IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.8.2009 CORAM: THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.JEYAPAUL Criminal Appeal No.181 of 2009 A.Subramani ..Appellant/Accused No.1 Vs. State, represented by the Inspector of Police, B-2, R.S.Puram Police Station Coimbatore-2. (Crime No.435/2003) ..Respondent/Complainant Prayer : Appeal against the Judgment, dated 20.1.2009, passed in S.C.No.213 of 2005 on the file of I Additional District and Sessions Judge, Coimbatore. For Appellant : Mr. C.S.Dhanasekaran For Respondent : Mr. Hassan Mohamed Jinnah Addl. Public Prosecutor J U D G M E N T C. NAGAPPAN, J. Appellant Subramani is Accused No.1 in S.C.No.213 of 2005 on the file of I Additional District and Sessions Judge, Coimbatore and he has preferred this appeal challenging the conviction and sentence imposed on him by judgment dated 20.1.2009 in the case. For the sake of convenience, in this Judgment, the appellant will be referred to as Accused No.1. 2. Charges under Sections 449, 392 and 302 r/w 34 IPC were framed against Accused No.1 Subramani and Accused No.2 Manokaran. The learned Additional Sessions Judge found A1 Subramani alone guilty of the charges and convicted and sentenced him to undergo Rigorous Imprisonment for seven years each and to pay a fine of Rs.1000/- each, in default, to undergo Simple Imprisonment for six months each for the charges under Section 449 IPC and Section 392 IPC and https://hcservices.ecourts.gov.in/hcservices/ convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.1000/-, in default, to undergo Simple Imprisonment for six months for the charge under Section 302 r/w 34 IPC and ordered the sentences to run concurrently. The learned Additional Sessions Judge found A2 Manokaran not guilty of the charges and acquitted him of the charges. 3. To prove its case, the prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P23 and M.Os.1 to 16. 4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows. PW.1 Rathinam is the husband of deceased Rajam and they were residing in their own house bearing Door No.18, Venkatachalam Road, R.S.Puram, Coimbatore. After retirement from Government service, PW.1 Rathinam used to go to SITRA Office on Tuesday and Thursday in Tourist car belonging to Balaji Travels run by PW.11 Suresh and on some occasions, A1 Subramani came as the driver of the Tourist Car. PW.4 Rukmani was employed as servant maid in the house of PW.1 Rathinam. On 22.5.2003, Thursday, PW.1 Rathinam went to SITRA office in the morning. PW.4 Rukmani, as usual, went to the house of PW.1 Rathinam at 10.30 am and saw a White Ambassador Car parked in front of the house and two pairs of chappals worn by males lying at the entrance of the house. PW.5 Shanmugadoss came to SARK Hospital in Venkatachalam Road at 9.30 am on 22.5.2003 to take treatment for the injury in his leg and when he was waiting outside the hospital, he saw White Ambassador Car bearing Registration No. TNG.1615 parked at the entrance of the house located just opposite to the hospital. PW.4 Rukmani went to the backyard of the house and cleaned the utensils and washed the clothes. By 11.30 am, she completed the work and while returning, she saw A1 Subramani and another person going out of the house and boarding the White Ambassador Car and leaving the place. PW.1 Rathinam returned home from SITRA office at 4 pm in the car driven by PW.2 Walter and PW.1 Rathinam saw two pairs of chappals at the entrance and pressed the calling bell and there was no response and he went to the backside of the house and entered through the back door which was found open and he saw his wife Rajam lying face upwards in the drawing room with blood oozing out from the mouth and she did not respond to the call. P.Ws.1 and 2 went and brought PW.3 Dr.Stanley Ramesh Babu to the house. PW.3 Dr.Stanley Ramesh Babu examined Rajam and found abrasions on the neck and declared her dead. https://hcservices.ecourts.gov.in/hcservices/ PW.1 Rathinam gave Ex.P1 Complaint at 5 pm on 22.5.2003 in B.2 R.S.Puram Police Station and PW.14 Inspector Balakrishnan received the same and registered a case in Crime No.435/2003 under Sections 302 and 380 IPC and prepared Ex.P15 First Information Report. He went to the occurrence place and prepared Ex.P2 Observation mahazar in the presence of PW.6 Balamurugan and another. Ex.P16 is the Rough Sketch drawn by him. He conducted inquest on the body from 6.45 pm in the presence of panchayatars and prepared Ex.P17 Inquest Report. He seized MO.11 (series) Chappals and MO.12 Dental set under Ex.P3 mahazar in the presence of same witnesses. He sent the body for post-mortem. PW.12 Dr.M.Sundararajan conducted post-mortem on the body of Rajam at 10.15 am on 23.5.2003 and found the following antemortem injuries: "External injuries: Abrasions with underlying contusions noted in the following regions:- 1. 