IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 11.11.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.540 of 2010 Sumathy ... Appellant/Accused ..Vs.. State, rep. by the Inspector of Police, K-10, Koyambedu Police Station, Chennai. ... Respondent/Complainant Appeal filed to set aside the judgment dated 24.6.2004 passed by the learned Principal Sessions Judge, Chennai in S.C. No.517 of 2003. For Appellant : Mr. S.N. Arun Kumar For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgement dated 24.6.2004 passed by the learned Principal Sessions Judge, Chennai in S.C. No.517 of 2003, whereby the sole accused stood charged, tried and found guilty for the offences under Sections 302 read with 34 and 201 read with 34 of the Indian Penal Code and sentenced to undergo Life Imprisonment for the offence under Section 302 read with 34 of the Indian Penal Code and Rigorous Imprisonment for five years for the offence under Section 201 read with 34 of the Indian Penal Code. 2. The short facts necessary for the disposal of the case can be stated thus: (i) The accused/appellant is the wife of the deceased Shanmugavelu. P.W.2 was her son. They were residing in a house belonging to P.W.6 on rental basis. P.Ws.9 and 10 are the sister and brother of the deceased respectively. The deceased complained to his relatives and also to the co-workers that the accused https://hcservices.ecourts.gov.in/hcservices/ developed illicit intimacy with the other deceased/accused Thangavelu, who died ten days after the commission of crime in question. P.W.6 often noticed the frequent quarrel between the accused/appellant and the deceased in respect of her conduct. (ii) On the date of occurrence that was on 6.4.2003, P.W.2 witnessed his father sleeping in a cot at about 9 p.m. and he left for his work. Thereafter, at about 12.00 night, P.W.6 witnessed that the accused/appellant and the deceased/accused Thangavelu were proceeding with M.O.3 fish cart. When P.W.6 questioned the appellant/accused about her husband, she replied that her husband has gone to Maduranthagam to see his mother. At about 1 a.m. P.W.13 found the accused/appellant and the deceased/accused stood in front of the shop along with a gunny bag and the fish cart. P.W.1, a passer by, P.W.3 and P.W.4 witnessed the limbs of the dead body at the Chinmaya Nagar bridge at about 9 a.m. on 7.4.2003. The trunk of the dead body was found under another bridge located nearby. (iii) P.W.1 proceeded to the respondent-police and gave Ex.P1 complaint, on the strength of which a case in Crime No.494 of 2003 was registered under Section 302 of the Indian Penal Code. Ex.P14 Express D.I.R. Was despatched to the Court. P.W.14 Inspector of Police took up investigation and proceeded to the spot and prepared Observation mahazar Ex.P2 and rough sketch Ex.P15 where the limbs of the dead body was found. He conducted inquest on the limbs of the dead body and prepared Ex.P18 inquest report. Thereafter, he prepared Observation mahazar Ex.P3 and rough sketch Ex.P7 in the place where the trunk of the body was found. Thereafter, he conducted inquest on the same and prepared inquest report Ex.P18. (iv) Thereafter, both the trunk and the limbs were sent to the Government Hospital for post-mortem. P.W.14 examined the witnesses and recorded their statements. In the meanwhile, the accused/appellant made an oral confession to P.W.7, a hotel owner, to whom, she and the deceased used to supply water, about the occurrence. P.W.7 left for his native place and returned only on 15.4.2003. (v) P.W.14 arrested the accused/appellant on 11.4.2003 and on arrest, she came forward to give confession statement voluntarily and the same was recorded in the presence of witnesses. The admissible portion of the same was marked as Ex.P5. Pursuant to the same, she produced M.O.2 knife and M.O.3 fish cart and M.O.4 pillow and the same were recovered in the presence of witnesses under the cover of mahazar. She took the police party near the Metro water pumping station compound and identified the head portion of the dead body and the same was also recovered under the cover of mahazar. https://hcservices.ecourts.gov.in/hcservices/ (vi) P.W.14 conducted inquest on the head of the dead body and prepared inquest report Ex.P22. P.W.10 identified the dead body as that of his brother. Thereafter, all the three parts were put together and sent for conducting post-mortem. P.W.11 Doctor conducted post-mortem and has given opinion in the post-mortem Certificates Ex.P10 and P12 that the death was due to asphyxias and smothering would have caused asphyxial death. On the basis of requisition given by P.W.14, the natural objects were sent for chemical analysis. Ex.P26 Biology report and Ex.P27 Serological report were received. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 14 witnesses and relied on 29 documents and also relied on M.Os.1 to 6. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Sections 302 read with 34 and 201 read with 34 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case beyond reasonable doubt since the prosecution had no direct evidence to offer. Even P.W.2, the son of the deceased, has turned hostile. Though he has turned hostile, he has categorically stated that his mother/accused accompanied him to the market and thereafter, he did not know as to what happened. Hence, the accused/appellant had no role to play in the crime in question. 6. Learned counsel added further that the prosecution relied on extra judicial confession made by the appellant/accused to P.W.7 Hotel owner. It is a matter of surprise to note that it was claimed by P.W.7 as if a confession was made by the appellant to P.W.7 on 11.4.2008 and he informed the same to the police on 15.4.2003, which is highly unbelievable. Insofar as P.W.13 was concerned, he has only seen both the accused/appellant and the deceased/accused along with the fish cart and gunny bag. It cannot be taken as a circumstance stood against the appellant. Equally, P.W.6 saw both the deceased/accused and the appellant/accused together along with a fish cart, which, itself, cannot be the circumstance pointing to the guilt of the accused/appellant. https://hcservices.ecourts.gov.in/hcservices/ Learned counsel added further that in the instant case, the prosecution did not have any direct evidence and could not place or prove any circumstance, which would connect the accused/appellant with the crime. 7. In the second line of argument, learned counsel would submit that if the Court takes the view that the prosecution has proved the factual matriix, it can be taken only to the extent that she has joined the deceased/accused in screening the offence by taking the body in a fish cart and throwing it in different places and thus, she would be found not guilty under Section 302 read with 34 of the Indian Penal Code, but found guilty only under Section 201 read with 34 of the Indian Penal Code and it has got to be considered by this Court. 8. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious on the submissions made by either side. 9. It is not controversy that pursuant to the complaint given by P.W.1 to P.W.14 Inspector of Police of the respondent Circle, a case came to be registered in Crime No.494 of 2003 for the offence under Section 302 of the Indian Penal Code. P.W.14, who took up investigation, has gone to the spot where he found the limbs of the body at one place and the trunk of the body in another place. He prepared two separate inquest reposts. Both parts were sent for the purpose of post-mortem and they were actually kept in the Government Hospital. On the arrest of the appellant/accused on 11.4.2003, it was she who took the police party and identified the head part of the body and an independent inquest report was prepared by the Investigating Officer and the same was also sent for the purpose of autopsy. Along with two other parts of limbs asnd trunk part, head part was also joined. P.W.11 Doctor, who has conducted post-mortem, has given his opinion in the post-mortem Certificates Ex.P10 and P12 that the death was due to asphyxias and smothering would have caused asphyxial death. The cause of death as putforth by the prosecution was not disputed by the appellant/accused before the Trial Court. Hence, the Trial Court is perfectly correct in recording that the deceased died due to homicidal violence and rightly to. 10. In order to substantiate the case of the prosecution that the accused/appellant joined the deceased/accused in causing the death of her husband and to screen the same, severed the dead body and threw different parts of the body at different places, the prosecution had no direct evidence to offer, but only rests on circumstantial evidence. The Court is mindful of caution to the ruling of the Apex Court and also settled principles of law that in a case, where the prosecution rests on circumstantial evidence, the same must constitute confidence in the mind of the Court that the https://hcservices.ecourts.gov.in/hcservices/ circumstances, which stood against the accused, would point out the hypothesis that except the accused, no one could have committed the offence. In the instant case, even after application of cardinal principle, the Court is fully satisfied that it was the accused, who committed the crime along with the other deceased/accused. 11. It is an admitted position that the accused/appellant was the wife of the deceased Shanmugavelu. They were residing in a house belonging to P.W.6 on rental basis. During the relevant time, they were living along with their children. P.W.2, the son of the deceased has turned hostile. He was in the house till 9.00 p.m. At that time, his father was sleeping in the cot and thereafter, he went to market. Thereafter, he did not know as to what happened. 