RADHAKRISHNAN Vs. STATE

JUDGEMENT

(1.) The appellant in this appeal is the accused in S.C.No. 129/92 on the file of the Court of Sessions, North Arcot at Vellore. He was tried for the offence punishable under Section 302 IPC and on being found guilty he was sentenced to undergo life imprisonment. Therefore he is before this Court in this appeal questioning the correctness or otherwise of the said judgment. Heard Mr. N.T. Vanamamalai learned senior Counsel appearing for the appellant/accused ably assisted by Mr. V. Karthic and Mr. R. Karthikeyan learned Government Advocate appearing on the criminal side for the State.

(2.) The following is the sum and substance of the case of the prosecution: (a) The deceased in this case is a female by name Mala. The accused is her husband. They were married seven years before the date of occurrence, which was on 14-06-91. They have two off-springs out of that lawful wedlock P.Ws. 1 and 3 are the younger brothers of the deceased. P.Ws. 2 and 6 are the younger sisters of the deceased. Suspecting that the deceased was in illicit intimacy with a person called Perumal. a panchayat was convened to sort out the problem between the spouses. It was decided in the panchayat that the deceased and the accused should live separately. Accordingly the deceased settled down in her father's house at Panditha patty. The accused continued to have custody of the off-springs. Vellamunji Rounder is the father of the deceased. P.W. 2 continued to live with her father in the same house. At 7.00 p.m. on 14-06-91, P.W. 2 and the deceased were in the house. Next day was the first day of the next Tamil month. Therefore both of them decided to clean the front yard and then have dinner. After cleaning the front yard they went inside the house to take dinner. The accused also entered the house with M.O. 1 in his hand and by holding the head of the deceased by his hand, attempted to cut her neck. P.W. 2 shouted that her sister may be spared. P.W. 2 also assaulted on the back of the accused, with a view to save her sister. However the accused kicked aside P.W. 2; with M.O. 1 cut on the front side neck of the deceased and then ran away. P.W. 2 saw the occurrence. Mr.ia was profusely bleeding through the injuries sustained by her. Water was attempted to be given to her. But however, she could not take it. Vellamunji Kounder/father of the deceased and P.Ws. 1,2,3 and 6 asked the accused as to why he is running away after cutting his daughter? The accused kicked him with his leg, wearing the chappels, just below the hip and ran away. P.W. 1 is having a Video Cassette Shop at Tiruvannamalai. It was drizzling on 14-06-91. P.W. 1 is residing at Pandithapattu. He returned home at 7.00 p.m. on the day in question and saw his sister/Mala lying with her neck cut. P.W. 2 told him that the accused had cut the deceased and ran away. As it was raining and as it was already late in the night. P.W. 1 decided not to go to the police station and give a complaint immediately (b) At 8.00 a.m. on 15-06-91, P.W. 1 reached the police station at Tiruvannamalai and gave Ex.P-1 complaint. It was registered by P.W. 13/Head Constable in Crime No. 165/91 for the offence punishable under Section 302 IPC 15-06-91 was a General Election day. Therefore the Inspector of Police was on bandoubust duty. As directed by the Superintendent of Police P.W. 14/ Sub-Inspector of Police, commenced the investigation in this case. He went to the house of Vellamunji Kounder, where the occurrence took place. He prepared Ex.P-17/observation mahazar in the presence of P.Ws. 4 and 5. He also prepared Ex.P-18/plan. M.O. 5 series are the photographs of the deceased taken from different angles and M.O. 6 series are their negatives. From the scene of occurrence, in the presence of P.Ws. 4 and 5, he recovered M.O.7series under Ex.P-19. On the morning of 15-06-91, in the presence of panchayatdars and witnesses he conducted inquest over the dead body of the deceased. Ex.P-20 is the inquest report. At 4.00 p.m. on 15-06-91, P.W. 8/Medical Officer conducted post-mortem on the body of the deceased. During postmortem, the symptoms as found in Ex.P-9/Post-mortem certificate were noticed. (Since Ex.P-9 is in English, we are not re-stating the same in this judgment, in order to save time). The Doctor is of the opinion that the deceased would appear to have died 18 to 24 hours prior to post-mortem and the cause of death is due to the deep cut injury in her neck, cutting larynx, pharynx and blood vessles causing damage to the vital organs. External Injury noticed on the body of the deceased is fatal. P.W. 15 is the Inspector of Police, who took up further investigation in this case with effect from 17-06-91, during which time, P.W. 14 assisted him. At 11.30 a.m. on 17-06-91, in the presence of P.Ws. 7 and 9. P.W. 15 arrested the accused. On being examined, the accused gave a voluntary confession statement, the admissible portion of which is marked as Ex.P-21 in this case. Pursuant to that statement, the accused took the police personnel and the witnesses to the "well" situated in the house of Vellamunji Kounder and showed that as the place where the weapon was thrown. P.W. 7 dived into the "well" and M.O. 1 was recovered under Ex.P-10 attested by P.W. 7 and 9. The accused was sent for judicial remand on 17-06-91. After post-mortem, P.W. 10 recovered M.Os. 2 to 4 from the dead body of the deceased and handed over the same at the police station. The case properties were sent to the laboratory as an enclosure to Court's letter. Exs.P-14 and P-15 are the chemical examiner's report and serologist's report respectively. After completing the investigation, P.W. 16 the succeeding Investigating Officer, filed the trial report against the accused in Court on 09-03-92 for the offence punishable under Section 302 I.P.C. When the accused was questioned under Section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against him, he denied each and every circumstance put up against him as false and contrary to facts. He would also state that he and his wife were living happily; his wife went to her mother's house to stay there for a few days, since she was un-well and beyond that, he does not know anything. A witness had been examined on his side as D.W. 1. He was the President of the local village panchayat for two terms. His evidence shows that he is the agnate of Vellamunji Kounder; at 9.00 p.m. on 14-06-91, when he returned home. P.W. 1 appeared before him and stated that an unknown person had cut the neck of his sister/Mala; he did not know as to who is the assailant; D.W. 1 advised him to go to the police station and give a complaint.

