Bail Slip The Appellant/ Accused (viz) Velmani son of Ilayaperumal was directed to be released on bail as per order of this Court dated 17.4.2007 and made in Crl.M.P.NO.1/2007 in Crl.A.No.1095/2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.1095 of 2006 Velmani .. Appellant / Accused vs State Rep. By The Inspector of Police Ulundurpet Villupuram District .. Respondent / Complainant (Crime No.10/2004) Criminal appeal preferred under Sec.374 of Cr.P.C. against the judgment of the Principal Sessions Judge, Villupuram, in S.C.No.191 of 2005 dated 16.10.2006. For Appellant : Mr.V.Gopinath Senior Counsel for Mr.S.Saravana Kumar For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Principal Sessions Division, Villupuram, made in S.C.No.191 of 2005 whereby the sole accused/appellant stood charged under Sections 302 (two counts) and 201 of IPC, tried, found guilty as per the charges, awarded life imprisonment along with a fine of Rs.5000/- and default sentence under Sec.302 (2 counts) IPC and 7 years Rigorous Imprisonment along with a fine of Rs.2000/- and default sentence under Sec.201 of IPC. The trial Court directed him to serve the sentence concurrently. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts necessary for the disposal of this appeal could be stated thus: (a) The appellant is the husband of the first deceased (D1) Bhuvaneswari and the father of the second deceased (D2) Durgadevi. 13 years prior to the occurrence, the marriage between the appellant/accused and Bhuvaneswari took place and as a result of the wedlock, they had two children namely D2 Durgadevi and another Dinesh. Often he used to make demand from her to get money from the parental home. Accordingly, P.W.2, the father of Bhuvaneswari, had given Rs.4000/- and Rs.2000/-. The accused used to often quarrel with her for getting more money. For a long time of interval, she used to stay in P.W.2's house in his native village which is situated 2 kilometers away from the place of the accused. On the date of occurrence namely 15.1.2004, as usual pongal gifts namely rice, coconut, fruits, etc., were given to Bhuvaneswari by her father. There arose a quarrel since the accused felt it insufficient. Due to the quarrel, she left to her parents' house along with his daughter Durgadevi. The accused followed them, and there was a quarrel on the way. At that time, he attacked D1 with a stick and caused injuries. This was witnessed by D2 Durgadevi who shouted, and also by strangulation, he killed her. By the act of the accused D1 also died. Leaving the dead bodies in the sugarcane garden, he came back. At about 8.00 P.M., he went over there and tied the dead bodies with haystack and threw them into the well. Then he left the place, joined with the villagers and informed that both of them were not found. (b) On 17.1.2004, P.W.1, the Village Administrative Officer of Sembiamadevi, was informed that two dead bodies were found actually in the well. Then he went over there, and both were taken out. He proceeded to the respondent police station and gave Ex.P1, the report, on the strength of which a case came to be registered by P.W.14, the Head Constable, in Crime No.10 of 2004 under Sec.174 of Cr.P.C. The printed FIR Ex.P15 was despatched to the Court. (c) On receipt of the copy of the FIR, P.W.16, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P18. Then, he conducted inquest on the dead bodies in the presence of the witnesses and panchayatdars and prepared inquest reports, Exs.P19 and P20, respectively. Thereafter, the dead bodies were sent to the Government Hospital along with the requisitions, Exs.P7 and P11, for the purpose of postmortem. (d) P.W.13, the Senior Assistant Surgeon, attached to the Government Primary Health Centre, Thirunavalur, on receipt of the requisition, has conducted autopsy on the dead body of Bhuvaneswari and has issued a postmortem certificate, Ex.P8, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to violent injury on the head and face. (e) The same Doctor on receipt of the requisition, conducted autopsy on the dead body of Durgadevi and has issued a postmortem https://hcservices.ecourts.gov.in/hcservices/ certificate, Ex.P14, with her opinion that the deceased would appear to have died of violent injury on the face and head. (f) Pending investigation, the Investigating Officer arrested the accused on 19.1.2004. He came forward to give a confessional statement, which was recorded in the presence of P.W.10 and another. The admissible part of the confession is Ex.P21, pursuant to which he produced M.O.1, stick, which was also recovered under a cover of