IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 6-1-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.No.296 of 2008 Babu .. Appellant/Accused vs State by: Inspector of Police Periyanaickenpalayam Police Station Crime No.463 of 2005 Coimbatore District .. 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.II, Coimbatore, in S.C.No.208 of 2006 dated 22.6.2007. For Appellant : Mr.N.Manokaran For Respondent : Mr.P.Kumaresan 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.II, Coimbatore, made in S.C.No.208 of 2006 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty as per the charge and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) The accused/appellant married the deceased Selvi six years prior to the occurrence. The accused was employed in a private company in Narasimhanayakkanpalayam.The deceased Selvi, a B.Com Graduate, also applied to a private company where P.W.5 was working as a Manager. She was appointed in the month of July 2005, and she was doing her work. In the said company, P.W.10 was the Spinning Master, and he was also the President of the Workers' Association. She had occasion to talk to him and move with him friendly.P.W.10 constructed a house and invited all for the housewarming ceremony. The accused and his wife, the deceased, did not attend the same. After a week, both of them went to the house of P.W.10 to make an enquiry over the same, and in turn, they invited him. P.W.10 on one or two occasions came to the house of the accused. https://hcservices.ecourts.gov.in/hcservices/ (b) On 14.8.2005, the deceased gave an application for leave and she was actually on leave for a period of a week. On 18.8.2005, she returned and got down from the bus at Narasimhanayakkanpalayam where her husband and also P.W.10 were standing. On seeing P.W.10, both the accused and the deceased invited him to their house. Accordingly, he also went to their house.Leaving his wife and P.W.10, the accused went outside to purchase milk.Thereafter, on his return, he was instructed by her to get tiffin from a hotel. When the accused returned, he found the door remained closed. He looked through the hole when he found the deceased embracing P.W.10. Immediately, he opened the door and questioned what happened. P.W.10 informed him that she narrated the earlier incidents that the accused did not like her attending the job. Then, P.W.10 left the place. (c) On 19.8.2005 at about 2.00 P.M., as usual P.W.5, the father of the deceased, informed to P.W.2 to take her home. P.W.2 went over there and found the house locked. Next morning on 20.8.2005 also, he went over there. Both the morning and in the afternoon, the house was kept locked. They found bad odor emanating from the house. In the meanwhile, when P.W.1, the Revenue Divisional Officer, was in his house, the accused was taken by P.W.17, a practising Advocate, and produced before him. At that time, the accused gave a confessional statement. The same was typed by the typist of P.W.1. Ex.P1 is the said statement. Then, P.W.1 caused the production of the said statement, Ex.P1, and the accused before the respondent police station through P.W.9, his assistant. (d) On receipt of Ex.P1, P.W.14, the Sub Inspector of Police, attached to the respondent police station, registered a case in Crime No.463 of 2005 under Sec.302 of IPC. The printed FIR, Ex.P19, was despatched to the Court. A copy of the FIR was served upon P.W.18, the Inspector of Police,who took up investigation, and the accused volunteered to give a confessional statement to P.W.19, which was recorded in the presence of witnesses. The admissible part is marked as Ex.P3. Following the same, he produced M.O.1, key. Apart from that, he took the police party to the house where the dead body was found. He also further produced M.O.3, grinding stone, and M.O.4, iron box, which were recovered under a cover of mahazar. Then, the Investigating Officer visited the scene of occurrence and prepared an observation mahazar, Ex.P6, and a rough sketch, Ex.P26. Then, the place of occurrence was photographed through P.W.12, the photographer, and the photographs and negatives are marked as M.O.11 series. Thereafter, the Investigator conducted inquest on the dead body of Selvi in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P27. Then, the dead body was sent to the Government Hospital along with a requisition for the purpose of postmortem. (e) P.W.16, the Tutor in Forensic Medicine, Coimbatore Medical College Hospital, on receipt of the requisition, conducted autopsy on the dead body of Selvi and has noticed three injuries. He has issued a postmortem certificate, Ex.P23, with his opinion that the deceased would appear to have died of compression of neck due to ligature strangulation. (f) All the material objects were subjected to analysis by the Forensic Sciences Department, which resulted in Ex.P17, the chemical analyst's report, and Ex.P18, the serologist's report. On completion of https://hcservices.ecourts.gov.in/hcservices/ the investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 18 witnesses and relied on 32 exhibits and 16 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. He flatly denied the entire evidence 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 as per the charge of murder 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 made the following submissions: (i) The occurrence has taken place on 18.8.2005 at 10.00 P.M. according to the prosecution. The prosecution had no direct evidence to offer. It rested its entire case on the circumstantial evidence. The first circumstance relied on by the prosecution was the extra judicial confession alleged to have been given by the accused to P.W.1, the Revenue Divisional Officer, in the presence of P.W.17, a practising Lawyer. From the evidence, it would be quite clear that P.W.17, the Advocate, at no point of time was acquainted or already known to the accused, and hence there was no occasion either for the accused to approach P.W.17 or for P.W.17 to take him to the R.D.O. These are all documents which have been created to suit the prosecution case. (ii) The second circumstance relied on by the prosecution is the last seen theory through P.W.10. It is not the evidence of P.W.10 that he saw both of them just prior to the occurrence. On the date of occurrence, actually the accused was not at all available in the house. In fact, she has committed suicide, and the ligature mark would clearly indicate the same. (iii) The recovery of key following the so-called alleged confessional statement was nothing but false. After the door was broke open, the dead body was found. Under the circumstances, the police have created a case roping in the accused/appellant falsely. (iv) In the instant case, the prosecution has miserably failed to place and prove the necessary circumstances, and hence he is entitled for acquittal in the hands of this Court. 