IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :25.01.2006 CORAM THE HONOURABLE MR.JUSTICE P. SATHASIVAM AND THE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR Criminal Appeal No.917 of 2003 Nandakumar .. Appellant vs. State by Sub Inspector of Police Appakoodal Police Station Erode District. (Crime No.65 of 2002) .. Respondent This criminal appeal is preferred under Sec.374 (2)of the Code of Criminal Procedure against the conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court, Bhavani, Erode District in S.C.No.162 of 2002 dated 09.05.2003. For Appellant : Mr. V.K. Muthusamy, Sr.Counsel for Mr. M.M. Sundaresh For Respondent : Mr. V.M.R. Rajendran Additional Public Prosecutor .. JUDGMENT (Judgement of the Court was delivered by P. SATHASIVAM,J.,) One Nandakumar, sole accused in Sessions Case No.162 of 2002 on the file of Additional Sessions Judge (Fast Track Court No.4), Erode at Bhavani, is the appellant in the above appeal. He was charged with an offence punishable under Section 302 IPC and by the impugned judgement, the Additional Sessions Judge, after accepting the case of prosecution, convicted and sentenced him to undergo imprisonment for life. 2. The case of the prosecution is briefly stated hereunder: (a) PW.1, father of the deceased and PW.2, mother of the deceased were residing along with their deceased daughter Gayathri at Chellappa Goundanpalayam of Muniappan Palayam Village. PW.1 is working as a Noon-meal organiser in Sennimalai Goundan Pudur. PW.2 is a Village Health Worker and as such, she was allotted a quarters attached to the Chellappa Goundan Valasu Sub Health Centre, wherein Pws.1 and 2 https://hcservices.ecourts.gov.in/hcservices/ were residing with their daughter deceased Gayathri. (b) The deceased Gayathri was studying Plus Two Course and was preparing for Government examinations. The phone number of the deceased Gayathri was 47509. The accused made frequent visit the Sub Health Centre for getting medicine for cold and cough. Thus, the accused became acquainted with the family of deceased. Four months prior to the occurrence, there were frequent wrong calls to PW.1's house. Since the wrong calls received were almost of the voice of accused, he was questioned by PW.1. PW.2 also questioned the accused. The accused was studying in IRTT at Chithode and used to come along with the deceased at times. This was noticed by Pws.1, 2 and others also. ( c ) On 09.03.2002, there was a medical camp in the Health Centre, in which the Health Officer, PW.8 - uncle of the deceased also attended. At that time, there was a talk about the marriage of the deceased and as a consequence, PW.8 demanded the horoscope of the deceased and the same was given by PW.1. (d) On 12.03.2002, there was a medical camp at Koothampoondi. PWs.1 and PW.2 attended the same leaving the deceased alone in the house. At about 2.00 p.m. PW.1 dialled to his house, which was left unattended. Even after 10 minutes, there was no response. On the advice of his brother-in-law, PW.1 came back to his house at about 2.15 p.m. (e) There are three ways to get into the house of the deceased. The door at the backyard had been badly damaged and the same could not be opened. The door on the second way was also damaged and hence, they used to lock the door while they were away and keep it open when they were in. The third entrance is the hospital entrance. That was bolted from inside. Though PW.1 knocked at the third entrance many times, there was no reply and PW.5, a Noon-meal teacher brought a folding chair and PW.1 tried to ascend the wall, but he could not succeed. However, PW.7 Govindaraj helped him and PW.1 went inside the house. (f) On opening the door, PW.1 noted that the deceased was lying dead in a pool of blood with cut injuries on her throat and neck in the inner room. Pws.5 and 7 also noticed the same. PW.1, rang up to his brother in-law and asked him to bring his wife, PW.2. (g) After arrival of PW.6, PW.1, proceeded along with PW.6 to Aappakudal Police Station to lodge a complaint. At the Police Station, Ex.P-1 complaint was drawn up and the same was registered in Crime No.65 of 2002 by PW.21 under Section 174 Cr.P.C. treating it as suspicious death. Immediately, P.W.21 sent message to the Inspector of Police and copies of the same to various officers through PW.22. (h) On 12.03.2002 at about 4.15 p.m. PW.25 received copy of Ex.P.14 and rushed to the place of occurrence. PW.25 prepared Ex.P.7 in the presence of PW.19 and his Village Assistant one Gunasekaran and prepared Ex.P.33. https://hcservices.ecourts.gov.in/hcservices/ (i) On 12.03.2002, at about 4.15 p.m. PW.17 a private Photographer was summoned to take photographs the place of occurrence and necessary photographs were taken. MO.14 series are photographs and MO.12 series are negatives. The police Photographer PW.18 also arrived at the spot and took photographs of the blood stained foot prints and handed over the same to PW.25. (j) PW.25 conducted inquest, examined some of witnesses, recorded their statements and prepared inquest report Ex.P.34. PW.25 sent corpse of the deceased for post mortem through PW.20, Woman Police Constable. PW.15 received corpse of the deceased through PW.20 along with police memo and conducted the autopsy. During autopsy, PW.15 found the following external injuries: "1. Lacerated wound 2 cm x 1 cm x 3 cm deep at the base of the left index finger. 