2024:MHC:1174 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.02.2024 CORAM :

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN and THE HONOURABLE MR.JUSTICE C.KUMARAPPAN Crl.A(MD)No.61 of 2021 Gandhimathi ... Appellant vs.

State Rep. by The Inspector of Police, Tirunelveli Town Police Station, Tirunelveli City.

(Crime No.155 of 2019) ... Respondent Appeal filed under Section 374 of the Criminal Procedure Code, 1973, to call for the records in S.C.No.375 of 2020 dated 16.12.2020 on the file of learned 4^th Additional District and Sessions Court, Tirunelveli, set aside the judgment and acquit the appellant/sole accused.

For Appellant : Mr.N.Mohideen Basha For Respondent : Mr.E.Antony Sahaya Prabahar Additional Public Prosecutor

J U D G M E N T

DR.G.JAYACHANDRAN , J .

and C.KUMARAPPAN, J.

Appeal is by sole accused convicted for offence under Section 302 IPC and sentenced to undergo imprisonment for life with a fine of Rs.5,000/- in default to undergo 3 years rigorous imprisonment.

The charge as framed by the trial Court based on the materials collected during the course of investigation is that the accused Gandhimathi earlier married one Venkatesan and blessed with one daughter. In the year 2007, the said Venkatesan died and thereafter she married one Radhakrishnan and through him, she has one son and one daughter. The said Radhakrishnan is Painter by profession. He used to drink Alcohol and became an addict. He had been regularly abusing his wife Gandhimathi [accused] and causing cruelty. While so, on 08.05.2019 at their residence about 10.00 p.m., the said Radhakrishnan came home in a drunken mood and caused sexual torture. When Gandhimathi refused to have cohabitation, Radhakrishnan had abused her in filthy language unmindful of the fact that the children are present. Therefore, Gandhimathi has attacked Radhakrishnan severely by hitting his head on the floor repeatedly and thereafter strangulated his neck using a nylon rope causing his death. Hence, charge under Section 302 IPC for intentionally causing death of Radhakrishnan been framed and tried.

2. To prove the charge, the Prosecution has examined 20 witnesses, marked 22 exhibits through them besides 4 material objects. The Court below on appreciating the evidence has arrived at the conclusion that the guilt of the accused proved beyond doubt for offence under Section 302 IPC causing death with intention. The present appeal is preferred on the ground that the Court below miserably failed to take note of the fact that apart from the deceased and the accused, their children were present in the house but they were not examined though they are the best witnesses. The occurrence is alleged to have taken place on 08.05.2019 about 10.00 p.m., whereas the Police has registered FIR at 12.30 hours on 09.05.2019. According to the Prosecution, the informant is the Village Administrative Officer to whom the accused alleged to have confessed about her guilt. However, the witnesses to the prosecution invariably deposed that Police were present in the scene of occurrence at 06.00 a.m on 09.05.2019. The evidence further reveals that the body was taken with the help of Ambulance by 8.00 a.m in the morning. However, unexpected delay in registering the FIR causes doubt about the case of the prosecution.

3. Further, the learned counsel appearing for the appellant submitted that the extra judicial confession statement relied by the Prosecution is highly doubtful and if the version of the accused as found in the confession statement is to be believed, then there must be some injury on the head of the deceased since the accused has confessed that she first banged her husband on the floor repeatedly and only thereafter strangulated his neck using nylon rope marked as M.O.3. However, the postmortem report marked as Ex.P10 does not indicate any head injury. Since the hyoid bone been intact, the theory of the prosecution that the accused first banged the deceased on the floor and thereafter strangulated his n