IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.01.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.394 OF 2008 Moorthy .. Appellant Vs. State rep. by Inspector of Police, SIPCOT P.S. Vellore District (Crime No.243 of 2006) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court-II, Ranipet made in S.C.No.24 of 2008, dated 31.03.2008. For Appellant : Mr.K.Ethirajalu For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT
(The judgment of the Court was delivered by
M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court-II, Ranipet made in S.C.No.24 of 2008, whereby the sole accused/appellant stood charged under Sections 302 and 201 IPC, tried and found guilty as per the charges and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo one month R.I. under Section 302 IPC and 7 years R.I. and to pay a fine of Rs.1000/-, in default to undergo one month R.I. under Section 201 IPC and the sentences were ordered to run concurrently.
2.The short facts necessary for the disposal of this appeal can be stated as follows:
a)P.Ws.3 and 4 are the parents of the deceased Santhi. She was given in marriage to the accused/appellant. They got three children. The accused suspected the fidelity of his wife when he was away from the native place. On 29.05.2006 at about 9.00 p.m., the accused took his wife to the bank of Ponnai river and pursuant to the suspicion that he entertained, he attacked her with the stick and also buried her dead body. P.Ws.3 and 4 were enquiring him about their daughter and he has replied that she was missing.
b)On 10.08.2006 when P.W.1, the Village Administrative Officer was in his office along with P.W.2, his assistant, the accused appeared before him and made extra judicial confession, which was recorded by P.W.1 and the same was marked as Ex.P.1. P.W.1 prepared his own report, which was marked as Ex.P.2 He along with Exs.P.1 and P.2 and the accused went to the police station and produced the accused along with the reports to P.W.18, the Inspector of Police, who on the strength of the reports, registered a case in Crime No.243 of 2006 under Sections 302 and 201 IPC. Ex.P.22, the F.I.R. was despatched to the Court.
c)At about 3.00 p.m. on 10.08.2006, P.W.18 caused the arrest of the accused. At the time of interrogation, the accused came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.3. Pursuant to the same, the accused took the police party to the place of occurrence. P.W.18 made an inspection and prepared Ex.P.5, the observation mahazar and Ex.P.23, the rough sketch. The accused produced M.O.1, stick, which was recovered under a cover of mahazar.
d)On 11.08.2006, the accused took the police party to the place where the dead body was buried. P.W.18 made an inspection and prepared Ex.P.7, the observation mahazar and Ex.P.24 the rough sketch. An intimation was sent to P.W.17, the Tahsildar of the said circle, who came over there and in his presence, the dead body was exhumed and an inquest was conducted by him in the presence of the witnesses and panchayatdars and he prepared Ex.P.21, the report. Thereafter, P.W.18 prepared Ex.P.8, the observation mahazar and Ex.P.25, the rough sketch. The material objects were recovered from that place under a cover of mahazar. A requisition was forwarded to P.W.13, the Doctor attached to the Government Hospital, Valaja, who came over there and conducted post-mortem on the dead body of the deceased at the place where the dead body was buried and he has also found that the body was in decomposed stage and has issued Ex.P.14, the post-mortem certificate, wherein he has opined that the probable cause of death is a forceful blow over the back of neck and instantaneous death due to injury to spinal cord.
e)P.Ws.3 and 4 were called for and they identified all the M.Os., namely jacket, petticoat and also saree, which were worn by the deceased. The accused was sent for judicial remand. All the material objects were sent for the purpose of chemical analysis and Exs.P.18 and P.19, the biological reports were obtained. The Investigator has recorded the statement of the witnesses. On completion of the investigation, he filed the final report.
