M. Jeyapaul, J.@mdashThe second accused Aruchamy and the first accused Lakshmi, who suffered a verdict of conviction in a case of murder,
have preferred Criminal Appeal Nos.287 of 2004 and 1008 of 2005 respectively.
2. The learned II Additional Sessions Judge, Coimbatore convicted the first accused for the offence punishable u/s 302 of the Indian Penal Code
and the second accused for the offence punishable u/s 302 r/w Section 109 of the Indian Penal Code and sentenced them to life imprisonment and
to pay a fine of Rs. 5,000/- each, in default, to undergo six months rigorous imprisonment each.
3. The charge as against the first accused is that on 4.3.2002 at about 00.30 hours she attacked Karuppusamy, who was none other than her
husband, on his head with stone with an intention to cause his death and thereby she committed murder punishable u/s 302 of the Indian Penal
Code.
4. The charge as against the second accused is that, he being the paramour of the first accused, abetted her to commit the murder of Karuppusamy
and thereby he committed an offence punishable u/s 302 r/w Section 109 of the Indian Penal Code.
5. A brief text of the prosecution version, as found in the evidence let in on their side, is as follows:
The deceased Karuppusamy is the husband of the first accused Lakshmi. The second accused Aruchamy is the paramour of the first accused
Lakshmi. Shanthamani, PW.2, is the neighbour of Karuppusamy. Jeyakumar, PW.1, is the son of Shanthamani, PW.2.
6. Karuppusamy used to pick up quarrel with his wife, who is the first accused herein, suspecting her extra marital relationship with the second
accused. The deceased Karuppusamy used to heap abuse on her, having been fully drunk and some times he used to beat her alleging that the first
accused had developed illicit intimacy with Aruchamy.
7. On 3.3.2002 at about 10.30 P.M., a quarrel arose between Karuppusamy and his wife, the first accused herein. The second accused stayed in
that house by then. The quarrel continued till 11.00 P.M., on the said date. When quarrels erupted between the first accused and her husband
Karuppusamy, Jeyakumar (PW.1), Shanthamani (PW.2) and Nagaraj (PW.4), intervened to appease them.
8. On 4.3.2002 at about 00.30 hours, PW.1 woke up to attend the nature''s call. He found the first accused and the second accused carrying a big
stone, MO-1, through a lane running by the side of the house of first accused. Jeyakumar, PW.1, thereafter had gone to resume his sleep.
9. Shanthamani, PW.2, was awake as she had no sleep at about 00.30 hours on 4.3.2002. She found her son going to bed after attending nature''s
call at that time. She found a big stone in the hands of Lakshmi (A.1) , who stood in front of her house along with the second accused Aruchamy.
The second accused asked the first accused to put the stone on the head of Karuppusamy. The first accused put the stone on the head of
Karuppusamy. When Shanthamani, PW.2, enquired about the sound she heard from the house of the first accused, first accused asked
Shanthamani, PW.2, to mind her own business. Completely engulfed by fear, she (PW.2) went to bed even without informing her son. PW.2,
Shanthamani a Mill worker, who was already known to the family of Karuppusamy, was passing by the house of Karuppusamy at about 00.30
hours on 4.3.2002. She also found both the accused chatting in front of the house of Karuppusamy at that point of time. When Suresh, PW.3,
asked them as to why they were standing there at the odd hours, the first accused heaped abuse on him and therefore PW.3 left the place. He also
spotted Shanthamani, PW.2, in front of her house. Suresh, PW.3, also noted blood oozing out from the body of Karuppusamy.
10. In the morning the first accused was found in her house, but the second accused was missing. After some time, the first accused also left with
her children. As there was nobody else to take up the case of murder to the police, Jeyakumar, PW.1, went to Singanallur Police Station at about
8.00 A.M., on 4.3.2002 and submitted a complaint Ex.P.1 to the Inspector of Police. Ashok Natarajan (PW.11) registered a case in Crime No.
349 of 2002 u/s 302 of the Indian Penal Code. He prepared printed FIR Ex.P.14 and despatched the original to the learned Judicial Magistrate
and the copies thereof to the higher officials concerned.
11. PW.11 rushed to the scene of occurrence at about 10.15 A.M., on the said date and in the presence of Damodaran, PW.6, prepared an
observation mahazar Ex.P.2. He also drew a rough sketch Ex.P.15 reflecting the scene of occurrence. A photographer was summoned to take
photographs of the dead body and other features found at the scene of occurrence.
12. PW.11 held inquest on the dead body of Karuppusamy between 11.30 A.M and 3.30 P.M on the said date in the presence of Panchayatdars
and prepared inquest report Ex.P.16. He recovered blood stained stone MO-1, blood stained cement mortar MO-2, sample cement mortar MO-
3, blood stained mat MO-4 and blood stained pillow MO-5 under relevant seizure mahazar Ex.P.3 in the presence of PW.6, Damodaran.