mahazar. Following the same, he was sent for judicial remand. All the material objects were subjected to chemical analysis, which resulted in Exs.P33 and P38, the chemical analyst's reports, and Exs.P39 and P41, the serologist's reports. They were also placed before the Court. The Investigator altered the case into Sec.302 of IPC, and Ex.P42, the alteration report, was sent to the Court. P.W.17, the Inspector of Police, conducted 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. The prosecution in order to substantiate the charges, marched 17 witnesses and also relied on 42 exhibits and 8 material objects. On completion of the 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 Court below after hearing the submissions made and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt, found him guilty and awarded the punishment referred to above. Hence this appeal at the instance of the appellant before this Court. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.V.Gopinath made the following submissions: (i) The prosecution had no direct evidence to offer and had rested its case on the circumstantial evidence. In the instant case, the prosecution has neither placed the circumstances necessary nor proved them and thus miserably failed to prove its case. (ii) According to the prosecution, the occurrence has taken place at 1.00 P.M. on 15.1.2004, and both the dead bodies were found only by the Village Administrative Officer (VAO). According to P.W.1, the VAO, the dead bodies were taken out on 17.1.2004 at 3.00 P.M., and thereafter, he has given a report to the respondent police station. Thus, there were two intervening days. At this juncture, it is pertinent to point out that it is categorically admitted by P.W.1 that the dead bodies were found floating in the well, and the well is being used for the purpose of bathing by all the villagers, and they used to go to the well very often. It is highly a matter of surprise to note that nobody brought to the notice of the villagers or the police about the dead bodies. https://hcservices.ecourts.gov.in/hcservices/ 5.Added further the learned Senior Counsel that the prosecution mainly relied on two circumstances; that the first circumstance was the last seen theory of P.W.5; that according to P.W.5, on 15.1.2004, he saw D1 and D2 just proceeding towards the village of the father of D1, and they were also followed by the accused; that P.W.6 has also given evidence on the same line; that according to P.W.5, he saw both D1 and D2 followed by the accused at about 1.30 P.M., while P.W.6 would say that it was at about 11.30 P.M.; that according to both, they went together; that the time interval what has been spoken by them namely 1.30 by one witness and 11.30 by the other would clearly indicate that they could not have seen both the accused and also D1 and D2, and thus their evidence should not be relied at all. 6.Added further the learned Senior Counsel that the second circumstance is that according to the prosecution, the occurrence has taken place at 1.00 P.M. On 15.1.2004, and the dead bodies were actually thrown into the well at about 8.00 P.M.; that in between the time interval, where the dead bodies were kept remained unknown, and it also cast a suspicion on the prosecution case; that yet another circumstance which would go to the root of the matter was the medical opinion canvassed through the postmortem Doctor according to whom both the deceased would have died 56 to 60 hours prior to autopsy; that the postmortem was actually commenced by the Doctor at 11.00 A.M. and 12.00 Noon respectively on 18.1.2004; that if to be so, the occurrence should have taken place in the midnight of 15.1.2004 and not thereafter; but, the prosecution came forward with the charge that the occurrence has taken place at 1.00 P.M. on 15.1.2004; that if to be so, the prosecution was unable to fix the time of death also; that this would also go to show that the dead bodies were found after a longtime and the prosecution came with the false story since the entire villagers entertained suspicion over the accused; that even in Ex.P1, the report, the VAO, has categorically stated that the entire villagers suspected the accused; that it is true that the prosecution had evidence to show that there was a quarrel between the accused and D1, his wife; but, the same did not mean that he has committed the murder of both; that under the circumstance, the prosecution has miserably failed to bring forth the nexus of the accused with the crime in question; that the lower Court failed to appreciate the same; but, it has been carried away since it was a case of double murder, and he has also quarreled with his wife; that it is a case where there was not only lack of evidence, but also no evidence at all, and hence he is entitled for acquittal in the hands of this Court. