BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/12/2008 CORAM THE HONOURABLE MR.JUSTICE R.REGUPATHI and THE HONOURABLE MR.JUSTICE R.SUBBIAH Criminal Appeal (MD) No.446 of 2002 Malaichamy, .. Appellant/ S/o.Raman. Sole Accused Vs. State, rep. by Inspector of Police, Dindigul Taluk Police Station, Dindigul District. .. Respondent/ (Crime No.646/1999) Complainant Appeal under Section 374(2) of the Code of Criminal Procedure against the judgment, dated 28.02.2008, of the learned Principal Sessions Judge, Dindigul, in S.C.No.80 of 2001. !For Appellant ... Mr.M.Suri ^For Respondent ... Mr.P.N.Pandithurai, Addl. Public Prosecutor. :JUDGMENT
(Judgment of the Court was delivered by R.REGUPATHI,J)
Challenging the conviction and sentence imposed on him in the
judgment of the Principal Sessions Judge, Dindigul District, in S.C.No.80/2002,
dated 28.02.2002, the appellant, who is the sole accused in the case, has filed
this appeal. The appellant stands convicted and sentenced to undergo
imprisonment as detailed hereunder.
Conviction Sentence
Under Section 302 IPC Sentenced to undergo life imprisonment and also to pay a fine of
Rs.1000/-, in default to undergo three years rigorous imprisonment.
Under Section 379 IPC Sentenced to undergo one year rigorous imprisonment.
Under Section 201 IPC Sentenced to undergo rigorous imprisonment for two years and
also to pay a fine of Rs.500/-, in default to undergo four months
rigorous imprisonment.
All the sentences to run concurrently.
2.The allegation against the appellant/accused is that he, a
married man, was having illicit intimacy with the deceased by name Thai @
Mariammal. After sometime, the deceased started to have intimacy with some
other person and on account of that, there was a wordy quarrel between the
appellant/accused and the deceased. Thereafter, the appellant/accused took the
deceased with him under the guise of compromise the caused her death by
throttling the neck.
3.During the course of trial, three charges were framed
against the appellant/accused. As per the 1st charge, the appellant/accused,
who had illicit intimacy with the deceased, suspecting that she was having
affair with some other person, indulged in quarrel with her on 25.09.1999 at
6.00 p.m. and, on the same day, at 9.30 p.m., when the deceased came to his
place incidentally, with an intention to finish her off, under the guise of
compromising, persuaded the deceased and while she was lying him, murdered her
by throttling the neck and thereby committed an offence punishable under Section
302 IPC. The 2nd charge was that, after murdering the deceased, the
appellant/accused took away the golden ear studs and silver anklets worn by her
and thereby committed an offence punishable under Section 379 IPC. The 3rd
charge was that, during the course of the same transaction, in order to screen
the evidence, the appellant/accused carried the body of the deceased in a gunny
bag and threw it inside a bush near a pond and thereby, committed an offence
punishable under Section 201 IPC.
4.On framing of charges, when the appellant/accused was
questioned initially, he denied the charges and pleaded not guilty. Therefore,
the trial of the case was taken up. To prove the charges, the prosecution
examined as many as 15 witnesses as P.Ws.1 to 15, marked Exs.P-1 to P-17 and
also produced M.Os.1 to 9. The learned trial judge, on conclusion of the trial,
convicted and sentenced the appellant/accused as stated above. Hence, this
appeal at the instance of the appellant.
5.The case of the prosecution, as discerned from the evidence
of the prosecution witnesses, could be stated thus.
(a)P.W.1 is the brother of the deceased. He, in his evidence,
has stated that the accused is distantly related to him and was having illicit
intimacy with his sister, the deceased. On 25.09.1999, the accused came to
their residence and quarreled with the deceased, suspecting that the deceased
was having intimacy with some other persons. P.W.1 and P.W.2, the father of the
deceased, intervened and thereafter, the accused left the place. The deceased
was also found missing from that night onwards. P.Ws.1 and 2 searched for the
deceased and they could not find her.
(b)After seven or eight days, on the information given by
P.W.3, P.Ws.1 and 2 went and saw a skeleton inside a bush near a pond and, with
the help of the cloths found on the skeleton, namely saree, blouse and
petticoat, they could identify the skeleton as that of the deceased. Further,
in view of the quarrel which took place on 25.09.1999, they suspected the
accused behind the crime. Therefore, on 04.10.1999 at 08.00 p.m., P.W.1 gave
Ex.P-1, the complaint, to P.W.14, the Head Constable.