13. Dr. Menaka Sekar, PW.10, having received a requisition from PW.11, conducted post mortem examination on the dead body of
Karuppusamy at 11.30 A.M., on 5.3.2002. She found the following injuries and other features on the dead body of Karuppusamy:
1) Irregular lacerated injury 11 cms x 4 cms-3 cms x bone deep involving right fronto temporo parietal regions with surrounding abrasion 4 cms
radious. On dissection of scalp, skull and dura; sub scalpal contusion of 12 cms x 7 cms involving right fronto-parietal region, and 18 cms x 9 cms
involving left fronto temporo-parietal regions of the scalp. Depressed irregular fracture over an area of 12 cms x 10 cms seen over the right
frontoparietal bone of the vault. Fissure fracture of 24 cms length seen extending from the depressed fracture, crosses the midline and then
involving the left fronto parietal bone of the vault. Diffuse subdural and subarachnoid haemorrhage seen over both cerebral hemispheres. Fracture
base of skull at right anterior cranial fossa, Middle cranial fossa, Pitutory fossa ans left posterior cranial fossa noted.
2) Lower end of right forearm and palm of left hand found contused. On dissection mild extra vasation of blood seen in the superficial planes.
Multiple superficial surface incisions made all over the body reveals nil other injury.
OTHER FINDINGS:
Peritoneal and pleural cavities empty.
Lungs: Normal, Cut section pale.
Heart: Normal, Chambers empty, Coronaries patent.
Hyoid bone intact.
Trachea and larynx intact, Cut section shows altered blood.
Stomach contained 50 gms of semi solid food material mixed with altered blood. No specific smell, Mucosa normal.
Small intestine contained 20 ml of bile stained fluid, No specific smell, Mucosa normal.
Liver, Spleen, Kidneys: Normal, Cut section - Pale.
Urinary bladder empty.
Sample of blood preserved.
Viscera preserved and sent for chemical analysis as requested.
She has opined in her post mortem certificate Ex.P.11 that the deceased appeared to have died of shock and haemorrhage due to head injury
about 36 hours prior to autopsy.
14. The blood stained lungi, MO-9, and waist cord, MO-10, found on the dead body were recovered by the post mortem Constable after the
postmortem examination was over. The said material objects were entrusted to PW.11 for the purpose of further investigation in this matter. The
first accused Lakshmi approached Balasubramaniam, PW.7 when he was at his shop at Ondipudur at about 3.00 P.M on 5.3.2002 and informed
him of the occurrence which led to the death of her husband. The statement of Lakshmi Ex.P.4 was recorded by PW.7. Based on the said
statement, PW.7, submitted a report Ex.P.5 to the Inspector of Police, PW.11. The first accused also was taken to the police station and
entrusted her to PW.11 for the purpose of investigation.
15. PW.11 obtained a confession statement from the first accused. On the basis of the admissible portion Ex.P.6 in that confession statement of
the first accused, blood stained nighty MO-6 was recovered behind Sivaram Mills in Coimbatore. The first accused as well as the material objects
seized from her were remanded to judicial custody. On the very same day at about 5.00 A.M., the second accused Aruchamy was arrested in the
presence of Ganesan PW.8, near Kadhir Mills at Coimbatore. The second accused also voluntarily gave a confession statement and on the basis
of the admissible portion, Ex.P.8 in the confession statement of the second accused, dothi MO-7 was recovered near the said Kadhir Mills under
relevant seizure mahazar Ex.P.9 in the presence of the aforesaid witness. The second accused as well as the material objects recovered from her
were remanded to judicial custody.
16. PW.11 submitted a requisition Ex.P.18 to the learned Judicial Magistrate to send the material objects for chemical examination. The chemical
examiner having analysed the material objects based on the covering letter Ex.P.19 received from the Court of the learned Judicial Magistrate,
submitted a chemical report Ex.P.20 and serology report Ex.P.21 to the Court. Having completed the investigation in this matter, PW.11 laid the
final report as against the first accused for the offence punishable u/s 302 of the Indian Penal Code and as against the second accused for the
offence punishable u/s 302 r/w Section 109 of the Indian Penal Code.
17. The incriminating circumstances found in the testimony of the prosecution witnesses were putforth in the form of questionnaire to the accused
who chose to deny each and every circumstances spoken to by the witnesses. They have submitted that a false case has been foisted on them.
