IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.27 of 2009 Ramasamy ..Appellant/Accused vs. State by: Inspector of Police Shankar Nagar Police Station Chengalpattu District (Cr.No.357/97) ..Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.I, Chengalpattu, made in S.C.No.176 of 2007 dated 30.6.2008. For Appellant : Mr.E.J.Ayyappan For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Chengalpattu, made in S.C.No.176 of 2007 whereby the sole accused/appellant stood charged, tried, found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the son of the accused and the deceased Rajammal. P.W.2 is the sister of the deceased. P.W.3 is the daughter of P.W.2. The deceased was the second wife of the appellant/accused. They were living together. The deceased was running a shop in which P.W.1 used to assist her. The accused was in the practice of taking away the https://hcservices.ecourts.gov.in/hcservices/ money collected in the business. When there was a debt payable by the family, the family property was sold for about Rs.3 lakhs one and half years before, and after making the payment of debt, the balance was available. One day, suddenly the accused took away Rs.1.50 lakhs and disappeared. Then he was brought back, and the matter was compromised. Thereafter, he continued to live with them. (b) On the previous day to the occurrence, that was on 16.3.1997, P.W.1 accompanied his wife and went over to the birth day ceremony of his sister's son. At that time, both the deceased and the appellant were only available in the house. At about 9 or 9.30 P.M., they were taking dinner. P.W.3 who was a child aged about 10 and who was living nearby along with the parents, came over there since her parents were absent. P.W.7, the friend of P.W.1, has also come to the house and found the appellant in the company of the deceased. (c) The next day i.e., 17.3.1997, after the function was over, P.W.1 and his wife were coming to the house at about 6.00 A.M. At that time, P.W.1 found that the petty shop was kept closed, and the house doors were kept open. Immediately, he went inside and found his bed room was kept closed. Then he got inside through the backdoor and found the dead body of his mother, and the head was smashed with a reaper M.O.1, which was kept aside. He made enquiry. Immediately, he took her to the Government Hospital, where she was declared dead. Thereafter he proceeded to the respondent police station where he gave a complaint Ex.P1 at 3.05 A.M. P.W.10, who was the Sub Inspector of Police on duty, got Ex.P1, the report, and registered a case in Crime No.357/2007 under Sec.302 of IPC. The printed FIR, Ex.P10, was despatched to the Court. (d) The investigation was taken up by the Inspector of Police, P.W.11, who went to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P6. Then, he conducted inquest inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P7. (e) Pursuant to the requisition made, the dead body of Rajammal was subjected to autopsy by P.W.9, the Professor, Head and Police Surgeon, Department of Forensic Medicine, Government Royapettah Hospital, Madras, who has given his categorical opinion in the course of the postmortem certificate, Ex.P4, that the deceased would appear to have died of head injury. (f) The police could not secure the accused for a longtime. He was actually secured in the year 2007 by executing the NBW, and then he was produced before the Court. Further, all the material objects recovered from the place of occurrence and from the dead body, were subjected to chemical analysis by the Forensic Sciences Department pursuant to a requisition given. Ex.P10, the chemical analyst's https://hcservices.ecourts.gov.in/hcservices/ report, and Ex.P11, the serologist's report, were received by the Court. 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 examined 11 witnesses and also relied on 11 exhibits and 3 material objects. On completion of 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 and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded life imprisonment which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.E.J.Ayyappan, would submit that in the instant case, the prosecution had no direct evidence to offer, it relied upon only circumstantial evidence; that the occurrence, according to the prosecution, has taken place after 6.30 P.M. on 16.3.1997 and P.W.1 admittedly has seen the dead body in the house only after 6.00 or 6.30 A.M. on 17.3.1997 i.e., about 24 hours later; that in view of the intervening circumstance, anyone could have committed the offence; that it is true that the accused was found missing; that even as per the evidence available, the accused used to be absent for months together and come back; that once accusation was made, he was absent; and that apart from that, mere absence of an accused cannot be a reason to fasten any criminal liability on him. 5.Added further the learned Counsel that P.W.3 was only a child at the time of occurrence; that as far as P.W.7 is concerned, he has also spoken along with P.W.3 as to the last seen theory; that even assuming that P.Ws.3 and 7 have seen the deceased in the company of the accused, the same by itself cannot be a reason to fasten criminal liability on the accused since both have seen them before 24 hours; that the dead body was also found in a decomposed stage; that the Doctor has given opinion that an injury was found on the skull; that under the circumstances, last seen theory if to be relied on for sustaining conviction, the Court must see the time gap from the point of time of last seen till the time when the dead body was found; that in the instant case, there was a long gap of 24 hours; that apart from that, there was no recovery from the accused at the time of arrest; that all would go to show that the prosecution has not placed the necessary circumstances or proved the same warranting for a conviction; but the trial Court has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.It is not in controversy that the dead body of Rajammal the mother of P.W.1, was found on 17.3.1997 in the evening hours by P.W.1, who immediately took her to the hospital where she was declared dead by the Medical Person. Pursuant to the complaint given, a case came to be registered by P.W.10, the Sub Inspector of Police, and P.W.11, the Inspector of Police, took up investigation. Following the inquest made by him and preparation of the inquest report, the dead body was subjected to postmortem by P.W.9, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that the deceased died out of head injuries. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court or before this Court. Hence no impediment was felt in recording so. 8.In order to substantiate the charge levelled against the appellant/accused that it was he who attacked his wife with M.O.1, reaper, and caused her death, the prosecution had no direct evidence to offer, but relied upon circumstantial evidence. This Court is not unmindful of the caution made by the Apex Court and also by the settled principles of law that in a given case where the prosecution rested its case on the circumstantial evidence, it must place and prove all the necessary circumstances pointing to the guilt of the accused, and they should form a chain without a snap and be pointing to the hypothesis that except the accused no one could have committed the crime. In the case on hand, even if that is applied, this Court is satisfied that the prosecution has proved the case beyond reasonable doubt. 9.According to the evidence of P.W.1, on the night hours of 16.3.1997, when he left the house, his father namely the appellant/accused and his mother the deceased both were staying in the house, and except both of them, no one was in the house. Further, according to P.W.1, when he came back in the next day, he found the dead body of his mother, but his father/accused was found missing. According to P.W.3, the daughter of P.W.2, she came for dinner on the night hours of 16.3.1997, and she took the dinner, and at that time, both the appellant/accused and the deceased were present. Apart from this, there is evidence of P.W.7. According to him, he found both the appellant/accused and also the deceased available in the house. Thus, the evidence of P.Ws.3 and 7 would clearly indicate that the accused was staying in the house along with his wife on the night hours. It would also be quite clear that the occurrence has taken place during the night hours. It is not the case of the appellant that he was not available during the night hours on the day or he was staying in other place. Not even one https://hcservices.ecourts.gov.in/hcservices/ suggestion was put to any one of the witnesses namely P.Ws.1, 3 or 7. Added further, it is not a case of murder for gain. It is also not the case of the appellant that he had got any illicit intimacy with anybody or he has got enemies who had got a grudge to cause such a heinous crime of murder. So long as the prosecution is able to show that the appellant was staying with his wife on the night hours of 16.3.1997 and the dead body was found in the morning hours of the next day and he was also found missing, it is for him to explain how death was caused. In the absence of any explanation coming from the mouth of the appellant, it is a clear case where the Court can infer that except the accused no one could have committed the crime at all. 10.Added circumstance is the conduct of the accused. The occurrence has taken place in the year 1997, and the case was registered against him. The police was in search of him. But, he was absconding for a period of nearly 10 years, and only on execution of the NBW he was secured and produced before the Court. This Court is mindful of the settled principles of law that merely because of the long abscondance of the accused, he cannot be attributed or fastened with the criminal liability. But, in the instant case, once the case was registered against him, he was found missing and absconding for a period of 10 years, and the NBW could not be executed. Thus it would be added circumstance to the other circumstances available. Apart from that, M.O.1 reaper, has been recovered from the place of occurrence, and it was actually used by the accused for the purpose of causing the head injury. According to the medical opinion, the head injury was fatal which had caused the death. All put together would clearly indicate that except the accused no one could have committed the crime. It is pertinent to point out that after causing the murder of his wife, he has disappeared. Thus it would be quite clear that it was an intentional act, which would attract the penal provision of murder. The lower Court was perfectly correct in finding him guilty for an offence of murder. There is nothing to disturb the judgment of the trial Court either factually or legally. 11.In the result, this criminal appeal fails and the same is dismissed confirming the judgment of the trial Court. Sd/ Asst.Registrar /true copy/ nsv Sub Asst.Registrar To 1. The Additional District and Sessions Judge, Fast Track Court No.I Chengalpattu. https://hcservices.ecourts.gov.in/hcservices/ 2. -do- Through The Principal District & Sessions Judge, Chengalpattu. 3. The District Collector, Chengalpattu. 4. The Director General of Police, Mylapore, Chennai. 5. The Superintendent, Central Prison, Puzhal, Chennai. 6. The Inspector of Police, Shankar Nagar Police Station, Chengalpattu District. 7. The Public Prosecutor High Court, Madras. 8. The Section Officer, Criminal Section, High Court, Madras. + 1 c.c. to Mr. E.J. Ayyappan, Advocate. S.R.No.61271. CRL.A.No.27 of 2009 CKN (CO) GSK 25.11.2009. https://hcservices.ecourts.gov.in/hcservices/