IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.774 of 2009 Mahesh .. Appellant Vs. State rep. by The Inspector of Police, Kondalampatti Police Station, Salem District. .. Respondent The criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of the learned Principal Sessions Judge, Salem made in S.C.No.226 of 2007 dated 22.7.2009 For Appellant : Mr.Abudukumar Rajarathinam for Mr.M.Sathishkumar For Respondent : Mr.N.Balasubramanian, A.P.P. J U D G M E N T
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Principal Sessions Division, Salem made in S.C.No.226/2007 whereby the sole accused/appellant stood, charged, tried and found guilty under sections 449 and 302 I.P.C. and awarded ten two rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo 4 months rigorous imprisonment for the offence under section 449 I.P.C. and awarded life imprisonmentand to pay a fine of Rs.2,000/-, in default, to undergo six years rigorous imprisonment for the offence under section 302 I.P.C. The sentences are ordered to run concurrently.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(i) P.W.1 is the mother, P.W.2 is the grand mother and P.W.3 is the brother of the deceased Menaka. Originally, they were residing at Sentharapatti, Krishnagiri, and the accused also belonged to the same place. The accused fell in love with Menaka and used to tease her whenever she was going to school. The accused compelled her to love him to which course, she was not amenable. When the matter was complained to P.W.1, mother she took the deceased to Kondalampatti where P.W.2, the grandmother of the deceased was residing. On coming to know about this, the accused also came to Kondalampatti and took a room for rent and stayed there and continued the same activities what he was originally doing at Sentharapatti.
(ii) On the date of occurrence, that was, on 20.4.2007 at 5.30 p.m., P.W.2 left home to purchase milk. On her return, she met P.W.1 and P.W.3 and all of them went to the house of P.W.2. When they came near the house, they saw the house locked inside and heard the distress cry of Menaka from inside the house. When they peeped through the window, they saw the accused attacking Menaka with wood log on her head. P.W.3 broke open the door and went inside. At that time, the accused ran away with wooden log from the place of occurrence. Menaka fell down. She was taken in an ambulance to the Government Hospital and she was declared dead by P.W.6 doctor. P.W.1 proceeded to the Kondalampatti Police Station and gave a complaint to the Sub Inspector of Police, P.W.16. On the strength of which, a case came to be filed in Crime No.285/2007 under section 302 I.P.C. The F.I.R. Ex.P.28 was despatched to Court.
(iii) On receipt of the F.I.R., P.W.17, Inspector of Police of that circle, took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P.5 and also drew a rough sketch Ex.P.29. He recovered the material objects from the place of occurrence under a cover of mahazar. Then, he conducted inquest on the dead body of the deceased and prepared the inquest report Ex.P.30. Thereafter, the dead body was subjected to post mortem.
(iv) P.W.14 doctor attached to Mohana Kumaramangala Medical College and Hospital, Salem conducted autopsy on the dead body of the deceased Menaka and found the following injuries.
“I. Face appears congested and edematais cubconjuctival haemorrhage seen both eyes. Bite marks seen in lower lip. Contusion of 4 x 1.5 cms x dark red seen in the inner aspect of upper lip. Laceration of 2.5 x 0.5 x 0.5 cms seen in the upper inner aspect of the upper lip. Laceration of 3 x 0.5 x 0.5 cms seen in the inner aspect of upper lip. Tongue bitten by teeth.
II. Abrations (Reddish brown ) seen over:
(1) Right side of chin 1 x 0.25 cm.s
(2) Right upper part of the neck 1.5 x 1 cms
(3) Right side of cheek 0.5 x 0.25 cms
(4) Middle aspect of right side of neck 1 x 0.25 cms
(5) 4 cms below right earlobes 2 x 0.25 cms
(6) Linear abrasion 2.5 x 0.25 cms right side of cheek
(7) Linear abrasion near the previous injury over right side of cheek 2 x 0.25 cms
III. Bluish black cotusions seen over
(1) Right chin 0.5 cms below the right angle of mouth 6 x 4 cms
(2) Left upper part of neck with three crescentric nail mark abrasions 3x2x8 cms
(3) Right upper part of neck with four crescentric nail lmakr abrasions 5 x 2 cms
(4) Left upper eye lid 2 x 1 cms
(5) Right upper eye lid 2 x 1 cms
(6) Alae of nose 2.5 x 1 cms with underlying fracture nasal bone.
