IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.07.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.810 of 2007 C.Venkatesan .. Appellant/Accused Vs. The State rep. by Inspector of Police, Pazhavanthangal Police Station, Chennai .. Respondent/Complainant Prayer : Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the Judgment of conviction passed by the learned Principal Sessions Judge, Chengalpet, in S.C.No.553 of 2004 dated 22.03.2007. For Appellant : Mr.V.Gopinath, Senior Counsel for Mr.L.Mahendran For Respondent : Mr.N.R.Elango, Additional Public Prosecutor J U D G M E N T (Judgment of the court was delivered by K.N.BASHA, J.) The sole accused, Venkatesan, has come forward with this appeal challenging the judgment dated 22.03.2007 passed by the learned Principal Sessions Judge, Chengalpet, in S.C.No.553 of 2004 convicting him for the offence under Section 341 IPC and sentencing him to undergo one month simple imprisonment and convicting him for the offence under Section 302 IPC and sentencing him to undergo life imprisonment and also imposing a fine of Rs.1,000/- in default to undergo one year rigorous imprisonment. 2. The prosecution version, as unfolded through the evidence during the course of trial, is as follows : (i) The accused is the husband of the deceased. They got married on 04.05.2003. P.W.1 is the brother of the deceased. The deceased was working as small saving collection agent at Nanganallur https://hcservices.ecourts.gov.in/hcservices/ Post Office. The accused was also working in the post office. After the marriage, they have set up a separate family and residing at Nanganallur. The deceased frequently informed P.W.1 that the accused was treating her cruelly by demanding money. 3 1/2 months after the marriage, the deceased expressed fear to live along with the accused and came to the house of P.W.1. The sister of the deceased one Uma Maheswari was working as staff nurse at Kancheepuram and the deceased was sent there for a change. While the accused went to the house of Uma Maheswari, sister of the deceased, to meet the deceased along with his friend, he met with an accident and he was admitted in the same hospital, where the sister of the deceased, namely, Uma Maheswari was working. On hearing the same, the deceased came back to the house of P.W.1 on 05.09.2003. Thereafter, the accused twice contacted the deceased over the phone and demanded Rs.3 lakhs to take her back to the matrimonial home. The deceased complained the same to P.W.1 and thereafter, she went to Neelankarai Police Station and gave a report against the accused. (ii) P.W.10, Sub Inspector of Police, attached to Neelankarai Police Station stated that on receipt of the complaint of the deceased, he registered the case in Crime No.9 of 2003 for the offence under Sections 498-A, 323, 506 (ii) and 406 IPC r/w Section 4 of Dowry Prohibition Act. Thereafter, the accused was arrested and remanded to judicial custody. Therefore, there were strained feelings between the accused and the deceased. (iii) P.W.4, a tea vendor, who is also a resident of Nanganallur, used to prepare tea for sales from his house and also used to sell tea at the Post office, where the deceased and the accused were working. On 03.11.2003, he was supplying tea at Medavakkam Main Road oil mill bus stop, the accused also came there and had tea at 11.30 a.m. At that time, the accused asked P.W.4 whether he is going to the Post Office, for that, P.W.4 told that he will be going there. Thereafter, the accused asked P.W.4 to inform his wife that one Narayanan of No.2, Third Street, Balaji Nagar, wanted to deposit some amount and asked her to go to that house to get the money. At about 12 noon, P.W.4 went to the Post Office and informed the deceased about the message given by the accused. At that time, P.W.1, brother of the deceased, was also present. The deceased asked her brother, P.W.1, to accompany her and thereafter, P.W.1 took the deceased in his TVS Super XL, two wheeler to the said address at Balaji Nagar. (iv) P.W.3, who is running a fish cart, is known to the accused and the deceased. On 03.11.2003, the accused came to P.W.3 and called him to come along with him to Balaji Nagar third street. When P.W.3 questioned, the accused stated to him that the deceased along with her brother and other family members has given a complaint against him and he was arrested and as a result he lost his job from the post office and therefore, he wanted to cut the deceased. P.W.3 tried to pacify the accused and advised him to sort https://hcservices.ecourts.gov.in/hcservices/ out the problem through the father and brother of the deceased. At that time, P.W.1 was