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it is a settled law, a portion of the statement made by an accused under Section 313 of the Code of Criminal Procedure cannot be made use of against the accused either it should be accepted in toto or it should be rejected in toto.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

English: Chennai high court view taken by myse...

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DATED: 22/12/2011

CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRIMINAL APPEAL (MD).No.378 of 2010

Senthilkumar … Appellant

Vs.

The State, rep by
The Inspector of Police,
K.K.Nagar Police Station,
Trichirappalli District,
Crime No.130 of 2002. … Respondent

PRAYER

Appeal is filed under Section 374 of the Code of Criminal Procedure to
set aside the Judgment and conviction passed by the learned Sessions Judge
(Mahila Court), Trichy, in S.C.No.147 of 2003, dated 07.10.2010 and acquit the
appellant herein.

!For Appellant … Mr.S.Ashokkumar
Senior Counsel
For Mr.N.Anandkumar
^For Respondent … Mr.C.Ramesh
Additional Public Prosecutor

:JUDGMENT
*************

S.NAGAMUTHU, J.

The appellant is the sole accused in S.C.No.147 of 2003, on the file of
the learned Sessions Judge (Mahila Court), Trichy. By Judgment dated 07.10.2010,
the learned Sessions Judge has sentenced him to undergo imprisonment for life
and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for
six months. Challenging the said conviction and sentence, the appellant is
before this Court with this Criminal Appeal.

2. The case of the prosecution, in brief, is as follows:-
The deceased, in this case, was one Balasundari. PW-1, PW-2 and PW-3 are
the brother, father and mother respectively of the deceased. PW-1 to PW-3 are
the residence of Kamarajapuram. During the year 1998, the accused was working on
temporary basis as a Security in BHEL. During that time, he got introduced to
the deceased and ultimately, they had fallen in love with each other.
Thereafter, the accused married the deceased in the year 1998 itself. After one
year of the said marriage, the accused was recruited as a Police Constable. Out
of the wedlock, they have got a female child. For about two years after the
marriage, they were living together happily. But, as the time progressed, the
accused started ill-treating the deceased demanding dowry, which resulted in
frequent quarrel between them. On so many occasions, the deceased had come to
her parents’ home. On all such occasions, the parents of the deceased persuaded
her and sent her back to her matrimonial home. After 2+ years of the marriage,
the deceased consumed sleeping tablets in an attempt to commit suicide. The said
attempt was due to the intolerable torture at the hands of the accused. After
the treatment, the deceased preferred a complaint against the accused at
K.K.Nagar Police Station. After the said incident, the deceased staying with her
parents.

3. One Mr.Senbagaraman, I.P.S., was the Superior Police of the accused. He
called the accused and the deceased with their respective family members,
persuaded them, compromise the matrimonial dispute and made them to live
together. From that onwards, the accused and the deceased along with her child
was living at D-2 Police Quarters. PW-5 to PW-8 are his neighbours. PW-1 and PW-
3 used to visit frequently the house of the accused. On 04.05.2002, PW-1 and PW-
3, as usual, visited the house of the deceased. In the evening, PW-3 left for
her house. PW-1 alone stayed back at the house of the accused. At about 09.30
PM, the accused returned from duty. The deceased and the accused went to bed in
the room of the house around 10.00 PM. PW-1 and the daughter of the deceased
were in the hall of the house, studying. At about 10.30 PM, PW-1 heard the hue
and cry of the deceased. PW-1 attempted to open the door of the room, where the
deceased and the accused were sleeping. But, the door was bolted from inside.
PW-1 opened the door by force. At that time, he found the accused cutting the
neck of the deceased by holding her mouth with left hand. On seeing PW-1, the
accused pushed him apart and ran away. The deceased died instantaneously. Then,
taking the child with him, PW-1 proceeded to the K.K.Nagar Police Station and
preferred a complaint – EX-P-1.