(c)Based on Ex.P-1, P.W.14 registered a case in Crime No.646
of 1999 under Section 302 IPC and prepared Ex.P-14, the first information
report, and forwarded the same to the Court and copies thereof to the higher
police officials, through P.W.13, Grade-I Constable, who, in turn, handed over
the same to the Court at 10.00 p.m. on the same day.
(d)The evidence of P.W.2, the father of the deceased, is also
on the same line as that of P.W.1. During chief examination, as P.Ws.1 and 2
omitted to state certain aspects of the prosecution case which were revealed by
them during the course of investigation, they were treated as hostile and when
cross-examined by the prosecution, both the witnesses admitted the statement
given to the Investigating Officer during investigation and thereby stuck to
their earlier version.
(e)P.W.3, a distant relative of the deceased, though examined
to substantiate that she saw a skeleton in a bush near a pond and informed the
same to P.Ws.1 and 2, during the course of trial, she did not support the case
of the prosecution. P.Ws.4 to 6 were examined to substantiate that the accused
was last seen together in the company of the deceased. However, they did not
support the prosecution case and therefore they were treated as hostile
witnesses.
(f)P.W.15, the Investigating Officer, on receiving copy of
Ex.P-14, FIR, at 10.30 p.m. on 04.10.1999, proceeded to the scene of occurrence,
prepared Ex.P-4, the observation mahazar, in the presence of witnesses. He also
drew Ex.P-15, the rough sketch and Ex.P-15, the rough sketch, examined the
witnesses present there and recorded their statements. He conducted inquest
over the dead body found in the form of skeleton, and prepared Ex.P-16, the
inquest report. He gave a requisition (Ex.P-2) for conducting postmortem on the
skeleton at the place of occurrence itself.
(g)P.W.12, the Head Constable, handed over Ex.P-2, the
requisition, to the Government Headquarters Hospital at Dindigul and he was
present at the time of postmortem.
(h)P.W.7, the Medical Officer attached to Government Hospital,
Dindigul, on receipt of Ex.P-2, the requisition, conducted postmortem at the
scene of occurrence on 05.10.1999. He found the dead body of the deceased in a
skeleton form and bones scattered. He also found lying of a long hair, skull
and other bones. He preserved them for further opinion. Ex.P-3 is the
postmortem certificate given by P.w.7, wherein, it is stated as follows:
“Spot Post-mortem: Surrounding:- Bank of a Pond with bushes around the
bushes had been cleaned to make path to reach the body. A skeleton of a female
body with only some amount of decomposed flesh with maggots around the hip
region. The skull without mandible was found separately by the side of the
body. No soft tissue on the skull seen. No contents were seen through the
foramen magnum. The mandible was found separately by the side of the body. The
sternum and both scapulae, some ribs and limb bones were found scattered around
the body. The hyoid bone was not found in the spot. A Copper-T was found in
the decomposed tissue in the supra pubic area.
Pelvis: Broad with smooth surface, the pelvis brim was circular, Public
symphysis was lower with square shaped pubis. Bunch of hair & length about one
feet was found by the side of the body.
Generally, all the bones were light with smooth surface. The bones of
feet and hands were not found.
The entire skull with mandible and six cervical vertebrae were handed over
to he Investigation Officer.
Opinion as to the cause of death: No definite opinion can be given, since
the body was highly decomposed.”
(i)After postmortem, P.W.12, the constable, recovered M.Os.7
to 9, the saree, the petticoat and the blouse, found on the skeleton, the
mandible bone, the skull and the spinal cord bones and handed over the same to
the Investigation Officer. As per the order of Judicial Magistrate No.2,
Dindigul, he produced a full size photograph of the deceased and its negative.
He also took the material objects in the case and handed over the same to the
Forensic Department at Chennai for examination and on 27.03.2000, he obtained
chemical examination reports and produced the same before the Judicial
Magistrate Court.