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that D1 Bhuvaneswari, the wife of the appellant, and D2 Durgadevi, the daughter of the appellant, were found floating in a well which is situated outside the https://hcservices.ecourts.gov.in/hcservices/ village of the accused, and the fact that the dead bodies were found was brought to the notice of P.W.1, the V.A.O. On seeing the same, he gave a complaint to the respondent police, and then the case came to be registered under Sec.174 of Cr.P.C. by the Head Constable, P.W.14. Thereafter, the investigation was taken up by P.W.16, the Inspector of Police. After following the inquest made by him, both the dead bodies were subjected to postmortem by P.W.13, the Medical Officer, who has given her categorical opinion that both D1 and D2 died out of the violent injury on the face and head. The case was subsequently converted to Sec.302 of IPC for two counts. Further, in the instant case, though the appellant/accused made an attempt to look it appear as if it was a commission of suicide, it has got to be rejected outright in view of the evidence adduced by the prosecution through the postmortem Doctor and the postmortem certificates. That apart, by the said evidence, it leaves no doubt in the mind of the Court that it was a case of murder, and that they died out of homicidal violence. Thus, it has got to be recorded so. 9.True it is, the prosecution had no direct evidence to offer to establish the fact that it was the accused who killed both his wife and daughter and threw the dead bodies into the well. But, this Court, on scrutiny of the materials available, is of the considered opinion that the prosecution has placed necessary circumstances and also brought home the guilt of the accused. 10.The first circumstance is the last seen theory. According to P.Ws.5 and 6, they came to the village of the accused on 15.1.2004 for a funeral, and they came to know about the quarrel between the accused and D1. P.W.5 has gone to the extent of telling that he belonged to the village of P.W.2, the father of D1; that there were quarrels often between them; that he has also pacified the situation, and it was the usual practice of the accused to drive his wife away, and she used to go to P.W.2's house. The witness would further add that on the date of occurrence i.e., 15.1.2004, he came to the village of the accused for a funeral; that he was just returning from the funeral; that at that time, he found D1 and D2 proceeding, and they were actually followed by the accused. This evidence was actually corroborated by the evidence of P.W.6, according to whom, he also saw the accused following D1 and D2. It is pertinent to point out that the occurrence has taken place on 15.1.2004. At this juncture, it remains to be stated that both D1 and D2 were found in the company of the accused; but, the dead bodies were found later. The fact that D1 and D2 actually, on the date of occurrence i.e., 15.1.2004, in the house along with the accused was never disputed, and thus it is quite clear that they were actually in the house. If to be so, both the dead bodies were found on 17.1.2004. At this juncture, the Court has to point out the conduct of the accused for a period of two days. If his wife and child Durgadevi were not found, he is duty bound to either bring it to the notice of P.W.2, the father of Bhuvaneswari, or immediately go to the police station to give a complaint; but, he has kept silent for a period of two days because it was he who https://hcservices.ecourts.gov.in/hcservices/ committed the crime and also out of fear that it would be brought out. This conduct of the accused at that time would tell upon the situation. 11.Further, in the instant case apart from the evidence of P.Ws.5 and 6, the prosecution had another circumstance namely the confession voluntarily made by the accused and the recovery of M.O.1, stick. According to P.W.1, the V.A.O., the accused voluntarily came forward to give a confessional statement on 19.1.2004, and it was also recorded by the Investigator pursuant to which he also produced M.O.1, stick, with which he has actually attacked D1. It is true that it was not subjected to chemical analysis. It is not necessary at all for the simple reason that there would be no bloodstain when the attack was made with a stick, and hence it is not to be placed for chemical analysis. The fact that it was recovered by the Investigator in the presence of P.W.10 and the recovery of the weapon of crime namely the stick, would be pointing to the guilt of the accused. It is true that mere recovery of weapon of crime would not be sufficient to sustain a conviction in a case like this. But this evidence coupled with the last seen theory projected by the prosecution through P.Ws.5 and 6, in the considered opinion of this Court, would suffice pointing to the guilt of the accused. 