Bail Slip The petitioner/appellant viz Babu was directed to be released on bail as per order of this court dated 25.10.06 in Crl.MP.1/06 in Crl.App. 854/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.09.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.854 OF 2006 Babu .. Appellant/Accused Vs. State rep. by Sub Inspector of Police, Thiruvalam Police Station, Thiruvalam, Vellore District (Crime No.82/2004) .. Respondent/Respondent This criminal appeal has been preferred under Section374(1) Cr.P.C. against the conviction and sentence passed in S.C.No.117 of 2005, dated 25.09.2006 on the file of the Principal Sessions Judge, Vellore. For Appellant : Mr.R.Margabandhu For Respondent : Mr.V.R.Balasubramanian, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Vellore made in S.C.No.117 of 2005, whereby the sole accused/appellant stood charged under Sections 302 and 404 IPC, tried https://hcservices.ecourts.gov.in/hcservices/ and found guilty as per the charges and awarded life imprisonment and to pay a fine of Rs.100/-, in default to undergo 3 months R.I. under Section 302 IPC and one year R.I. and to pay a fine of Rs.100/-, in default to undergo 2 months R.I. under Section 404 IPC and both the sentences were ordered to run concurrently. Hence this appeal has arisen. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)P.Ws.1 and 2 are the parents of the deceased Selvi. She was given in marriage to the accused 9 years prior to the occurrence and they were living separately in the same place. As a result of the marriage, they had a male born. Pursuant to the torture given by the accused to Selvi, a complaint was given to All Women Police Station, Vellore. Both were called and advised, but the accused did not stop the same and again he exerted cruel treatment on Selvi, which resulted in a complaint, which was given to All Women Police Station, Ranipet. P.W.14, who was working as Inspector of Police at Ranipet All Women Police Station called both of them and enquired them. But, they refused to live together and informed that they would solve the dispute before the Panchayat. At the time when they came out, the accused made a vow that he would finish her off. b)After that, the said Selvi was working in Thirumalai Charities. On 13.4.2004, the accused sent his nephew to P.W.1's house to take the child, to which course the deceased was not amenable and she refused to send the child. As usual, on 15.4.2004, she went to job and after the work, she was coming in a bus, in which P.W.3, an employee of the said institution, was also traveling in the evening hours at about 6.00 p.m. P.W.16, Michel was also traveling in the same bus. P.W.3 got down from the bus at Thiruvalam bus stop. Thereafter, in the same bus stop, the said Selvi also got down. When she was questioned as to why she was getting down here, she told him that she was waiting for a friend. Immediately, P.W.3 went. P.W.16 saw the accused and the deceased proceeding in a cycle at about 6.30 p.m. c)Thereafter, the deceased Selvi did not return home. On the next day, P.W.4 came to know that in a dilapidated building belonged to Thirumalai Charities, a dead body was found and he went there and found the dead body of Selvi. Immediately, he informed the same to P.Ws.1 and 2 and they went there and saw the dead body of their daughter. d)P.W.1, after seeing the dead body, proceeded to the respondent police station and gave Ex.P.1, the report to P.W.15, the Sub Inspector of Police. On the strength of Ex.P.1, a case came to be registered in Crime No.82 of 2004 under Section 302 IPC. EX.P.16, the F.I.R. was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ e)P.W.18, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.18, the rough sketch. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.19, the inquest report. The material objects were recovered from the place of occurrence under a cover of mahazar. The scene of occurrence and the dead body were photographed through P.W.8, the photographer. Ex.P.6 (series) are the photos and negatives. The dead body of the deceased was sent to the hospital for the purpose of autopsy. f)P.W.10, the Doctor attached to Vellore Government Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.10, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of Asphyxia due to strangulation 42 to 46 hours prior to autopsy. g)P.W.18 took up further investigation and arrested the accused on 17.4.2004 at about 6.00 a.m. The accused voluntarily came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.4. Pursuant to the same, he produced M.O.19, bloodstained pant and M.O.20, bloodstained shirt, which were recovered under a cover of mahazar. The accused was sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were subjected to chemical analysis by the Forensic Science Department, which resulted in two reports, namely Ex.P.12, the Serologist's report and Ex.P.13, the Chemical Analyst's Report. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 18 witnesses and also relied on 19 exhibits and 20 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. On the side of the defence, only one witness was examined and two documents were marked. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and has awarded punishments as referred to above, which is the subject matter of challenge in this appeal. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has https://hcservices.ecourts.gov.in/hcservices/ miserably failed to prove its case; that the prosecution had no direct evidence to offer and it has rested its case on circumstantial evidence; that even according to the prosecution, after the marriage, there was strained relationship between the accused and the deceased and the matter was taken up for enquiry by the police officer of Ranipet All Women Police Station, where they refused to live together and thereafter, they were living apart and under these circumstances, it was highly improbable that both of them were traveling together in a cycle. 5.Added further the learned counsel that in the instant case, the prosecution rested its case mainly on the circumstance of last seen theory, in respect of which P.W.16 was examined; that according to P.W.16, on 15.4.2004 at about 6.30 p.m., he saw both the accused and deceased traveling in a cycle, but it is highly unbelievable; that according to P.W.16, he saw the dead body at about 10.00 a.m. on 16.4.2004; that if to be so, P.W.16 could have been present at the time of conducting inquest by the police officer, who took investigation and one would expect P.W.16 to speak about the fact that he saw both the accused and the deceased together at about 6.30 p.m. on the previous day, but he has not stated so and his name was not mentioned in the inquest report and that it casts a doubt that P.W.16 could not have seen them at all and thus, he was the planted witness. 