IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.764 of 2008 1.S.Muruganandam 2.P.Chellappa .. Appellant vs State by: Inspector of Police Kevalur Police Station Nagapattinam District (Crime No.733 of 2005) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Sessions Judge, Nagapattinam, made in S.C.No.108/2006 dated 20.6.2008. For Appellant : Mr.P.Vijendran For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenging a judgment of the Sessions Division, Nagapattinam, made in S.C.No.108/2006, whereby the appellants/A-1 and A-3 stood charged, tried and found guilty as follows, this criminal appeal is brought forth. ACCUSED CHARGES FINDING PUNISHMENT A-1 376(2) IPC Not guilty A-3 376 r/w 109 IPC Not guilty A-1 & A-3 302 IPC Guilty under Sec.302 r/w 34 IPC Life imprisonment along with a fine of Rs.30000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is a native of Vandalur. The deceased Muthazhagi was his wife. P.W.5 is their son. P.W.4 was the Panchayat President of the said place. P.W.12 was driving an auto in the said village. P.Ws.10 and 11 were also residents of the said place. P.W.1 was a Barber by profession. His wife was doing agricultural work. Two months prior to the occurrence, when the deceased was proceeding from the shop of P.W.1 in the evening hours, A-1 dragged her hand and outraged her modesty. It was witnessed by P.W.1, who went to his house by a cycle. He reported the matter to P.W.4 the Panchayat President, who called A-1 and warned him. Thus A-1 developed animosity against P.W.1 and his wife, and he hatched up a plan with A-2 and A-3 to have sexual assault on her. (b) On the evening hours of 20.11.2005, P.W.5 was in his house, and P.W.1 was in his shop. At about 4.30 P.M., the deceased went to the field for cutting grass. At that time, A-1 to A-3 engaged the auto of P.W.12, and first they proceeded to a hotel and had their food. Thereafter, they went to a petrol bunk near Venmani and then proceeded to the bridge which is situated at Parappanur. When they were proceeding in the auto, P.Ws.8 to 10 saw all the three accused in the auto driven by P.W.12. At about 5.00 P.M., P.W.7 saw the deceased cutting the grass near the channel situated aside the above bridge. The accused who came in the auto, stopped the vehicle nearby the bridge. Leaving the auto there, all of them went to the place where she was cutting grass. A-3 was asked to send back the auto. A-1 and A-2 went near the deceased and removed her clothes. A-2 placed a patta knife on her neck, pushed her down and intimidated her. Both A-1 and A-2 had sexual intercourse with her one after another. A-3 came back to the place, and then all of them decided not to leave her and to finish her off. A-1 and A-2 immersed her into the water in the channel. A-3 caught hold of her legs to facilitate the crime. She died out of asphyxia caused by immersing her into water. All the three took the dead body, and leaving the same near the bush, they left the place. At that time, P.W.11 met the accused nearby Iyyanar Temple which is situated nearby the place of occurrence. A-1 asked him a match box to light a beedy. Accordingly, it was given and thereafter, P.W.9 has also seen them. He found the auto parked nearby, and P.W.12 sitting in the auto, and all the three accused standing nearby the place of occurrence. Thereafter, all the three accused left the place of occurrence. (c) At about 6 or 6.30 P.M., P.W.1 after closing his shop came to the house, and when he could not find his wife he asked P.W.5, and P.W.5 informed him that at about 4 or 4.30 P.M. she went to cut the grass. P.W.1 made a search during night hours; but, he could find her. The next morning at about 6.00 A.M., when P.W.6 went to attend the nature's call, he found a dead body and informed to P.Ws.2 and 3, who in turn informed to P.W.1. Immediately, P.W.1 went to the respondent police station on 21.11.2005 at 8.00 A.M. and gave a report, Ex.P1, to P.W.20, the Head Constable. On the strength of https://hcservices.ecourts.gov.in/hcservices/ Ex.P1, the report, a case came to be registered in Crime No.733/2005 under Sec.174 of Cr.P.C. The printed FIR, Ex.P14, was despatched to the Court. He proceeded to the spot and prepared an observation mahazar, Ex.P9, and also a rough sketch, Ex.P15. An intimation was sent to the Tahsildar. Then inquest was conducted in the presence of witnesses and panchayatdars and Ex.P16 is the inquest report. (d) P.W.23, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection, examined the witnesses and recorded their statements. The photographs were taken through P.W.10, the photographer, and M.O.1 is the photo. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (e) P.W.14, the Civil Assistant Surgeon, attached to the Government Head Quarters Hospital, Nagapattinam, on receipt of the said requisition, conducted autopsy on the dead body of Muthazhagi and has issued a postmortem certificate, Ex.P7. She gave her final opinion under Ex.P8 that the deceased would appear to have died due to asphyxia due to drowning. (f) P.W.23 after verifying the postmortem certificate, converted the case to Sections 376 and 302 of IPC. The amended FIR, Ex.P22, was sent to the Court. He recorded the statements of the witnesses. He came to know about the involvement of A-1 to A-3. Then on 26.11.2005, he arrested A-1 to A-3. A-1 came forward to give a confessional statement which was recorded, and the admissible part is marked as Ex.P23, pursuant to which he produced M.O.10, dhothi, M.O.11, shirt, and M.O.12, underwear, which