IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.764 of 2009 Selvakumar ..Appellant/Accused ..vs.. State, rep.by The Inspector of Police, Thondamuthur Police Station, Coimbatore. (Crime No.11 of 2007) ..Respondent/Complainant Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment of the learned I Additional District and Sessions Judge, Coimbatore, made in S.C.No.83 of 2007, dated 25.06.2008. For Appellant : Mr.E.J.Ayyappan For Respondent : Mr.V.R.Balasubramanian, Additional Public Prosecutor JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the I Additional District and Sessions Division, Coimbatore, made in S.C.No.83 of 2007, whereby the single and sole accused stood charged, tried and found guilty under Section 302 I.P.C. and awarded the life imprisonment along with a fine of Rs.1,000/-, in default to undergo six months rigorous imprisonment. 2. Short facts, necessary for the disposal of the appeal, can be stated thus: (a) The appellant/accused and the deceased Nithya pursuant to the love affairs, married each other. For sometime, they were carrying the matrimony peacefully. Thereafter, he entertained https://hcservices.ecourts.gov.in/hcservices/ suspicion over her fidelity. A child was also born two years prior to the occurrence. On one occasion, the accused cut her face with a blade and she sustained a bleeding injury. Then, she was taken to P.W.5, doctor, who gave treatment and thereafter, he took her to Vellore, where she was staying for some time. Thereafter, he brought her to Idayarpalayam and there also, he entertained suspicion and quarrelled with her often and the house owner asked them to vacate the premises and accordingly, they vacated. Subsequently, they went to the house of P.W.2 and during the relevant point of time, they were tenants and P.W.1 was a neighbour to them. Few days prior to the occurrence, P.W.1 was not seeing Nithya and when she asked about her whereabouts, the accused stated that she had gone to her mother's house and thereafter, within few days, he took her back. (b) On 29/30.01.2007 at about 12.00 midnight, on hearing the distressing cry of Nithya, P.W.2, the landlady and P.W.1, the neighbour went to the house of the accused and the accused came out and told them that his leg hit her and therefore, she shouted. Since they thought that there was nothing to suspect, they returned to their respective houses. (c) In the morning of 30.01.2007, at about 4.00 a.m., they heard the crying sound of the child. Then, both of them went to the house of the accused and at that time, the accused came out and told them that he is going to buy milk for the child; but he did not come back at all. Again, the child was crying and since the house was kept open, P.Ws.1 and 2 went inside the house and found the dead body of Nithya, which was closed by a bed sheet. When they removed the bed sheet, they found the dead body. Immediately, P.W.2 raised a cry and all people gathered there. (d) P.W.1 proceeded to the respondent Police Station and gave a complaint Ex.P-1 to the Head Constable, who was on duty and on the strength of the said complaint, a case came to be registered in Crime No.11 of 2007 under Section 302 IPC against the appellant/accused and the first information report is marked as Ex.P-10 and the copy of the same was despatched to the Court along with Ex.P-1 report. (e) P.W.8, the Inspector of Police took up investigation, proceeded to the spot, made an inspection, prepared an observation mahazar Ex.P-2 and rough sketch Ex.P-11 and he also caused photographs to be taken through a digital camera and the photos are marked as Exs.P-6 series. Then, he conducted inquest on the dead body of Nithya in the presence of witnesses and the panchayatdars and the inquest report is marked as Ex.P-12. Then, he recovered M.O.2 under a cover of mahazar Ex.P-3 and bloodstained earth and sample earth under a cover of mahazar Ex.P4. Thereafter, he sent the dead body to the hospital for the purpose of post-mortem along with his requisition. https://hcservices.ecourts.gov.in/hcservices/ (f) On receipt of the requisition, P.W.6 doctor attached to the Coimbatore Medical College Hospital, conducted autopsy on the dead body of Nithya and gave post-mortem certificate, Ex.P-5, wherein she opined that the deceased would appear to have died of asphyxia due to strangulation and also due to the injuries on her head. (g) Pending investigation, the appellant approached P.W.7, the Ward Councillor of Thazhiur Panchayat Union, on 30.01.2007 at about 2.00 PM and gave a confessional statement as to the crime and the same was recorded by him, which is marked as Ex.P-7 and the report of P.W.7 is marked as Ex.P-8 and the accused was produced before the Inspector of Police P.W.8 and the Investigating Officer arrested him, pursuant to which, he gave a confessional statement. Based on that, he produced a two way plug M.O.1 with a pin M.O.5 and the same were recovered under a cover of mahazar Ex.P-9. Thereafter, P.W.8 sent the accused for judicial remand and examined the witnesses and on completion of investigation, he filed the final report under section 302 I.P.C. (h) The case was committed to the Court of I Additional District and Sessions Division, Coimbatore and necessary charge was framed. In order to substantiate the charge, the prosecution examined 8 witnesses and also relied on 13 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 against him in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant/accused guilty and awarded the punishment of life imprisonment, which is the subject matter of challenge before this Court. 