IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.03.2011 C O R A M THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR CRIMINAL APPEAL NO.686 OF 2010 Balan @ Babu @ Balamurugan .. Appellant/Accused Vs. The State by Inspector of Police Perundurai Police Station Erode District Crime No.544 of 2007 .. Respondent/Complainant Criminal Appeal filed under section 374(2) of Criminal Procedure Code to call for the records relating to the judgment dated 07.09.2010 made in S.C.No.239 of 2008 on the file of the Additional District Sessions Court/Fast Track Court No.I, Erode set aside the same by this allow this appeal. For Petitioner : Mr.N.Manokaran For Respondents : Mr.I.Paul Nobel Devakumar Additional Public Prosecutor J U D G M E N T P.R.SHIVAKUMAR, J. The sole accused in S.C.No.239 of 2008 on the file of the Additional District and Sessions Judge (Fast Track Court No.I), Erode, who was prosecuted, found guilty and convicted for the offences under Section 449 and 302 IPC with imprisonment for life and a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for six months for an offence under Section 302 IPC and rigorous imprisonment for three years and a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for six months for an offence under Section 449 IPC by the trial Court has brought forth this appeal under Section 374(2) Cr.P.C questioning the correctness and sustainability of the judgment of the trial Court dated 07.09.2010 pronounced the said case both in respect of conviction as well as sentence. 2. For the death of one Santhi at about 12.00 midnight on 30.09.2007/01.10.2007, a case was registered on the file of Perundurai Police Station in Crime No.544 of 2007 for an alleged https://hcservices.ecourts.gov.in/hcservices/ offence punishable under Section 302 IPC against unnamed accused. During the course of investigation, the appellant/accused was identified to be the assailant, who caused the death of deceased Santhi, and on completion of investigation, the Inspector of Police, Perundurai submitted a final report, alleging commission of offences punishable under Section 449 and 302 IPC by the appellant/accused, on the file of the learned District Munsif-cum- Judicial Magistrate, Perundurai, who took it on file as P.R.C.No.23 of 2007. After supplying copies of the document proposed to be relied on by the prosecution, to the appellant herein/accused under Section 207 Cr.P.C, the learned District Munsif-cum-Judicial Magistrate committed the case for trial to the Sessions Court, Erode. It was taken on file as S.C.No.239 of 2008 on the file of the Sessions Court, Erode and the same was later on made over to the learned Additional District and Sessions Judge (Fast Track Court No.I) Erode, for disposal according to law. The trial Judge, namely learned Additional District and Sessions Judge (Fast Track Court No.I), Erode, found that there were sufficient materials to prosecute the appellant/accused for offences punishable under Sections 449 and 302 IPC and framed charges under the above said penal provisions. The appellant/accused, after having the charges read over and explained in Tamil, pleaded not guilty. Pursuant to such plea of the appellant/accused, a trial was conducted. 3. The prosecution examined as many as 21 witnesses as P.Ws.1 to 21 and produced 26 documents as Exs.P1 to P26 and also 26 material objects marked as M.O.1 to M.O.26. After recording of evidence on the side of the prosecution was over, the incriminating materials found in the evidence thus adduced on the side of the prosecution were culled out and brought to the notice of the appellant/accused and he was examined under Section 313 Cr.P.C. The appellant/accused denied the said evidence against him to be false and reiterated his stand that he was innocent. No witness was examined and no document was marked on the side of the appellant/accused. 4. The learned trial Judge heard the arguments advanced on either side and considered the evidence in the light of the points urged in the arguments. Upon such consideration, the trial Judge came to the conclusion that both the charges framed against the accused, namely the first charge under Section 449 IPC and the second charge under Section 302 IPC, stood proved by the evidence adduced on the side of the prosecution, found the appellant/accused guilty of both the offences with which he stood charged and sentenced him with punishments as indicated supra. The correctness of the judgment convicting the appellant/accused for the offences under Section 449 and 302 IPC is challenged in this appeal by the appellant/accused on various grounds set out in the appeal petition. 