4. PW-19, the then Sub – Inspector of Police, attached to the K.K.Nagar
Police Station, received the complaint from PW-1 at 11.30 PM and registered a
case in Crime No.130 of 2002, under Sections 498(A) and 302 of the Indian Penal
Code. EX-P21 is the First Information Report. Then, he forwarded the First
Information Report and the complaint to Court, which were received by the
learned Judicial Magistrate at 06.30 PM, on 05.05.2002, at his residence. Then,
he handed over the case diary to PW-22 for investigation.

5. Taking up the case for investigation, PW-22 proceeded to the place of
occurrence and prepared an Observation Mahazar – EX-P7 in the presence of PW-9
and another witness. He prepared a Rough Sketch – EX-P22. He recovered
bloodstained earth and sample earth from the place of occurrence under EX-P8.
Then, he examined PW-1 to PW-8 and recorded their statements. On 05.05.2002, at
04.00 PM, he arrested the accused near Saranathan Engineering College on the
Madurai Road in the presence of PW-10 and another witness. On such arrest, he
gave a voluntary confession statement, in which he had disclosed that he would
identify the place, where he had hidden the knife. In pursuance of the said
disclosure statement, he took PW-22 and the witnesses to Tiruchi Viralimalai
Road Junction and produced the knife in the presence of the very same witness
under a mahazar. PW-22 also made arrangements for photographing the place of
occurrence and the dead body. On 06.05.2002, PW-22 collected the photographs
with negatives. He forwarded all the Material Objects to the Court. He also
forwarded the accused for judicial remand.

