and 4. On the basis of their evidence coupled with other available evidence, the Trial Court has invited convictions and sentences against the appellant/first accused as mentioned supra.

11. The learned counsel appearing for the appellant/first accused has contended that the deceased has suffered from epilepsy and even on the date of occurrence, she suffered from the same. Under the said circumstances, she has been taken to Hospital and the said fact has been spoken by P.W.6, auto driver and even in the post-mortem report, no conclusive opinion has been given with regard to cause of death and the Trial Court without considering the defence taken on the side of the appellant/first accused and also the materials found in Ex-P4, has erroneously found the appellant/first accused guilty under Sections 302 and 201 of the Indian Penal Code and therefore, the convictions and sentences passed by the Trial Court against the appellant/first accused are liable to be set aside.

12.

In order to rebut the contentions put forth on the side of the appellant/first accused, the learned Additional Public Prosecutor has meticulously contended to the effect that in the instant case, the mother of the deceased/defacto complainant has

been examined as P.W.1 and her specific evidence is that a strained relationship has been in existence between her and second accused and further, the brother of the deceased by name Esthak has been examined as P.W.2 and his specific evidence is that the first accused has jugulated the deceased by using a belt and the Trial Court after considering the evidence available on record has rightly found the appellant/first accused guilty under Sections 302 and 201 of the Indian Penal Code and therefore, the convictions and sentences passed against the appellant/first accused are not liable to be interfered with.

13.

Before contemplating the rival submissions made on either side, the Court has to narrate the following aspects: It is an admitted fact that P.W.1, viz., Selvi is the legally wedded wife of the second accused and both of them have been blessed with two children, namely Mallika and Esthak. It is also equally an admitted fact that at the time of the occurrence, the deceased, P.W.2 and both the accused have resided together in the house where the said occurrence is said to have taken place. 14.

On the side of the prosecution, the neighbours have been examined as P.Ws.3 and 4 and both of them have given evidence to the effect that on the date of the occurrence, the deceased has resided along with the accused.

15.

The specific case of the prosecution is that on the date of occurrence, the first accused has jugulated the deceased by using a belt and due to that, death has occurred.

16.

As stated earlier, the brother of the deceased (P.W.2) has given specific evidence to the effect that at the time of the occurrence, the first accused has jugulated his sister by using a belt and due to that, she passed away.

17.

In fact, P.Ws.1 and 2 have been initially examined on 1806-2007 and both of them have supported the case of the prosecution and after a lapse of nine years, on 05-04-2016, they have been recalled and cross-examined and in their further cross-examination, they supported the case of the defence and due to that, they have been treated as hostile witnesses.

18.

Considering the fact that initially P.Ws.1 and 2 have been examined on 18-06-2007 and after a lapse of 9 years, they have been recalled and cross-examined and as per the dictum given by the Honourable Supreme Court, the evidence given by them on 05-04-2016 cannot be relied upon and the same is liable to be eschewed.

19. It has already been pointed out that P.W.1 has spoken about the strained relationship between her and second accused. Further, she adduced evidence to the effect that on the date of the

occurrence P.W.2 and deceased have resided together with the accused. Apart from her evidence, the specific evidence given by P.W.2 is that at the time of the occurrence, the first accused has jugulated his sister by using a belt and due to that, she passed away.

20.

It is true that P.W.2 is a minor witness and his evidence has to be scrutinised very carefully, and in fact, this Court has closely scrutinised the evidence given by P.W.2 and ultimately found that this testimony is not suffering from any infirmity and the same can be a basis for coming to a conclusion that the first accused has committed murder.

21.

The defence put forth on the side of the appellant/first accused is that the deceased has suffered from epilepsy and even on the date of occurrence, she has been attacked by the said disease and due to that, she has been taken to the hospital and the same has been spoken by P.W.6 and further, in Ex-P4, Post-mortem Report, no opinion has been mentioned with regard to cause of death. 22.

It is true that P.W.6 has spoken about the alleged fact that the deceased has been taken to hospital. Further, P.W.6 does not say that only due to epilepsy, the deceased has been taken to hospital. In Ex.P.4, Postmortem Report, it has been clearly stated to the effect that the dead body has reached advanced decomposition and due to that, opinion with regard to cause of death cannot be given. Considering the fact that no specific opinion has been given by the Doctor, who conducted autopsy on the body of the deceased, the Court cannot automatically come to a conclusion that the death has occured due to attack of epilepsy.

23. Even at the risk of repetition, the Court would like to point out that P.W.2 has given uncontroverted evidence to the effect that on the date of occurrence, the first accused has jugulated the deceased by using a belt. It is true that P.W.2 is the only eye witness. Even though P.W.2 is the only eye witness, his evidence cannot be eschewed merely on the ground that there is no corroborative evidence and also on the ground of relationship. As stated earlier, P.W.2 has given a clear evidence with regard to factum of occurrence and his evidence is sufficient to invite convictions and sentences against the appellant/first accused. 24.

The Trial Court, after pondering both the oral and documentary evidence, has rightly found the appellant/first accused guilty under Sections 302 and 201 of the Indian Penal Code. In view of the discussions made earlier, this Court has not found any acceptable force in the contentions put forth on the side of the appellant/first accused and altogether, the present Criminal Appeal deserves to be dismissed.

In fine, this Criminal Appeal is dismissed. The conviction and sentences passed in Sessions Case No.4 of 2016 against the appellant/first accused by the trial court are confirmed. The connected miscellaneous petition is also dismissed. glp/ajr Sd/- Assistant Registrar (CS- ) /TRUE COPY/ Sub-Assistant Registrar To 1.The Judicial Magistrate, No.I, Poonamallee. 2.The Chief Judicial Magistrate, Tiruvallur 3.The District and Sessions Court No.II, Kancheepuram 4.The Principal Sessions Judge, Kancheepuram 5.The Public Prosecutor, High Court, Madras 6.The Director General of Police, Mylopore, Chennai 7.The Superiendent, Special Prison for Women, Puzhal, Chennai 8.The Superiendent of Police, Kancheepuram 9.The Inspector of Police, Maangadu Police Station, Kancheepuram +1 CC Mr. R. Ezhilarasan Advocate SR.No.67975 Criminal Appeal No.686 of 2016 and Crl.M.P.No.9700 of 2016 CA [CO] MSI 02/01/2017