coming through that side along with his sister, the deceased. The accused intercepted them in his cycle. While P.W.1 stopped the motorbike the accused immediately cut the deceased with the knife, M.O.1. The deceased swooned and fell down. The accused threw away the knife at the scene and left in his cycle. P.W.1 was shocked immediately he went to Pazhavanthangal Police Station by leaving the two wheeler at the scene. (v) P.W.1 went to Pazhavanthangal Police Station and gave a written report, Ex.P.1 to P.W.12, the Inspector of Police on 03.11.2003 at 1.00 p.m. P.W.12 registered the case in Crime No.306 of 2003 for the offence under Section 302 IPC. Ex.P.17 is the Express First Information Report and he sent the same to the higher police officials and to the Court. (vi) P.W.12 took up investigation and went to the scene of occurrence at 2.15 p.m. He prepared the Observation mahazar, Ex.P.5 and rough sketch, Ex.P.18 in the presence of P.W.5 and another. At 2.45 p.m., he recovered M.O.4, black and yellow mixed hand-bag, M.O.5, TVS XL Super black colour two wheeler bearing registration No.TN 22 V 7436, M.O.16, ladies wrist watch, M.O.6, one pair of Thodu with Thongattan, M.O.7, gold ring, M.O.8, gold ring, M.O.17, pair of covering bangles, M.O.18, enamel bangles, M.O.9 series, pair of silver golusu, M.O.10 series, Metti, M.O.19, bloodstained white handkerchief, M.O.20, bloodstained tarred earth, M.0.21, sample tarred earth under Ex.P.6 from the scene of occurrence. He also recovered M.O.1, bloodstained knife from the scene. He arranged for taking photograph and held inquest on the dead body from 3.00 p.m. to 4.30 p.m. Ex.P.10 is the inquest report. During inquest, he examined P.W.1 and others. He sent the body for post-mortem. (vii) The Doctor, P.W.9, attached to the Government Hospital, Tambaram, conducted post-mortem at 11.15 a.m. on 04.11.2003. He found the following injuries : External Injuries : (1)An incised 7 cm X 2 cm X 2 cm over the right side neck extending from the medial border or sterno mastoid muscle to let nape of the neck. (2)An incised wound 2 cm X 2 cm X 1 cm over the lower endow occipital region. (3)An incised wound 3 cm X 2 cm X 1 cm over the back side of chest wall near the left side scapular bone. (4)An incised wound 2 cm X 1 cm X 3 cm depth over the back or chest wall in between two scapula. (5)An incised wound 3 cm X 2 cm X 2 cm over the right side root of neck. (6)An incised wound 2 cm X 2 cm X 1 cm over lateral side of neck left (N.C.) mandible. On Dissection Neck : right neck muscle are lacerated. Neck vessels intact. https://hcservices.ecourts.gov.in/hcservices/ Tracheal (N.C.) is clear. Epiglottis is pale. Hyoid bone : intact. Cervical vertebrae : Fractured completely in between C 3 and C4 and the spinal cord is cut in that level. Skull : Skull bone intact. Membrane intact. Brain : Congested base of skull intact. Thorax rib cage is intact. Heart : empty. Lungs : Pale. Abdomen stomach contains 50 ml of brown colour fluid. Intestine : pale. Liver – pale. Gall Bladder : full. Spleen : pale. Kidneys : pale. Bladder – empty. Uterus : bulks. Contains (N.C.) seen over inside the muscle layer. Ex.P.15 is the post-mortem certificate. The Doctor opined that the deceased would appear to have died of haemorrhage and shock due to multiple injuries to vital organs. (vii) P.W.12, in continuation of his investigation, recovered a bloodstained half size shirt, M.O.22 as produced by P.W.1 under Ex.P.7. He examined P.W.5 and others and recorded their statements. On 04.11.2003 after post-mortem, he recovered M.O.2, rose colour chudidar, M.O.3, Thuppatta, M.O.24, bloodstained petticoat worn by the deceased under Form 95 under Ex.P.16. He sent the material objects for chemical examination through the Court as per requisition under Ex.P.11. (viii) P.W.12 arrested the accused on 05.11.2003 at 3.00 p.m. near Chellam Sweet stall, Pazhavanthangal. In pursuance of the admissible portion of his confession under Ex.P.20, he recovered M.O.25, bloodstained full size shirt, M.O.11 broken Thali chain under Ex.P.9. He also recovered M.O.23, green colour Hero Jet bicycle. He recovered M.O.12, gold coin dollars three numbers, M.O.13, gold coin, M.O.14 series, gold nanakuzhai, M.O.15, gold gundu - two numbers under Ex.P.10. He examined P.Ws.3, 7 and others and recorded their statements. He also made arrangements to record the statements from P.Ws.3 and 4 under Section 164 Cr.P.C. by giving requisition to the Chief Judicial Magistrate. On 21.11.2004, the Judicial Magistrate, Tambaram, recorded the statements from the above said witnesses under Section 164 Cr.P.C. After examining the remaining witnesses and after receiving the Biology report, Ex.P.13, Serologist report, Ex.P.14. Post-mortem, Ex.P.15 and after completing the investigation, P.W.12 filed the charge sheet against the accused on 29.01.2003 for the offence under Section 302 IPC. 3. The prosecution in order bring home the charges levelled against the accused examined P.Ws.1 to 13, filed Exs.P.1 to P.20 and marked M.Os.1 to 27. 