5. The prosecution case in brief is as follows: i) Deceased Santhi was the wife of P.W.7-Viswanathan. Their marriage took place in the year 1994. They were blessed with two children, namely P.W.2-Anandha Saravanan and one Kalaivanan. In https://hcservices.ecourts.gov.in/hcservices/ 2002, due to misunderstanding, they parted with each other and started living separately. After their separation, their sons, namely Kalivanan and Anandha Saravanan were with their mother Santhi. Santhi was employed in a provision store called "Devi Stores", owned by P.W.4-Sankar @ Sivasankar. P.W.7-Viswanathan, the husband of the deceased Santhi is the junior paternal uncle of P.W.1-Hemalatha. She was also a neighbour of Santhi. The co- workers of Santhi, both male and female, used to visit the house of Santhi situated in Bajanai Koil Street, Perundurai. The appellant/accused was one of the persons who paid such frequent visits to the house of Santhi and in the said course, he developed intimacy with her. However, subsequently the deceased Santhi developed intimacy with P.W.6-Kumar @ Govindaraman and P.W.6 married her at Palani temple. Even after their marriage, the appellant/accused gave troubles to the deceased Santhi and the said fact was also informed by her to P.W.6. While so, when P.W.6 and deceased Santhi were together in her house twenty days prior to the date of occurrence, the appellant/accused came there and handed over a blue colour bag to Santhi, asking her to keep it in safe custody as it contained LIC bond and his school certificate. The deceased Santhi, after verifying the contents, put the bag in her bureau. Even at that point of time, P.W.6 informed the appellant/accused of his marriage with Santhi and pleaded with him not to give them any more trouble. At that juncture, the appellant/accused asked him to bear with him for that time alone. However, the accused developed a grudge, which led to the killing of the deceased Santhi by the appellant/accused by dropping M.O.1- granite stone on the head of the deceased Santhi while she was sleeping. P.W.4-Kumaresan and P.W.5-Geetha @ Geethalakshmi were also employees of "Devi Stores", Perundurai and knew the life history of the deceased Santhi prior to the date of occurrence. They also knew the intimacy the deceased Santhi had developed with the appellant/accused and with P.W.6-Kumar. P.W.4-Kumaresan also had heard from the accused that the accused used to go to the house of deceased Santhi and enjoy her company. P.W.5-Geetha @ Geethalakshmi also knew the acquaintance of the deceased Santhi with the appellant/accused and also with P.W.6-Kumar. She also holds testimony for an adumbration made by the appellant/accused over phone to do something against Santhi when his attempt to contact her over phone was not successful, as the phone was picked up by P.W.5 and deceased Santhi refused to get the receiver to talk to him. ii) On 30.09.2007 at about 10.15 p.m, P.W.1-Hemalatha saw the appellant/accused knocking at the doors of the house of the deceased Santhi. However, she did not give any importance to the same since she knew that the appellant/accused was one of the persons, who used to visit the house of the deceased Santhi on earlier occasions. At about 11.30 p.m on 30.09.2007, P.W.2-Anandha Saravanan, who was sleeping on the cot along with his elder brother Kalivanan, got awakened as his sleep was disturbed by the noise caused by the discussion made by the appellant/accused with the deceased Santhi, who were sitting on the mat spread on the floor in the very same room. On seeing P.W.2 getting up and frowning at https://hcservices.ecourts.gov.in/hcservices/ them, the deceased Santhi told him that there was nothing special and asked him to sleep. Thereafter, P.W.2 fell asleep, while the appellant/accused and the deceased were talking to each other in the very same room in which P.W.2 and his brother were sleeping. At about 1.30 a.m on 01.10.2007, P.W.3-Raja saw the appellant/accused waiting for the bus in the new bus stand of Perundurai. iii) On 01.10.2007 at about 7.00 a.m, P.W.13-Venkateswaran, who is none other than the brother of P.W.1, went to the house of deceased Santhi and found her lying dead on the mat. Immediately he called P.W.1-Hemalatha and showed it. Both of them saw the dead body of Santhi lying on the mat spread on the floor in her house with a bleeding injury found near the left eyebrow. Thereafter, the father of P.Ws.1 and 13 also came there and after his arrival, P.W.1 woke up the children of the deceased. Then, P.W.1, along with her father, went to Perundurai Police Station and lodged Ex.P1-complaint. One Panneerselvam, the then Sub-Inspector of Police, received Ex.P1-complaint, prepared Ex.P23-First Information Report in the printed format and registered a case in Crime No.544/2007 on the file of Perundurai Police Station against unnamed accused for an alleged offence under Section 302 IPC. Since the jurisdictional Inspector of Police was on other duty, P.W.20-Dharmaraj, the then Inspector of Police, Arachalur, took up the initial investigation of the case, proceeded towards the place of occurrence and prepared Ex.P11-observation mahazar and Ex.P24- rough sketch in the presence of witnesses, namely P.W.11-Kuppusamy, Village Administrative Officer and his assistant