Madras High Court
Magudeeswaran vs State Represented By on 26 August, 2021
Criminal Appeal No.406 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.08.2021
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MS. JUSTICE R.N.MANJULA
Criminal Appeal No.406 of 2018
Magudeeswaran
S/o.Nataraj .. Appellant
Vs.
State represented by
The Inspector of Police,
Thudiyalur Police Station,
Coimbatore District. .. Respondent
Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure
against the judgment and order dated 06.04.2017 passed in S.C.No.149 of
2015 on the file of learned Sessions Judge, Magalir Neethimandram (Mahila
Court), Coimbatore.
For Appellant : Mr.S.Kumara Devan
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
*****
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Criminal Appeal No.406 of 2018
JUDGMENT
[Judgment of the Court was delivered by P.N.PRAKASH, J]
This criminal appeal is directed against the judgment and order of
conviction and sentence dated 06.04.2017 passed by the learned Sessions
Judge, Magalir Neethimandram (Mahila Court), Coimbatore, in S.C.No.149
of 2015.
2. The prosecution story runs thus:
2.1. The appellant was married to Anushiyadevi (deceased) and they
were blessed with a girl child, who was around 2 years old at the time of the
incident. The appellant was running a saloon and the family was residing in
a portion of the house bearing door no.21-A, Nehru Street, J.J.Nagar,
Thudiyalur, which belonged to Ashokan [PW-2], who was residing in the
same address, of course, in another portion.
2.2. The appellant was addicted to liquor, on account of which, there
used to be frequent quarrels between the couple. While so, on 16.01.2015
(auspicious Pongal day), the appellant came drunk to his house around 2.30
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Criminal Appeal No.406 of 2018
a.m. and knocked the door. After a little while, his wife Anushiyadevi opened
the door and when she questioned him as to why he had taken liquor even
on the auspicious day, he quarrelled with her. As the altercation between
them reached a certain level, the child started yelling. It is alleged that the
appellant took his belt, whipped his wife and thereafter, strangulated her, on
account of which, she died. On hearing the loud cries of the child, Ashokan
[PW-2] and Nagarathinam [PW-3], a neighbour, came to the appellant's
portion and through the window, Ashokan [PW-2] is said to have seen the
occurrence. When Ashokan [PW-2] banged the door, the appellant opened it
and ran away with the belt. Immediately, Ashokan [PW-2] informed the
father of the appellant and father of Anushiyadevi over phone, after which
the family members assembled there. 108 ambulance was summoned and
the ambulance personnel examined the body of Anushiyadevi and declared
that she was dead.
2.3. On a complaint scribed by Ashokan [PW-2] and given by
Anbalagan [PW-1], father of Anushiyadevi, in his name, Miadit Mano [PW-
11], Sub-Inspector of Police, registered a case in Thudiyalur P.S.Crime
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Criminal Appeal No.406 of 2018
No.25/2015 on 16.01.2015 for an offence u/s.302 IPC against the appellant
and prepared the printed First Information Report [Ex.P11], which reached
the jurisdictional Magistrate at 12.30 noon on the same day, as could be
seen from the endorsement thereon.
2.4. The investigation of the case was taken over by Saravanan [PW-
12], Inspector of Police, who went to the place of occurrence and prepared
the observation mahazar [Ex.P6] and rough sketch [Ex.P12] in the presence
of witnesses Ravi [PW-9] and one Krishnasamy (not examined). The
Investigating Officer [PW-12] conducted inquest over the body of
Anushiyadevi and the inquest report was marked as Ex.P13. The body was
sent to the Government Hospital, Coimbatore, for postmortem, where
Dr.Jeyasingh [PW-10] conducted autopsy and issued the postmortem
certificate [Ex.P8], wherein, he had noted as follows:
'The following ante mortem injuries noted over the body:
1) Reddish abrasion 1x1 cm, 1x1 cm noted over back of right
elbow, 1x1 cm noted over right knee, 1x1 cm noted over
left side wrist and 1x1 cm noted over centre of upper lip.
2) Multiple scratch marks of varying sizes and shapes noted
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Criminal Appeal No.406 of 2018
over front and right side of the neck.
3) A faint incomplete transverse ligature pressure abrasion
mark measuring 22x3 to 4 cm noted on upper part of the
neck in its front and side.
The anatomical landmarks of the ligature abrasion marks
are
- 4 cm below to right ear lobe,
- 6 cm below to chin
- 4 cm below to left ear lobe
4) Another deep incomplete transverse ligature pressure
mark measuring 20x3 to 4 cm noted over lower part of the
neck in its front and side. The lower margin 3 cm from the
supra sternal notch.
On bloodless dissection of neck:- The base of ligature
mark is intermediately bruised. Reddish contusion 6x4 cm
noted over right side neck muscle and 5x3 cm noted over
left side of neck muscle. Thyroid cartilage found fractured
in its middle with surrounding tissue reddish contusion.
Left side greater cornu of hyoid bone found fractured with
surrounding tissue reddish contusion.