4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, he has come forward with the version of total denial and stated that he has been falsely implicated in this case. The accused has chosen to examine the Doctor, D.W.1. It is stated by D.W.1 that the accused had taken https://hcservices.ecourts.gov.in/hcservices/ treatment on 03.11.2003 at 11.50 a.m. for a cut injury stating that he had sustained such injury while doing garden works. 5. Mr.V.Gopinath, learned senior counsel appearing for the accused/appellant vehemently contended that the prosecution has miserably failed to establish the guilt of the accused by adducing clear and cogent evidence. The learned senior counsel has made the following submissions : (1)The evidence of the eye-witnesses, P.Ws.1 and 3 suffers from infirmities and inconsistencies and as such their evidence is unacceptable. (2)P.W.3 admitted in his cross-examination that he was examined at 1.00 a.m. on 03.11.2003, but the investigating officer, P.W.12 stated that P.W.3 was examined by him on 05.11.2003. P.W.3 further stated in the cross-examination that the police came to the scene at 5.30 p.m. and he was present at that time for 10 minutes and thereafter he was taken to the police station and kept at the police station till the next day. The name of P.W.3 is also not mentioned in the report, Ex.P.1. Therefore, P.W.3 must have given evidence only due to the compulsion of the police. (3)P.W.1 stated that on the date of occurrence, he took the deceased in his TVS Super XL two wheeler to meet one Narayanan at Balaji Nagar and at that time, the accused intercepted them by coming in a cycle and cut the deceased with the knife, M.O.1. But P.W.4 stated that on the date of occurrence, he went to the Nanganallur Post Office and met the deceased at 12.00 noon and at that time P.W.1 was standing near the deceased and therefore, P.W.1 could not have been present at Balaji Nagar, the scene of occurrence and the occurrence could not have been taken place at the time and in the manner as alleged by the prosecution. (4)In the report, Ex.P.1, it is stated by P.W.1 that the accused cut and murdered the deceased. But, P.W.1 in his evidence stated that after the accused cutting the deceased, he went to the police station and gave the report and thereafter, he came to know that the deceased died and her body was kept at the Chrompet hospital mortuary. Therefore, the First Information Report must have been prepared subsequently and not at the time as alleged by the prosecution. 6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and consistent evidence. It is submitted that the evidence of eye-witnesses, P.Ws.1 and 3, does not suffer from any serious infirmity and their evidence is clear and cogent in respect of the actual occurrence. It is contended that P.W.3 could have stated the date of his examination by the police by oversight and due to the lapse of time and such statement of P.W.3 does not affect his main version regarding the occurrence. It is submitted that P.W.3 is a friend of the accused and his evidence is quite clear and natural and he has no animosity to implicate the accused falsely. https://hcservices.ecourts.gov.in/hcservices/ The learned Additional Public Prosecutor would further submit that the shirt of P.W.1, M.O.22, is also stained with blood and as per the Serologists report, the shirt of P.W.1 contains the same blood group as that of the deceased which proves the presence of P.W.1, at the time of occurrence at the scene. It is contended that yet another piece of evidence adduced by the prosecution through the Doctor, P.W.2, is also quite clear and natural and the Doctor, P.W.2 categorically stated that the accused informed him that he sustained the injury on 03.11.2003 at 12.30 p.m. while he was attacking the deceased, his wife, with a knife. The evidence of the eye- witnesses, P.Ws.1 and 3 is also corroborated by the medical evidence through the Doctor, P.W.9, who has conducted post-mortem. Therefore, it is submitted that the prosecution has proved its case in all aspects beyond reasonable doubt against the accused. 7. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scanned through the entire evidence adduced by the prosecution and perused the impugned judgment of conviction. 