0.5 x 0.2 cm oblique over right forehead, 2 cms above middle of right eyebrow. 2. 3 x 0.5 cms, and 0.5 x 0.2 cm oblique on the lower part of right side of nose. 3. 4 x 0.5-0.2 cms oblique on the right cheek extending from right angle of mouth downwards and laterally. 4. 3 x 1-0.5 cms horizontal on the right cheek starting 1 cm lateral to right angle of mouth. 5. 1 x 0.5 cm oblique just above lateral aspect of left side of upper lip. 6. 1 x 0.5 cm horizontal over middle of upper lip. 7. 0.5 x 0.5 cm two in number in the submental region. 8. 1 x 0.2 cm oblique in the right infraorbital region. 9. 1 x 0.2 cm oblique in the right cheek 2 cms below the previous abrasion. 10. 2 x 0.2 cm oblique in the lower part of right cheek. https://hcservices.ecourts.gov.in/hcservices/ 11. 4 x 0.2 cm oblique in the lower part of left cheek. 12. 1 x 0.2 cm oblique 1 cm above middle of previous abrasion. 13. 1 x 0.5 cm and 1.5 x 0.5 cms oblique one below the other 1 cm apart seen just below angle of right lower jaw. 14. 2.5 x 1-0.5 cms and 1 x 0.5 cm vertically oblique seen one below other 1 cm apart on the right lateral neck. The upper one seen 6 cms below right angle of lower jaw. 15. 2 x 0.5 cms vertically oblique on the right of neck below right mastoid. 16. 2 x 0.5 cms and 1 x 0.5 cms seen one below the other 0.5 cm apart on the left side of neck. The upper one is 6 cms below left angle of lower jaw. 17. 1 x 1 cm over lateral aspect of left knee. INTERNAL INJURIES 1. Contusions of varying sizes seen in the superficial and deep planes of anterior and lateral aspects of neck. 2. Both corners of hyoid bone found fractured with surrounding bruising. 3. Fracture of C6 and dislocation over C7 vertebra with partial laceration of underlying spinal cord with surrounding bruising. 4. Intra scalpal and subscalpal contusion seen over entire right side of scalp. 5. Right temporalis muscle found contused. OTHER FINDINGS 1 – Pleural and peritoneal cavities empty. 2 – Lungs cut section congested. https://hcservices.ecourts.gov.in/hcservices/ 3 – Heart right side chambers contain blood, left side chambers empty, coronaries patent. 4 – Stomach contains 200 gms partially digested cooked food (Rice) particles, No specific smell, Mucosa normal. 5 – Small intestine contains 50 ml of bile stained fluid. No specific smell, Mucosa Normal. 6. Liver, Spleen, Kidneys and brain cut section congested. 7. Urinary bladder empty. 8. Uterus atrophic, cut section empty" He reserved his opinion pending Chemical Analysis report and issued Ex.P10 Post-mortem Certificate. After receipt of Ex.P11 Viscera report, he gave Ex.P12 Final Opinion that the deceased would appear to have died of violent compression of neck and cervical injury sustained. PW.14 Inspector Balakrishnan examined PW.1 Rathinam, PW.2 Walter, PW.3 Dr.Stanley Ramesh Babu and PW.6 Balamurugan and recorded their statements on 22.5.2003 itself. He examined PW.4 Rukmani and some other witnesses on 23.5.2003 and recorded their statements and at 2.45 pm, he seized M.Os.7 to 10, jewels taken from the body and produced before him by Ex.P18 report under Ex.P19 Form 95. At 5 pm on 23.5.2003, he arrested A1 Subramani alias Mottaiyan near Thudiyalur Railway Gate in Mettupalayam Road and enquired him in the presence of PW.7 Saravanan and another and recorded the confession statement given by him. Ex.P20 is the admissible portion. A1 Subramani took M.Os.1 and 2, Gold Thali Chain and Gold Lakshmi dollar from his pant pocket and cash of Rs.2350/- and he recovered the same under Ex.P4 mahazar in the presence of same witnesses. At 7.30 pm, A1 Subramani showed Dhanalakshmi Finance and PW.8 Mangaram and he recovered MO.3 (series) Gold Bangles from the said shop under Ex.P5 mahazar in the presence of said witnesses. At 9.15 pm, A1 Subramani showed PW.9 Sivakumar who was running Travels and PW.14 Inspector Balakrishnan recovered MO.13 White Ambassador Car bearing Registration No. TNG.1615 from him under Ex.P6 mahazar in the presence of same witnesses. He sent A1 Subramani for judicial remand. He examined PW.7 Saravanan, PW.8 Mangaram and some other witnesses and recorded their statements. On 24.5.2003, he arrested A2 Manokaran at 6 am at Narasimhanaickanpalayam Junction in Mettupalayam Road and enquired him in the presence of PW.10 Muthukumar and another and recorded the confession statement given by him. Ex.P21 is the admissible portion. A2 Manokaran took MO.4 Gold Chain and cash of Rs.2500/- and produced the same and he recovered the same under Ex.P7 mahazar