(j)P.W.9, the Village Administrative Officer, was present in
his office on 05.10.1999 at about 9.00 p.m. At that time, the accused appeared
before him and gave a confession, stating that he committed the murder of the
deceased and thereafter threw the dead body in a bush near a pond. The accused
also confessed before P.W.9 to the effect that the ear studs and the anklets
worn by the deceased were taken away by him. Ex.P-6 is the statement given by
the accused to P.W.9 and Ex.P-7 is the certificate of P.W.9. Thereafter, P.W.9
took the accused to the Inspector of Police and on production before the police,
the accused gave a voluntary confession statement, admissible portion of which
is marked as Ex.P-8, wherein, he stated that the place where the dead body was
thrown would be identified by him as well as he would produce the ear studs and
anklets. In pursuance of such statement, the accused took the Investigating
Officer and the Village Administrative Officer to the scene of occurrence at
10.30 p.m. and produced a gunny bag, marked as M.O.4. From his house, he
produced M.Os.2 and 3, the gold ear studs and Silver anklets, respectively.
Thereafter, the accused was produced before the court and remanded to judicial
custody.
(k)P.W.10, the Scientific Assistant, Forensic Department,
Chennai, on receipt of the skull and the photographs of the deceased, conducted
superimposition test and gave her opinion in Ex.P-11, opining that the skull
could have belonged to the female individual seen in the photograph. M.O.5 is
the photograph and M.O.6 is the skull.
(l)P.W.15, the Investigating Officer, gave Ex.P-12, the
requisition, to the court for sending the material objects for chemical analysis
and they were forwarded to the Forensic Laboratory under Ex.P-13, the letter of
the Court. After examination of witnesses and receiving opinion from experts,
P.W.15 filed the final report before the Judicial Magistrate concerned.
6.The case was committed to the Court of Sessions by the
Judicial Magistrate for trial. On completion of the evidence on the side of the
prosecution, when the appellant/accused was questioned procedurally under
Section 313 of the Code of Criminal Procedure about the incriminating materials
found against him in the evidence of prosecution witnesses, he denied all of
them as false. On the side of the accused, no witness was examined and no
document was marked. After hearing the arguments advanced by the counsel on
either side and perusal of the materials available, the trial court passed the
order of conviction and sentence as aforementoned. Hence the present appeal
at the instance of the appellant.
7.learned counsel appearing for the appellant, in assailing
the judgment of the trial court, raised the following points:
(i)Though P.Ws.1 and 2 have spoken to about the relationship between
the accused and the deceased, the quarrel between them on 25.09.1999 and the
missing of the deceased from that date onwards, a complaint to that effect has
not been given to the police immediately.
(ii)In the normal course, a complaint should have been given
immediately without any lapse of time but, Ex.P-1 has been given after nine
days, that too, after a dead body was traced in the form of skeleton near a
pond on the information given by P.W.3 and, therefore, the delay in giving
complaint is fatal to the prosecution.
(iii)Though suspicion has been raised against the accused, there is
no material to connect him with the crime.
(iv)P.Ws.4 to 6 were examined by the prosecution to substantiate
that the deceased was last seen alive in the company of the accused but, they
did not support the case of the prosecution and turned hostile and, therefore,
the link between the accused and deceased is snapped.
(v)Though skull was recovered, it has not been proved beyond
reasonable doubt that the skeleton was the body of the deceased.
(vi)Even as per the prosecution version, the deceased was having
illicit intimacy with some other persons also and further the deceased indulged
in a quarrel with her family members and, in such a circumstance, it is quite
possible that somebody else might have caused the death of the deceased.
(vii)Though the learned trial judge has held that there are six
incriminating circumstances connecting the accused with the crime, those
circumstances are not strong enough to prove the guilt of the accused and the
chain of circumstances are not complete and, therefore, benefit of doubt must be
given to the appellant/accused.
8.Per contra, learned Additional Public Prosecutor submits
that though P.W.3, who gave information about the skeleton, has also turned
hostile, the evidence of P.Ws.1 and 2 is natural and they are none else than the
brother and father, respectively, of the deceased. It is his further submission
that P.Ws.1 and 2 have not only spoken to about the relationship of the accused
with the deceased, but also about the quarrel which ensued between them and the
missing of the deceased from that night onwards and they also, in the effective
search made by them to find out the deceased, enquired the accused. He would
further submit that the skeleton was identified as that of the deceased by
P.Ws.1 and 2 with the help of the dress materials found on the skeleton and
subsequently when the ear-studs and the silver anklets, which were recovered
from the accused, were shown to them, P.Ws.1 and 2 have correctly identified
them as that of the deceased and this circumstance connects the accused with the
crime. Though the witnesses, who were examined to substantiate the last seen
theory and the link of the accused with the deceased turned hostile, the
statement of the accused before the Village Administrative Officer, his
voluntary confession before the police officer and the recovery of ear studs and
anklets from the accused are sufficient to connect the accused with the crime.
