MALLIGA Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned Sessions Judge, Pudukottai in S.C.No. 24/89 dated 29-11-1989.

(2.) This is an unfortunate case of a helpless woman who being persecuted by the carnal desires of her own brother was constrained to defend herself which resulted in the death of her brother and her miseries have been further aggravated by the Trial Court adopting an erroneous approach in appreciating the factual and legal aspects of her right of private defence. The Trial Court thought it fit only to convert the offence of murder (as charged) into one of culpable homicide not amounting to murder and as a result of which she was sentenced to undergo rigorous imprisonment for a period of 4 years under Section 304 Part II of Indian Penal Code.

(3.) The case of the prosecution is that the accused was married to one Selvaraj and was living in Senthangudi Village. It is alleged that two months prior to the occurrence the deceased who is none else other than the brother of the accused came to the house of the accused fully drunk and he picked up a quarrel with the husband of the accused and forced him to send the accused with him. Thereafter, the evidence is that the deceased was frequently drunk and used to compel the accused to have physical relationship with him and that since the accused was not agreeable to the demands of the deceased, the deceased was frequently trying to pressurise her. In fact, sometime before the occurrence in view of the problems created by the deceased, she went to the house of P.W.2, Kaliammal, who is her sister-in-law and took refuge under her. But the deceased would not keep quiet and he went to the house of P.W.2 also and he threatened P.W.2 by showing a knife and P.W.2 sent the accused out of the house as a result of which the accused had to come back to the house of the deceased. P.W.2 has spoken to the fact that the accused had told her about the indecent behavior of the deceased. P.W.2 has also deposed to the effect that at the time of the occurrence, the accused was in an advanced stage of pregnancy. It appears that a day prior to the occurrence the deceased had again tried to force the accused and after considerable struggle, she ran away from the house and all through the night she was staying outside the house and that again at about 9 a.m. the deceased tried to assault the accused with intention to commit rape and then in that process, her saree and blouse were also torn but she managed to run away from the house. She again returned at about 12 noon and found the deceased lying in front of the house fully drunk and that the deceased took M.O.1 (Dakkai) and beat on his head and other parts of the body. The incident is said to have been witnessed by P.W.1, who had accidentally come to the spot. But he did not give any complaint to the police. The accused herself went to P.W.3, the Village Administrative Officer and gave a confessional statement. P.W.3 recorded a statement as given by the accused and obtained her signature and directed P.W.4, Thalayari to hand over the complaint to the police station. P.W.4 has spoken to the fact that at about 1 p.m. on the day of the occurrence after P.W.3 had recorded a statement as given by the accused, he went to Keeramangalam Police Station along with the accused and left the accused there and handed over the statement given by the accused. P.W.ll is the Sub- Inspector of Police attached to the flying squad of Pudukottai and he has deposed the fact that P.W.4 accompanied by the accused, met him on 24-9-1988 at about 3 p.m. On the basis of the statement given by the accused a case was registered under Section 302 of Indian Penal Code. He further stated that he immediately sent a message to the Court and to the higher authorities and at about 3.30 p.m. he arrested the accused and took a confessional statement from the accused Ex.P-2 is the admissible portion of the statement given by the accused. Thereafter, it is stated that he had recovered the saree, petticoat and the blouse worn by the accused (M.O's 2 to 4). He then went to the place of the occurrence along with the accused and M.O.I was handed over to the police by the accused, in the presence of witnesses. M.O.4 is the Mahazar. Further investigation was taken over by P.W.12, the Inspector of Police, he went to the place of the occurrence and prepared an observation mahazar Ex.P-18. The next day on 25-9-1988 at about 5.30 a.m. he conducted an inquest between 6 a.m. and 9 a.m. and Ex.P-20 is the Inquest Report. The body of the deceased was sent to Aranthagi Government Hospital for post-mortem examination. Subsequently, he sent a requisition to the Judicial Magistrate for recording a statement under Section 164 of Cr.P.C.