Devaraj. He also recovered M.O.1-blood stained granite stone with irregular shape, M.O.9-Polythene fibre mat, M.O.10-pillow cover, M.O.11-blanket, M.O.23-blood stained cement mortar and M.O.24-sample cement mortar under cover of mahazar Ex.P12. P.W.20 conducted inquest on the body of the deceased Santhi in the presence of panchayatdars and prepared Ex.P25-Inquest Report. P.W.20 also arranged for taking photographs of the dead body in the scene of occurrence through P.W.12-Ravichandran, photographer. Then the dead body of the deceased Santhi was sent to the hospital through P.W.17-Ganapathy, the then Head Constable attached to Perundurai Police Station along with Ex.P13-requisition for autopsy. iv) On receipt of the dead body with requisition for autopsy, P.W.15-Dr.Jaganmohan conducted autopsy. He noted the following external injuries found on the dead body of the deceased Santhi:- " (1) Laceration on the face extending from right eye brow to right ear with bleeding from nose and left side ear; (2) Contusion over right cheek; (3) Abrasion over right side of the lower jaw; (4) Contusion over right side collar bone; and (5) Contusion on the left wrist ." On dissection the following internal injuries were found to be present:- " (1) Fracture of the temporal bone of the skull extending up to the upper part of right orbit; (2) Fracture of the base of the skull; (3) Haemorrhage on both parts of the brain and (4) 50 ml of liquid blood https://hcservices.ecourts.gov.in/hcservices/ had been collected in the cavity of the skull." After completing autopsy, based on the particulars of the injuries noted by him during the autopsy and also after considering the result of chemical examination of the inner parts, P.W.15- Dr.Jaganmohan opined that the deceased appeared to have died of injuries caused to the brain and that the death would have occurred 16 to 18 hours prior to autopsy. The said opinion of P.W.15 has been incorporated in the postmortem examination report marked as Ex.P14. He is also of the view that the injuries found on the deceased could have been caused by an irregular stone like M.O.1. v) On 02.10.2007, Thiru.K.Raman, the then Inspector of Police, Perundurai Police Station, came back, got the CD file from P.W.20 and proceeded with the further investigation of the case. During the course of investigation, P.W.21 arrested the appellant/accused on 23.10.2007 at about 5.30 a.m at the junction point of Taskant Street and the road leading to Kanchi Koil from Perundurai-Bhavani Road. It was P.W.6-Kumar who identified the appellant/accused to P.W.21. On arrest, the appellant/accused gave a confession statement, which was recorded by P.W.21 in the presence of P.W.16- Ponnusamy, Village Administrative Officer and his assistant Babu. Based on the information furnished by the appellant/accused in the admissible part of the confession statement, which has been marked as Ex.P15, M.O.2-black colour bag, M.O.12-pants, M.O.13-shirt, M.O.15-key, M.O.20-plastic cover, M.O.21-LIC policy and M.O.22- xerox copy of school certificate were recovered by P.W.21 in the presence of the said witnesses under cover of Ex.P16-Mahazar at about 9.30 a.m on the same day. The Investigating Officer, namely P.W.21, during the course of investigation received the photos taken at the place of occurrence marked as M.O.25(series) and CD marked as M.O.26 from P.W.12-Ravichandran. He also recovered M.O.18-photo and M.O.19-CD produced by P.W.6. P.W.21 also arranged for conducting test identification parade to identify the appellant/accused. P.W.8-Tmt.Radhika, the then Judicial Magistrate, Bhavani conducted test identification parade on 01.11.2007 at 11.00 a.m in the Central Jail, Coimbatore. In the test identification parade, P.W.1-Hemalatha, P.W.2-Anandha Saravanan and one Nachimuthu correctly identified the appellant/accused to be the assailant. Ex.P7 is the file relating to the test identification parade and it contains the requisition, history of the case, the letter addressed to the Superintendent of Central Prison, Coimbatore by the Judicial Magistrate, Bhavani and the proceedings of the test identification parade. During the course of investigation, P.W.21 also examined P.W.9-Sudhakar, the person in-charge of the maintenance of street lights in Bajanai Koil Street, Perundurai during the relevant period and P.W.10- Malayaman Thirumudikari, Executive Officer of Perundurai Town Panchayat, who bear testimony to the fact that the street lights were in working condition and there was no complaint from the public. On the request made by the Investigating Officer, M.Os. 1,3,6,7,9,10,11,12,13,23,24 and sample blood were sent to forensic laboratory along with Ex.P18, the letter of the District Munsif- cum-Judicial Magistrate, Perundurai. P.W.18-Iyyappan, the then Head Clerk of the Court of the District Munsif-cum-Judicial Magistrate, Perundurai sent those material objects along with the https://hcservices.ecourts.gov.in/hcservices/ letter of the District Munsif-cum-Judicial Magistrate to the forensic science laboratory. The said material objects were subject to analysis by P.W.19-Munirasan, Scientific Assistant Gr.I and Ex.P20-Chemical Analysis Report and Ex.P21-Serology report were issued. After receipt of the same and after completing investigation, P.W.21 submitted a final report alleging commission of offences punishable under Sections 449 and 302 IPC by the appellant herein/accused. 