Madras High Court

Kamatchi vs The State Rep. By Its on 10 February, 2025

                                                                                  Crl.A.No.132 of 2023



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              RESERVED ON : 27.01.2025

                                            PRONOUNCED ON : 10.02.2025

                                                        CORAM :

                                    THE HON'BLE MR. JUSTICE SUNDER MOHAN
                                                   Crl.A.No.132 of 2023
                Kamatchi                            ... Appellant/Sole Accused

                                                            v.

                The State Rep. by its,
                Inspector of Police,
                Arcot Taluk Police Circle,
                Walajapet Police Station,
                Ranipet District,
                Vellore District.
                (Crime No.751/2017)                 ... Respondent/Complainant

                Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure, 1973,
                against the conviction of the appellant/sole accused and sentence in S.C.No.139 of
                2018 dated 24.01.2023 on the file of the learned II Additional District and
                Sessions Judge, Vellore District @ Ranipet, Ranipet District and set aside the
                conviction and sentence and allow this appeal.

                                  For Appellant     : Mr.E.Kannadasan

                                  For Respondent    : Dr.C.E.Pratap


                                                             1


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                                                                                        Crl.A.No.132 of 2023



                                              Government Advocate (Crl.Side)

                                                   JUDGMENT

This Criminal Appeal has been filed by the sole accused, challenging the

conviction and sentence imposed upon her, vide judgment dated 24.01.2023 in

S.C.No.139 of 2018, on the file of the learned II Additional District and Sessions

Judge, Vellore District @ Ranipet, Ranipet District.

2. (i) It is the case of the prosecution that the appellant was the wife of the

deceased; that on 23.12.2017 at about 6.30 p.m., there was an altercation between

the appellant and the deceased at their house, pursuant to which, the appellant had

attacked the deceased with hands, pushed him by the neck scratched him with

nails and caused injuries; that to cause the death of the deceased, the appellant

took the boiling hot water from the gas stove and poured it on the shoulder, chest,

stomach, neck, face and the private part of the deceased, as a result of which, he

died due to 'Neurogenic shock'.

(ii) On the complaint given by the brother of the deceased [PW1] at 3.30

a.m., on 24.12.2017, a case was registered in Cr.No.751 of 2017 for the offence

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under Section 302 of the IPC, against the appellant. The defacto complainant

[PW1] had stated that his mother PW2 informed him that the appellant had poured

hot water on the deceased, which caused his death; and that there was a scuffle

between the appellant and the deceased prior to the occurrence.

(iii) PW15, the Sub-Inspector of Police, after registration of the FIR handed

over the investigation to PW16. PW16, prepared the Rough Sketch [Ex.P10] and

the Observation Mahazar [Ex.P2], conducted inquest in the presence of

panchayatars, prepared the inquest report [Ex.P11] and thereafter, sent the body

for postmortem, which was conducted by the Doctor [PW13], who had issued the

postmortem certificate [Ex.P8]. PW16 arrested the accused and on her confession

seized M.O.1 and M.O.2, the vessel and the cloth used for taking the vessel in

which the hot water was kept. After the examination of all other witnesses, PW16

filed a final report against the appellant/accused for the offence under Section 302

of the IPC before the learned Judicial Magistrate No.2, Wallajahpet.

(iv) On the appearance of the appellant, the provisions of Section 207

Cr.P.C., were complied with, and was committed to the Court of Sessions i.e.,

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Principal District and Sessions Court, Vellore. The case was taken on file as

S.C.No.139 of 2018 and was made over to the learned II Additional District and

Sessions Judge, Vellore District @ Ranipet, Ranipet District, for trial. The trial

Court framed charge against the appellant/accused for the offence under Section

302 of the IPC and when questioned, the accused pleaded 'not guilty'.

(v) To prove the case, the prosecution examined 16 witnesses as P.W.1 to

P.W.16 and marked 12 exhibits as Exs.P1 to Ex.P12. When the accused was

questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against

her, she denied the same. The accused neither examined any witness nor marked

any document on her side.

(vi) On appreciation of oral and documentary evidence, the trial Court found

that the appellant/accused was not guilty of the offence under Section 302 of the

IPC, but convicted her for the offence under Section 304(II) of the IPC and

sentenced her to undergo rigorous imprisonment for five years and to pay a fine of

Rs.5,000/-, in default to undergo simple imprisonment for six months. Hence, the

accused has preferred the appeal challenging the said conviction and sentence.