IV. On dissection of nose contusion with haematoma seen over posterior aspect of right and left sides of trachea 11 x 5 x 1 cms. Soft tissue of neck appears contused and haemorrhagic. Hyoid bone appears contused at junction of body land greater horn of hyoid bone on both sides 1 x 0.5 x 0.5 cms (bluish black coloured)”
The doctor gave the post mortem certificate Ex.P22 wherein he has opined that the deceased would appear to have died out of asphyxia due to smothering.
(v)On 21.4.2007, the accused was arrested. He gave confessional statement and the same was recorded in the presence of witnesses and the admissible part of the same is marked as Ex.P7 pursuant to which M.O.1 wooden log and M.O.6 shirt were recovered under a cover of mahazar. Thereafter, he was sent for judicial remand. All the witnesses P.Ws. 1 to 3 were taken to the Judicial Magistrate for the purpose of recording their statement under section 164 Cr.P.C. The material objects were subjected to chemical analysis which broughtforth the reports viz., Ex.P25 Biology report, Ex.P.26 Chemical Report and Ex.P27 Serology report. On completion of the investigation, the investigating officer filed a final report.
(vi) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 17 witnesses and relied on 30 exhibits and 14 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. and he denied them as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and rendered the punishment as referred to above. Hence, this appeal at the instant of the appellant.
3. Advancing the arguments on behalf of the appellant, the learned counsel Mr.Abudu Kumar Rajarathinam would submit that the prosecution has miserably failed to prove its case. According to him, P.Ws.1 to 3 are none else than the mother, grant mother and brother of the deceased Menaka. The learned counsel would further submit that P.Ws. 1 to 3 were examined as eye witness but they could not have seen the occurrence at all. When they were examined before the Court, they have given evidence to the effect that when they went nearby the house, they peeped through the window and found the accused attacking her with wooden log and thereafter, he left the place. During inquest and also during 164 statement recorded by the Judicial Magistrate, none of the witnesses has uttered anything like that. Therefore, it is clear that they could not have seen the occurrence at all.
4. Added further learned counsel, P.Ws. 1 to 3 though have stated that Menaka was attacked by the accused with wooden log, the doctor who conducted post mortem has specifically stated that there was no external injury at all. In the instant case, P.W.2, grandmother has well stated in her evidence that at about 1 ‘O’ Clock Menaka had lunch and at about 4.00 to 5.00 p.m. Menaka had eatables like Athirasam and mixture but the post mortem doctor has categorically stated in the post mortem report that the stomach was empty. If really the occurrence had taken place as putforth by P.Ws. 1 to 3 and Menaka had taken eatables at 4.00 to 5.00 p.m., the digested food particle should have been found in the stomach but the stomach was found empty,according to the post mortem doctor. It would indicate that P.Ws. 1 to 3 could not have seen the occurrence or the occurrence should have taken place earlier in point of time. On that account their evidence should not be believed.
5. Added further learned counsel, the accused also sustained injury but the same was not explained. As per 313 statement, only on the request of Menaka, the accused went to the house of Menaka and at that time, one known person and 40 unknown person attacked him and hence, he sustained injuries. It is the case where the prosecution has to explain how the accused sustained injuries but the prosecution miserably failed to prove its case. Hence, it is a fit case for acquittal but the trial court has taken an erroneous view and convicted the accused. In support of the contention that the doctor has given opinion at the time of post mortem that the stomach was empty which is contradictory to the statement of the prosecution witnesses, the learned counsel relied on the decision of the Apex Court reported in 2003 Crl.L.J. 1694 ( Moti v. State of U.P.)
6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
7. It is not in controversy that one Menaka, daughter of P.W.1 and the grand-daughter of P.W.2 was declared dead by P.W.13, doctor. Following the registration of the case under section 302 I.P.C. and after preparation of the inquest report, the dead body was subjected to post mortem. P.W.14, doctor conducted post mortem on the deceased and has categorically given opinion through the contents in the post mortem certificate Ex.P22 and also as a witness before the court that she died out of asphyxia due to smothering . The fact that the deceased died out of the said cause was never disputed by the appellant before the trial Court. Hence, the trial court is perfectly correct in recording that the deceased died out of homicidal violence.