12. It is pertinent to point out that the occurrence had taken place at the night hours of 6.4.2003. It was P.W.6, the house owner, who has witnesseded the appellant/accused and also the deceased/accused in front of the house along with M.O.3 fish cart and M.O.5 gunny bag. According to P.W.6, she questioned about the husband of the appellant, to which, she replied that he has gone to Maduranthagam. The reply given by the appellant/accused to P.W.6 itself would show that it was a false excuse in order to suppress the crime, which has already taken place. When they were proceeding on the way, P.W.13 has seen both the accused in front of his shop with a cart and also the gunny bag. 13. It is pertinent to point out that the accused/appellant was arrested only on 11.4.2003 and at the time of investigation, on 7.4.2003, the Investigator could recover only limbs and trunk of the body, but not the head. Only on the arrest of the accused/appellant, the head was recovered. It was she who identified the place where the head of the body was actually found. It was recovered by the Investigating Officer after conducting inquest. Thus, in the considered opinion of the Court, the recovery of head part at the place where it was actually thrown and hidden by the accused and shown by her would point out the strong piece of evidence and also point out the nexus of crime to the accused/appellant. 14. The added circumstance was the extra judicial confession made by the accused to P.W.7. P.W.7 was the hotel owner to whom, the accused and her husband used to supply water. According to P.W.7, when he was about to go to native place, at that time, the accused came in a distress mood and told him that she, along with the accused/deceased, caused the death of her husband and also called him to police station along with her. P.W.7 replied that he was urgently going to native place and asked her to go to police station and surrender. The delay caused in not telling the same to the police station is due to the reason that he returned from the native place only on 15.4.2003. He went to the police https://hcservices.ecourts.gov.in/hcservices/ station in the Afternoon and gave information about the confession statement made by the accused/appellant. 15. In a given case like this, the Court can sustain conviction on the basis of extra judicial confession given by the accused after satisfying two tests viz. the attendant circumstances and whether the evidence of the person, to whom the extra judicial confession was made, inspires the confidence of the Court. The Court is of the considered opinion that in the instant case, the evidence of P.W.7 satisfies both the tests. As stated above, P.W.7 was the Hotel owner to whom the accused and the deceased were supplying water regularly. Hence, the accused/appellant thought it fit to inform him. Apart from this, no circumstance or reason is brought forth as to whether P.W.7 has got any grudge against the appellant. Much comment was made by the learned counsel for the appellant for the delay caused by P.W.7 for passing on information about the extra judicial confession made by the appellant, but the explanation has come from the mouth of P.W.7 and nothing more. 16. Pursuant to the confession made by the accused/appellant, she has produced M.O.3 fish cart where the dead body was carried and also the gunny bag M.O.5 within which the dead body was kept. All would clearly indicate the fact of nexus of crime to the accused/appellant. Hence, the Court is of the considered opinion that the prosecution has sufficient evidence to indicate that it was the accused/appellant, who joined the other accused/deceased and committed the murder of her husband and thereafter, severed the body in to different parts and put it in a gunny bag and carried it in a fish cart and mercilessly threw the different part of the body in different places. Hence, the learned Trial Judge has perfectly marshalled the evidence and taken a correct view. This Court is unable to disturb the findings rendered by the Trial Court either factually or legally. 17. The conviction and sentence imposed in the judgement dated 24.6.2004 by the learned Principal Sessions Judge, Chennai in S.C. No.517 of 2003 is sustained. The criminal appeals fails and the same is dismissed. ssa. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The V Metropolitan Magistrate, Egmore, Chennai. 2. The Chief Metropolitan Magistrate, Egmore, Chennai. 3. The Principal Sessions Judge, Chennai. 4. The Superintendent, Central Prison, Chennai. 5. The District Collector, Chennai. 6. The Director General of Police, Madras – 4. 7. The Inspector of Police, K-10, Koyambedu Police Station, Chennai. 8. The Public Prosecutor, High Court, Madras. Crl. A. No.540 of 2010 MBS(CO) SR/1.12.2010 https://hcservices.ecourts.gov.in/hcservices/ 11.11.2010 https://hcservices.ecourts.gov.in/hcservices/