8. The prosecution heavily placed reliance on the evidence of the eye-witnesses, P.Ws.1 and 3. Apart from the evidence of the eye-witnesses, P.Ws.1 and 3, the prosecution also placed reliance on the extra-judicial confession given by the accused to the Doctor, P.W.2. The injury sustained by the accused as per the Doctor, P.W.2 and the Doctor, D.W.1 is also one of the vital pieces of evidence available on record to test the credibility of the eye-witnesses as well as the probability of the defence version. 9. Yet another connecting link of evidence adduced by the prosecution is the evidence of P.W.4 as P.W.4 has been examined by the prosecution to show that the accused sent message through P.W.4 to the deceased to go to the house of one Narayanan at No.2, third street, Balaji Nagar for collecting the deposit amount and the occurrence said to have taken place at Balaji Nagar third and fourth street junction. 10. Before proceeding to consider the evidence of the eye- witnesses, P.Ws.1 and 3 as well as the other materials available on record, let us consider the motive put forward by the prosecution against the accused. It is the case of the prosecution that the accused and the deceased got married on 04.05.2003 and thereafter, they were living separately at Nanganullur. After the marriage, the accused demanded money and cruelly treated the deceased and the deceased complained about the same to her brother, P.W.1. 3 1/2 months after the marriage the deceased was constrained to leave the matrimonial house to the house of P.W.1 as she expressed fear to live along with the accused. The deceased was living with her sister, Uma Maheswari, at Kancheepuram for some time and as the accused admitted in the hospital where, the sister of the deceased was working as staff nurse at Kancheepuram, the deceased has decided https://hcservices.ecourts.gov.in/hcservices/ to leave her sister, Uma Maheswari's house and came back to the house of P.W.1 on 05.09.2003. Thereafter, the accused twice contacted the deceased over the phone and threatened the deceased to bring Rs.3 Lakhs for living together. The deceased informed about the same to P.W.1 and thereafter, she was compelled to give a complaint to the police against the accused. She went to the All Women Police Station, Neelankarai, and gave a written report to P.W.10, the Sub Inspector of Police. P.W.10 registered the case in Crime No.9 of 2003 for the offence under Sections 498 (A), 323, 506 (ii) and 406 IPC r/w Section 4 of Dowry Prohibition Act. P.W.10 immediately arrested the accused and he was remanded to judicial custody for 15 days. It is further evident from the evidence of P.W.3 that the accused stated to P.W.3 that only the deceased, her brother and her father were responsible for putting him inside the jail and as such he has lost his job from the post office and he was humiliated and therefore, he is going to cut his wife, the deceased. The above said sequence of events through the evidence of P.Ws.1, 3 and 10 make it crystal clear that the accused had strong motive to commit the offence. Therefore, we have no hesitation to hold that the prosecution has proved the motive put forward against the accused. 11. As far as the evidence of the eye-witnesses, P.Ws.1 and 3 are concerned, we are constrained to state, at the outset, that there is no serious infirmity or inconsistency in their evidence. The evidence of P.Ws.1 and 3 is quite clear and natural. The learned senior counsel took enormous pain to contend that P.W.1 could not have been present at the time of occurrence by placing reliance on the evidence of P.W.4. It is seen that P.W.4 stated that he was requested by the accused to inform his wife, the deceased, that one Narayanan residing at No.2, third street, Balaji Nagar, is willing to deposit amount and as such the deceased should go to the house of Narayanan immediately. Thereafter, P.W.4 went and informed the deceased at Nanganullur post office and at that time, P.W.1, brother of the deceased, was also present. After P.W.4 conveyed the message, the deceased left with her brother in his TVS super XL two wheeler. It is contended by the learned senior counsel that according to P.W.4, he went to Nanganallur post office at 12.00 noon and met the deceased along with her brother, P.W.1. It is pertinent to be noted that the occurrence in this case is said to have been taken place at 1.00 p.m. at third and fourth street junction, Balaji Nagar, Nanganullur. It is stated by P.W.1 in his cross-examination that he took the deceased to Balaji Nagar at 12.00 or 12.15 noon. In Ex.P.1, report, P.W.1 stated that he took the deceased to Balaji Nagar at 12.30 p.m. and the occurrence took place at 1.00 