8. In order to substantiate the charges levelled against the appellant, the prosecution relied on the evidence of P.Ws. 1 to 3 as eye witnesses and also other circumstances. In the instant case, P.Ws. 1 to 3 have categorically deposed to the effect that originally they were lived at Sentharampatti where the girl Menaka lived and went to School. The appellant often teashed her while going to school and the matter was complaint to her parents. For the purpose of safety, they shifted to Kondalampatti and they were residing there. On the date of occurrence, that was, on 20.4.2007, leaving Menaka P.W.2 in the house she left home to purchase milk. While P.W.2 was returning, she saw P.W.1 and P.W.3 also coming home and they all proceeded to home together. When all of them went near the house, they found the house locked inside. They broke open the house and went inside and found accused and Menaka. Menaka was severely injured. From this it is quite clear that the witnesses broke open the lock and got inside the house. At that time, actually the accused was inside the house. The learned counsel brought to the notice of the Court that P.W.1 to 3 has deposed before the Court that they witnessed the accused attacking the deceased with wooden log but they have not spoken about the same in 164 statement before the Magistrate or at the time of inquest. The Court is unable to believe the said contention of the learned counsel for the appellant for the reason that even according to 313 statement, the accused has categorically deposed that at the time and place of occurrence, he was available with Menaka. Therefore, it is clear that the accused was available with Menaka at the time and place of occurrence. The evidence of P.Ws.1 to 3 would serve the purpose of the prosecution to the extent that the accused was the only person available with Menaka inside the house. According to P.Ws.1 to 3, they could not open the door because it was locked inside. When it was broke open, the accused came out of the room. Therefore, it is quite clear that P.Ws. 1 to 3 have actually not seen how the death was caused and it is well within the knowledge of the accused who was inside the house at the time of occurrence. Therefore, it is for the accused to explain how the death had caused but he has given a false statement. He has stated that he was out side the house and one known person and 40 unknown person attacked him and he sustained injury at the time of occurrence.
9. So far as the contention putforth by the learned counsel for the appellant that the injuries on the accused were not explained by the prosecution is concerned, it cannot be countenanced. It is well settled principle of law that the prosecution is not duty bound to explain the injuries sustained by the accused in every case if the injuries are superfluous or simple in nature. The accused has come forward with an explanation for the injuries sustained by him, but he has given false explanation. The injuries could have happened while Menaka was fighting to save her life from the accused.
10. The contention of the learned counsel for the appellant that according to P.W.2 the deceased Menaka took snacks between 4.00 to 5.00 p.m. but nothing was found in the stomach according to the post mortem report and hence, the evidence adduced through the prosecution should not be believed is concerned, the Court is unable to agree with the contention for the simple reason that the post mortem certificate indicate that dark fluid was found in the stomach. Therefore, at about 4.00 to 5.00 p.m. Menaka should have taken coffee. The evidence of P.W.2, cannot in any way take away the prosecution case.
11. According to the learned counsel for the appellant, the prosecution case is that the accused gave confessional statement at the time of arrest pursuant to which recoveries were made but they were all false. No evidence was available for the prosecution. Even assuming so, the Court is of the considered opinion that the accused was available at the place of occurrence and it is for him to explain how death was caused to Menaka. Further, the accused also sustained injuries. It is well within the knowledge of the accused but he has come with false explanation. It is well settled principle of law that when the prosecution rests its case on circumstantial evidence, it must place and prove necessary circumstances which must constitute a chain without a snap and if a particular circumstance is missing and when it is within the knowledge of the accused, the Court can come to a conclusion that the particular circumstance can be filled up by the Court that it was the accused who has involved in the crime. In the instant case all the evidence available are against the appellant. The Court is of the opinion that the prosecution has brought home the guilt of the accused that it was he who had caused the death of Menaka by smothering. The judgment relied on by the learned counsel for the appellant will not apply to the facts of the case.
12. The learned counsel for the appellant, an the last line of argument would submit that it is fit a case where the Court has to find the appellant guilty under section 304(i) I.P.C. or 304(ii) I.P.C. as it is a case of culpable homicide not amounting to murder. The Court is unable to see any merits in the contention putforth by the learned counsel for the appellant. It was a case where the accused was in one side love. When the deceased Menaka refused to elope with him, the accused has caused her death mercilessly. Under these circumstances, the act of the accused cannot but be termed only as murder. The trial Court is perfectly correct in finding the accused guilty of murder and awarding life imprisonment and this court does not find any reason factually or legally to interfere with the judgement of the trial Court.
13. Accordingly, the judgment of conviction and sentence imposed on the appellant by the trial Court is confirmed. The criminal appeal fails and the same is dismissed.
(M.C., J.) (C.S.K.., J.)
09.03.2010
Index : Yes/No
Internet : Yes/No
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To
1. The Principal Sessions Judge, Salem
2. The Inspector of Police,
Kondalampatti Police Station,
Salem District.
3. The Public Prosecutor,
High Court, Chennai.
M.CHOCKALINGAM, J.
AND
C.S.KARNAN, J.
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CRL.A.No.774 of of 2009
09.03.2010