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3. Heard, Mr.E.Kannadasan, learned counsel appearing for the appellant,

and Dr.C.E.Pratap, learned Government Advocate (Crl.Side), appearing for the

respondent/State.

4. (i) The learned counsel for the appellant would submit that the evidence

of the witnesses PW2, PW3 and PW5, to whom the deceased is said to have given

a dying declaration does not inspire confidence; that none of them had spoken

about the said dying declaration in their earliest version before the police; and that

PW2, the mother of the deceased, who had informed PW1 about the occurrence

had deposed contrary to what she had told PW1.

(ii) The learned counsel further pointed out that the complaint was lodged

belatedly, at the instance of PW8; and that neither PW1 nor PW2 intended to

lodge a complaint and in fact had kept the body of the deceased in a freezer and

the police took the body only from the freezer, as could be seen from the evidence

of PW16 and considering the infirmities in the evidence, he prayed for acquittal of

the appellant.

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5. The learned Government Advocate (Crl. Side) appearing for the

respondent per contra submitted that the evidence of PW2, the mother of the

deceased is consistent and it was only on her information, PW1 had lodged the

complaint; that the version of the witnesses is consistent throughout and nothing

has been elicited in the cross-examination to discredit their testimony; and

therefore, submitted that the trial Court had rightly convicted the appellant for the

offence under Section 304 (II) of the IPC and prayed for dismissal of the appeal.

6. Considered the rival submissions and perused all the relevant records.

7. As stated earlier, the prosecution had examined 16 witnesses. PW1, is the

defacto complainant and the brother of the deceased; PW2 is the mother of the

deceased; PW3 and PW4, are the sisters of the deceased; PW5, is the son of the

deceased; PW6 is the neighbour and is a hearsay witness, who had attested the

observation mahazar [Ex.P2]; PW7 is the Village Administrative Officer, who

speaks about the arrest and confession of the appellant; PW8 is the brother-in-law

of the deceased and on coming to know of the occurrence, he had instructed PW1

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to lodge a complaint; PW9 is the doctor, who had opined that the hyoid bone was

intact and issued certificate [Ex.P5]; PW10 is forensic science expert and had

issued viscera report [Ex.P6] stating that the internal organs of the deceased did

not contain poison; PW11 is the Constable, who assisted in the investigation;

PW12, is the neighbour, who was examined to prove the motive, turned hostile;

PW13 is the Doctor who conducted the postmortem and issued postmortem

certificate [Ex.P8]; PW15 is the Sub Inspector of Police, who registered the FIR

[Ex.9]; and PW16 is the Inspector of Police, who conducted the investigation.

8. From the above narration, it would be seen that the prosecution case rests

on the evidence of PW1 to PW5 and that of PW8 to prove the occurrence.

(i) PW5 is son of the deceased. According to him, on 23.12.2017 at about

7.00 p.m, when he returned to his grandmother's house, where his father / the

deceased was residing, he saw that his father had boils all over his body from the

neck to the thighs; that his father told him that the appellant had poured hot water.

So, even according to PW5, he is not a witness to the occurrence. He deposed in

the cross-examination that they did not choose to give a complaint until PW8

asked them to lodge a complaint.

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(ii) Be that as it may. PW4 is the sister of the deceased, who came to know

of the occurrence and she is a hearsay witness. PW3 another sister of the deceased

was also his neighbour. PW3 would also state that on hearing a sound in the

house, she came to the house of her brother, the deceased, who told her that the

appellant had poured hot water on his body and hence, he had poured cold water

on himself, as he had a burning sensation.

(iii) PW2, is the mother of the deceased, who claims to be an eyewitness.

She deposed that there was a wordy altercation between the deceased and the

appellant; that the appellant poured hot water on the deceased; and that the

deceased came out of the house shouting that the appellant had poured hot water

on him.

(iv) PW1 is the defacto complainant and the brother of the deceased, who

lodged a complaint on the information given by PW5 and PW2.

9. The above evidence therefore would show that the prosecution had

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established the fact that the deceased died due to the act of the appellant in

pouring hot water on the deceased. Though, the conduct of the witnesses in

keeping the body of a deceased in a freezer, without lodging a complaint is

strange, but, that alone would be insufficient to discredit their testimony.