3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 18 witnesses and also relied on 29 exhibits and 7 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as per the charges and awarded punishments as referred to above. Hence this appeal has arisen at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned counsel inter-alia has made the following submissions:
a)According to the prosecution, the occurrence has taken place on 29.05.2006 after 9.00 p.m. The prosecution mainly relied on two pieces of evidence, since it had no direct evidence to offer. First was the extra judicial confession alleged to have been given by the accused to P.W.1, the V.A.O. on 10.08.2006 when he was in his office. P.W.2, the assistant of P.W.1 was also present at the time when the confessional statement was recorded. The extra judicial confession should have been rejected outright by the trial court for the first reason that the extra judicial confession was alleged to have been given on 10.08.2006, namely nearly after three months from the date of occurrence. According to P.W.1, when he was in his office, the accused came over there and gave extra judicial confession and the same was recorded and thereafter, the accused took P.Ws.1 and 2 to the place where the dead body was buried. Contrarily, P.W.2 has stated that first of all, they went to the spot and the accused identified the place of occurrence and only thereafter, the statement of the accused was recorded. Thus, there are lots of discrepancies, which would indicate that such an extra judicial confession could not have been recorded at all.
b)The accused was taken to the police custody and he was in the custody for a long time, as a result of which such a confessional statement was fabricated as if it was recorded by P.W.1, the V.A.O. The learned counsel would further add that P.W.1 was the Village Administrative Officer and he has come forward to oblige the respondent police. According to the prosecution, the accused, suspecting the fidelity of his wife, took her to the bank of Ponnai river, attacked her with the stick and caused her death. In the instant case, though the prosecution came with the case that she had illicit intimacy with one Peethambaram, the said Peethambaram was not examined. Thus, the motive that was attributed to the accused, was thoroughly failed and was not proved by the prosecution.
c)Further, the prosecution has miserably failed to prove the identity of the dead body that it was that of the deceased Santhi, the wife of the accused/appellant. Actually, she was found missing, but P.Ws.3 and 4, who are the parents of the deceased, had not taken any steps further. But the accused made an attempt to give a complaint to the police, but it was not taken. The deceased eloped with the said Peethambaram, with whom she developed illicit intimacy. Further, what were identified were the jacket, petticoat and saree which were alleged to have been worn by her, but with which, the identity of the body could not be fixed. Even the skull was not subjected to superimposition test and under these circumstances, the identity of the deceased was not at all fixed by the prosecution. Apart from that, the cause of death, as could be found, was not clearly proved by the prosecution and fractures were found on the leg, but no evidence was available in this regard. All would go to show that the medical opinion was also not supporting the prosecution case. Thus, in the instant case, all these material aspects were not considered by the trial court, but it has entered the judgment of conviction and sentence and hence the judgment of the trial court has got to be set aside.
5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
6.The accused/appellant stood charged for murder of his wife on 29.05.2006 in the bank of Ponnai river and in order to screen the offence, he buried the dead body. The prosecution, in order to substantiate the said charges, had no direct evidence to offer, but it has relied on only circumstantial evidence. In the instant case, the first circumstance which was mainly relied on by the prosecution and accepted by the trial court, was the extra judicial confession made by the accused to P.W.1, the V.A.O. on 10.08.2006 when he was in his office. This extra judicial confession could be acted upon and the conviction could be sustained if it satisfied the two tests, namely the circumstances attendant in which the accused came forward to give extra judicial confession and secondly, the evidence of the witness to whom such an extra judicial confession was made inspired the confidence of the court. If these two tests are applied in the instant case, the court is thoroughly satisfied that the extra judicial confession has got to be accepted.