3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution had relied on the evidence of P.Ws.1 and 2; P.W.1 was the neighbour and P.W.2 was the landlady; that the occurrence had taken place, according to the prosecution, in the night hours and thus, though P.Ws.1 and 2 claimed that they immediately, on hearing the distressing cry, went there in order to find out what had happened in the house of the accused, they did not find anything and they returned; that apart from that, the evidence of P.Ws.1 and 2, if put to a careful scrutiny, the discrepancies found therein would make it clear that the occurrence could not have taken place at all; that the accused took a plea when he was examined under section 313 Cr.P.C. that during the relevant time, he was away from the place of occurrence; that this is a case where the accused and his wife had quarrelled with each other often whenever he entertained suspicion over the fidelity and thus, it will be quite clear that she could https://hcservices.ecourts.gov.in/hcservices/ have contacts with somebody else and as such, the occurrence could have happened, but not in the manner as put forth by the prosecution; it was not at all committed by the accused and that the prosecution had no direct evidence to offer; that under such circumstances, all the evidence placed before the Court was actually cooked up for the purpose of foisting the case against the appellant, against whom the police had a suspicion; that the learned trial Judge should not have passed the order of conviction and hence, he is entitled for an acquittal in the hands of the Court and the judgment under challenge has got to be set aside. 4. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 5. It is not in controversy that the occurrence had taken place in the house where the accused and his wife were residing, on the night hours of 29th January, 2007. On the early morning of 30th January, 2007, according to P.Ws.1 and 2, they went inside the house after hearing the cry of the child and found the dead body of the deceased. Hence, it is clear from the evidence of P.Ws.1 and 2 that on the night of 29/30.01.2007, the accused was staying along with his wife and child. According to them, at about 12 0'clock, they heard the distressing cry of the deceased from the house of the accused and they immediately rushed to the house and when they asked the accused about the same, he gave flimsy answers. Again they heard the cry of the child and went to the house the accused and at that time, the accused came out and told them that he is going to buy milk for the child. All would clearly indicate that the accused was very well available till 2.00 AM. Within a short interval, at about 4.00 AM., when P.Ws.1 and 2 heard the cry of the child, they went inside the house and all would go to show that the accused, who was also staying with the wife, had actually committed the murder and while strangulation, he used an electric wire and left the place and correspondingly at the time of arrest, he has also produced a plug without wire M.O.5 and the recovery of the same would clearly indicate the nexus of the crime with the accused. Apart from that, he has also appeared before P.W.7, the Ward Councillor and given a confessional statement and P.W.7 has categorically deposed that the accused gave such confessional statement. In the instant case, it is an extra-judicial confession. Before accepting the extra-judicial confession, the Court has to apply two tests, firstly, to whom and under what circumstances, the extra-judicial confession was given; and secondly, whether the evidence of the person, to whom the extra-judicial confession was given, inspires confidence of the Court. https://hcservices.ecourts.gov.in/hcservices/ 6. In the instant case, the accused appeared before P.W.7, the Ward Councillor and gave the extra-judicial confessional statement and the same has been recorded by him and the accused was produced before the Police Officer. The Court is unable to see any reason why the extra-judicial confession recorded by P.W.7 has to be looked with a doubt and thus, the extra judicial confession along with the other evidence available would clearly indicate that except the accused, no one could have committed the offence at all and hence, the contention put forth by the appellant cannot be given much weight whatsoever. The Court is unable to see any reason to accept the case of the appellant/accused. In the instant case, there is nothing to indicate that there was any annoyance or provocation to commit such an offence. The accused has committed the offence by strangulating his wife with a wire and thus, the act of the accused would attract the offence of murder as defined under the Act, which would warrant life imprisonment, as has been imposed by the trial court. In the considered opinion of the Court, the trial court was perfect in recording the finding that the appellant was guilty under section 302 IPC and in awarding life imprisonment and hence, the judgment of the trial court does not require any interference, either factually or legally in the hands of the Court. Accordingly, the appeal fails and is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To 1. The I Additional District and Sessions Judge, Coimbatore. 2. The Judicial Magistrate No.VI, Coimbatore. 3. -do- Through The Chief Judicial Magistrate, Coimbatore. 4. The District Collector, Coimbatore. 5. The Director General of Police, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 6. The Superintendent, Central Prison, Coimbatore. 7. The Inspector of Police, Thondamuthur Police Station, Coimbatore. 8. The Public Prosecutor, High Court, Madras. Judgment in Crl.Appeal No.764 of 2009 KA (CO) GSK 19.03.2010. https://hcservices.ecourts.gov.in/hcservices/