5.Added further the learned Counsel in the second line of his argument that even if the Court believes the case of the prosecution as to the factual position, the act of the accused would not attract the penal provision of murder; that in the instant case, it is quite evident from the testimony of P.W.10 that on the date of occurrence i.e., 18.8.2005, he went to the house of the accused, and while he was staying over there for a short while, the accused went outside to get milk and thereafter, tiffin, and he came back, and at that time, she embraced him suddenly and kissed him, and this was actually witnessed by the accused; that even from the evidence, it would be quite clear that he suspected her fidelity, and he also advised her not to continue the job, but she https://hcservices.ecourts.gov.in/hcservices/ was very particular to continue the job; that on the date of occurrence, such a scene was actually witnessed by him, and naturally a husband would be provoked; that on the very day within a few hours, the occurrence has taken place; that in such circumstances, the act of the accused was due to the sudden provocation; that the same cannot be termed as murder, and this has got to be considered by the 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 Selvi, the daughter of P.W.5, was found in the house where she was living with her husband, the accused/appellant herein. After the inquest was made on the dead body by the Investigator on 20.8.2005, the same was subjected to postmortem by P.W.16, the Doctor, who has given his opinion that she died out of compression of neck due to ligature strangulation. The fact that she died out of homicidal violence was never disputed by the appellant. Hence without any impediment, it could be recorded so. 8.In order to prove the case that it was the accused who strangulated her to death, the prosecution had no direct evidence to offer, but relied upon circumstances. It is not that this Court is unmindful of the settled principles of law and also the dictum of the Apex Court that in a given case like this, the prosecution must place and prove all necessary circumstances which should constitute a chain even without a snap and also be pointing to the hypothesis that except the accused no one could have committed the offence. In the instant case, even after the application of this test, this Court is thoroughly satisfied that the prosecution has brought home the guilt of the accused. The following circumstances are noticed by the Court from the materials available. 9.It is not in controversy that the accused during the relevant time was living with his wife in the same house being a separate residence. P.W.10 has categorically spoken to the last seen theory. While they were actually living together, the accused after the commission of the offence, has kept the doors locked and has taken away the key also. At this juncture, two points have got to be pointed out. Firstly, the occurrence has taken place inside the house where he was living, and even on the day he was staying with his wife, and secondly, how the death has happened it is for the accused to explain because it is a relevant fact which is within the special knowledge of the accused. But, he has no explanation to offer. In a given case like this, when a circumstance which is actually within the special knowledge of the accused, if he suppresses the same or comes with the false explanation, the link of the circumstance could be taken as applied. Further, the key of the house was actually recovered by the Investigating Officer from him pursuant to the confessional statement. The admissible part of the same is marked as Ex.P3. A witness has also been examined in that regard. Only after opening the lock with the key recovered from the accused, the dead body was found. 10.Added circumstance is the evidence of P.W.1. P.W.1 is the Revenue Divisional Officer, a responsible Officer on the executive side. According to P.W.1, the accused was produced by P.W.17, a practising https://hcservices.ecourts.gov.in/hcservices/ Lawyer, and he gave the confessional statement, and the same was recorded which is Ex.P1, and following the same, the accused was also produced before the respondent police station. It remains to be stated that the case came to be registered for murder only on the confessional statement given by the accused to P.W.1. Following the same, the house was opened with the key recovered from the accused, and the dead body was fond. 11.The further circumstance is that the medical opinion canvassed would clearly indicate that it was a case of murder. The defence plea that it was a commission of suicide has got to be discountenanced in view of the medical opinion canvassed, and also the house was kept locked outside. From the key recovered from the accused, it was opened, and hence it is also ruled out. Further, the subsequent conduct that he left the place immediately after the commission of the offence, would be clearly indicative of his involvement in the crime. All put together would go to show that it was the accused who committed the murder of his wife and left the place of occurrence. 12.As far as the second line of argument is concerned, this Court is able to see force in the same. P.W.10 was the President of the Workers' Association of a mill where she was employed during the relevant time, and she developed association with him, and whether it was friendly or very closer, but her fidelity was suspected by the accused. Actually, he went to the extent of attempting to stop her from continuing the job, but she was not for that. Even from the evidence of P.W.10, it would be quite clear that on the date of occurrence i.e., 18.8.2005, when he was staying for a while at about 8.00 P.M., the accused went outside to get milk and thereafter tiffin, and when he came back, he found both of them in a compromising position. Apart from that, he has given a consistent statement even before P.W.15, the Judicial Magistrate, and also before the Court to that effect. All would go to show that naturally a husband, under the circumstances, would be provoked, and following the same, within a few hours, the occurrence has taken place. Hence the act of the accused was actually due to the sudden provocation, and it cannot be termed as murder. But, at the same time, the act of the accused would attract the penal provision of Sec.304 (Part I) of IPC, and awarding punishment of 7 years Rigorous Imprisonment, in the considered opinion of this Court, would meet the ends of justice. 13.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant under Sec.302 of IPC are set aside, and instead, he is convicted under Sec.304 (Part I) of IPC and is directed to undergo seven years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. The fine and default sentence imposed by the trial Court will hold good. 14.With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ nsv/ To: 1.The Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore. 2.The Inspector of Police, Periyanaickenpalayam Police Station, Crime No.463 of 2005, Coimbatore District. 3.The Public Prosecutor, High Court, Madras. 4.-do- thro' The Principal Sessions Judge,Coimbatore. 5.The Superintendent,Central Prison,Coimbatore. 6.The District Collector, Coimbatore. 7.The Director General of Police, Chennai. + 1 cc to Mr.N.Manokaran,Advocate, SR.402 Copy to: The Section Officer, Criminal Section, High Court, Madras. CRL.A.No.296 of 2008 vsv(co) em/20.1.09 https://hcservices.ecourts.gov.in/hcservices/