IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.634 of 2008 Manoharan .. Appellant vs State by: The Inspector of Police Erode North Police Station Erode (Crime No.119/2003) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the I Additional Sessions Judge, Erode, made in S.C.No.11 of 2004 dated 19.3.2004. For Appellant : Mr.V.Parthiban For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the I Additional Sessions Division, Erode, made in S.C.No.11 of 2004 whereby the sole accused/appellant stood charged under Sections 302 and 201 of IPC, tried, found guilty as per the charges and awarded life imprisonment on the first charge and 3 years Rigorous Imprisonment on the second charge. 2.Short facts necessary for the disposal of this appeal can be stated thus: (a) The accused/appellant was the husband of the deceased Rani. P.W.3 is their son. P.W.1 is the brother of the deceased. P.W.6 is the sister of the accused. The accused had another son who was actually brought up by P.W.5, the brother of the accused. The accused was employed in a Dye Factory, while Rani was employed in a Sago Factory. P.W.3 was doing fifth standard during the relevant time. The accused along with the deceased and son P.W.3 was residing in the house of P.W.8 as a tenant. P.W.6 the sister of the accused and also a resident of Varakadai, Mayiladuthurai, https://hcservices.ecourts.gov.in/hcservices/ came to the house of the accused and wanted money. She expressed her desire that she was ready to sell her land and asked money in consideration of the same. Though the accused was amenable for that, the deceased opposed the same. At that time, they were quarrelling, and P.W.6 pacified the situation and went away. The deceased was insisting the accused to deposit the money in her name and in the name of P.W.3. At that time, the accused got wild and beat her. (b) On 24.3.2003 in the evening hours, P.W.3 after coming from school went to play, and when he entered into the house, he found his mother weeping. Thereafter, P.W.3 took food and went outside and was studying. The next morning, when P.W.3 woke up, he found the inner room kept locked. He asked the accused about his mother. The accused replied that she had gone to Palani, and he got food from the nearby hotel, and P.W.3 took the food brought from the Hotel. Even in the evening hours also she did not come. For a few days, the inner side room was kept locked. Whenever P.W.3 questioned, the accused was giving evasive answers, but was getting food from the hotel for him. (c) On 26.3.2003, the accused approached P.W.7 for hiring his tempo so as to take his all the household utensils to Mayiladuthurai. P.W.7 demanded Rs.3000/- and asked for an advance of Rs.500/-. Accordingly, at about 4.00 P.M., P.W.7 came with his tempo, and all the household articles were taken at about 5.00 P.M. The accused and P.W.3 also accompanied P.W.7. P.W.1 on seeing the household articles and utensils brought in the tempo, questioned the accused about his sister. He replied that she had gone to Palani and would be coming back. Within a few hours, the accused left the place. Since he did not return, P.W.1 questioned P.W.3, and P.W.3 narrated that for a few days, the inner room was kept locked, and his father told him that his mother had gone to Palani, and he got food from the hotel. Entertaining suspicion, P.W.1 accompanied by P.W.2 his sister and P.W.3, went to the place of occurrence on 27.3.2003 at about 7.30 P.M., and found the house locked; but, he was able to scent a bad odor which emanated. Then they broke open the doors and found two gunny bags. One bag containing the trunk and the other containing the head were kept tied. Immediately, P.W.1 proceeded to the respondent police station where P.W.12 was the Head Constable to whom he gave Ex.P1, the report. Then a case came to be registered in Crime No.119 of 2003 under Sec.302 of IPC. The printed FIR, Ex.P10, was despatched to the Court. (d) 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.P6, and also a rough sketch, Ex.P22. He recovered the material objects from the place of occurrence. In the presence of witnesses and panchayatdars, he conducted inquest on the dead body of Rani and prepared an inquest report, Ex.P23. Then the dead body was sent to the Government hospital along with a requisition for the purpose of autopsy. (e) The dead body was subjected to postmortem on a requisition, by P.W.9, the Civil Assistant Surgeon, attached to the Government Head Quarters Hospital, Erode, and has issued a https://hcservices.ecourts.gov.in/hcservices/ postmortem certificate, Ex.P3, stating that the deceased would appear to have died 72 to 96 hours prior to autopsy. She gave her opinion under Ex.P5 that the deceased would appear to have died of multiple injuries over the