were recovered under a cover of mahazar, Ex.P24. A-2 came forward to give a confessional statement which was recorded in the presence of witnesses. The admissible part is Ex.P25, pursuant to which he produced M.O.13, dhothi, and M.O.14, underwear, which were recovered under Ex.P26, mahazar. A-3 came forward to give a confessional statement, and the admissible part is Ex.P27. A-1 produced an aruval, M.O.16, which was recovered under a cover of mahazar. A-3 produced a knife, M.O.18, which was recovered under a cover of mahazar. They were all sent for judicial remand. The material objects were subjected to chemical analysis by the Forensic Sciences Department, which brought forth Ex.P12, the chemical analyst's report, and Ex.P13, the serologist's report. P.W.24, the Inspector of Police, took up further investigation and on completion of investigation, filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges the prosecution examined 24 witnesses and also relied on 33 exhibits and 18 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they 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 https://hcservices.ecourts.gov.in/hcservices/ reasonable doubt in respect of A-1 and A-3 and hence found them guilty and awarded punishment referred to above which is the subject matter of challenge before this Court. Since A-2 died before the framing of charges, the case against him stood abated. 4.Advancing arguments on behalf of the appellants, the learned Counsel would submit that the prosecution had no direct evidence to offer, but it rested its case upon the circumstantial evidence; that according to the prosecution, the occurrence has taken place at about 4.30 or 5.00 P.M. on 20.11.2005; that the case was originally registered under Sec.174 of Cr.P.C. and the same was altered to Sec.302 IPC only on 26.11.2005; that the postmortem was conducted actually on the very next day that was on 21.11.2005; that even the inquest report which is claimed to have been prepared by the Investigating Officer on 21.11.2005, would clearly indicate that three accused are actually involved in the crime; that if to be so, the case should have been altered to Sec.302 IPC immediately; but the case was converted to Sections 376 and 302 IPC only on 26.11.2005, and thus it would be quite clear that the FIR originally registered for Sec.174 Cr.P.C. reached the Court along with the amended FIR under Sec.302 IPC only on 26.11.2005; and that all would indicate that A-1 to A-3 were roped in in view of the earlier incident alleged to have happened two or three months earlier. 5.Added further the learned Counsel that in the instant case, the prosecution much relied on the evidence of P.W.12, an auto driver; but, he has turned hostile; that if his evidence was not available to the prosecution, the prosecution had no further circumstance to offer; that the prosecution examined P.Ws.8 to 11 in order to show that the accused persons were found nearby the place of occurrence and also at the time when the occurrence has taken place; that a careful scrutiny of their evidence would clearly indicate that they could not have been present at the place of occurrence at all; that it is true that they actually stood charged under Sec.376 IPC; that even the medical opinion canvassed was not in favour of the prosecution, and hence the trial Court was not ready to believe that there was any sexual assault, and it acquitted them; that under the circumstances, the medical opinion canvassed did not support the case of the prosecution; that the trial Court should have acquitted the accused but failed to do so and hence it has got to be rendered by this Court. 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 one Muthazhagi the wife of P.W.1, was done to death in an incident that had taken place at about 5.00 P.M. on 20.11.2005. On the strength of the complaint given by P.W.1, the husband of the deceased, the case was registered originally under Sec.174 Cr.P.C. on the very day of the complaint. Following the inquest made, the dead body was subjected to postmortem by P.W.14, the Doctor, who has given final opinion in Ex.P8 that she died out of asphyxia due to drowning. That apart, the cause of death https://hcservices.ecourts.gov.in/hcservices/ was not disputed by the appellants before the trial Court. 8.Before the trial Court, specific charges of murder and also rape were actually levelled against these appellants. P.W.14, the Medical Officer, has conducted autopsy on the dead body of the deceased. She has given a categorical opinion that there was no evidence of any sexual assault on the deceased. That apart, no external injuries were also noticed by the Doctor. As rightly pointed out by the trial Court, in the absence of any evidence, the case of the prosecution that A-1 and A-2 have raped the deceased cannot be accepted. Thus the trial Court has rightly rejected that part of the case of the prosecution. 