IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-11-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.261 of 2010 P.Ramesh .. Appellant/Accused vs State by: Inspector of Police V-4 Rajamangalam P.S. Chennai 99 (PRC No.213/2008) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, FTC No.III, Chennai, made in S.C.No.293 of 2009 dated 19.2.2010. For Appellant : Mr.V.Gopinath Senior Counsel for Mr.A.N.Thambidurai For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.III, Chennai, made in S.C.No.293 of 2009 whereby the sole accused/appellant stood charged under Sections 302 and 380 of IPC, tried, found guilty under Sec.302 of IPC and awarded life imprisonment along with a fine of Rs.10000/- and default sentence, while he was acquitted of the other charge under Sec.380 IPC. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is a resident of Chennai working in a private company. The deceased Priya @ Anuradha was his wife, and P.Ws.2 and 3 are the children of P.W.1. P.W.1 along with his wife and children was having his own residence at Kavangarai. A grocery shop was situated in front of the house. Young boys used to play carrom in front of the shop. One Mahesh, the brother of the accused, and his friends used https://hcservices.ecourts.gov.in/hcservices/ to play carrom there. By that, Mahesh developed friendship with P.W.3, and on occasions, he used to meet them in the house. Utilising the same, he developed intimacy with the deceased Priya @ Anuradha, the wife of P.W.1, and it came to the knowledge of P.W.1. P.W.1 then changed his residence to Door No.17/182, 2nd Cross Street, Baba Nagar, Villivakkam, Chennai 49, within the jurisdiction of the respondent police. But, Mahesh did not stop his association with her, and he used to go there. It came to the knowledge of P.W.1. Then he informed the accused, who is the elder brother of Mahesh, to advise his brother. On an earlier occasion, the accused replied that it would be better that P.W.1 could advise his wife, the deceased, and if not, he should take necessary action thereon. (b) On 28.3.2008 at about 1.30 P.M., P.Ws.2 and 3 were about to go for the examination. At that time, they found the accused/appellant coming in a Red Colour Splendor Hero Honda motorcycle, parking the vehicle and getting entry into the house. P.Ws.2 and 3 after seeing him, told him bye and went to the school. When they came at about 4.30 P.M., they found the house locked. Then they knocked for some time, but it was not opened. Thereafter, they called P.W.4, a neighbour, and after knocking the door which was of no avail, they went to the backyard and got inside when they found the window of the bedroom was not closed. Immediately, they also opened the door and found the accused/appellant standing with the bloodstained arivalmanai, marked as M.O.23, and found Priya in a pool of blood. When they shouted, P.W.12 also came over there. It was actually witnessed by P.Ws.5, 6, 7 and others. Immediately, the accused/appellant who was standing with the arivalmanai, intimidated them that the same thing would happen to them also. Then he fled away from the place of occurrence. (c) P.W.12 informed to P.W.1. Thereafter, P.W.1 reached the house at about 5.15 P.M., and he, after witnessing the dead body of his wife, proceeded to the respondent police station where he gave Ex.P1, the report, to P.W.21, the Inspector of Police of the Circle, and on the strength of Ex.P1, a case came to be registered in Crime No.155/2008 under Sec.302 of IPC. The printed FIR, Ex.P21, was despatched to the Court. (d) P.W.21 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar and also a rough sketch, marked as Exs.P22 and P23 respectively. He also recovered bloodstained cement flooring and also other material objects from the place of occurrence under a cover of mahazar. Thereafter, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report marked as Ex.P25. Then the dead body was sent to the Government Hospital for the purpose of autopsy. (e) P.W.20, the Tutor, Department of Forensic Medicine, Government Kilpauk Medical College, on receipt of the requisition, has conducted postmortem on the dead body of Priya and has issued a postmortem certificate, Ex.P19, wherein he has opined that she died out of shock and haemorrhage due to the head injuries sustained by her. https://hcservices.ecourts.gov.in/hcservices/ (f) Pending investigation, the accused was arrested by the Investigator at about 1.30 A.M. on 29.3.2008, and thereafter, he gave a confessional statement voluntarily in the presence of P.Ws.14 and 15. The same was recorded, and the admissible part of the confessional statement is marked as Ex.P26, pursuant to which he produced M.Os.1 to 22, the jewels, which were actually stolen from the house. He also took the police party and produced M.O.23, the weapon of crime namely arivalmanai, and also bloodstained pant and shirt, M.Os.24 and 25 respectively. They were all recovered under a cover of respective mahazars. Then he was sent for judicial remand. All the material objects were sent for analysis which resulted in Ex.P16, the chemical analyst's report. (g) P.W.22, the Inspector of Police, took up the further investigation and on completion of the same, filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 22 witnesses and also relied on 35 exhibits and 36 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. The defence examined D.Ws.1 and 2. On completion of the evidence on both sides, the trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case insofar as the charge of murder and awarded the above punishment. But the trial Judge did not believe the case of the prosecution in respect of the charge under Sec.380 IPC and acquitted him of that charge. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, the occurrence, according to the prosecution, has taken place at about 1.30 P.M. on 28.3.2008; that the prosecution though examined number of witnesses namely P.Ws.2, 3, 4, 5, 6, 7 and 12, as if they have seen the accused/appellant at the place of occurrence with a deadly weapon, except P.Ws.2 and 3, all have turned hostile, and thus the prosecution rested its entire case on the evidence of P.Ws.2 and 3; and that it is highly doubtful whether P.Ws.2 and 3 could have seen the accused at the time and place as spoken to by them. 5.The learned Senior Counsel would further add that according to P.Ws.2 and 3, they met the accused/appellant at about 1.30 P.M., when they were just about to start to school, and he also parked the vehicle and got entry into the house; but, the occurrence has taken place at about 4.30 P.M.; that if really, it was the intention of the appellant to do away with the deceased, the wife of P.W.1, Priya, there was no need for him to stay there for a period of three hours, and it casts a doubt. Added further the learned Senior Counsel that their evidence as if they have seen the accused/appellant coming to the place of occurrence at about 1.30 P.M. was an interpolation as could be seen from Ex.P1 document, and under the circumstances, that part of the evidence should not be relied. https://hcservices.ecourts.gov.in/hcservices/ 6.Added further the learned Senior Counsel that it is highly doubtful whether P.Ws.2 and 3 could have seen the accused/appellant at the place of occurrence along with the weapon of crime; that the prosecution came with the specific story that both of them along with other witnesses opened the door through the backyard and found the accused/appellant standing inside the house with the weapon of crime; that the Investigator would claim that the weapon of crime and other material objects were actually recovered from the appellant after recording the confessional statement given by him at about 2.00 A.M. on 29.3.2008; but contrarily, P.Ws.1 to 3 have categorically spoken to the fact that all of them witnessed the presence of the accused/appellant on the evening hours of 28.3.2008 at the respondent police station; and that if to be so, the entire confession and recovery cannot but be false; but the trial Judge though disbelieved the recovery of the jewels, M.Os.1 to 22, has believed the evidence adduced by the prosecution to the extent of the recovery of the weapon of crime and other material objects from the accused. 7.The learned Senior Counsel would further add that in the case on hand, the FIR could not have come into existence as put forth by the prosecution; that according to P.W.1, he was informed by P.W.12, and then he came to the spot at about 5.20 P.M. and thereafter, he went to the respondent police station and gave Ex.P1, the report, on the strength of which a case came to be registered, and thereafter P.W.21 came to the place; but, according to P.Ws.1 and 2, even at that time, a Constable was actually at the place when P.W.1 arrived at the spot; and that this would clearly mean that the information has reached the police earlier. 8.Added further the learned Senior Counsel that Ex.P1 could not have come into existence as put forth by the prosecution; that had it been true that Ex.P1 had come into existence, there was no need for such an inordinate delay since the FIR has reached the Court at about 2.40 P.M. on the next day; that the Investigator has stated that after the registration of the case, it was handed over to a Constable, but it has reached after a long delay; that not even the said Constable was examined nor the Court Clerk; that under the circumstances, it would speak volumes that the FIR could have come into existence only after the accused/appellant was taken to the police station and kept in custody; that the investigating agency has entertained suspicion on the accused and has drafted Ex.P1 report, in such a manner to include and rope in the appellant/accused in the instant case; that the prosecution has miserably failed to prove its case; but, the trial Judge has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside. 9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that one Priya, the wife of P.W.1, was done to death in an incident that had taken place in the evening hours of 28.3.2008. Following the inquest and the preparation of the inquest report by P.W.21, the Investigator, the dead body was subjected to postmortem by P.W.20, the Doctor, who has given opinion in the postmortem certificate, Ex.P19, that she died out of shock and https://hcservices.ecourts.gov.in/hcservices/ haemorrhage due to the injuries sustained by her. The cause of death namely homicidal violence, as put forth by the prosecution was never disputed by the appellant before the trial Court, and no impediment was felt by the trial Judge in recording so. 11.In order to substantiate that it was the accused who committed the murder of the deceased Priya, the wife of P.W.1 and the mother of P.Ws.2 and 3, the prosecution relied on the direct evidence by examining P.Ws.2, 3, 4, 5, 6, 7 and 12 out of whom except P.Ws.2 and 3, all have turned hostile. The learned Senior Counsel brought to the notice of the Court that at the time of occurrence, P.Ws.2 and 3 were aged 13 and 10 respectively. It is well settled