IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.731 of 2007 A.Sabir .. Appellant vs The State represented by The Inspector of Police B1, Police Station Udhagamandalam .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Sessions Judge, Nilgiris at Udhagamandalam, in S.C.No.4 of 2006 dated 14.6.2007. For Appellant : Mr.N.Duraisamy Amicus Curiae For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Sessions Division, Nilgiris at Udhagamandalam, in S.C.No.4 of 2006 whereby the sole accused/appellant stood charged under Sections 342, 376 read with 511, 302 and 201 of IPC. On trial, he was found guilty under Sections 302 and 201 of IPC and awarded life imprisonment along with a fine of Rs.2000/- and default sentence under Sec.302 of IPC. No separate sentence was given under Sec.201 of IPC, while he was acquitted of the other two charges. 2.The short facts necessary for the disposal of this appeal could be stated thus: (a) P.W.1 was living with his wife Pappathi @ Pargavi. P.W.2 is his brother-in-law. P.W.3 is the daughter of P.W.1. They were all residing in Door No.128/17, Vijaya Nilayam, Thomas Church Road, Udhagamandalam. He was carrying on a chicken stall near Kavitha Hotel in which the accused was employed. He was https://hcservices.ecourts.gov.in/hcservices/ also having video player in his house which was rented out. P.W.8, who is the friend of the accused, came to the shop on 28.7.2004 for taking the CD player on rent. P.W.1 asked his servant namely the accused, to go to his house and bring the CD player. Accordingly, the accused went to the house of P.W.1. On the same day at about 11.30 A.M., P.W.5 Logammal saw the deceased Pappathi and was conversing with her. P.W.9 who is the manager of the Teeco Gas Company, went to his godown which is situated nearby the house of P.W.1. The deceased Pappathi at about 11.30 A.M. was conversing with another lady. At about 1.15 P.M. P.W.9 was actually in the godown with his two servants. He saw at about 12.45 P.M., the accused coming out of the house of the deceased. He heard the cry of the deceased. Immediately the servants and P.W.9 rushed to the house of P.W.1 and found the deceased in a pool of blood. (b) P.W.1 received a phone call between 12.45 and 1.00 P.M. Immediately, he proceeded to his residence, where he found the deceased in a pool of blood. Then, he informed to P.W.2, who also rushed over there. At that time, the accused was standing at the door step with the child of the deceased. P.W.1 along with the accused proceeded to Vijaya Hospital, Udhagamandalam, and on seeing the injuries on the body, the Doctor advised them to take her to the Government Hospital. Accordingly, they took the deceased to the Government Hospital. P.W.11, the Doctor, who was on duty at about 1.30 P.M., medically verified and also declared her dead. Ex.P7 is the accident register copy wherein all the injuries which were found on the body, were noted. (c) P.W.20, the Inspector of Police, attached to the respondent police station, at about 2.30 P.M., on receipt of the information from P.W.17, the Sub Inspector of Police, proceeded to the Government Hospital and found the dead body of Pargavi, and immediately he also made a request to P.W.11, the Doctor, to collect the hair found in the hands of the deceased. Accordingly, P.W.11, the Doctor, collected the same. (d) In the meanwhile P.W.1 went to B1 Police Station and lodged a complaint, Ex.P1, at about 3.00 P.M., on the strength of which P.W.17, the Sub Inspector of Police, registered a case in Crime No.465 of 2004 under Sec.302 of IPC. The printed FIR Ex.P28, was despatched to the Court. (e) P.W.20, the Inspector of Police, on receipt of the copy of the FIR, took up investigation. He called the finger print expert to the place of occurrence, and finger prints were actually collected. He also prepared Ex.P2, the observation mahazar, and Ex.P39, the rough sketch. The occurrence place and also the dead body were caused to be photographed through P.W.10, the Photographer. The photographs and the negatives are marked as Exs.P4 and P5 respectively. (f) P.W.14, the Scientific Officer, also made a visit and collected the hair from P.W.11, the Doctor. On 28.7.2004, the Investigating Officer recovered the material objects from the place of occurrence. Then, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared, Ex.P40, the inquest report. Following the same, a requisition was given by the Investigator to the hospital authorities for the https://hcservices.ecourts.gov.in/hcservices/ purpose of autopsy. (g) P.W.16, the Inspector of Police, attached to the Finger Print Bureau, was called, and he also took the finger prints from the available materials there and has taken them for the purpose of verification. (h) P.W.12, the Assistant Surgeon, attached to the Government Head Quarters Hospital, Udhagamandalam, on receipt of the requisition, conducted autopsy on the dead body of Pappathi and found 23 injuries. She has issued a postmortem certificate, Ex.P10. She