6. On a request made by PW-22, PW-11 conducted autopsy on the body of the
deceased. He found the following injuries:-
“1. An oblique incised wound, 3 cm X 1 cm X skin deep on the center of sub
mental region.
2. A transverse incised wound 4 cm X 1 cm muscle deep, on the right side
of sub mental region.
3. A transverse incised wound 9 cm X 3 cm X 1 cm of wind pipe deep, on
the front of neck, below the level of thyroid cartilage. O/E.the underlying
structures are clean out.
4. A transverse incised wound, 3 cm X 1.5 cm X muscle deep, on the front
of midline of neck, 1.5 cm below the wound No.3
5. A oblique incised would 2 cm X 1 cm x muscle deep, on the right side of
neck, 2 cm away from the wound No.4.
6. A transverse incised wound 1 cm X 0.5 cm X skin deep, on the front of
the lower part of midline on of neck.
7. An oblique incised wound 2 cm X 1 cm cavity deep, on the side aspect of
right side of chest, in the 2nd intercostal space along the mid axillary line.
O/E the upper inner end is curved and lower outer end is sharp. The edges are
clean out.
8. Three incised wounds ranging from 1.5 cm – 2 cm X 0.5 cm – 1 cm X
muscle deep on the front of right shoulder are vertically oblique in direction
placed at varying distances on an area of 8 cm X 5 cm.
9. An oblique incised wound 5 cm X 3 cm X muscle deep on the back of
middle third of right arm.
10. A transverse incised wound 2.5 cm X 1.5 cm X muscle deep on the front
of lower third of right forearm.
11. A transverse incised wound 3 cm X 1.5 cm X bone deep on the front of
right wrist.
12. A vertical incised wound 2 cm X 1 cm X muscle deep on the thenar
eminence of right hand.
13. An oblique incised wound 2 cm X 1 cm X bone deep, on the front of
terminal phalanx of right thumb.
14. An oblique incised wound 1.5 cm X 1 cm X bone deep on the front of
middle phalanx of right middle finger.
15. A oblique incised wound 5 cm X 2 cm X bone deep, on the back of upper
third of right forearm.
16. An oblique incised wound 3 cm X 2 cm X muscle deep, on the back of
middle third of right forearm.
17. A transverse incised wound 2.5 cm X 1 cm X bone deep on the back of
middle third of right forearm, 2 cm above the wound No.16.
18. An oblique incised wound 2 cm X 1.5 cm X bone deep on the back of
lower third of right forearm.
19. An oblique incised wound 4 cm X 1 cm X bone deep on the back of right
hand.
20. An oblique incised wound 3.5 cm X 0.5 cm X skin deep on the back of
right hand, 1 cm distal to the wound No.19.
21. An oblique incised wound 2 cm X 1 cm X bone deep on the back of outer
aspect of right wrist.
22. Two oblique incised wounds one each on the front of terminal and
middle phalanx of left middle finger, each measuring 3 cm X 1 cm X bone deep.
23. A transverse incised wound 2 cm X 0.5 cm X bone deep front of middle
phalanx of left thumb.
24. A vertical incised wound 3.5 cm X 1 cm X muscle deep on the front of
left elbow.
25. Two parallel incised wounds 7 cm X 1 cm X muscle deep on the inner
aspect of left shoulder.
26. An oblique incised wound 2 cm X 1 cm X muscle deep on the inner aspect
of left shoulder.
27. An oblique incised wound 11 cm X 0.5 cm X skin deep on the front of
left shoulder.
28. An oblique incised wound 2 cm X 1 cm X muscle deep on the back of
lower third of left arm.
29. A vertical incised wound 2.5 cm X 1 cm X muscle deep on the left
buttoch.
30. Four stab wounds each measuring 3 cm X 1.5 cm entering into the
thoracic cavity on the various quadrant of left breast, at varying distances and
directions. O/E: the edges of all the wounds are clean cut. One end of all the
wounds is acute and the other end of the wound is obtuse. The intercostal
muscles, blood vessels nerves and third rib are clean cut.
31. A transverse incised wound 1.5 cm X 1 cm X bone deep on the front of
center of chest, at 4th rib attachment with sternum.
32. A vertical stab wound 3 cm X 1 cm X entering into the cavity on the
front of left side of chest, on the left first intercostals space, 4 cm away
from the midline. O/E: the edges are clean cut, the lower end of the wound is
obtuse and the upper end of the wound is acute. The 1st rib, intercostals
muscles, blood vessels and nerves are clean cut.
33. A transverse incised wound 2.5 cm X 1 cm X muscle deep, on the upper
part of left side of neck.
34. Eight stab wounds, all measuring 3 cm X 1 cm entering into the
cavities on the back of left side of trunk at varying distances, and on varying
directions. O/E: the edges are clean cut, one end of the wound is obtuse and the
other end of the wound is acute. The muscles, blood vessels and nerves and
membranes are clean cut.
35.Three stab wounds, measuring from 2.5 cm – c cm X 1 -2 cm entering into
the cavities on the back of right side of trunk. O/E all the wound are placed at
varying distances and on varying directions. The edges are clean cut one end of
the wound is curved and the other end is acute.
Inter examination:-
Heart- A stab wound, 2 cm X 1 cm X deep to cavity on the left ventricle.
Chambers empty, pericardial fear present. Pericardial cavity contains fluid
blood.
Lungs: Right upper lobe, three stab wounds, ranging from 1X2.5 cm X 0.5 cm
– 1 cm X 0.5 cm lower lobe collapsed. C.S Pale.
Left Lung: Upper Lobe: 2 stab wounds each measuring 2.5 cm X 1 cm X 1.5
cm.
Lower Lobe : 5 stab wounds, each measuring 1.5 cm – 2 cm X 1 cm – 1.5 cm
X 1 cm.
Collapsed C/S Pale.
Thoracic cavity contains fluid blood/Hyoid intact. Pericardial cavity
contains fluid blood.
Hyoid : intact.
Stomach: Full sized cooked rice particles, No specific smell, Mucosa –
pale.
Uterus: Normal in size C/S empty. No foreign body.
Brain: Surface vessels, empty C/S.Petachiae present, CSF – clear;spinal
column and cord intact.
In all the above mentioned wounds, the blood is diffused into the wound [N.C].
They are all antemortem in nature. No other external, internal on bony wound
present.”

Finally, he gave opinion that the deceased died of hypoxia and haemorrhage due
to multiple wounds.