18. The respective learned Counsel for the accused would submit that the very fact that PW.2, the mother of PW.1 had not informed PW.11
about the occurrence during night would give raise to a doubt whether she could have witnessed the occurrence. It is their further submission that
inasmuch as Balasubramaniam, PW.7, was a stranger to the first accused, the first accused would not have unfolded her heart about the
occurrence to him. Referring to the medical evidence, learned Counsel for the accused would submit that the injury found on both the hands of the
deceased were not explained by the prosecution. It is their further submission that even assuming that the first accused had caused the death and
the second accused had aided her to commit the same, the alleged confession statement of the first accused will have to be gone into for the
purpose of arriving at a conclusion as to whether the case falls under any of the exception to Section 300 of the Indian Penal Code.
19. Learned Additional Public Prosecutor would submit that the ocular testimony of PW.2 has been completely corroborated by the testimony of
Jeyakumar, PW.1, and Suresh, PW.3. It is his further submission that the motive part of the case of the prosecution was spoken to by PWs.1,2
and 4. The extra judicial confession given by the first accused to Balasubramniam, PW.7, would also lend support to the case of the prosecution
that it was only these two accused who caused the death of Karuppusamy. The learned Additional Public Prosecutor would lastly submit that the
blood stains found on the nighty recovered from the first accused and the dothi recovered from the second accused were found with human blood
of ''B'' group which synchronises with the blood found on the plaster pieces recovered from the scene of occurrence. The trial Court has rightly
returned a verdict of conviction as against the first accused u/s 302 of the Indian Penal Code and as against the second accused u/s 302 r/w
Section 109 of the Indian Penal Code respectively which does not require any interference, he would further submit.
20. PW.2, Shanthamani is a neighbour of the deceased Karuppusamy. PW.1 is none other than her son. It is her evidence that both of them are
residing in their house which is located close by the house of Karuppusamy. PWs.1 and 2 have spoken in one voice that there was a quarrel
between the deceased Karuppusamy and the first accused till about 11.00 P.M. on 3.3.2002. In fact, they would state that the deceased
Karuppusamy was armed with a knife and wielded a threat to the first accused with dire consequences if she did not oblige to take away the
second accused who happened to stay in his house. They have also spoken about the reason for the said quarrel. As the rumour was rife in the
village that the first accused had developed extra marital relationship with the second accused, the deceased Karuppusamy gave a stern warning to
the first accused. The quarrel now and then erupted between the first accused and the deceased Karuppusamy has been spoken to by PWs.1,2
and 4 also. PW.4 is also a neighbour, who has chosen to conciliate the dispute between the deceased and the first accused along with
Shanthamani, PW.2. All of them had seen the quarrel which continued till 11.00 P.M. on 3.3.2002.
21. At about 00.30 hours, on 4.3.2002, PW.1 had woken up to attend the nature''s call. It is his evidence that by that time, he saw both the
accused carrying a heavy stone MO-1 through the lane which was running by the side of the house of Karuppusamy. Minding his own business,
PW.1 had entered into his house and gone to bed.
22. Shanthamani, PW.2 has woken up thereafter as she had a disturbed sleep, perhaps on account of the quarrel which erupted between the first
accused and the deceased till about 11.00 P.M on the said date. She had seen her son Jeyakumar, PW.1, taking his bed after attending the
nature''s call. She went out of the house and found both the accused standing in front of the house of the first accused. It is her testimony that the
second accused instructed the first accused to put the stone on the head of Karuppusamy and thereafter the first accused put the heavy stone MO-
1 on the head of the deceased. On hearing the sound, PW.2 had attempted to enquire with the first accused but the first accused had sternly
warned Shanthamani, PW.2. PW.2, Shanthamani, having been afflicted with mortal fear, went inside her house and even without informing her son
went to sleep.
23. As already pointed out by us, Shanthamani, PW.2 is the neighbour of the deceased. Therefore there is no reason to disbelieve her testimony
that she witnessed the occurrence. There is every possibility for Jeyakumar, PW.1 to come out of the house at the odd hours to attend the nature''s
call. Therefore his testimony is also found to be quite natural. The Mill worker Suresh, PW.3 has also seen not only the first accused and the
second accused at the scene of occurrence but also PW.2 in front of her house. He lends corroboration to the ocular testimony of Shanthamani,
PW.2. Suresh, PW.3 also was directed to mind his business by the first accused and therefore he had to leave the scene of occurrence.
24. The prosecution has come out with the testimony of Balasubrmaniam, PW.7, to bring home the point that the first accused gave an extra
judicial confession to him. Balasubramaniam, PW.7 would state during the course of cross examination that he met the first accused for the first
time on the day when she came and gave the extra judicial confession to him. But if we go through the entire text of the chief examination as well as
the cross examination, we find that Balasubramaniam, PW.7 has come out with a version that the first accused was also already known to him.