gave her final opinion under Ex.P12 that the death was due to shock and profuse haemorrhage. (i) The Finger Print Expert after verification and also the analysis, has given his opinion in Ex.P22, the report, that the finger prints which were taken would be tallying with that of the accused. (j) Pending the investigation, the accused was arrested on 21.8.2004. He came forward to give a confessional statement, which was recorded in the presence of P.W.19 and one Jayaprakash. The admissible part is marked as Ex.P35. Following the same, he produced M.O.3, bloodstained keys, which was recovered under a cover of mahazar. Thereafter, he took the Investigator and produced M.O.4, screw driver, M.O.5, gas regulator, M.O.6, bloodstained pant, M.O.7, bloodstained shirt, and also M.O.8, knife, which were all recovered under independent mahazars. Then, he was sent for judicial remand. All the material objects were subjected to chemical analysis. Exs.P32 to P34 are the serologist's reports and Exs.P48 and P49 are the Chemical Analyst's reports. The Investigator, after completion of the investigation, 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 20 witnesses and also relied upon 49 exhibits and 12 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. No defence witness was examined; but, only one document was marked as Ex.D1. After hearing the arguments on either side, the trial Court took the view that the prosecution has proved the case beyond reasonable doubt in respect of the charge of murder and also screening the evidence and hence found them guilty under Sections 302 and 201 of IPC and awarded the punishment as referred to above while it made an order of acquittal in respect of other two charges. Hence this appeal at the instance of the appellant. 4.The learned Counsel Mr.N.Duraisamy, while advancing arguments on behalf of the appellant would submit that in the instant case, it is highly doubtful whether Ex.P1, the report, and the consequent FIR could have come into existence as put forth by the prosecution; that according to the prosecution, the occurrence has taken place on 28.7.2004 between 12.30 and 1.00 P.M.; that according to P.W.1, he got the information and https://hcservices.ecourts.gov.in/hcservices/ immediately took the deceased to the hospital, and thereafter, he went to the Police Station and gave Ex.P1, the report, on the strength of which a case came to be registered; that the Sub Inspector of Police who was examined as P.W.17, has also claimed so; that P.W.20, the Inspector of Police, has deposed that on hearing the information from the hospital, he proceeded to the hospital, and there he found the dead body in the mortuary and also made a request to the Doctor P.W.11, to collect the hair in the hands of the dead body, and only thereafter, the FIR has come into existence; that as regards Ex.P1, the report, inconsistent versions were given, and thus it would cast a reasonable doubt in the report, Ex.P1, coming into existence. 5.Added further the learned Counsel that the prosecution has proceeded only on surmises; that it rested its case on the circumstantial evidence since it had no direct evidence to offer; that according to the prosecution, it was P.W.9 who saw the accused coming out of the house immediately; that P.W.9 would claim that he was also present when P.W.1 also came there; that if to be so, P.W.9 immediately would have informed to P.W.1 that the accused was present at the time of occurrence, but not done; that the same was informed only after eight days; that till the time, he was keeping mum; that it would be indicative of the fact that P.W.9 could not have seen the accused in the place of occurrence at all; that the prosecution was unable to explain under what necessity the accused was to attack the deceased with the two weapons namely screw driver and knife; that the prosecution would come forward to state that the deceased also died out of strangulation; that in the instant case, the hair which was collected immediately from the dead body, according to the Investigator, was sent to the Court after a period of one month, and a request was given after a period of five months; that all would go to show that the investigation was not in the proper direction; and that it is pertinent to point out that even after the occurrence, the accused was actually kept under the service of P.W.1 for long months i.e., for a period of few months. 6.Added further the learned Counsel that in Ex.P1, the report, it was mentioned that death was caused by an unknown person; that even P.W.1 had not even the suspicion against him; that the prosecution much relied on the arrest, confession and recovery of M.Os.4, 5, 6, 7 and 8; that the only witness examined by the prosecution was P.W.19; that P.W.19 was the Ward Councilor; that he has given evidence in some other case registered by the very same Police Station, and thus it would be quite clear that he was a stock witness; that the evidence which was projected through him should have been rejected by the Court; that under the circumstances, the prosecution had no evidence; that it is a fit case where the prosecution could not bring home the guilt of the accused; that only on surmises and presumptions, the prosecution has tried to project its case, but could not do so; that apart from that, the lower Court has not appreciated the contentions put forth on the defence side, and hence, he is https://hcservices.ecourts.gov.in/hcservices/ entitled for acquittal in the hands of this Court. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and considered the same. 8.It is not in controversy that the wife of P.W.1 was done to death in an incident that took place between 12.30 and 1.00 P.M. on 28.7.2004. Following the inquest made by P.W.20, the Investigator, the dead body was subjected to postmortem by P.W.12, the Doctor, and she has issued the postmortem certificate, Ex.P10. The Doctor has opined under Ex.P12 that the deceased died out of shock and profuse haemorrhage. Thus, the prosecution was able to show that she died out of homicidal violence. This fact was never disputed by the appellant, and hence it has got to be recorded so. 9.True it is, the prosecution had no direct evidence to offer, but it has relied on the circumstantial evidence. The Court is not unmindful of the caution made by the settled principles of law and also by the decisions of the Apex Court that the Court must thoroughly be satisfied that the prosecution has placed necessary facts and circumstances and also proved the same pointing to the guilt of the accused without leaving any doubt in the mind of the Court and also pointing to the hypothesis except the accused no one could have committed the offence. In the instant case, even if this test is applied, this Court is satisfied that the prosecution has brought home the guilt of the accused. The Court has noticed all the following circumstances which are pointing to the guilt of the accused. 10.It is an admitted position that the accused was actually employed in the shop of P.W.1. On the date of occurrence, P.W.8 came to the shop for getting the CD player on rental basis. Immediately, P.W.1 sent the servant namely the accused, to his house to take the CD player. It is also an admitted fact that the accused went over to the house of the deceased namely the wife of P.W.1, during the relevant time. Even according to the prosecution, the accused was actually in the house of the deceased at or about the time of occurrence. That apart, from the evidence of all the witnesses, it would be quite clear that the accused was available in the house of the deceased at that time. Now, P.W.5 was the person who was talking to the deceased at about 11.30 A.M. The same was witnessed by P.W.9. According to P.W.9, the accused was coming out of the house at about 12.30 P.M. which was witnessed by him, and after hearing the cry, he and his two servants went to the house and found the dead body and immediately informed to P.W.1. According to P.W.1, when he went to the house, he found the accused standing on the door step of his house, and thus, the accused was actually present at the time and P.Ws.5 and 9 have seen the deceased lady at about 11.30 A.M. When P.W.1 went to the house at about 1.00 P.M., he found the dead body. Therefore, the occurrence should have taken place in the short interval, and at that time, the person who visited the house was the accused. P.W.9 has also deposed to the effect https://hcservices.ecourts.gov.in/hcservices/ that the accused was coming out of the house. When P.W.1 went to the house, the accused was standing at the door step and holding his child; but, he did not tender any explanation how the occurrence has happened. 11.The other circumstances which are noticed are that at the time of the arrest, the appellant/accused came forward to give a confessional statement which was recorded in the presence of P.W.19, the Ward Councilor, following which he produced M.Os.4 to 8. Out of this, two are weapons of crime. One is the screw driver and the other is the knife. According to P.W.12, the Doctor, the injuries found on the dead body of the deceased, are all on the front side, and they could have been caused by these two weapons. When this recovery has been made from the accused, pursuant to the confessional statement, he has also produced a pant and shirt marked as M.Os.6 and 7 respectively. All these material objects were subjected to chemical analysis by the Forensic Sciences Department on a requisition made by the Investigator through the concerned Court, along with the clothes of the deceased lady and of the accused. It is pertinent to point out that all these material objects which were clothes worn by the lady and also the clothes worn by the accused, apart from the weapons of crime contained the same blood group, and thus, the prosecution was able to prove the nexus between the crime and the accused not only by the recovery of the weapons of crime pursuant to the confessional statement made by the accused, but also by the scientific evidence which was pointing to the guilt of the accused. Further, it can be well stated that except the accused, no one was found in the place of occurrence at or about the time, and the presence of the accused is an admitted fact. This Court is of the view that all the above evidence what is available to the prosecution would be pointing to the guilt of the accused. 