12.Now the contentions put forth by the learned Senior Counsel for the appellant are to be considered. The learned Senior Counsel would submit that P.Ws.5 and 6 though claimed that they have seen D1 and D2 proceeding towards P.W.2's village, and they were also followed by the accused, P.W.5 has given the time as 1.30 P.M. while P.W.6 has given the time as 11.30 A.M., and there is discrepancy in the time factor. The Court has to reject this contention for the simple reason that P.Ws.5 and 6 are the villagers. They have given approximate time only. But, P.Ws.5 and 6 are closely acquainted to the accused also. According to the witnesses, there were quarrels between the husband and wife, and they have also intervened to pacify the situation, and they knew them, and they have got the knowledge about them. In such circumstances, the Court need not suspect the evidence of P.Ws.5 and 6. 13.Apart from the above, the learned Senior Counsel much relied on the evidence of P.W.13, the Doctor, who issued the postmortem certificates. According to the learned Senior Counsel, as per the postmortem certificates and the opinion of the Doctor adduced by the prosecution, the occurrence has taken place on 15.1.2004 i.e., 56 to 60 hours prior to postmortem, and the postmortem has taken place on 18.1.2004 at 11.00 A.M. and 12.00 Noon respectively. Thus, it could be seen that the occurrence should have taken place in the midnight of 15.1.2004. Now, at this juncture, from the confessional statement, it could be seen that though the occurrence has taken place at 1.00 P.M., both the dead bodies were kept, and they were actually thrown into the well at about 8.00 P.M. on 15.1.2004. Now, at this juncture, the time of death as found in the postmortem certificates, in the https://hcservices.ecourts.gov.in/hcservices/ considered opinion of the Court, will not in any way affect the case of the prosecution since according to the prosecution, the occurrence has taken place in the day hours, and the dead bodies were pushed into the well in the night hours of 15.1.2004. But, according to the postmortem certificates, the occurrence has taken place in the night hours of 15.1.2004. While the other evidence is available, this Court is of the considered opinion that much importance could not be attached to the opinion of the Doctor as to the time of death since it does not have a much interval. Under the circumstances, the contentions put forth by the learned Senior Counsel for the appellant are liable to be rejected and accordingly, rejected. 14.In the instant case, the prosecution by the last seen theory coupled with the recovery of the weapon of crime pursuant to the confession made by the accused, has brought home the guilt of the accused that it was he who without any reason whatsoever has caused the death of both his wife and daughter and pushed both the dead bodies into the well for screening the evidence. The lower Court was perfectly correct in recording a finding that he is guilty under Sec.302 (two counts) and also under Sec.201 of IPC for screening the evidence and in awarding the punishment. The same, in the opinion of the Court, are reasonable, and hence they have got to be sustained. 15.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the lower Court. It is stated that the appellant/accused is on bail. Hence the Sessions Judge shall take steps to commit him to prison to undergo the sentence imposed on him. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv/ To: 1.The Principal Sessions Judge Villupuram 2. The Judicial Magistrate No.I Ulundurpet 3. Do thro the Chief Judicial Magistrate Villupuram https://hcservices.ecourts.gov.in/hcservices/ 4. The Superintendent Central Prison, Cuddalore 5. The District Collector Villupuram 6. The Director General of Police Mylapore, Chennai-4 7.The Inspector of Police Ulundurpet Villupuram District 8.The Public Prosecutor High Court Madras 9. The Section Officer Criminal Section, High Court of Madras, Madras 1 cc to Mr.S. Saravanakumar, Advocate, SR. 64305 CRL.A.No.1095 of 2006 RSM (CO) kk 3/12 https://hcservices.ecourts.gov.in/hcservices/