10. However, the witnesses have all admitted that there was a scuffle

between the appellant and the deceased prior to the occurrence. PW1 in his

deposition in this regard would state as follows:

“//// mjw;F vd; mk;kh khiy 6 kzpastpy; vd; mz;zd; kw;Wk; mz;zpf;F jfuhW ele;jJ vd;W brhd;dhu;/”

11. PW3 the sister of the accused had stated that she could hear that her

brother (deceased) and the appellant was fighting with each other prior to the

occurrence. The relevant portion reads as follows:

“//// fle;j 23/12/2017 md;W vjphpa[k; vd; mz;zDk; FoapUe;j tPl;ow;F gf;fj;J tPl;oy; eh';fs; FoapUe;njhk;/ mg;nghJ

vd; mz;zDk;. mz;zpa[k; rj;jk; nghl;Lbfhz;oUe;jhu;fs;/”

12. The complaint given by PW1 also corroborates his version that the

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appellant and the deceased were involved in fisticuffs prior to the occurrence.

PW2, the mother of the deceased had admitted that the relationship between the

deceased and the appellant was estranged and there were constant fights between

the two of them, since the deceased had brought a lady with two children to the

house and had illicit relationship with her. The relevant portion reads as follows:

“//// vd; kfd; ghy; tpahghuk; bra;a[k; nghJ xU jpUkzkhd bgz;iz 2 FHe;ijfSld; tPlL ; f;F Tl;o te;Jtpl;lhh; vd;why;

rhpjhd;/”

13. Thus, the evidence of witnesses would clearly indicate that the appellant

had not acted in a premeditated manner. The Division Bench of this Court in

Ganesan and another, v. State through The Inspector of Police, reported in

2024-2 L.W. (Crl.) 231, while confirming the earlier judgment in Selvam v. State,

reported in 2023-2-LW (Crl.) 721 = 2024 SCC Online (Mad) 1804, held that a

portion of the confession, which is in favour of the accused can be relied upon.

14. It is stated in the confession of the accused/appellant that prior to the

occurrence, a wordy altercation took place; that the deceased attacked the

appellant with hands and the appellant in turn pushed the deceased and thereafter,

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the deceased continuously attacked the appellant; and that the appellant

apprehending that if the deceased is alive, would cause the death of the appellant,

poured hot water on the deceased. This portion of the confession is consistent with

the other evidence on record. Therefore, this Court is of the view that, that portion

of the confession can be taken into consideration for the purpose of determining

the offence committed by the appellant. The confession and the other evidence on

record would therefore, suggest that the appellant had in fact only exercised a right

of private defence. Here the appellant believing in good faith that she can by no

other means prevent the deceased from attacking her had committed the act.

However, the nature of the evidence would suggest that the act of the appellant

would not fall within the general exceptions as it does not satisfy the requirements

under Section 100 of the IPC, but it would certainly fall under Exception 2 to

Section 300 of the IPC, as she had exceeded her right of private defence.

Exception 2 to Section 300 of the IPC, reads as follows:

Exception 2

Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is

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necessary for the purpose of such defence.

Illustrations

1. Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

15. Therefore, this Court is of the view that the trial Court was right in

convicting the appellant for the offence under Section 304(II) of the IPC though

for different reasons.

16. The appellant was in custody for about four months, both during

investigation and after conviction until the sentence imposed upon the appellant

was suspended by this Court by order dated 09.03.2023 in Crl.M.P.No.1764 of

2023. Further, the appellant was directed to pay a fine of Rs.5,000/- in the trial

Court and the appellant has already paid the said amount on 24.01.2023.

17. Considering the nature of the offence, the circumstances under which

the offence was committed, the appellant had exercised her right of private

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defence and had marginally exceeded the said right and in the facts and

circumstances, this Court is of the view that the sentence imposed on the appellant

can be reduced to the period already undergone. Accordingly, it is ordered as

follows:

(i)The conviction of the appellant/accused for the offence under

Section 304(II) of the IPC, is confirmed;

(ii)The sentence imposed on the appellant/accused for the offence

under Section 304(II) of the IPC, is reduced to the period already

undergone and to pay a fine of Rs.5,000/- in default to undergo

simple imprisonment for a period of six months; and