BAIL SLIP --- The Appellant/Accused was directed to be released on bail by the order of this Court dated 27.9.07 and passed in M.P.No.1/07 in Crl.A.No.843/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.843 of 2007 R.Damodaran .. Appellant/Accused vs The State rep. By The Inspector of Police F4, Thousand Light Chennai (Crime No.1612 of 2005) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Magila Court, Madras, made in S.C.No.41 of 2006 dated 3.9.2007. For Appellant : Mr.K.P.S.Palanivel Rajan For Respondent : Mr.A.Saravanan Government Advocate (Criminal Side) JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Magila Court, Madras, made in S.C.No.41 of 2006 whereby the sole accused/appellant stood charged under Sec.302 IPC, tried, found guilty on the charge of murder and awarded life imprisonment with a fine of Rs.1000/- and default sentence. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the father of the deceased Nirmala Mary. He had two wives. Through his first wife, he had two children. Thereafter, https://hcservices.ecourts.gov.in/hcservices/ he married the second wife. The daughter was living with him. The accused/appellant and the deceased loved each other pursuant to which the marriage took place in the year 1997. They had a female child and during the relevant time, the deceased was also pregnant by eight months. P.W.1 was complaining of cruel treatment being entertained to her. The accused was also demanding money then and there. 4 or 5 times they changed their residence. There were occasions in which complaints were given to Thousand Light Police Station, and enquiries were conducted by P.Ws.9 and 10, the Police Officers, and they pacified the situation. (b) On the date of occurrence that was on 29.10.2005, P.W.2, the aunt of the deceased, was just about to start for work. At that time, she found the deceased standing in the Street. P.W.2 called and asked her what happened. She replied that her husband beat her with a wooden log. Then P.W.2 informed her that she would come back, and the deceased could go to the hospital for treatment, and on coming from the work, she would take her to P.W.1's house. When P.W.1 was in his house, he was informed that his daughter was taken to the hospital in a serious condition. He did not know the hospital. Therefore, he was coming around at different places. (c) On 29.10.2005 at about 4.30 P.M., when P.W.6 was in Kilpauk Medical College and Hospital, the accused brought his wife stating that she had got cardiac arrest. The Doctor medically examined her and found that she is dead. He gave the death intimation, Ex.P4. (d) On receipt of the death intimation, P.W.8, the Sub Inspector of Police, attached to the respondent police station, proceeded to the hospital and recorded the statement given by the deceased, which is marked as Ex.P1. On the strength of Ex.P1, the report, he registered a case in Crime No.1612/2005 under Sec.174 of Cr.P.C. for suspicious death. The express FIR, Ex.P8, was despatched to the Court. Then, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P9, the inquest report. A requisition was given to the hospital authorities for the purpose of postmortem. (e) P.W.7, the Professor of Forensic Medicine, Senior Civil Surgeon, Government Kilpauk Medical College, Chennai, on receipt of the said requisition conducted autopsy on the dead body of Nirmala and has issued a postmortem certificate, Ex.P6, with his opinion that the deceased would appear to have died of shock and haemorrhage due to thoracic injuries. (f) P.W.11, the Inspector of Police, on receipt of the copy of the FIR, took up investigation and examined P.W.7, the Doctor, on 2.11.2005. On the basis of the postmortem certificate, he altered the case to Sec.302 of IPC. The express report, Ex.P13, was sent to the Court. Then, he proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P14, and a rough sketch, Ex.P15. Pending investigation, the accused was arrested. He came forward to give a confessional statement which was recorded in the presence of witnesses. The admissible part is marked as Ex.P16. He produced https://hcservices.ecourts.gov.in/hcservices/ M.O.4, wooden log, which was recovered under a cover of mahazar. He was sent for judicial remand. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution marched 11 witnesses and also relied on 17 exhibits and 4 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. The trial Court heard the arguments advanced, looked into the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and hence, found the appellant guilty and awarded punishment as referred to above. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.K.P.S.Palanivel Rajan would submit that in the instant case, the occurrence, according to the prosecution, has taken place on 29.10.2005; that the prosecution had no direct evidence to offer; that originally the case was registered for suspicious death on 29.10.2005; that the prosecution rested its case on two circumstances namely the evidence of P.W.2 and also the alleged recovery; that according to P.W.2, she was very well present on the morning hours of 29.10.2005, and when she met the deceased that morning in the Street, the deceased complained that it was her husband who attacked her with a stick, and thereafter, she advised her to go to the hospital for taking treatment, and she left for work, and when she came in the evening, she came to know that the deceased is dead; that P.W.1 has given a categorical evidence that he was also present at the police station at about 8.00 P.M. on 29.10.2005; that the statement of P.W.2 was recorded only on 2.11.2005; that had it been true that P.W.2 was informed by the deceased that she was beaten by her husband and as a consequence death followed, she would have certainly informed to P.W.1 or relatives or to the police, but not done so; that the conduct of P.W.2 would clearly indicate that she could not have been informed so, and thus, she was a witness introduced to strengthen the prosecution case if possible. 5.Added further the learned Counsel that even according to the Investigating Officer, the postmortem certificate was actually signed on 30.10.2005, whereas the case was altered to Sec.302 IPC only on 2.11.2005; that had it been true that the postmortem certificate was actually received on 30.10.2005, there was no reason why there should be delay in converting the case to Sec.302 IPC on 2.11.2005; that this delay would also indicate that it was an afterthought to rope the accused in the case; and that under the circumstances, the defence plea that he was away from the place and he returned at about 1.30 P.M. and saw his wife's dead body, and immediately he took her to the hospital where she was declared dead should have been accepted. 6.It is further submitted by the learned Counsel that in the instant case, the alleged confession and pursuant recovery of the https://hcservices.ecourts.gov.in/hcservices/ wooden log were all nothing but an introduction to suit the prosecution case if possible; that all along, the accused was present with the police officials and also the prosecution witnesses, and hence there was no reason for showing the arrest after a few days and also to record a confessional statement and also make recovery as found in the case; that under the circumstances, the prosecution has miserably failed to prove its case; but the trial Court has taken an erroneous view, and hence he is entitled for acquittal in the hands of this Court. 7.The Court heard the learned Government Advocate (Criminal Side) on the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that following an incident that had taken place on 29.10.2005, during day hours, the dead body of the wife of the accused was taken by him to the hospital, where she was declared dead by P.W.6, the Doctor. The case of the prosecution levelling specific charge was that it was he who attacked her with a wooden log and caused her death by homicidal violence. The defence plea was that it was a cardiac arrest. Even from the evidence of the Doctor, P.W.6, it would be quite clear that when he brought the dead body, he informed the Doctor that she died out of cardiac arrest. In the medical opinion canvassed through P.W.7, the Doctor, all the injuries were noted. He has given a categorical opinion as a witness before the Court and also the contents of the postmortem certificate would go to show that she died out of shock and haemorrhage due to thoracic injuries. Thus, the trial Court was perfectly correct in recording that she died out of homicidal violence. 9.In the instant case, the prosecution had no direct evidence to offer. It rested its case upon circumstances. This Court is mindful of the caution made by the Apex Court and also the settled principles of law that in a given case like this, the circumstances placed and proved, must be pointing to the guilt of the accused and also the hypothesis that except the accused, no one could have committed the offence. In the instant case, even after the application of the said legal principles, it stood the test. The available materials would indicate that in the past, he was ill-treating her, and there were complaints given to the police, and they were enquired by P.Ws.9 and 10, the Police Officials, attached to Thousand Light Police Station. On those occasions, they were present, and they were living together. P.W.2's house is situated just opposite to that of the spouse. P.W.2 has given categorical evidence that on 29.10.2005, she was about to start for work in the morning hours, and at that time, she found the deceased standing in the Street, and she called her, and the deceased informed her that her husband beat her, and