p.m. Therefore, it is quite clear that the occurrence could have taken place at 1.00 p.m. and there is no doubt about the presence of P.W.1 along with the deceased at the time of occurrence. It is pertinent to be noted that the scene of occurrence is not far off from the house of P.W.1 or from the Post Office. It is stated by P.W.1 that from his house post office is one Kilometer and from https://hcservices.ecourts.gov.in/hcservices/ the post office Balaji Nagar is about a Kilometer. Both the places are more or less nearby. The version of P.W.4 that he met the deceased at 12.00 noon at the post office along with P.W.1 is only an approximate time. Even as per the version of P.W.1 in his cross, he stated that on the date of occurrence at 12.00 noon or 12.15 p.m., he took the deceased to Balaji Nagar. As already pointed out, it is mentioned in Ex.P.1 that he took the deceased to the Balaji Nagar at 12.30 p.m. on the date of occurrence, i.e., on 03.11.2003. From the above said materials, we can safely arrive at a conclusion that P.W.1 was very much present at the time of occurrence at the scene. 12.1. Yet another contention put forward by the learned senior counsel is the inconsistency between the evidence of P.W.1 and his report, Ex.P.1. It is pointed out by the learned senior counsel that in Ex.P.1, it is stated by P.W.1 that after the accused cut the deceased and the deceased fell down, he immediately went to the Pazhavanthangal Police Station and reported that his sister was murdered by the accused, her husband, whereas, in the evidence P.W.1 has stated that after the deceased was cut by the accused, he immediately rushed to the police station and gave the report, Ex.P.1 and the police came and enquired about the occurrence and thereafter only, he came to know that the deceased died and her body was taken to Chrompet hospital mortuary. From this version of P.W.1, the learned senior counsel contended that the First Information Report must have been prepared subsequent to the time as alleged by the prosecution. We are unable to accept such contention of the learned senior counsel. It is to be noted that Ex.P.1 was received by P.W.12 at 1.45 p.m. P.W.12 went to the scene of occurrence, as per his evidence, at 2.15 p.m. and held inquest from 3.00 p.m. to 4.30 p.m. at the scene of occurrence. It is the version of P.W.12 that during inquest, P.W.1 was present. This version of P.W.12 about the presence of P.W.1 during inquest was not disputed by the defence during the course of cross-examination of P.W.12. As P.W.1 was present during inquest, no significance could be given to the statement of P.W.1 to the effect that after giving the report, Ex.P.1, he was informed that the deceased died and her body was taken to Chrompet Hospital mortuary. Such statement could have been made by P.W.1 due to inadvertence. As already pointed out, the report, Ex.P.1 was given at 1.45 p.m. and the First Information Report reached the Magistrate Court at 4.00 p.m. itself on the date of occurrence, i.e., on 03.11.2003 as per the perusal of the original records. Therefore, the contention of the learned senior counsel that the First Information Report must have been prepared subsequently is unacceptable. 12.2. Yet another important factor to be taken into consideration is the recovery of bloodstained shirt of P.W.1 marked as M.O.22, as per the evidence of P.W.12. It is pertinent to be noted that though P.W.5, who has been examined to speak about the recovery of M.O.22, bloodstained shirt produced by P.W.1, has been https://hcservices.ecourts.gov.in/hcservices/ treated hostile, during the course of cross-examination, he has categorically admitted that the police seized one shirt from the scene of occurrence and he has signed the mahazar, Ex.P.7. A perusal of Ex.P.7 clearly shows that the bloodstained shirt yellow and navy blue colour was seized from P.W.1 on 03.11.2003 at 5.30 p.m. at the scene of occurrence. It is pertinent to be noted that as per the Serologist report, Ex.P.14, M.O.22 shirt recovered from P.W.1 contains the blood group of human 'B' as that of the blood group of the deceased. Therefore, this vital piece of evidence available on record makes it crystal clear that P.W.1 was very much present at the time of occurrence. 13. As far as P.W.3, yet another eye-witness is concerned, it is contended by the learned senior counsel that according to P.W.3, as per his admission in the cross-examination, he was examined by the police on the date occurrence, i.e., on 03.11.2003. It is further stated in his cross-examination that on the date of occurrence, he was taken to the police station and kept there till the next day. In view of such