head. (f) The Investigator examined the witnesses and recorded their statements. On 29.4.2003 at about 6.00 A.M., he arrested the accused near Thanneerpandalpalayam. The accused came forward to give a confessional statement voluntarily. The same was recorded. The admissible part is marked as Ex.P8, pursuant to which he produced M.O.13, cricket bat, and also the other material objects. They were all recovered under a cover of mahazar. He was sent for judicial remand. All the material objects were subjected to chemical analysis, and Ex.P14, the chemical analyst's report, and Ex.P19, the serologist's report, were received by the Judicial Magistrate concerned. P.W.18, the Inspector of Police, took up further investigation, and on completion of investigation, he 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 18 witnesses and also relied on 23 exhibits and 15 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, but three documents were marked on his side. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellant guilty and awarded the punishment referred to above which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that the prosecution has not proved its case either by direct or indirect evidence; that the prosecution much relied on the evidence of P.W.3, the son, who was doing fifth standard and also P.W.6, the sister; that the evidence of P.W.6 would go to show that the husband and wife were quarreling often; that according to P.W.6, she came forward to sell her land, and the accused/appellant was prepared to purchase the same; but, the deceased was not prepared, and hence, they were quarreling; that according to P.W.6, the situation was pacified, and she left the place; that under the circumstances, the evidence of P.W.6 cannot be used by the prosecution to find the accused/appellant guilty; that as far as P.W.3 was concerned, he was a young boy doing fifth standard; that under the circumstances, his evidence should have been subjected to careful scrutiny test; but, the trial Court has not exercised the test before accepting the evidence, and it should not have been accepted at all; that as far as P.W.7 was concerned, he was only a tempo driver who carried the household goods; that according to him, he carried the goods for a consideration of Rs.3000/- from the place of occurrence to Varakadai; that P.Ws.1 and 2 did not see the occurrence at all, and hence they could not be competent witnesses; and that the alleged recovery of M.O.13 https://hcservices.ecourts.gov.in/hcservices/ cricket bat, which, according to the prosecution, was used by the accused at the time of the occurrence, pursuant to the confessional statement is a cooked up one. 5.Added further the learned Counsel that according to the prosecution, the occurrence has taken place within the house where he was residing with his wife; that admittedly, P.W.3 was also staying there that night; that had it been true that she was actually attacked by the accused with the cricket bat, she would have raised alarming cry, and by that P.W.3 would have woken up; but, he has not heard any sound; that the medial opinion also did not support the prosecution case; that under the circumstances, the trial Court has relied upon the unacceptable evidence of P.W.3 and awarded punishment of life imprisonment, and hence he is entitled for acquittal in the hands of 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 the dead body of one Rani the wife of the appellant/accused, after the inquest by the Investigator and preparation of the inquest report, was subjected to autopsy by P.W.9, the Doctor, attached to the Government Hospital, who has given the postmortem certificate stating that she would have died 72 to 96 hours prior to autopsy and has opined that she would have died due to the external and corresponding internal injuries. The postmortem certificate issued by her, is also marked as Ex.P3. It is pertinent to point out that the appellant did not quarrel that she died out of homicidal violence. Hence the trial Court was perfectly correct in recording that she died out of homicidal violence. 