7. Continuing the investigation, PW-22 collected the clothe materials
found on the body of the deceased and forwarded the same to the Court. He also
collected the Post-mortem Certificate and examined the doctor. Then, the
investigation was taken up by PW-23. He examined the Police Officials and the
Doctor and recorded their statements. He gave a request to the learned Judicial
Magistrate [EX-P17] for recording the statements of the witnesses of Sundaram –
PW-1, Mahadevan – PW-2 and Sumathi PW-3 under Section 164 of the Code of
Criminal Procedure. PW-17 recorded their statements, accordingly. On completing
the investigation, he laid charge sheet against the accused under Sections
498(A), 302 r/w 34 of the Indian Penal Code and Section 4 of the Dowry
Prohibition Act, 1961.

8. Based on the above materials, the Trial Court framed as many as two
charges against the accused. The first charge is under Section 498(A) of the
Indian Penal code and under Section 4 of the Dowry Prohibition Act, 1961. The
second charge is under Section 302 of the Indian Penal Code. When the accused
was questioned in respect of the above said charges, he pleaded innocence, and
therefore, he was put on trial. During trial, on the side of the prosecution, as
many as 23 witnesses were examined and 32 documents were exhibited. Out of the
said witnesses, PW-1 is an eye – witness to the occurrence. He has vividly
spoken to about the injuries caused on the deceased by the accused. PW-2 and PW-
3, the parents of the deceased, have spoken to about the motive. PW-4 to PW-8
are the neighbours. PW-5 to PW-7 have turned hostile. They found the police
broke opening the door of the house of the accused by force and entering into
the same. Thereafter, the dead body of the deceased was found inside. PW-10 has
spoken to about the arrest, disclosure statement made by the accused and the
recovery of knife from the possession of the accused. PW-11 has spoken to about
the autopsy conducted by him. PW-16 – Mr.Senbagaraman, I.P.S., has spoken to
about the compromise effected by him between the deceased and the accused. PW-17
has spoken to about the statements of the witnesses recorded under Section 164
of the Code of Criminal Procedure. PW-18 was the Revenue Divisional Officer,
Tiruchirappalli. He has spoken to about the inquest held by him. EX-P19 is the
inquest report submitted by him. The others are the Police Officials.

9. When the accused was questioned under Section 313 of the Code of
Criminal Procedure in respect of incriminating evidences available against him,
he denied the same as false. He has submitted a written statement to the Trial
Court, in which he has stated that PW-1 to PW-3 were giving ill-advise to the
deceased. As a result, there was a misunderstanding between them. He has further
stated that on 27.04.2002, he had gone to Kumbakonam. On 03.05.2002, he returned
to his house. On that day, PW-3 alone came and she returned. At about 09.30 PM,
on the same day, he returned to his house, after making a short visit outside.
At that time, he found the child standing outside the house. The child cried for
banana and biscuits. Therefore, he took the child to the bazaar, got the child
banana and biscuits and he returned to his house with child. At that time, he
found his wife in a pool of blood with injuries on her neck. She was dead. On
seeing her, he was very much shocked. Immediately, he locked the house from
outside and taking the child went to the K.K.Nagar Police Station. Thereafter,
the police got the address of PW-1 to PW-3 from him and informed them over
phone. Subsequently, they rushed to the Police Station, where a false complaint
was preferred by PW-1, upon which the present case has been registered. He has
also denied the discovery of Aruval at his instance. In essence, his defence is
that he was not the assailant and the assailant was not known. On his side, he
has examined as many as three witnesses as DW-1 to DW-3. DW-1 – Johnson, has
stated that around 10.20 PM, on 04.05.2002, he found the accused in the bazaar.
When he enquired him, he told him that since his child cried for banana and
biscuits, he took the child to the bazaar and got the child banana and biscuits.
He had come to know that the deceased was done to death by unknown person and he
had also come to know that the accused was kept in the Police Station.

10. DW-2 – Mr.Poonkunju was working then as Tamil Nadu Special Battalion
Force. He has stated that on 04.05.2002, at 11.00 PM, he heard that the deceased
had been done to death and the accused was in the Police Station. He has further
stated that he went to the Police Station, where he found the accused and the
child. In this regard, according to him, he submitted a report to his Superior.