OTHER FINDINGS:
- Peritoneal and Pleural cavities – empty.
- Heart – right side chambers contain about few cc of fluid
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Criminal Appeal No.406 of 2018
blood and left side chambers empty.
- Coronaries – patent.
- Stomach contains about 10 ml of mucous fluid, no
specific smell, mucosa congested.
- Small Intestine contains about 10 ml of bile stained fluid,
no specific smell, mucosa congested.
- Liver, Spleen, Kidneys, Lungs and Brain – cut section
congested.
- Urinary bladder – empty.
- Uterus: Normal in size, cut section empty
- Viscera preserved and sent for chemical analysis
OPINION: The deceased would appear to have died of
Asphyxia due to EXTERNAL VIOLENT COMPRESSION OF
THE NECK by LIGATURE MATERIAL (STRANGULATION).
The death would have occurred 12 to 24 hours prior to
autopsy.'
2.5. After getting the viscera report [Ex.P9], Dr.Jeyasingh [PW-10]
gave his final opinion under Ex.P10, wherein, he has opined as follows:
'OPINION: As to cause of death is already given in
Postmortem Certificate. Viscera does not contain any poison'
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Criminal Appeal No.406 of 2018
2.6. It appears that the appellant surrendered before Anandakumar
[PW-8], the Village Administrative Officer, on 16.01.2015 at 03.00 p.m. and
gave an extra judicial confession [Ex.P2], wherein, he confessed to the fact
that his wife resented to his drinking habits; he came drunk in the early
hours of 16.01.2015; his wife did not open the door immediately and only
after repeated banging of the door, she opened it; after opening the door, she
upbraided him for having drunk even on the auspicious day (Pongal), which
infuriated him further; they quarrelled for sometime and thereafter, he
removed his belt and put it around her neck and strangulated her; she fell
down; at that time, his house owner Ashokan [PW-2] and Nagarathinam
[PW-3], a neighbour, came running and saw the occurrence; thereafter, he
ran away fearing the police and hence, he has appeared before him [V.A.O]
for surrendering.
2.7. After recording the extra judicial confession [Ex.P2],
Anandakumar [PW-8], V.A.O., produced the appellant with a special report
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[Ex.P3] to the Investigating Officer [PW-12] on the same day, pursuant to
which, the appellant was placed under arrest at 4.15 p.m. Thereafter, the
Investigating Officer [PW-12] interrogated the appellant and recorded his
confession and based on the disclosure made by the appellant, the
Investigating Officer [PW-12] seized the belt [MO-1] from the house of
appellant's father under the cover of a mahazar [Ex.P5] in the presence of
witnesses Anandakumar [PW-8] and Murugan (not examined).
2.8. After examining various witnesses and collecting the reports of
the experts, the Investigating Officer [PW-12] completed the investigation
and filed a final report in P.R.C.No.2 of 2015 in the Court of the Judicial
Magistrate I, Coimbatore, for the offence u/s.302 IPC against the appellant.
2.9. On appearance of the appellant, the provisions of Section 207
Cr.P.C. were complied with and the case was committed to the Court of
Session in S.C.No.149 of 2015 and was made over to the Mahila Court
(Sessions level), Coimbatore, for trial.
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Criminal Appeal No.406 of 2018
2.10. The trial Court framed charges u/s.302 IPC against the
appellant and when questioned, the appellant pleaded 'not guilty'.
2.11. To prove the case, the prosecution examined 12 witnesses and
marked 16 exhibits and 2 material objects. When the appellant was
questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing
against him, he denied the same. No witness was examined from the side of
the appellant, however Exs.D1 to D4, photographs showing the house of the
appellant from various angles, were marked through the prosecution.
2.12. After considering the evidence on record and hearing either side,
the trial Court, by judgment and order dated 06.04.2017 in S.C.No.149 of
2015, convicted and sentenced the appellant as follows :
Provision under Sentence
which convicted
Section 302 IPC Life imprisonment and fine of Rs.5,000/-, in
default, to undergo three months rigorous
imprisonment.
2.13. Challenging the aforesaid conviction and sentence, the accused
is before this Court in this appeal.
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Criminal Appeal No.406 of 2018
3. Heard Mr.S.Kumara Devan, learned counsel for the appellant and
Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, appearing
for the respondent State.
4. The prosecution has proved the following facts beyond a
peradventure:
(i) the appellant and his wife Anushiyadevi were living with their two year
old child in a portion in door no.21-A, Nehru Street, J.J.Nagar,
Thudiyalur;
(ii)the appellant was running a saloon;
(iii)the portion in which the appellant was living belonged to Ashokan [PW-
2], who was residing in another portion of the same house;
(iv)Anushiyadevi, wife of the appellant, was found dead in the morning of
16.01.2015 in the house of the appellant and the death was not suicide
but a homicide.
5. The short question is whether the appellant was the perpetrator of
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the offence.
6. The entire case rests on the evidences of Ashokan [PW-2] and
Nagarathinam [PW-3] and the appellant's extra judicial confession [Ex.P2].