principle of law that even the evidence of a child of a tender age can be accepted by the Court, if his evidence is cogent and inspires the confidence of the Court. In the case on hand, P.Ws.2 and 3 are actually well acquainted to the accused/appellant. It is an admitted fact that P.W.1 along with the family members was originally living in the area where the accused/appellant and his brother were also living. When P.W.1 came to know about the illicit intimacy of Mahesh, the brother of the appellant, with his wife, it was actually brought to the notice of the appellant, and he also shifted his residence to the place where the occurrence has taken place. Even thereafter, Mahesh did not stop coming, and when P.W.1 informed to the accused/appellant about the same, he replied that it was for him to advise his wife and if not, he would see that it will be put an end. As far as this part of the evidence is concerned, P.W.1 has given a categorical evidence. Thus it would be quite clear that P.Ws.2 and 3 who were aged 13 and 10 respectively at the time of occurrence, clearly knew the accused/appellant. According to both the witnesses, on the day at about 1.30 P.M., when they were just about to leave for the examination, they found the appellant coming in a Hero Honda motorbike, parking the vehicle and getting entry into the house, and thereafter, they went for the examination, and when they returned at about 4.30 P.M., they found the house locked inside, and they knocked the door, and they sought the help of P.W.4, went to the backyard, opened the door and found the dead body of the mother inside the room, and at that time, the accused was standing inside the house with the arivalmanai, marked as M.O.23. Now, at this juncture, it is pertinent to point out that despite the cross-examination in full, the evidence of P.Ws.2 and 3 who are the eyewitnesses, stood the test. This Court is unable to see any reason why the evidence of P.Ws.2 and 3 should be looked with a doubt or should be discarded. According to both these witnesses, when all of them found the accused/appellant inside the room along with the dead body of the deceased, he immediately intimidated all of them. It is actually found place in the earliest document, Ex.P1. 12.Now, the comment made by the learned Senior Counsel for the appellant is that the FIR should have come into existence later. The learned Senior Counsel tried to get support from the delay that was caused in the FIR reaching the Court. It is true that the FIR in the instant case, has reached the Court with some delay. It is well settled principle of law that merely because of the delay that was caused in the FIR reaching the Court, the prosecution story cannot be disbelieved, but other circumstances must be available. In the case on hand, according to P.W.1, he got information by 5.20 P.M., and he https://hcservices.ecourts.gov.in/hcservices/ went to the spot, found the dead body, proceeded to the police station and then gave Ex.P1, report, immediately. It is also pertinent to point out that the police station is situated within half a kilometer from the place of occurrence. It is true that a Constable was actually present at the spot as spoken to by P.Ws.2 and 3; but, it cannot be a reason to disbelieve the prosecution case because the place of occurrence is situated within half a kilometer. When the matter reaches the hands of the police, immediately Constables are deputed there, and that cannot be taken as any information that has already gone since P.W.1 gave the full narrative in Ex.P1, the complaint, how the incident had happened. 13.The last contention put forth by the appellant's side that a line has been interpolated in Ex.P1 cannot be accepted. It was actually at the end, and it did not mean that it was an interpolation. That apart, as far as the weapon of crime was concerned, P.W.2 has categorically stated that it was actually dropped at the place of occurrence. Under the circumstances, the said weapon of crime would not have been recovered pursuant to the confessional statement, and that part of the evidence cannot be relied. The trial Judge was not ready to believe that there was a case of theft as put forth by the prosecution. 14.In the case on hand, two strong circumstances are noticed by the Court which are evident from the testimonies of P.Ws.2 and 3. Firstly, they met the accused/appellant at about 1.30 P.M. on that day when they started to the school. Secondly, when they returned they found the accused/ appellant standing inside the house which was locked inside, with the weapon of crime along with the dead body. These two circumstances, in the considered opinion of the Court, would suffice to sustain a conviction that it was he who has committed the offence and none else. Under the circumstances, the trial Judge was perfectly correct in finding him guilty as per the charge of murder and awarding life imprisonment. There is nothing to interfere in the judgment of the trial Court. 15.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar nsv To: 1.The District Collector, Chennai. 2.The Additional District and Sessions Judge FTC No.III, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3.The Superintendent, Central Prison, Puzhal, Chennai-66. 4.The Inspector of Police V-4 Rajamangalam P.S. Chennai 99 5.The Section Officer, Criminal Section, High Court, Madras. 6.The Public Prosecutor High Court, Madras. 2 cc to Mr.AN.Thambidurai, Advocate, Sr.No.80450 CRL.A.No.261 of 2010 MS {CO} TP/16.11.2010. https://hcservices.ecourts.gov.in/hcservices/