Otherwise no one would venture to record the confession statement and take the said statement along with the accused to the police station. In the
extra judicial confession also the first accused has come out with the version that there was a quarrel till about 11.00 P.M on the said date between
herself and her husband as the second accused started staying in her house. The whole quarrel had arisen on account of the suspicion entertained
by the deceased about the extra marital relationship she developed with the second accused. Of course, the extra judicial confession is a weak of
piece of evidence, but we find that there is ocular testimony in this case and also telling circumstances put forth by the prosecution to establish that
the first and the second accused caused the death of the deceased in culmination of the quarrel. Therefore, the extra judicial confession given by
the first accused to Balasubramaniam, PW.7 can be taken as a corroborative piece to lend credence to the evidence available on record.
25. Yet another important piece of evidence found on record is the serology report Ex.P.21. The Inspector of Police had recovered the blood
stained mortar from the scene of occurrence under relevant seizure mahazar, the blood stained nighty at the instance of the first accused and a
blood stained dothi at the instance of the second accused based on their respective confession statement before the witnesses. The chemical
examiner having analysed the blood stains found on those three objects, has returned a verdict that all the aforesaid three objects contained human
blood of ''B'' group. There is no explanation from the first accused and the second accused as to how the blood stains of ''B'' group was found in
their apparels seized at their instance. Therefore, the serology report also lends credence to the version of the prosecution that it was only the
accused who caused the death of Karuppusamy.
26. Of course, some injuries were found on both the hands of the deceased by the postmortem doctor and the same is reflected in the postmortem
certificate Ex.P.11 issued by Dr. Menaka Sekar PW.10. If a person sleeps putting both his hands on the upper chest portion, there is every
possibility of causing injury by a weapon like MO-1, if it is put down from about 4 feet on the lower portion of the head. Dr. Renuka Sekar,
PW.10, has categorically stated that the upper portion of the head has not sustained injury. Therefore, we find that the injuries found on both the
hands of the deceased would not give rise to any doubt.
27. In view of the above discussions, we find that there is ample evidence on record to establish that it was only the first accused at the abetment
of the second accused caused the death of her husband Karuppusamy.
28. Now the question arises as to whether it is only a case of culpable homicide not amounting to murder or it is a case of murder punishable u/s
302 of the Indian penal Code. PWs.1,2 and 4 have categorically spoken to the fact that now and then there had been quarrels between the
deceased Karuppusamy and the first accused on account of the fact that the second accused developed extra marital relationship with Lakshmi
(A.1). The first accused had been nagged by Karuppusamy on account of the aforesaid suspicion. In this context, we will have to refer to the extra
judicial confession given by the first accused. The first accused has come out cogently in the extra judicial confession given to Balasubramaniam,
PW.7 that the deceased having taken liquor used to heap abuse on the first accused and beat her. On one occasion, it appears that the deceased
had beaten her and broken her hands. A graphic account of the cruelty committed on the first accused by the deceased finds a place in her extra
judicial confession. On the date of occurrence, she has stated that till about 11.00 P.M armed with a knife, the deceased Karuppusamy threatened
to do away with her life if she did not prefer to get out of the house along with the second accused. The tell tale version of the first accused is that
having decided to put an end to the cruelty meted out to her by the deceased, she decided to kill her husband. Even after 11''O clock on the night
it appears that the first accused had continued the quarrel. The moment he had gone to bed, the first accused with the able assistance of the second
accused had brought a big stone and put the stone on the head of Karuppusamy and caused the death.
29. Of course, the death had not been caused by the first and the second accused, immediately after the provocation was given by the deceased.
The provocation had been sustained by the first accused for about half an hour or so and thereafter having taken the decision, she had killed her
husband with the assistance of the second accused by putting a stone on his head. We find that the provocation provided by the deceased was
really grave but though it was not sudden, the provocation had been sustained by the first accused for a few minutes and thereafter she had given
vent to the said provocation. We find that the sustained provocation provided by the deceased had ultimately culminated in the death of the
deceased at the hands of the first accused who was assisted by the second accused.
30. Though the prosecution has established beyond reasonable doubt that the first accused caused the death of the deceased and the second
accused abetted such a crime, we find that the culpable homicide of Karuppusamy had been committed only due to the sustained provocation. The
offence committed by the accused squarely falls under Exception 1 to Section 300 of the Indian Penal Code.
31. In the result the appeal is partly allowed and we set aside the judgment of conviction and sentence passed as against the first accused
punishable u/s 302 of the Indian Penal Code and as regards the second accused punishable u/s 302 r/w Section 109 of the Indian Penal Code and
the fine amount imposed for the aforesaid offences stands set aside. Instead, we convict the first accused for the offence punishable u/s 304(i) of
the Indian Penal Code and the second accused for the offence punishable u/s 304(i) r/w Section 109 of the Indian Penal Code and sentence each
one of them to undergo seven years rigorous imprisonment. As the accused are under penury, we do not propose to levy any fine on them.