(3.) Learned Senior Counsel would contend that the prosecution relies upon only the oral evidence of P.W. 2, as the eyewitness to the occurrence. P.W. 2 is a child witness. Though there would be no difficulty at all in acting upon the evidence of the child witness, if it is otherwise found trustworthy, yet it is always desirable, even in such circumstances, to look for corroboration. If the entire prosecution evidence is analysed, then it would show that besides. P.W. 2, Vellamunji Kounder and P.W. 3 were also in the house. P.W. 3 turned hostile and the father of the deceased who has suffered an injury at the hands of the accused during the same transaction had not been examined, when an elderly person namely, the father of the deceased is available to be tendered as an eye-witness to the occurrence, it is rather surprising that the prosecution wan ts to rely upon the evidence of the child witness, who was aged about 10 or 101/2 during the relevant time. P.Ws. 3 and 6 are none else than the younger brother and sister of the deceased respectively. P.W. 3 had turned hostile and it assumes importance, especially when his presence in the house is spoken to by P.Ws. 1 and 2. These circumstances namely P.Ws. 3 and 6 turning hostile, though may not necessarily affect the case of the prosecution in normal circumstances, yet in a case like this, where the deceased is thickly related to P.Ws. 3 and 6, it would only show that the evidence of P.W. 2 may not be reliable at its face value. The evidence of P.W. 2 would show that she and her sister/deceased went inside the house to take dinner. But however, the postmortem report shows that the stomach of the deceased contained rice particles. This eliminates, in all probability, the presence of P.W. 2 in the scene of occurrence. The contradictions in the evidence of P.W. 1 elicited during the examination of the police officer, would clearly show that P.W. 2 could not have witnessed the occurrence at all. In the face of the above infirmities in the evidence of the prosecution, the learned senior Counsel would press in his favour the inordinate delay of almost 12 hours in lodging the complaint with the police regarding the occurrence. The evidence of D.W. 1 would show that P.W. 1 told him on the night of the day in question itself that he did not know the assailant. Therefore the delay in lodging the complaint, assumes considerable importance. To sum up. the argument of the learned senior Counsel is that though the evidence of P.W. 2 shows that she saw the occurrence, yet this Court would not be committing any wrong in looking for corroboration from other sources. Even otherwise, the learned senior Counsel would submit that, P.W. 2can not be treated as an eye-witness to the occurrence. We heard the learned Government Advocate on all these points.