she asked the deceased to go to the hospital, and further, she informed the deceased that she would come back from the work and took her to the mother's house. Now, at this juncture, this Court is unable to see any reason why the evidence of P.W.2 should be doubted. It is not the evidence of P.W.2 that she ever saw the accused beating her. The contention put forth by the learned Counsel for the appellant that even if she had informed on 29.10.2005, so, and the death of the deceased has https://hcservices.ecourts.gov.in/hcservices/ followed, naturally one would expect the witness to speak about that fact immediately cannot be accepted for the simple reason that she was not an eyewitness to the occurrence. The evidence would go to show that when the deceased informed P.W.2 that her husband has beaten her, P.W.2 has further asked her to go the hospital, and after her coming back from the work, she would take her to the mother's house. Apart from that, the deceased was pregnant by 8 months at that time, and she was also affected by Asthma. In such circumstances, P.Ws.1 and 2 and other witnesses were of the opinion that she naturally died. Had it been true that they had got any suspicion, immediately they would have rushed to the police station to give a specific complaint against the accused because in the past number of complaints were given to the police and also enquired, and hence there cannot be any impediment for them to go to the police station immediately; but, they have not given any complaint. 10.Apart from the above, the case was registered for suspicious death, and only after the receipt of the postmortem certificate, it came to the knowledge of the police that death was caused by homicidal violence. On enquiry, P.W.2 came forward to state that she was also informed by the deceased that on that morning, it was her husband who beat her. Since everybody believed that it was a natural death, there was no reason for them to give any specific complaint against him. The fact that no specific complaint was given would indicate that they had no suspicion over the accused. So long as P.W.2 was not an eyewitness, the statement recorded from her on 2.11.2005, cannot be a reason to disbelieve her evidence. That apart, it is true that the postmortem certificate bears the date written by the Doctor, 30.10.2005. But, P.W.11, the Investigating Officer, has specifically stated that he has received the postmortem certificate only on 2.11.2005, and only thereafter, the case was converted to Sec.302 of IPC. Thus it leaves no doubt in the mind of the Court. 11.Yet other circumstance was the arrest of the accused on 2.11.2005. There was no reason to arrest the accused even before that since the case was converted to Sec.302 IPC only on 2.11.2005, after looking into the postmortem certificate. When the accused was arrested, he came forward to give a confessional statement voluntarily which was recorded in the presence of witnesses. It is true that the two witnesses in this regard have actually turned hostile. At this juncture, even if the recovery witnesses have actually turned hostile, barring that evidence, the prosecution had got sufficient circumstances pointing to the guilt of the accused. In the instant case, it was the accused who took her to the hospital and gave a false explanation to P.W.6, the Doctor, that death was actually due to cardiac arrest; but, it was found to be otherwise. This coupled with the circumstance that on that morning, P.W.2 was informed by the deceased that it was her husband who beat her would be pointing to the guilt of the accused. Under the 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, and accordingly rejected. https://hcservices.ecourts.gov.in/hcservices/ 12.For the above reasons, the prosecution has brought home the guilt of the accused that it was the appellant/accused who actually attacked her with a wooden log and caused her death. The finding recorded by the trial Court under Sec.302 IPC was proper. There is nothing to disturb the judgment of the trial Court either factually or legally. 13.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. It is reported that the appellant is on bail. Hence the Sessions Judge shall take steps to commit him to prison to undergo the sentence. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Maghila Court Madras 2.The XIV Metropolitan Magistrate, Egmore, Chennai. 3.-do- Thro The Chief Metropolitan Magistrate, Egmore, Chennai-8. 4.The Superintendent, Central Prison, Chennai. 5.The Inspector of Police F4, Thousand Light Chennai (Crime No.1612 of 2005) 6.The Director General of Police, Chennai. 7.The District Collector, Chennai. 8.The Public Prosecutor High Court, Madras. +1 cc to Mr.K.P.S.Palanivel Rajan, Advocate, SR.No.30424 CRL.A.No.843 of 2007 BK {CO} TP/20.7.2009. https://hcservices.ecourts.gov.in/hcservices/