11. DW-3 – Mr.Senthilkumar was working as a Camp Officer to Commissioner
of Police, Tiruchirappalli. He has stated that on 04.05.2002, at 11.00 PM, he
heard that the accused had gone to K.K. Nagar Police Station, where he found the
accused with his child in the Police Station.

12. Having considered all the above materials, the Trial Court found the
accused guilty under Section 302 of the Indian Penal Code and punished him,
accordingly. That is how, the appellant is now before this Court with this
Criminal Appeal.

13. We have heard the learned Senior Counsel for the appellant, the
learned Additional Public Prosecutor appearing for the State and we have also
perused the records carefully.

14. The first and foremost contention of the learned Senior Counsel
appearing for the appellant is that the evidence of PW-1 cannot be believed, in
view of the evidences of PW-4, PW-6, PW-7 and PW-8. PW-4 is a Police Constable
in the Tamil Nadu Special Police Battalion Force, where the accused was also
working. According to him, on the day of occurrence, when he was returning from
Market, he found the K.K.Nagar Police in front of the house of the accused. He
further found K.K.Nagar Police to break open the lock of the house of the
accused, which was locked from inside. When the door was opened, it was found
that the deceased was found lying in pool of blood with injuries. PW-6 is also
working in the same Battalion. He has also stated that on 04.05.2002, at 10.30
PM, he heard that there was a murder at the house of the accused. Immediately,
he rushed to the house of the accused. At that time, he found that the house of
the accused was locked from outside. The K.K.Nagar Police inspected the house of
the accused, broke open the door of the house and entered into the house of the
accused. PW-7 is an Auto Driver. His wife was a Police Constable during the
relevant time. Thus, he was the neighbour of the accused. He has also stated
that on the crucial date, K.K.Nagar Police broke open the lock of the house of
the accused and then, entered into the house. PW-8 is the wife of PW-7. She has
also turned hostile and she has not stated anything.

15. The learned Senior Counsel appearing for the appellant would submit
that had it been true that PW-1 was present at the time of occurrence, there
would have been no occasion for the police to break open the lock, because,
absolutely, there is no evidence as to who locked the house of the accused. The
accused has stated in his statement under Section 313 of the Code of Criminal
Procedure that it is he, who locked the house. Therefore, according to the
learned Senior Counsel, PW-1 would not have been present at the time of
occurrence at all.

16. The learned Additional Public Prosecutor would submit that the
evidence of PW-1 is very cogent, which requires acceptance at the hands of this
Court. He would further submit that PW-4 to PW-8 are the neighbours of the
accused and they were also in the very same department working as Police
Constables, except PW-7, and so, they have supported the accused. The learned
Additional Public Prosecutor would, therefore, submit that their evidences need
to be rejected. However, the fact remains that except PW-5 to PW-7, the other
witnesses, i.e., PW-4 to PW-8 have not been treated as hostile.

17. We have considered the above submissions. There is no controversy, in
this case, that PW-1 is the only eye – witness to the occurrence. The question
is as to whether based on the said eye – witness, the conviction of the accused
can be sustained or not. A perusal of the evidence of PW-1 would go a long way
to show that his evidence is cogent and convincing. Even the learned Senior
Counsel has not pointed out anything in the evidence of PW-1 rendering his
evidence unbelievable. But, the evidence of PW-1 is sought to be assailed on the
basis of the evidences of PW-4 to PW-7. Of course, these witnesses have stated
that the house of the accused was found locked. If the evidences of these
witnesses are accepted, then, it becomes a bounden duty of the prosecution to
explain as to who locked the house. Admittedly, the house was not locked by PW-
1. Realizing this defect, the learned Additional Public Prosecutor would refer
to the statement made by the accused under Section 313 of the Code of Criminal
Procedure, wherein he has stated that it is he, who locked the house from
outside.