6. The point that arises for consideration in this appeal is: "Whether judgment of the trial court convicting the appellant/accused is infirm and defective either in respect of conviction or in respect of punishment or in respect of both warranting interference of this court in this appeal?" 7. Advancing arguments on behalf of the appellant herein/accused, Mr.N.Manokaran, learned counsel submitted that the prosecution case was entirely based on circumstantial evidence, but the circumstances relied on by the prosecution did not form a complete chain without any missing link and that the court below, without properly appreciating the circumstantial evidence relied on by the prosecution, came to an incorrect and defective conclusion that the charges against the appellant/accused for the offences under Sections 449 and 302 IPC were proved beyond reasonable doubt. The learned counsel for the appellant contended further that the circumstances relied on by the prosecution to prove the charges against the appellant herein/accused were the motive and the last seen theory; that though there might be some kind of evidence to show that there could have been a motive for the appellant/accused to cause the elimination of the deceased, such motive alone was not enough to prove the charge against the appellant/accused; that the evidence regarding the last seen theory was also unreliable and that had the court below considered the evidence of the prosecution in this regard in proper perspective, it would have arrived at a conclusion that the charges against the appellant/accused were not proved beyond reasonable doubt. The learned counsel for the appellant/accused also contended that the alleged confession and recovery also could not be believed and that though P.W.6-Kumar could also be equally suspected, for the reasons best known to the Investigating Officer, the investigation was misdirected against the appellant/accused and the same was not properly considered by the court below, which resulted in the unsustainable conviction of the accused for the offences with which he stood charged. It is the further contention of the learned counsel for the appellant that there was no necessity to conduct a test identification parade since the witnesses with whom the accused was sought to be identified knew the accused very well even prior to the occurrence and that the alleged identification of the accused in the test identification parade by the witnesses P.Ws.1 and 2 would not improve the case of the prosecution. The learned counsel for the appellant/accused further submitted that there was an improvement and embellishment in the testimony of P.W.1 over her statement in the complaint forming the basis of the First Information Report; https://hcservices.ecourts.gov.in/hcservices/ that the introduction of P.W.2 as the person having last seen the appellant/accused with the deceased was also a result of an after thought; that no credence can be given to the testimony of P.Ws.1 and 2 regarding her claim that she had seen the appellant/accused at the doorsteps of the deceased and that the evidence of P.W.2 to the effect that he saw the accused along with his mother in the bedroom could not be given any credence. 8. We also heard the submissions made by Mr.I.Paul Nobel Devakumar, learned Additional Public Prosecutor representing the respondent police on the above said submissions made by the learned counsel for the appellant. The materials available on record were also perused. 9. The deceased Santhi was found dead with head injuries in her house located at Bajanai Koil street, Perundurai on 01.10.2007 at about 7.00 a.m by P.W.13-Venkateswaran. On the information received from him, P.W.1-Hemalatha also saw the dead body of the deceased Santhi lying on the mat in her house at 7.30 a.m. Thereafter, P.W.1-Hemalatha went to Perundurai Police Station and lodged a complaint in writing, which has been marked as Ex.P1. Based on the said complaint Ex.P23-First Information Report in the printed format was prepared and the criminal case was registered. After inquest, the dead body of the deceased Santhi was sent to the hospital for autopsy along with Ex.P14-requisition and the autopsy was conducted by P.W.15-Dr.Jaganmohan. In Ex.P14 - postmortem report issued by P.W.15, he has opined that death would have occurred between 16 to 18 hours prior to autopsy due to injuries found on the face and skull and consequently the injuries caused to the brain. The face of the deceased was found crushed, which was associated