7. Ashokan [PW-2], in his evidence, has stated that he is the owner of
the portion, in which the appellant and his wife were residing; he was
residing with his family in another portion; the appellant had taken a vow on
a pilgrimage to Manthralayam that he will not drink; after completion of the
pilgrimage, he continued his drinking habit, which was the cause of the
quarrel between the appellant and Anushiyadevi; the appellant was running
a saloon in the area; during the Pongal festival, on 16.01.2015, between 2.30
and 3.00 a.m., the appellant came to his house and was banging the door for
his wife to open; the appellant's child was yelling and this attracted the
attention of his (PW-2's) mother, who was living with him; his mother woke
him up and asked him to find out as to what was happening in the
appellant's house; similarly, Nagarathinam [PW-3], a neighbour, also heard
the cries of the child and she also came near the appellant's house; when he
[PW-2] went to appellant's portion, suddenly, the yelling of the child
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Criminal Appeal No.406 of 2018
stopped; so, he knocked the door of the appellant's house, but, no one
opened; therefore, he peeped through a window of the house and saw the
appellant standing with a belt in his hand; seeing him, he [PW-2] shouted at
him and asked him to open the door; the appellant opened the door and ran
away with the belt; thereafter, he went inside the house and saw
Anushiyadevi lying motionless; he informed this to the appellant's father as
well to Anushiyadevi's parents; he also called 108 ambulance; the ambulance
personnel examined Anushiyadevi and declared her as dead; after
Anushiyadevi's father Anbalagan [PW-1] came, he went along with him and
lodged a complaint to the police; he also identified the belt [MO-1].
8. Similar is the evidence of Nagarathinam [PW-3], who, by and large,
has corroborated the testimony of Ashokan [PW-2]. Ashokan [PW-2] and
Nagarathinam [PW-3] were subjected to grilling cross-examination by the
defence, but to no avail. Ashokan [PW-2] was cross-examined on two dates
viz., 03.02.2016 and 22.12.2016 and through him, the photographs of
appellant's house were marked as defence exhibits. Even in the cross-
examination, Ashokan [PW-2] has clearly stated that there is a window on
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Criminal Appeal No.406 of 2018
the lateral wall of the house, through which, he had seen the appellant
standing with the belt near Anushiyadevi.
9. We find that the testimonies of Ashokan [PW-2] and Nagarathinam
[PW-3] are natural and they had no reasons to falsely implicate the
appellant. That apart, the extra judicial confession [Ex.P2] that was given by
the appellant to Anandakumar [PW-8] is relevant as against the appellant.
That apart, in the house of the appellant, there were only three persons, viz.,
the appellant, his wife Anushiyadevi and their two year old child. Of the
three, Anushiyadevi was found dead in the house at the early hours of
16.01.2015. No one can possibly say that she was done to death by the
child. Therefore, the only other person, who could explain the circumstances
under which Anushiyadevi died, was the appellant.
10. The onus u/s.106 of the Indian Evidence Act is on the appellant to
speak about the facts that were exclusively to his knowledge. Even in the
questioning u/s.313 Cr.P.C., the appellant had not given any explanation as
to how his wife Anushiyadevi was found dead in his house. Therefore, we
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are of the view that the prosecution has proved the facts in issue beyond
reasonable doubt. However, we find that the death was not caused by any
premeditated act of the appellant. No doubt, it is true that the appellant came
drunk, on account of which, a quarrel ensued. The evidences of Ashokan
[PW-2] and Nagarathinam [PW-3] are that they were quarrelling for a long
time, on account of which, the child started crying. The appellant had not
carried with him any deadly weapon like knife, etc. for causing the death of
his wife. He appears to have taken out his belt and strangulated her in a fit
of fury. Therefore, the proved facts may not attract commission of an offence
u/s.302 IPC but, they would attract an offence u/s.304(I) IPC.
11. For the foregoing reasons, the conviction and sentence imposed on
the appellant for the offence u/s.302 IPC are set aside. Instead, the appellant
is convicted u/s.304(I) IPC and sentenced to ten years rigorous
imprisonment and fine of Rs.5,000/-, in default to undergo three months
rigorous imprisonment. If the fine amount has already been paid pursuant to
the judgment and order of the trial Court, it is not necessary for the appellant
to pay once again. Period of incarceration thus far undergone by the
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appellant shall be set off in keeping with Section 428 Cr.P.C.
In the result, the Criminal Appeal is partly allowed.
[P.N.P., J] [R.N.M., J]
26.08.2021
Index: Yes/No
gm
To
1.The Sessions Judge,
Magalir Neethimandram (Mahila Court),
Coimbatore.
2.The Inspector of Police,
Thudiyalur Police Station,
Coimbatore District.
3.The Superintendent,
Central Prison,
Coimbatore.
4.The Public Prosecutor,
High Court, Madras.
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Criminal Appeal No.406 of 2018
P.N.PRAKASH, J
and
R.N.MANJULA, J
gm
Criminal Appeal No.406 of 2018
26.08.2021
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