18. In our considered view and as per the settled law, a portion of the
statement made by an accused under Section 313 of the Code of Criminal Procedure
cannot be made use of against the accused either it should be accepted in toto
or it should be rejected in toto. Therefore, it is not open for the prosecution
to rely on a portion of the statement of the accused made under Section 313 of
the Code of Criminal Procedure so as to try to explain that the house was locked
by the accused. Therefore, this argument of the learned Additional Public
Prosecutor cannot be accepted. Thereafter, the learned Additional Public
Prosecutor would submit that PW-4 to PW-8, since they are neighbours, working
with the accused, have stated that the house was found locked only with a view
to help the accused. But, unfortunately, these witnesses have not been treated
as hostile. Though PW-5 to PW-7 have been treated as hostile and their evidences
are of no use either for the prosecution or for the accused, in our considered
opinion, in view of the hostility shown by PW-5 to PW-7, their evidences that
the house was found locked at the crucial time cannot be accepted.

19. Similarly, the evidence of PW-4, in our considered opinion cannot be
acted upon, because the said version cannot be true. It is not suggested to the
Inspector of Police by the accused that the house was found locked and the same
was broke open by him. PW-9, the witness for Observation Mahazar has spoken to
about the preparation of Observation Mahazar. The defence has not elicited
anything from him that the house was found locked. It was not suggested to him
that the house was found locked and the same was opened only by the Inspector of
Police. Therefore, in our considered view, the theory that the house was found
locked, as has been spoken to by PW-4 is only a theory found for the purpose of
helping the accused. In the light of the evidences of PW-9 and PW-22, the
evidence of PW-4 and the other witnesses, who have spoken to the fact that the
house was found locked, deserves only to be rejected.

20. Now, coming to the arrest of the accused, PW-10 has spoken to the said
fact, besides the evidence of PW-22. In pursuance of the same, the knife MO-2
has been seized. During chemical examination, it has been found out that there
was human blood on MO-2 – knife. Though the blood group could not be found out,
MO-2 has been identified by PW-1. The accused has not explained the possession
of the bloodstained knife. Thus, the evidences of PW-10 and PW-22 that the
accused was found in possession of the bloodstained knife in a place of
concealment would further go to strengthen the evidence of PW-1. In respect of
the motive, the evidences of PW-1 to PW-3 and that of PW-16 speak volumes. PW-16
was the then Commandant of the Special Police Battalion at Tiruchirappalli. He
has spoken to about the compromise effected by him between the deceased and the
accused, thereby settling the matrimonial dispute between them.

21. The learned Senior Counsel, by referring to the evidence of PW-16,
would submit that the accused surrendered before the K.K.Nager Police Station,
on 04.05.2002, i.e., on the day of occurrence itself. From the evidence of this
witness, the learned Senior Counsel would submit that the theory that the
accused was arrested later on cannot be believed. But, a perusal of the cross-
examination of this witness would go to show that he heard that the accused had
surrendered before the K.K.Nagar Police Station on the same day. However, he has
further stated that he did not verify the correctness of the same by going to
the Police Station. Thus, this part of the evidence, spoken to by him during
cross-examination that he heard that the accused surrendered before the
K.K.Nagar Police Station, is hit by hearsay rule, and therefore, the argument of
the learned Senior Counsel deserves only to be rejected.

22. The learned Senior Counsel, nextly, refer to the evidence of PW-18,
wherein, PW-18 has stated that in his report, he had recorded that PW-2 told him
that on information from the police, he came to the place of occurrence. Relying
on this part of the evidence of PW-18, the learned Senior Counsel would submit
that had it been true that PW-1 was the eye – witness to the occurrence, quite
naturally, he would have informed the police about the occurrence. But, in this
case, the information was passed on to the parents of the deceased only by the
police. From this, according to the learned Senior Counsel, it would emerge that
PW-1 would not have been an eye – witness to the occurrence. We are not
persuaded by the said argument, for the simple reason that in his evidence, PW-3
has stated that the information regarding the murder of his daughter was passed
on to him by the police first and immediately followed by PW-1.