with fractures on the right temporal region and also the base of the skull resulting in damage to the brain and collection of liquid blood to the volume of 50 ml in the cavity. A granite stone with irregular shape was found present in the scene of occurrence and the same was seized by P.W.20 under Ex.P12-Mahazar. The presence of the said stone of irregular shape in the scene of occurrence and the nature of injuries with which the deceased was found lying dead, would give rise to an inference that someone would have dropped the said stone on her head while she was sleeping and the same would have led to the eventual death of the deceased. However, it is pertinent to note that the weight and other measurements of M.O.1-stone have not been mentioned in the mahazar. Only in the report of the Regional Laboratory of Forensic Sciences Department, marked as Ex.P20, the weight of the stone is noted as 26.5 Kgs. Though blood stain was detected in the said stone also, grouping test did not yield any result, as the blood stains found in M.O.1-stone was disintegrated. Whatever it be, there are ample evidence to show that the deceased was found lying dead with head injuries in which her face was crushed, skull had been fractured and the brain had been damaged. The Medical Officer, who conducted autopsy was of the opinion that the said injuries could have been caused due to the dropping of a heavy irregular shape stone like M.O.1 on the head of the deceased, while she was sleeping. The fact that the other material objects like https://hcservices.ecourts.gov.in/hcservices/ polythene fibre mat (M.O.9), blanket (M.O.11), pillow cover (M.O.10) and the dress materials removed from the dead body of the deceased marked as M.Os.3 to 6 and the blood stained cement mortar (M.O.23) removed from the scene of occurrence did contain human blood and the group of the blood found in the mat, nightly, brassier, blanket, pillow cover and yellow colour cord (jhyp fapW) would go to show that the deceased ought to have died of homicidal violence caused by someone, who dropped M.O.1 stone on the head of the deceased while she was sleeping. Therefore it has to be concluded that the death of the deceased Santhi was due to homicidal violence. 10. The next question that arises for consideration is "whether the death of the deceased Santhi was caused by the appellant/accused as contended by the prosecution?". In order to connect the death of deceased Santhi with the appellant/accused, as pointed out supra, the prosecution has relied on four circumstances viz. (1) motive, (2) last seen theory, (3) confession leading to recovery and (4) identification of the accused by P.Ws.1 and 2 as the person who was seen by P.Ws.1 and 2 on the night of 30.09.2007 at the doorsteps of the house of the deceased by the former and inside the bedroom by the latter. Before considering the case of the prosecution regarding the alleged motive, it shall be convenient to deal with the other aspects. 11. Admittedly, there is no eye witness for the occurrence and that is why the prosecution very much relies on the last seen theory. According to the prosecution, the accused was seen by P.W.1 at about 10.15 p.m on 30.09.2007 knocking at the door of the house in which the deceased Santhi was residing. It is the definite assertion of P.W.1 that the person, who was seen by her knocking at the doors of the house of the deceased. was none other than the appellant/accused and she was able to identify him. The said evidence is nothing but an improvement made and an embellishment caused over the statement given by her at the earliest point of time. The statement given by P.W.1 at the earliest point of time is the one found in the complaint marked as Ex.P1. In Ex.P1, she had stated that at 10.15 p.m on 30.09.2007, she saw a person wearing black colour pants and a white colour shirt, with a black colour bag hanging from his shoulder knocking at the doors of the house of the deceased Santhi. However, in the very same statement, she had categorically stated that though there was street light and hence without giving much importance to the same, she could not see his face so as to identify him and thinking that one of the persons who would be frequently visiting the house of the deceased Santhi would be the said person, she went inside her house. Having made such a categorical statement that she could not see the face of the person and she could not identify the person and having failed to state that it was the appellant/accused, who was found knocking at the doors of the house of the deceased, P.W.1 seems to have made an improvement later on while deposing as a witness in the trial by stating that it was the accused who was found knocking at the doors of the house of the deceased Santhi. It is also pertinent to note that at the time of https://hcservices.ecourts.gov.in/hcservices/ lodging the complaint, she was not even sure as to whether the person knocking at the doors was one of