Learned Additional Public Prosecutor further submitted that though it was
strongly contended by the defence that P.W.9 is not the jurisdictional Village
Administrative Officer, the fact remains that P.W.9 recorded the confession of
the accused when it was reported to him by the accused and the same was reduced
into writing by him, in the manner known to law and he has also given Ex.P-7
certificate in that regard. Thereafter, the accused was produced before the
investigating officer for further investigation. He would point out that during
the course of investigation, the place where the dead body was thrown was
identified by the accused himself and the incriminating materials, which were
worn by the deceased and taken away by the accused, have been produced by him.
According to the learned Additional Public Prosecutor, the circumstances put-
forth by the prosecution are strong enough to bring home the guilt of the
accused and the chain of circumstances are continuous, leading to the only
conclusion that it was the accused who alone committed the offence and the
circumstances relied on by the trial court are well founded and the prosecution
had proved its case beyond reasonable doubt and there is no valid ground to
interfere with the well considered judgment of the trial court.
9.We have heard the counsels on either side and perused the
materials on record.
10.It emerges from the evidence of the prosecution witnesses
that the accused is closely related to the deceased. Further, the accused is a
married man and the deceased was an unmarried woman. However, they themselves
established a relationship between them for about one year and such relationship
was continuing in spite of the objection by P.Ws.1 and 2 and other family
members. The accused suspected that, apart from him, the deceased had intimacy
with other person. The meeting of the accused and the deceased on 29.05.1999 is
spoken to by P.Ws.1 and 2. On the said date, both the accused and the deceased
quarrelled with each other and thereafter, the deceased was found missing. On
our assessment, we do not find anything to discredit the evidence of P.Ws.1 and
2 on the above aspect and it is not even suggested that the deceased was having
affair with any particular person, except the accused.
11.Though there is a delay of nine days in giving the
complaint Ex.P-1 and such complaint has been given after seeing the skeleton and
confirming that it was that of the deceased, the fact remains that there was
continuous search by P.Ws.1 and 2 to locate the deceased and ultimately, when
the skeleton was found near the pond, P.Ws.1 and 2 identified the same as that
of the deceased by seeing the cloths, namely M.Os.7 to 9, found on the skeleton.
Further, the skeleton found at the scene of occurrence has also been proved to
be the dead body of the deceased by examination of P.W.10, the Scientific
Assistant, who conducted the superimposition test. Ex.P-11 is the opinion given
by P.W.10. On coming to know about the recovery of the dead body and other
material objects from the scene of occurrence, the accused surrendered himself
before P.W.9, the Village Administrative Officer, on 05.10.1999. Though P.W.9
is not the jurisdictional Village Administrative Officer, the recording of the
extra-judicial confession given by the accused to him cannot be disputed.
P.W.9, after following the procedure prescribed, recorded the statement, and
after assigning Ex.P-7 certificate produced the accused before P.W.15, the
Investigating Officer. The statement of the accused before the Village
Administrative Officer will be considered as extra-judicial confession and such
confession received sufficient corroboration through the other materials
produced by the prosecution.
12.In addition to the above, in pursuance of the voluntary
confession statement, the accused identified the place where the dead body was
thrown and further, the gunny bag in which the dead body of the deceased was
shifted to the scene of occurrence and also the jewels worn by the deceased were
recovered from the residence of the accused, thereby, the link and the
involvement of the accused in the commission of the crime are well established.
13.Therefore, we are of the considered view that the chain of
circumstances are so complete and strong enough, leading to the irresistible
conclusion that it was the accused who committed the crime and the reasonings
given by the trial judge in convicting the accused are well founded and we do
not find any reason whatsoever to disturb the findings of the trial court,
except to confirm the conviction and sentence imposed on the appellant.
14.In the result, the appeal fails and the same is dismissed,
confirming the order of conviction and sentence passed by the trial court. As
it is reported that the appellant/accused is on bail, the trial court is
directed to take steps to secure the presence of the appellant/accused and
commit him to jail to undergo the life imprisonment imposed.
gb.
To:
1.The Principal Sessions Judge,
Dindigul District,
Dindigul.
2.The Inspector of Police,
Dindigul Taluk Police Station,
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court
Madurai.