in the presence of said witnesses. At 8.30 am, A2 Manokaran took them to his house and https://hcservices.ecourts.gov.in/hcservices/ took and produced MO.6 Rold Gold Bangles from the gap in the wall of the bathroom and he recovered them under Ex.P8 mahazar in the presence of said witnesses. At 9.30 am, A2 Manokaran took them to Narayanan jewellers and showed the same and PW.14 Inspector Balakrishnan recovered MO.5 Diamond Ear stud under Ex.P9 mahazar in the presence of PW.10 Muthukumar and another. He sent A2 Manokaran for judicial remand. He examined PW.10 Muthukumar and some other witnesses and recorded their statements. On 25.5.2003, he examined PW.11 Suresh and seized Ex.P23 (series) Trip sheets under Ex.P22 mahazar in the presence of witnesses. On 6.6.2003, he examined PW.12 Dr.Sundararajan and recorded his statement. He completed the investigation on 5.9.2003 and filed final report against the accused. 5. Both the accused were questioned under Section 313 Cr.P.C. and they denied complicity. No witness was examined and no document was marked on their side. 6. The Trial Court found A1 Subramani guilty of the charges and convicted and sentenced him as stated earlier. Challenging the same, A1 Subramani has preferred the present appeal. 7. Mr.C.S.Dhanasekaran, learned counsel appearing for the appellant/Accused No.1 submitted that the case is based on circumstantial evidence and the circumstances highlighted are insufficient, scanty and do not present a complete chain to warrant the conclusion of guilt on the appellant and PW.4 Rukmani was kept in the Police Station for three days for interrogoation and to escape from clutches she has obliged the police by stating that she saw the appellant/A1 Subramani in the house of the deceased at the time of occurrence and she is not a reliable witness and PW.5 Shanmugadoss did not produce any medical record to show that he went to SARK hospital on the occurrence day for taking treatment for his leg injury and he is a chance witness and obliged the police and the mahazar witness PW.7 Saravanan is a friend of PW.1 Rathinam and he is an obliging witness and there is no specific identity for MO.11 Chappals and they have been foisted in the case and there is no document produced to show that the appellant rented M.O.13 Car from PW.9 Sivakumar and the chain links are not completed properly and the appellant is entitled to benefit of doubt and in support of his submission, he relied on the decision of the Apex Court in SYED HAKKIM AND ANOTHER V. STATE REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, KARUR DISTRICT, TAMIL NADU [(2009) 4 Supreme Court Cases 324]. 8. Per contra, the learned Additional Public Prosecutor submits that the appellant/A1 Subramani was a driver in Balaji Travels and prior to occurrence he was taking PW.1 Rathinam to his office in the Tourist taxi and PW.4 Rukmani was a servant maid in the house of the deceased for a long time and she had seen the https://hcservices.ecourts.gov.in/hcservices/ appellant/A1 Subramani going out of the house after the occurrence and leaving in the White Ambassador Car and the appellant on his arrest had given information in his confession statement leading to the recovery of M.Os.1 to 3 Gold Jewels of the deceased and MO.13 Car and the prosecution has established the circumstances clinchingly and proved the guilt of the appellant. 9. To prove the charges against the appellant/A1 Subramani, the prosecution has relied on the following circumstances: "1. Rajam died of homicidal violence. 2. The appellant/A1 Subramani was employed as driver in Balaji Travels run by PW.11 Suresh and took PW.1 Rathinam from his house to his office on number of occasions prior to occurrence. 3. PW.4 Rukmani, the servant maid in the house of deceased Rajam, while going for work in the morning on the occurrence day, noticed a White Ambassador Car in front of the house and two pairs of chappels worn by males lying at the entrance and after finishing her work while returning, she saw the appellant/A1 Subramani going out of the occurrence house with another person and boarding the Ambassador Car and leaving the place. 4. PW.5 Shanmugadoss while waiting outside the SARK hospital at 9.30 am on 22.5.2003 for taking treatment, saw White Ambassador Car bearing Registration No.TNG 1615 parked at the entrance of the house located just opposite to the hospital. 5. The appellant/A1 Subramani took on hire the White Ambassador Car bearing Registration No. TNG 1615 from PW.9 Sivakumar at 7 am on the occurrence day viz. 22.5.2003 and returned the car at 6 pm in the evening on the same day. 6. Arrest of the appellant and the information given by him in his confession statement leading to recovery of M.Os.1 to 3 Gold Jewels belonging to deceased and M.O.13 Car. 7. Seizure of MO.11 Chappal belonging to the appellant/A1 Subramani from the occurrence place." 