KASIRAJAN Vs. STATE

JUDGEMENT

(1.) <DJG>M.CHOCKALINGAM, J.</DJG> Challenge is made to a judgment of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur passed in S.C.No.39 of 2008 on 29.01.2009, whereby the sole accused / appellant stood charged, tried and found guilty under Sections 341 and 302 IPC and awarded punishment of life imprisonment with a fine of Rs.1000/- and default sentence under Section 302 IPC, and one month simple imprisonment under Section 341 IPC.

(2.) The short facts that are necessary for the disposal of this appeal can be stated thus:- a) The deceased-Dhanabackiyam was the wife of the accused / appellant. P.W.1-Kamatchi is the daughter of the deceased and the accused. The accused was an addict to drugs and also he had all illegal activities. He was torturing his wife from the time of marriage and she was forced to live with P.W.1-her daughter, and her son Solaiswamy, at her parental home. Though the accused / appellant made many attempts to take the deceased back, she was not willing to go with him. The accused entered into an agreement for sale of a piece of land owned by the family and got advance for it. When the deceased came to know about it, she convened a panchayat and also informed him that she would go for civil proceedings before the Court. The accused, aggrieved over the same, on the date of occurrence, that was on 30.09.2007 at about 7.30 a.m., when the deceased was proceeding along with P.W.1 from Melaputhur to Naranapuram Bus Stop to go to a match factory where she was working, the accused / appellant came in a cycle, got down from the same and pointing to her, uttered the words "How can you refuse to come with me to live jointly? How dare you to file a case when I sell my property according to my wish?". So saying, he cut her with M.O.1-Aruval on different parts of the body and when she fell down, he continued to cut her and severed the head. Thereafter, he ran away from the place of occurrence. P.W.1 immediately rushed to P.W.6-Visvasam and narrated the entire incident, pursuant to which Ex.P1-Complaint was prepared. Then, P.W.1 along with her uncle Arulraj, proceeded to the respondent-Police Station, where P.W.17-Sub-Inspector of Police, was on duty. He received Ex.P1 from P.W.1. On the strength of Ex.P1, a case came to be registered in Crime No.264 of 2007 under Sections 341 and 302 IPC. Ex.P16-Express F.I.R. was despatched to the Court and the copies were sent to the higher-ups. b) P.W.18-Inspector of Police took up the case for investigation. On receipt of the copy of F.I.R., he went to the place of occurrence, made an inspection and prepared Ex.P3-Observation Mahazar and Ex.P17-Rough Sketch. Then he conducted inquest over the dead body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P18-Inquest Report. Thereafter, he recovered M.Os.8, 9 and 10-One pair of chappal, Blood-stained earth and ordinary earth respectively, under a cover of Ex.P4-Seizure Mahazar and sent the dead body to the Government Hospital, Sathur for conducting autopsy, under a requisition marked as Ex.P10. c) The dead body of the deceased was subjected to autopsy by P.W.13- Doctor, attached to the Government Hospital, Sathur and she issued Ex.P11-Post Mortem Certificate, wherein she gave an opinion that the deceased died 6 to 12 hours prior to autopsy due to severance of head and also the injuries sustained by her. Thereafter, material objects were recovered from the dead body of the deceased. d) Pending the investigation, the Investigator arrested the accused on 23.10.2007. The accused came forward to give a confessional statement voluntarily and the same was recorded in the presence of P.W.10-Village Administrative Officer. Ex.P5 is the admissible portion of the confessional statement of the accused. On the basis of the confessional statement, the accused produced M.O.1-Aruval, M.O.11-Shirt and M.O.12-Kaili and the same were recovered under a cover of Ex.P6-Seizure Mahazar. Thereafter, the investigator sent the accused for judicial remand. e) The investigator sent all the material objects to the Forensic Lab for conducting chemical examination under a requisition marked as Ex.P12, followed by another requisition sent by the Judicial Magistrate Court under Ex.P13. Two reports were received. One is Ex.P14-Chemical Analyst's Report and the other is Ex.P15-Serologist's Report. f) P.W.18-Inspector of Police, on completion of the investigation, filed the final report on 07.01.2008 under Sections 341 and 302 of IPC against the accused before the concerned court, which in turn committed the case to the Court of sessions and necessary charges were framed. g) In order to substantiate the charges, at the time of trial, the prosecution examined 18 witnesses and relied on 18 exhibits and 14 material objects. On completion of the evidence adduced on the side of the prosecution, the accused was questioned under Section 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. On the side of the defence, Ex.D1 was marked. After hearing the arguments of the counsel and looking into the available materials, the Trial Court took the view that the prosecution has proved the case beyond reasonable doubt, found the accused guilty and awarded the punishments as referred to above. Hence, this Criminal Appeal at the instance of the accused / appellant.

(3.) Advancing arguments on behalf of the accused / appellant, the learned counsel would submit that, in the instant case, the prosecution has miserably failed to prove the case. Though the prosecution marched 3 witnesses, i.e. P.Ws.1 to 3, P.W.2 turned hostile and P.W.3 was not believed by the Trial Judge, and thus, the prosecution had only one evidence before the Trial Court. Insofar as P.W.1 is concerned, the Trial Judge should have rejected the testimony of P.W.1, since she could not have been present in the occurrence place, when the occurrence took place. According to Ex.P1, when they were proceeding to a match factory where they were working, the occurrence took place, but P.W.1, in her evidence, has candidly admitted that the match factory was on leave on Sundays. Therefore, according to the counsel for the accused / appellant, since the date of occurrence happened to be a Sunday, it would be quite clear that P.W.1 and her mother could not have gone to the match factory on that day.