12.Now, the contentions put forth by the learned Counsel for the appellant that the report, Ex.P1, and the FIR have not come into existence as put forth by the prosecution cannot be accepted for the simple reason that on hearing the information about the same, an intimation was given to the Inspector of Police who rushed over to the hospital. But, at the same time, P.W.1 on ascertaining the fact that his wife is actually dead, proceeded to the Police Station and gave the complaint, Ex.P1, pursuant to which the case came to be registered by P.W.17 under Sec.302 of IPC. Now, at this juncture, it is pertinent to point out that it is not the evidence of P.W.20, the Investigator, that when he went to the hospital, he met P.W.1 in the hospital, and thus, it would be quite clear that P.W.1 had not given any information before he came to the police station and gave the report under Ex.P1. Hence it leaves no doubt in the mind of the Court. 13.It remains to be stated that when the complaint was given by P.W.1, the accused was also present all along with him. Therefore, he had no suspicion to entertain against the accused at that time. It is true that in the said complaint, Ex.P1, it https://hcservices.ecourts.gov.in/hcservices/ is recorded "by unknown person". Only thereafter, at the time of investigation, it was revealed that it was the accused who was involved in the case. 14.As far as the evidence of P.W.19 was concerned, according to the learned Counsel, it has got to be rejected since he was a stock witness. This contention cannot be accepted for the simple reason that he was a Ward Councilor. Naturally the Investigator thought that he was a respectable witness as required by the Code. Merely because he has given evidence in one case, he cannot be termed as a stock witness. In all other respects, the evidence of P.W.19 when scrutinised satisfies the Court, and the learned trial Judge was perfectly correct in accepting the evidence of P.W.19. That apart, mere delay in sending the hair, which was collected from the hands of the deceased, to the Court or the requisition for examining the same by itself cannot be a reason to doubt the prosecution case. It is pertinent to point out that when the hair was actually put to scientific analysis, it was found to be inconclusive, and hence the prosecution did not make out a point out of the same. 15.Above all, at the time of the investigation, the finger print expert was called, and finger prints were actually taken from the materials available. They were also compared with the finger prints of the accused and were found to be tallying. Ex.P22, the report, has also been given to that effect. Under the circumstances, all these contentions put forth by the learned Counsel for the appellant do not merit acceptance, and they have got to be rejected. 16.All the above would go to show that it was the accused who had taken advantage of the situation, has caused her death by attacking her. Thus, the prosecution has proved the case beyond reasonable doubt. But at the same time, it was within his knowledge, and he has suppressed the entire information. Thus, the lower Court was perfectly correct in finding him guilty under Sec.302 IPC for committing the murder of the wife of P.W.1 and also under Sec.201 IPC for screening the evidence. 17.Now, the contention put forth by the learned Counsel for the appellant that at the time of occurrence, the accused was 20 years old, and hence he has got to be sent to Borstal School has got to be rejected on the face of the commission of the offence, and also the fact that at the time of the offence, he was not a juvenile. Under the circumstances, it is a fit case where the judgment of the lower Court has got to be affirmed. https://hcservices.ecourts.gov.in/hcservices/ 18.In the result, this criminal appeal fails and the same is dismissed confirming the judgment of the lower Court. Mr.N.Duraisamy, Amicus Curiae, is entitled to get remuneration from Tamil Nadu State Legal Services Authority. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1.The Sessions Judge Nilgiris at Udhagamandalam. 2.The Inspector of Police B1, Police Station Udhagamandalam 3. The Superintendent of Police, Central Prison,Coimbatore. 4.The Director General of Police, Mylapore, Chennai. 5.The District Collector, Nilgiris. 6.The Secretary, Tamil Nadu State Legal Services Authority, High Court, Madras. 7.The Public Prosecutor High Court, Madras. +1cc to Mr.N.Duraisamy, Amicus Curiae Sr 63252 NTK (CO) km/20.11. CRL.A.No.731 of 2007 https://hcservices.ecourts.gov.in/hcservices/