7.P.Ws.3 and 4 are the parents of the deceased Santhi. When on a particular date, she was found missing, both were enquiring their son-in-law, namely the accused/appellant as to the whereabouts of their daughter, but he did not give proper answer and he was telling that she was missing and thereafter, they were making a search for her. It is pertinent to point out that though it was claimed by the accused/appellant that he approached the police to give the complaint, no material was available in order to accept the same. Thus, having committed the offence and buried the dead body, he has been kept quiet for a long time. Finally, he approached P.W.1, V.A.O. of that place and made an extra judicial confession, which was recorded by him in the presence of P.W.2. Immediately, P.Ws.1 and 2 verified the place, where the dead body was buried and then, they went to the police station along with the accused and Ex.P.1, the extra judicial confession of A-1 and Ex.P.2, the report of V.A.O. On the strength of the said information, the case came to be registered and the investigation was taken by P.W.18, the Inspector of Police, immediately. He interrogated the accused, who came forward to give confessional statement and thereafter, the accused took the police party to the place where the dead body was buried. In the presence of P.W.17, the Tahsildar, the dead body was exhumed. Since the body was in decomposed stage, the Doctor was summoned. Accordingly, P.W.13, the Doctor has conducted post-mortem and has given his opinion in Ex.P.14, the post-mortem certificate that the probable cause of death is a forceful blow over the back of neck and instantaneous death due to injury to spinal cord. It is also clear that pursuant to the confessional statement, the accused has also produced M.O.1, stick, with which he attacked the deceased. Thus, the weapon of crime was also recovered from him pursuant to the confessional statement. Thus, the two circumstances are one the place where the dead body has been buried was identified by the accused and further, M.O.1, the stick has been recovered from the accused on his production. Thus, these two circumstances will be pointing to the nexus of the accused with the crime.
8.In the instant case, the learned counsel brought to the notice of the court certain discrepancies found in the evidence of P.Ws.1 and 2 in respect of extra judicial confession. P.W.1 was the Village Administrative Officer of the said place. P.W.2 was the menial attached to him. Not even one circumstance or reason was brought to discard or to cast any doubt on the evidence of P.Ws.1 and 2. On the basis of the confessional statement given by the accused, the mystery of the case became unfolded. Further, the evidence of P.Ws.3 and 4 was to the effect that since their daughter was found missing, they were enquiring their son-in-law, namely the accused/appellant, but he gave a different story and they also believed the same for a while. Thus, it would be quite clear that on the strength of the extra judicial confession made by the accused to P.W.1, the case came to be registered and further, the investigation revealed the entire story. Under these circumstances, for the reasons stated above, the court is of the considered opinion that the prosecution has brought home the guilt of the accused.
9.Now, the contention put forth by the learned counsel for the appellant that the identity of the dead body was not proved cannot be accepted at all. P.Ws.3 and 4 went to the place where the dead body was buried and in the place pointed out by the accused, the dead body was exhumed and it was in decomposed stage. All the clothes worn by the deceased were identified by P.Ws.3 and 4. The added circumstance was that even before the trial court, the accused was unable to say what happened to his wife and during the relevant time, they were living together, though he was absent for some time. The contention put forth by the learned counsel for the appellant that one Peethambaram, with whom she developed illicit intimacy, was not examined and thus, the non examination of the said Peethambaram was fatal to the prosecution, cannot be accepted at all for the simple reason that what was actually passing in the mind of the accused at the time when he committed the offence should be within the special knowledge of the accused. From the evidence, it would be quite clear that during his absence, she had developed illicit intimacy with one Peethambaram and the same was passing in the mind of the accused and there arose quarrel between them, which was actually found in the evidence. Under these circumstances, the contentions put forth by the learned counsel for the appellant do not carry any merit whatsoever and they are liable to be rejected. Accordingly, they are rejected.
10.Having attacked the deceased and caused her death, the accused/appellant has buried the dead body in order to screen the evidence. Thus, the evidence available before the trial court are sufficient pointing to the guilt of the accused/appellant.
11.In the result, this criminal appeal fails and the same is dismissed, confirming the conviction and sentence imposed on the appellant by the trial court.
vvk
To
1.The Additional District and
Sessions Judge,
Fast Track Court-II,
Ranipet,
2.The Inspector of Police,
SIPCOT P.S.
Vellore District.
3.The Additional Public Prosecutor,
High Court,
Madras