10. Rajam died of homicidal violence is established by the testimony of post-mortem doctor. PW.12 Dr.M.Sundararajan has testified that he found very many abrasions in the neck, lower jaw and cheek of the body and on the internal examination, he found https://hcservices.ecourts.gov.in/hcservices/ contusions of varying sizes seen in the superficial and deep planes of anterior and lateral aspects of neck; both corners of hyoid bone found fractured with surrounding bruising; fracture of C6 and dislocation over C7 vertebra with partial laceration of spinal cord; intra scalpal and subscalpal contusion over entire right side of scalp; lungs cut section congested and brain cut section congested. Ex.P10 is the Post-mortem Certificate issued by him. He expressed Ex.P12 Final Opinion that the deceased would appear to have died of violent compression of neck and cervical injury sustained. Accepting his testimony, it becomes clear that Rajam suffered homicidal death due to violent compression of neck. 11. PW.1 Rathinam is the husband of deceased Rajam and they were residing in their own house bearing Door No.18, Venkatachalam Road, R.S.Puram, Coimbatore. PW.1 Rathinam has testified that after retirement from Government service, he used to go to SITRA office on Tuesday and Thursday in the morning and return in the evening and on ten or fifteen occasions A1 Subramani came as the driver of the Tourist car for picking him from his house to his office and dropping him back at his home. PW.11 Suresh has deposed that he is running Balaji Travels and A1 Subramani was employed as driver in his office and they used to send the taxi of the Travels on Tuesdays and Thursdays to PW.1 Rathinam for taking him to SITRA office from his house and for dropping him back at home and he has sent A1 Subramani as driver on number of occasions to the house of PW.1 Rathinam and Ex.P23 (series) are the relevant Trip sheets containing the name of A1 Subramani as driver and he had also put his signature in those trip sheets. The learned counsel for the appellant contended that Ex.P23 (series) trip sheets relate to period prior to occurrence and the signature of driver found in them are not that of A1 Subramani. This contention is devoid of merit. Ex.P23 are five trip sheets pertaining to the trips made in the months of January, March and April, 2003 mentioning the starting place as R.S.Puram and destination as SITRA office. The name of A1 Subramani is mentioned as the driver of the taxi in them and he has also put his signature in them. It is relevant to point out that no suggestion was put to PW.11 Suresh that A1 Subramani was not employed in his Travels as driver and in such circumstance, the contention that the signatures found therein are not that of A1 Subramani, is to be brushed aside. 12. PW.4 Rukmani has testified that she was working as servant maid in the house of PW.1 Rathinam for six years prior to occurrence and as usual she went to the house of PW.1 Rathinam at 10.30 am on 22.5.2003 and saw a White Ambassador car in front of the house and two pairs of chappals worn by males lying at the entrance of the house and she went to the backyard of the house and cleaned the utensils and washed the clothes and by 11.30 am she completed the work and while returning she saw A1 Subramani and another person going out of the house and boarding the White Ambassador Car and https://hcservices.ecourts.gov.in/hcservices/ leaving the place. The learned counsel for the appellant contended that PW.4 Rukmani has stated in the cross-examination that she was kept in the police station for three days for interrogoation and in order to escape from clutches, she has obliged the police and she is not a reliable witness. It is true that PW.4 Rukmani has stated that she was interrogated for three days in the Police Station. Merely because of that, we cannot jump to the conclusion that she is speaking out of coercion. PW.4 Rukmani is not an eye-witness to the occurrence. She was residing in the locality and was employed for a long period of six years in the house of the deceased as servant maid. She had seen A1 Subramani coming to the house of PW.1 Rathinam as driver of the Tourist car to pick and drop him to his office and he is not a stranger to her. On the occurrence day, when she went for routine work she happened to see the Ambassador car and two pairs of chappals at the entrance of the house and she went to backyard to do her work and while returning she had noticed A1 Subramani and another leaving the house and fleeing in the Ambassador car. Her testimony is natural, cogent, convincing besides being trustworthy and nothing is elicited in the cross- examination to discredit her testimony. The prosecution has established this circumstance through the positive evidence of PW.4 Rukmani. 