23. In our considered opinion, since PW-1 happened to be the eye – witness
to the occurrence, he would have been under a severe shock, and therefore, he
would not have informed the same to the police immediately. According to his
evidence, he rushed to the Police Station with child to prefer complaint. The
First Information Report had reached the Court at 06.30 AM, and thus, there is
no delay. Therefore, the police would have informed PW-2 about the occurrence.
From this, one cannot say that PW-1 was not an eye – witness to the occurrence.
So, this argument of the learned Senior Counsel deserves to be rejected.
24. Lastly, we would like to state about the conduct of the accused. As we
have already narrated, so far as his statement under Section 313 of the Code of
Criminal Procedure is concerned, either it should be accepted in toto and it
should be rejected in toto. Under the Code of Criminal Procedure, a statement of
an accused made under Section 313 of the Code of Criminal Procedure cannot be
equated to the evidence of a person on oath. This is only an explanation. If
this explanation is plausible, thereby strengthening the defence case, there may
not be any difficulty for the Court to accept the explanation of the accused.
But, in the case on hand, a reading of the statement of the accused would go to
show, comprehensively, it, instead of probabilizing the explanation of the
accused, goes only to support of the case of the prosecution. According to his
explanation, when he returned to his house with his child, he found his wife
dead with injuries lying in a pool of blood. Had it been true, quite naturally,
the accused would have raised hue and cry out of outburst of his emotion. But,
it is not his case that he did so. He has stated that he simply went to the
Police Station with his child. In such a situation, he would have sought for the
help of his neighbours, who are, after all his fellow men in the very same
police force. None of the witnesses has stated that the accused either raised
hue and cry or he did seek their help. It is also not explained as to why did he
lock the house, when he went out to the Police Station. Had it been true that it
was he, who locked the house, the key would have been with him, in which event,
he would have handed over the key to the police to enable them to go and open
the house and enter into the same. But, he has not explained that also in his
statement.

25. Further, it would have been quite natural for him to inform PW-1 to
PW-3 about the occurrence at least over phone, if it is true that he was
innocent. He has also not done the same. As per the evidences of PW-10 and PW-
22, he was absconding and he was arrested only on 05.05.2002, at 04.00 PM. Since
we are not prepared to believe that the accused surrendered before the police on
the same day, the conduct of the accused in absconding up to 05.05.2002, at
04.00 PM, would speak volumes about the guilt of the accused. Thus, all the
circumstances, which we have narrated above, would all go to conclusively show
that the explanation offered by the accused cannot be accepted. In order to
substantiate his explanation, DW-1 to DW-3 have been examined. In our considered
opinion, they are only obliging witnesses for the accused. It is not the case of
the accused that DW-1 to DW-3 were examined during inquest by the police and
they were omitted to be examined by the prosecution during trial. It is not to
say that because they happened to be the defence witnesses, their evidences
should be rejected outright. But, we are of the considered view that their
evidences cannot be believed, because, they are obliging witnesses, as they are
the fellow Policemen of the accused.

26. As we have already discussed above, the motive has been established,
the frequent quarrel between the accused and the deceased has been proved, the
accused caused injury on the deceased has been proved and the death was due to
the injury caused by the accused has been proved. Thus, the prosecution has
clearly proved that it was this accused, who alone caused the death of the
deceased. Going by the motive, weapon used by the accused, location of the
injuries i.e., on the vital parts of the deceased and the number of injuries
caused by the accused, we have no hesitation to hold that the accused had a
definite intention to cause the death of the deceased, which falls within the
first limb of Section 300 of the Code of Criminal Procedure, and therefore, the
offence committed by the accused will squarely fall under Section 302 of the
Indian Penal Code. Thus, the Trial Court was right in convicting him.

27. Now, coming to the quantum of sentence, since the Trial Court has
imposed only a minimum punishment of imprisonment for life, there is nothing to
interfere with the same.

28. In view of all the above, we do not find any merit in this appeal. The
appeal has to fail. In the result, the Criminal Appeal is dismissed. The
conviction and sentence imposed on the appellant is confirmed.

NB

To

1.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

2.The Sessions Judge (Mahila Court), Trichy.

3.The Inspector of Police,
K.K.Nagar Police Station,
Trichirappalli District.

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