MUTHUSAMY Vs. STATE

JUDGEMENT

(1.) THE appellant in this appeal has been convicted in S.C. No. 224 of 2004 on the file of Court of Sessions, Erode under Sections 302, 201 and 203 I.P.C. for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.5000/- carrying a default sentence 2 years rigorous imprisonment and to pay a fine of Rs.1000/- carrying a default sentence and fine of Rs.2000/- carrying a default sentence respectively. Hence, he is before this Court in this appeal. Heard Mr.K. Muthusamy, learned senior counsel appearing for the appellant and Mr.N.R. Elango, learned Additional Public Prosecutor for the State.

(2.) THE prosecution case is that on the intervening night of 25.11.2003 and 26.11.2003, to be precise, between 12 in the night and 1.15a.m., the accused murdered his wife by smothering and then, with a view to screen the offence, placed a pre-mixed pesticide ( a poison) in a tumbler by the side of the dead body and informed everyone that his wife died by consuming poison and therefore, punishable under the sections referred to earlier. To prove their case, the prosecution examined P.W.s 1 to 19 besides marking Exs-P1 to P29 and M.O.s 1 to 16. THE defence examined on their side one witness as D.W.1 and marked two exhibits as D1 and D2. Admittedly, there are no eye-witnesses to the crime. P.W.2 is the daughter of the accused and the deceased. P.W.1 is the younger brother of the deceased and incidentally, the maternal uncle of P.W.2. P.W.1, in his evidence, would state that the accused had developed illicit intimacy with another lady by name, Vasanthi Parvathi, since deceased, objected to the said affair, the accused was torturing her despite the birth of P.W.2, the accused did not sever his connection with the said lady Parvathi conceived for the second time the mistress of the accused was often visiting the house and quarrels arose between the accused and the deceased the accused kicked his wife on the stomach and some complications followed, as a result of which, Parvathi underwent an abortion in the hospital. According to P.W.1, the accused was widely proclaiming that he would continue to live only with his mistress and in the context of the above materials, Parvathi had gone to the Police Station to give a complaint. Parvathi came to know that the accused is attempting to sell his property for constructing a house for his mistress. THErefore, Parvathi filed O.S. No. 485/98 against the accused claiming partition of her daughter's share namely, P.W.2's share and for her maintenance. THE accused had also initiated proceedings in the Civil Court at Erode namely, O.P. No. 1/99 aginst Parvathi seeking divorce. In the proceedings initiated by Parvathi, a decree was passed partitioning the property into two halves, one of which is to be given to P.W.2 and also to pay a sum of Rs.1000/- as maintenance to P.W.2. THE divorce proceedings initiated by the accused was dismissed. THE accused was insisting that Parvathi should give a receipt evidencing complete settlement of all her claims and only then, he would take her to his place. THE accused was also insisting that Parvathi should release all the rights in the two acres of land, which was granted to P.W.2 by the Civil Court. Parvathi was refusing to give such a release deed. However, she released, in writing, all her other rights. Accordingly, the accused took Parvathi to his house. Even thereafter, it appears that the accused was not treating Parvathi well. Parvathi had brought it to the notice of her relatives. Accordingly, Nagarajan, who was so informed, went to the house of the accused and took Parvathi and her daughter and left them in her mother's house. THE accused promising to treat them well, took his wife and P.W.2 back to his house. At about 9p.m. On 20.11.2003, Parvathi called P.W.1 over telephone and told him that her husband is assaulting her and he appears to be more violent then he was before. Parvathi also told P.W.1 at that time that the accused had made an open declaration that one day or the other, he would finish her off and in that context, Parvathi requested P.W.1 to come home and take her. P.W.1 assured Parvathi that, as he could not get leave, he would send his mother within a week. At 8.30a.m. on 26.11.2003, P.W.1 reached his village and at that time, there was a talk that Parvathi had died by consuming poison. Immediately, P.W.1 went to the house of the accused along with relatives and reached there at about 9.30a.m. P.W.1 observed the dead body of his sister, kept in the outer room on a bench. Her tongue was protruding and contusions were also seen in the neck and chest. He went and observed the scene where his sister was found dead and in that room, he noticed blood-stains. Close to the place, where Parvathi's dead body was found lying in the room, P.W.1 found a container containing "selpas", insecticide and pre-mixed insecticide in a tumbler and another tumbler. P.W.1 suspected that his sister would not have consumed poison, but somebody else would have administered poison to her. Accordingly, taking his relatives, he went to the Police Station at about 11a.m. And gave a complaint. Ex-P1 is the said complaint. P.W.1 was examined by the Magistrate under Section 164 Cr.P.C.

(3.) P.W.2 is the daughter of the accused and the deceased. She deposed about her father's illicit affair with another lady her mother and uncle objecting to it resulting in a police complaint the litigation started by her mother and the result thereof the accused threatening her mother with dire consequences and the attitude of the accused towards his wife as spoken to by P.W.1. In other words, P.W.2 had summarised the sufferings of her mother at the hands of the accused. She would then state that on 25.11.2003, she came to know that her grandmother had come and therefore, she and her mother, since deceased, told the accused that they want to go and see the grandmother. According to her, the accused told P.W.2 that she can go to her grandmother's house from school directly and Parvathi, since deceased, would join her in the evening. Accordingly, P.W.2 packed up her clothes while she left for school and from school, she went to her grandmother's place. There, she found that her mother had not come. Therefore, she telephoned to her house at about 5.15p.m. on that day and asked her mother as to why she had not come. P.W.2 also asked her whether her father had beaten her extensively and whether her mother needs her presence in the house. However, Parvathi, since deceased told P.W.2 that P.W.2's father (accused) persuaded her to stay back in the house itself stating that as his younger brother is coming only on the next day, lot of matter has to be talked. P.W.2 would state that her mother Parvathi told her that she would see her on the next day. Then, on coming to know that her mother is dead, she went and observed the dead body. She would state that as she was weeping on seeing her mother's dead body, she noticed her father (accused) making a number of telephone calls and that the accused did not even come and say a word to her. Parvathi is the niece of P.W.3. P.W.3 knew that the accused was having an affair with another lady and in that context, there was problem between him and Parvathi, since deceased. P.W.3 advised the accused not to continue his affair with the other lady for which the accused pleaded innocence. Thereafter, P.W.3 used to visit Parvathi and she used to complaint that in the background of the illicit affair, the accused was often assaulting her. However, P.W.3 would admit that he had not seen any such assault and he knew it only from Parvathi. At about 8.30a.m. or 9a.m. On 26.11.2003, P.W.3 came to know that Parvathi is dead. P.W.3 went to the house of Parvathi and found the dead body. He found Parvathi's tongue protruding with slight bleeding. P.W.3 saw the accused sitting outside the house and making telephone calls. When P.W.3 asked the accused as to what happened, the accused told him that Parvathi died consuming "selpas" insecticide. However, P.W.3 stated that as Parvathi is a strong-willed person, she would not have done like that. But the accused, insisted that Parvathi had committed suicide by consuming "selpas". PW.3 again did not agree that Parvathi would have done like that. Parvathi, when alive, used to tell P.W.3 that the accused had been treating her very badly in the context of the pending litigation pestering Parvathi to withdraw those proceedings.