13. PW.5 Shanmugadoss is a resident of Lingappa Chetty lane and he has stated that he sustained injury in his leg and came to SARK hospital in Venkatachalam road at 9.30 am on 22.5.2003 to take treatment and when he was waiting outside the hospital, he saw White Ambassador Car bearing Registration No.TNG.1615 parked at the entrance of the house located just opposite the hospital and on the next day, he read about the occurrence in the newspaper and passed on the information to the police. The contention of the learned counsel for the appellant is that PW.5 Shanmugadoss did not produce any document to show that he took treatment at SARK hospital on the occurrence day and his presence is doubtful. Ex.P16 is the Rough Sketch showing the topography of the occurrence place. The hospital is located opposite to the occurrence house on the other side of Venkatachalam road. There is every possibility for PW.5 Shanmugadoss while waiting outside the hospital to have noticed the parking of MO.13 White Ambassador Car in front of the house just opposite the hospital and there is nothing unnatural in it. Nothing is elicited in the cross-examination to disbelieve his version. This circumstance is also established. 14. PW.9 Sivakumar was also running Travels and he has testified that on 21.5.2003 in the evening at 6.30 pm A1 Subramani met him and asked for a car on hire and he told him that all the Tourist taxi cars had gone out on hire and he is having only MO.13 White Ambassador Car bearing Registration No.1615 for his personal use and A1 Subramani pleaded with him to give that car on hire for one day and he agreed and on 22.5.2003 in the morning at 6.30 AM, https://hcservices.ecourts.gov.in/hcservices/ A1 Subramani took MO.13 Car on hire and returned the car at 6 pm in the evening and paid the rent. The contention of the learned counsel for the appellant is that no document has been produced to show that A1 Subramani rented MO.13 White Ambassador Car from PW.9 Sivakumar and his testimony cannot be relied on. It is correct to state that no document has been produced to show the renting of MO.13 Car. It has to be borne in mind that MO.13 White Ambassador Car is not a Tourist Taxi. It is the personal car used by PW.9 Sivakumar and only on the compulsion of A1 Subramani, PW.9 Sivakumar obliged him by giving the car for a day on rent. There cannot be any document evidencing the renting of the above car. It is pertinent to point out that though PW.9 Sivakumar was cross-examined by A1 Subramani, no suggestion was put to PW.9 Sivakumar in the cross- examination to the effect that A1 Subramani did not take MO.13 Car on hire on the occurrence day. In such circumstances, there is no reason to discard the testimony of PW.9 Sivakumar and this circumstance is also established. 15. The Investigation Officer PW.14 Inspector Balakrishnan has stated that he arrested the appellant/A1 Subramani at 5 pm on 23.5.2003 near Thudiyalur Railway Gate in Mettupalayam Road and enquired him in the presence of PW.7 Saravanan and another and recorded the confession statement containing Ex.P20 admissible portion given by him and A1 Subramani took M.O.1 Gold Thali Chain, MO.2 Gold Lakshmi dollar and cash of Rs.2350/ from his pant pocket and produced the same and he recovered them under Ex.P4 mahazar in the presence of same witnesses. The mahazar witness PW.7 Saravanan has confirmed in his testimony that A1 Subramani was arrested and enquired in his presence and confession statement given by him was recorded in his presence and A1 Subramani took M.Os.1 and 2 and cash and produced the same and they came to be recovered in his presence. It is the further testimony of the Investigation Officer that A1 Subramani at 7.30 pm showed Dhanalakshmi Finance and pointed out PW.8 Mangaram and the Inspector recovered MO.3 (series) Gold Bangles from the said shop under Ex.P5 mahazar in the presence of same witnesses. The mahazar witness PW.7 Saravanan has also stated that A1 Subramani pointed out Dhanalakshmi Finance from where MO.3 Gold Bangles were recovered in his presence under Ex.P5 mahazar. PW.8 Mangaram has stated that he produced four Gold Bangles to the Police but he cannot identify them and hence he was treated as hostile by the prosecution and this does not affect the prosecution case in any way. 16. Yet another contention was raised by the learned counsel for the appellant that