8.In order to establish that it was the appellant/accused who caused the death of his wife and screened the evidence, the prosecution had no direct evidence to offer, it has mainly relied upon the evidence of P.W.3, the son of the deceased and accused. P.W.3 was doing fifth standard during the relevant time. From the very reading of his evidence, it would be quite evident that he has got sufficient maturity to give evidence. From his evidence it would be abundantly clear that the spouses have been quarreling often; that on the day of occurrence during night hours, she was weeping, and after taking food, P.W.3 went to sleep after studies, and in the next morning his mother was not found, and the inner room was kept locked. He would further depose that he made an enquiry to his father about the mother, and he told that she had gone to Palani, and even thereafter, the mother did not return for a few days, and thus, he was going on questioning his father; but, the father was getting food from the hotel, and at the same time, the inner room was kept locked. At the earliest, P.W.3 has informed to P.W.1, his uncle, at the native place where the appellant/accused took P.W.3 and the household articles in P.W.7's tempo van. It is pertinent to point out that the inner room was kept closed for a few days, and there was actually the bad odor https://hcservices.ecourts.gov.in/hcservices/ emanating, and P.W.3 was also further questioning the father as to the bad odor emanating, but he was giving evasive reply. That apart, during the relevant time, the accused was actually residing in the house of P.W.8 on rental basis. This fact is spoken to by P.W.8, and it is not disputed by the appellant. From the evidence of P.W.8, it would be quite clear that he was residing in that house during the relevant time, and on the date of occurrence, he was staying with his wife. The evidence of P.W.3 would go to show that the inner room was kept locked and when P.W.1 accompanied by P.W.3 came to the place of occurrence, the room was broke open, and the trunk and the head of Rani were found in two gunny bags. 9.Added further, in the instant case, when the accused went to the native place, he took only P.W.3 and the household articles in the tempo of P.W.7. When P.W.1 in turn asked about his sister, the accused also gave the same reply that she had gone to Palani and would be coming back; but, she did not come back. Thereupon P.W.1 was compelled to ask about his sister to P.W.3. At this juncture, the conduct of the accused remains to be stated. When he started from the place, he did not go with his wife, and the inner room was kept locked wherefrom the trunk and head were actually found in two gunny bags. Added further, when he went to the native place, leaving P.W.3 and also the household articles, he immediately fled away giving some evasive answers to P.W.1. Thus all would indicate that except the accused, no one could have committed the offence. 10.Above all, when the accused was actually arrested, he took the police party and produced M.O.13 cricket bat, following the confessional statement made by him. The postmortem Doctor was examined showing M.O.13 cricket bat. She has categorically deposed that the external injuries 1 to 3 on the head of the deceased could have been caused by such M.O.13. The accused after murdering her, made the dead body into two parts one trunk and the other head, put them in two gunny bags and closed the same, and the inner room was kept locked for a few days. Thereafter he took his son P.W.3 to his native place, and leaving him along with the household goods, he fled away. Thus all would clearly be indicative of the fact that that it was he who committed the crime. At this juncture, the evidence of P.W.6 coupled with the evidence of P.W.3 would go to show that the spouses had got previous quarrel often all along. In the instant case, it was not the case of the accused before the trial Court that due to sudden quarrel or provocation, he acted so. In the absence of the same, the act of the accused cannot but be termed only as murder. The circumstances are clearly indicative of the fact that it was the accused who actually caused the death of his wife and placed the dead body in two gunny bags and thus screened the evidence. In the face of the evidence available, the contentions put forth by the learned Counsel for the appellant do not carry any merit whatsoever, and they are liable to be rejected and accordingly rejected as one rightly done by the trial Court. As rightly found by the trial Court, he has got to be found guilty for murdering Rani and for screening the evidence. This Court is unable to notice anything in the punishment rendered. https://hcservices.ecourts.gov.in/hcservices/ 11.In the result, this criminal appeal is dismissed sustaining the conviction and sentence imposed by the trial Court. nsv Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The I Additional Sessions Judge, Erode 2.Do Through The Prl Sessions Judge, Erode. 3.The Judicial Magistrate No.1, Erode. 4.Do Through The Chief Judicial Magistrate, Erode. 5.The Inspector of Police, Erode North Police Station, Erode 6.The Superintendent, Central Jail, Coimbatore. 7.The Director General of Police, Mylapore. 8.The District Collector, Chennai District. 9.The Public Prosecutor, High Court, Madras. + 1 cc to Mr. V. Parthiban, Advocate SR No.33262/09 RSI(CO) SR/31.7.2009 CRL.A.No.634 of 2008 https://hcservices.ecourts.gov.in/hcservices/