9.As regards the other charge that all the three accused had the common intention to cause the death of the deceased and have caused death by immersing her into the canal water, it is true that the prosecution had no direct evidence to offer; but, the circumstances placed before the trial Court would be clearly indicative of their involvement in the crime. P.W.1 is the husband of the deceased. P.W.4 was the Village President during the relevant time. From their evidence, it would be quite evident that 2 or 3 months prior to the occurrence, A-1 attempted to outrage the modesty of the deceased. Then, the same was reported to P.W.4, who in turn called A-1 and admonished him. From that time onwards, A-1 developed animosity against P.W.1 and his wife and had entertained a grudge against them. On the date of occurrence, according to P.W.5, at about 4.30 P.M., the deceased left to the field for cutting the grass. P.W.9 has stated that on the date of occurrence, he was returning from Thevur along with one Raj; that he found an auto parked nearby the place of occurrence; and that the auto driver was actually inside the auto, while all the three accused were standing nearby and were chatting to each other. Equally, P.W.10 has deposed that himself, Selvam and Karthick were walking along the road at about 5.30 P.M., and at that time, all the three accused were found nearby the channel area where the deceased was actually cutting the grass. From their evidence, it would be quite clear that the witnesses have found the auto parked there and the driver sitting in the auto and the accused standing nearby where she was actually cutting the grass. Thus it would be quite clear that all the three accused were present at the time and place where the occurrence has taken place. Apart from that, the deceased was also found cutting the grass nearby. In the considered opinion of the Court, this is a strong circumstance where the deceased and the accused were found at the place and time. 10.Added circumstance was the evidence of P.W.11. According to him, at about 5 or 5.30 P.M., it was raining, and he was coming along, and at that time, when he was just crossing the Iyyanar Temple, A-1 asked for a match box, and he gave it to him, and at that time, he found the other accused persons also. This would clearly indicate that at the time and place of occurrence, the deceased was cutting the grass and three accused were also standing nearby. Thereafter the dead body was only found, and these three accused have also fled away from the place of occurrence. The prosecution relied on the recovery of the material object, which was rightly rejected by https://hcservices.ecourts.gov.in/hcservices/ the trial Court since it could not be accepted for the simple reason that both the witnesses examined for that purpose have turned hostile. 11.Another circumstance in favour of the prosecution was the medical opinion given by the Doctor. The specific case of the prosecution was that they caused death of the deceased by immersing her into the water. The Doctor has given opinion that she died of asphyxia due to drowning. It is noticed that there was a channel having a small depth namely two or three feet, and water was actually found in the air passage along with sand. This would be quite indicative of the fact that the death of the lady cannot be caused by just falling into the water, and unless and until the front portion of the body was forcibly immersed into the water, there was no occasion for the sand and water getting into the air passage as found by the medical opinion. All would go to show that these three accused at the time of occurrence have forcibly immersed her body into the water and caused her death by asphyxia. 12.Now, the contentions put forth by the learned Counsel for the appellants, in the considered opinion of the Court, do not carry any merit whatsoever. The occurrence has taken place on 20.11.2005. It is true that the inquest report was prepared on 21.11.2005. Column No.9 of the inquest report would narrate the entire incident where A- 1 attempted to outrage the modesty of the lady, and further they had entertained suspicion against these accused. When the investigation was taken up by the Investigating Officer and after perusal of the medical opinion, the case was actually converted to Sections 376 and 302 of IPC. It is true that P.W.12 has turned hostile. P.W.12 was the auto driver who took them from the village to the place of occurrence and dropped them there. Though P.W.12 has turned hostile, the prosecution to its advantage had the evidence of P.Ws.9 to 11, who have seen all the three accused near the place of occurrence and also the deceased at or about the time of occurrence. Thereafter she was not found, and only the dead body was found the next morning. These circumstances would clearly indicate that except the accused no one could have committed the offence. 13.The other contention that the FIR registered under Sec.174 Cr.P.C. was sent to the Court only on 26.11.2005 when it was amended to Sec.302 IPC cannot be a reason to doubt the veracity of the prosecution case. Under the circumstances, the contentions put forth by the learned Counsel for the appellants have got to be rejected, and accordingly, they are rejected. Thus the evidence of P.Ws.9 to 11 coupled with the medical opinion in the considered opinion of the Court would suffice pointing to the guilt of the accused. The trial Court was perfectly correct in finding them guilty. There is nothing to interfere either in the conviction or in the sentence imposed by the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 14.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Sessions Judge Nagapattinam 2.The Inspector of Police Kevalur Police Station Nagapattinam District (Crime No.733 of 2005) 3.The Public Prosecutor High Court, Madras. 4.The Judicial Magistrate No.1, Nagapattinam(Crime No.733/05 of Kevalur Police Station) 5.The Inspector Of Plice, Kevalur Police Station, Nagapattinam District. 1 cc To Mr.P.Vijendran, Advocate, SR.32866 CRL.A.No.764 of 2008 ka(co) pmk.11.8.2009. https://hcservices.ecourts.gov.in/hcservices/