6.The learned counsel would further add that the prosecution relied on the alleged arrest, confessional statement and the recovery of M.O.19, bloodstained pant and M.O.20, bloodstained shirt; that the alleged arrest, confessional statement and the recovery were thoroughly belied by the evidence of P.W.2; that according to P.W.2, the accused was found in the police station on 16.4.2004 evening hours; but it is claimed by the prosecution that he was arrested on 17.4.2004 and thus, it is highly unbelievable and therefore, all would indicate that the prosecution has no evidence at all and all these factual positions were not considered by the trial court and under these circumstances, the appellant is entitled for acquittal in the hands of this court. 7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its attention full on the submissions made by the learned counsel on either side. 8.It is not in controversy that one Selvi, the daughter of P.Ws.1 and 2, was done to death by strangulation and the dead body was found in a dilapidated building belonged to Thirumalai Charities. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.10, the Doctor, who was also examined as a witness before the court, through whom Ex.P.10, the post-mortem certificate has also been marked, wherein she has opined that the deceased would appear to have died of Asphyxia by https://hcservices.ecourts.gov.in/hcservices/ strangulation. This fact was never questioned by the appellant/accused at any stage of proceedings and hence without any impediment, it could be recorded so. 9.True it is, the prosecution had no direct evidence to offer and it has rested its case on circumstantial evidence. Two circumstances are relied on by the prosecution. One is the last seen theory and the other is the recovery of M.Os., namely the clothes, from the accused pursuant to the confessional statement made. Admittedly, the deceased was the wife of the accused. Their marriage took place before 9 years and there was strained relationship between them and the matter was brought before the police twice. Lastly, a complaint was given by the deceased before the Ranipet All Women Police Station, where P.W.14, the Inspector, enquired both, but they refused to live together and informed that they would solve the dispute before the panchayat. At this juncture, the accused took a vow that he would finish her off. It is also quite evident that the accused sent his nephew to the house of P.W.1 to get the child from the deceased, but she refused to do so. Therefore, the accused was further aggravated by the situation and thus, the court is able to notice motive for committing such a crime. 10.So far as the first piece of evidence, namely last seen theory is concerned, the prosecution has examined P.W.16. From the evidence of P.W.3, it would be quite clear that on the date of occurrence, P.W.3, P.W.16 and the deceased Selvi all were traveling in the same bus; that P.W.3 got down from the bus at a bus stop and unusually, the deceased also got down at the same bus stop; that when enquired, she informed that she was waiting for a friend. According to P.W.16, he saw both the accused and the deceased traveling in a cycle and subsequently, thereafter, the occurrence has taken place. At this juncture, the court is unable to notice any reason as to why the evidence of P.W.16 should not be believed. P.W.16 was neither inimical to the accused nor interested in the deceased. Apart from that, he has categorically spoken to the fact and his statement was recorded by the police on 17.04.2004 and it has reached the court on 21.04.2004. Thus, from the available materials, it would be quite clear that there was not even delay in sending the statement recorded by the police. Now, the contention put forth by the learned counsel for the appellant that had it been true that P.W.16 has witnessed both the accused and the deceased at the evening hours on the date of occurrence, there was no impediment for him to inform the same to the police, but not done so, cannot be countenanced for the reason that according to P.W.16 he saw the dead body of the deceased at about 10.00 a.m. on the next morning. It is not the case of the prosecution that P.W.16 was present at the time of inquest. Nowhere the name of P.W.16 was found in the inquest report. The absence of P.W.16 at the time of enquiry or inquest or the non mentioning the name of P.W.16 in the inquest report cannot be a reason to doubt his evidence. Since his statement was recorded on 17.04.2004 and it has reached the court https://hcservices.ecourts.gov.in/hcservices/ within a reasonable time, this court is unable to notice any reason to doubt his evidence. Under these circumstances, the last seen theory has got to be believed and the contention put forth by the learned counsel for the appellant has got to be rejected. 11.So far as the second piece of evidence, namely the recovery of M.Os from the accused, is concerned, this court is of the considered opinion that this part of the evidence has got to be believed. The prosecution would claim that the accused was arrested on 17.04.2004 and on arrest, he gave confessional statement and the same was recorded in the presence of the witnesses, pursuant to which M.O.19, bloodstained pant and M.O.20, the bloodstained shirt were recovered under a cover of mahazar. The witnesses have been examined to that effect. Despite cross examination in full, the evidence remains intact. Further, the material objects recovered from the accused were subjected to chemical analysis along with the other material objects, namely the clothes recovered from the dead body of the deceased. All the material objects would contain the same blood group. All would clearly indicate that scientific evidence was also in favour of the prosecution case. Thus, the alleged arrest, confessional statement and the recovery of material objects from the accused pursuant to his confessional statement and also the scientific evidence would be pointing to the guilt of the accused, leaving no doubt in the mind of the court. Under these circumstances, the contentions put forth by the learned counsel for the appellant do not merit acceptance and they have got to be rejected. 12.In the result, this criminal appeal fails and the same is dismissed, confirming the conviction and sentence imposed by the trial court. It is reported that the appellant is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the sentence. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Principal Sessions Judge, Vellore. 2.The Sub Inspector of Police, Thiruvalam Police Station, Thiruvalam, Vellore District. https://hcservices.ecourts.gov.in/hcservices/ 3.The Public Prosecutor, High Court, Madras. 4. The Judicial Magistrate No.I, Vellore. 5. The Chief Judicial Magistrate, Vellore(for information) 6. The Principal Sessions Judge, Vellore. 7. The superintendent, Central Prison, Vellore. 8. The District Collector, Vellore. 9. The Section Officer, Criminal Section, High Court, Madras +1 cc To Mr.R.Margabandhu, Advocate, SR.52393 CRL.A.NO.854 OF 2006 gg [co] gkg/26.9 https://hcservices.ecourts.gov.in/hcservices/