V C SHYAMALA Vs. STATE

JUDGEMENT

(1.) THIS appeal challenges a judgment of the V Additional Sessions Judge, Madras, made in S.C.No.370 of 2004 whereby the sole accused/appellant stood charged, tried, found guilty under Sec.302 of IPC and awarded life imprisonment.

(2.) THE short facts necessary for the disposal of this appeal can be stated thus:(a) THE deceased Tharakeswari, a practising lawyer of the High Court of Chennai, who fell in love with one Balaji, another practising lawyer, married him on 28.8.1998 despite the objection from her parents side. After the marriage that took place at Titutani Temple, she was living with her husband Mr.Balaji, the mother-in-law namely the accused/appellant and her father-in-law at House No.217, Paper Mills Road, Perambur, Chennai. At the time of the eighth month of her pregnancy, she ceased to practise, and she was in the house. She gave birth to a child. THEre was frequent quarrel between the mother-in-law and the daughter-in-law which was used to be settled by her husband. P.Ws.1, 2 and 10 are the neighbours. THE husband of the accused was carrying on a small shop nearby. As usual on 23.11.2000, a quarrel started between the accused and the deceased on the issue of the motion passed by the child. THE accused tried to convince for which she sought the help of P.Ws.3 and 4, but in vain. THE husband of the deceased left the house at about 11.30 A.M. to bring the aunt to pacify her. This was spoken to by P.Ws.4, 6, 7 and 11. P.W.12, the landlord of P.W.6 would also state that the accused purchased milk at about 2.30 P.M. from the shop. (b) At about 3.00 P.M., the very day, the accused called P.W.1 informing that smoke was coming out of the hall of the kitchen, and P.Ws.1 and 2 rushed to the spot. THEy could not enter into the hall through the kitchen side door. Hence they came towards the backside door, and they could not also enter through that. THEn, P.W.1 peeped through the ventilator and found the dead body of Tharakeswari. Immediately, he went to K-9 Thiru-Vi-Ka Nagar Police Station and preferred Ex.P1, the complaint. P.W.13, the Sub Inspector of Police, who was on duty, on the strength of Ex.P1, the report, registered a case in Crime No.2050 of 2000 under Sec.174 of Cr.P.C. and informed the same to the higher officials. Ex.P39 is the printed FIR which was sent to the Court. (c) P.W.21, the Assistant Commissioner of Police, on receipt of the copy of the FIR took up investigation, proceeded to the spot, made an inspection, prepared an observation mahazar, Ex.P3, and also drew a rough sketch. He also recorded the statements of the witnesses, and altered the case to Sec.306 of IPC. He also recovered material objects. P.W.16, the Tahsildar, was informed about the same since the death has taken place within two years from the time of marriage. P.W.16 also conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P15. THE dead body was sent to the Hospital along with a requisition for the purpose of postmortem. (d) P.W.18, the Professor of Forensic Medicine, Kilpauk Medical College, Chennai, on receipt of the requisition, conducted autopsy on the dead body of Tharakeswari and has given a postmortem certificate, Ex.P25. He has given his final opinion after getting the report from the Analyst, that the deceased would appear to have died of asphyxia due to strangulation and the burns on the body are postmortem in nature. (e) On the intervention of this Court in C.M.P.No.994 of 2001, the investigation was transferred to the CBI. THE statements of both the appellant/accused and her son Balaji were recorded by P.W.20, the XIII Metropolitan Magistrate, and the proceedings are marked as Exs.P29 to P36 respectively. (f) P.W.22, the Inspector of Police, attached to the CBI, SCB, Chennai, took up investigation and on completion of investigation, filed the final report against the accused under Sec.302 of IPC.

(3.) THE learned Senior Counsel would further add that the medical evidence is given a go-by to the entire prosecution story that according to the charge that was levelled against the appellant/accused, she actually strangulated and caused her death, and thereafter she poured kerosene and set her ablaze but, the admissions made by P.W.18, the Doctor, would stand contra to the prosecution case that first of all, the step mother of the deceased met the Doctor in the Office to obtain the postmortem certificate that there was unexplained delay of 19 days in giving the postmortem certificate that P.W.18, the Doctor, had not taken any steps to send the same immediately that further, no interim report was also sent by P.W.18 within 24 hours regarding the presence of the injuries, etc., to the Investigating Officer or to the Court concerned as stipulated in Ex.D13, the specimen form that further Ex.D14, the postmortem rough notes, would clearly indicate that P.W.18 reserved the final opinion for chemical report to come but, he issued a postmortem certificate, Ex.P25, based on the histopathology report, Ex.P42 that from the said report it could be seen that the skin bits received by the department, were free from burns but, P.W.18, the autopsy Doctor, has wrongly sent the unburnt skin to the department to know whether the burns were ante-mortem or postmortem from which any opinion could not be formed that further P.W.18 gave the postmortem certificate only based on that report and that the report contained "no vital reaction seen in the skin bits received". It was contended before the trial Court and equally here also that the autopsy Doctor sent only the unburnt skin bits to the department to find out whether they were ante-mortem or postmortem that since no reaction was found, it would be clearly indicative of the fact that the unburnt skin bits were found, and hence no opinion could be formed that regarding the injury No.3, he has mentioned in his earlier notes that it was only 3 inches but when he came forward with the postmortem certificate, it was found to be of 1 ? inches that how it had happened, P.W.18 could not explain and that it would be quite clear that he has not properly done the postmortem.