2. A contusion 12 cm x 1.5 cm on the neck near the hyoid bone. 3. A contusion 5 cm x 1.5 cm just below the jaw. 4. A deep cut injury up long on the neck 10 cm x 2 cm x 3 cm exposing the muscles trachea was clear cut no bleeding." (k) At about 6.30 p.m. on 12.03.2002, MO.16 blood stained earth along with MO.17 sample earth, MO.1 Aruvalmanai, MO.2 Jimikhi, MO.3 blood stained mud, etc. were seized in the presence of PW.19 and his Village Assistant under Ex.P.8. (l) During the course of investigation and inquest, PW.25 requisitioned the service of a Scientific Assistant. PW.24, Scientific Assistant arrived at the place of occurrence and inspected the position of corpse. PW.24 noticed that there was a deep cut injury on the left side of neck below the face. PW.24 gave her opinion, Ex.P.32. (m) Thereafter, PW.25 altered the case into one under Section 302 IPC and sent alternation report Ex.P.35 to the concerned Court. On 13.02.2002, PW.25 examined PW.15 by showing MO.1 and recorded his statement. On 15.03.2002, PW.25 examined PW.5, PW.6, PW.4, PW.9, PW.11, PW.12, PW.8, PW.20 and PW.22 and recorded their statements. (n) On 17.03.2002, on information, PW.25 arrested the accused at 10.00 a.m. near Thavittupalayam Bus stand and he made a voluntary confession, which was recorded in the presence of PW.19 and his Assistant. The admissible portion of the confession is Ex.P.9. The accused took PW.25 and others to his residence and produced a passport size photograph of the deceased and also Ex.P2 letter, greeting card and diary. Shirt MO.21 and Lungi MO.22 produced by the accused were recovered under mahazar. Then, PW.25 came to the house of the deceased, collected Ex.P.3 and MO.10 and MO.11 under mahazar. PW.25 obtained specimen handwriting as well as signature of the accused. The accused was made to give his foot print impression. https://hcservices.ecourts.gov.in/hcservices/ (o) On noticing certain injuries on the person of accused, PW.25, caused him to be produced before PW.16, Doctor, who examined and issued wound certificate Ex.P.6, wherein it was found that there was a partially healed injury of about quarter centimetre on the little finger of his right hand, which was simple in nature. After medical examination, the accused was sent to judicial custody. (p) PW.25 gave requisition to the Judicial Magistrate, and admittedly, the relevant Material Objects were sent to Forensic Science Laboratory for chemical analysis. (q) PW.25 proceeded further with investigation, got the sanction from Director of Prosecution and after completion of investigation, filed a charge sheet on 25.03.2002. (r) On the side of prosecution, 25 witnesses were examined and 35 exhibits and 25 Material Objects were marked. 3. When the accused was questioned under Section 313 Cr.P.C. with reference to the incriminating circumstances found against him, in the evidence of prosecution witnesses, he denied the same. Accused has not examined any witness on his side. 4. The Additional Sessions Judge, accepting the prosecution case, arrived at a conclusion that it was the accused, who committed the offence of murder, found him guilty under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life; hence, the present appeal. 5. Heard Mr. V.K. Muthusamy, learned senior counsel for the appellant and Mr. V.M.R. Rajendran, learned Additional Public Prosecutor for the respondent. 6. It is not in dispute that the entire prosecution case rests on the circumstantial evidence in the form of oral and documentary evidence. The circumstances relied on by the prosecution are, "(i) Both the deceased and the accused were in love affairs, which was spoken to by the prosecution witnesses. (ii) The decision of the parents of the deceased to have the marriage of their daughter to someone through PW.8, by handing over the horoscope of deceased to find a suitable person. (iii) PW.10, saw the accused knocking at the door of the deceased at 10.30 a.m. on 12.03.2002. (iv) Statements of Pws.3 to 5 that they saw the accused running from the house of the deceased. (v) Recovery of MO.9 jimikki; love letters Ex.P.2 series, photograph MO.19 and Mos.21 and 22 blood https://hcservices.ecourts.gov.in/hcservices/ stained shirt and lungi from the house of the accused. (vi) presence of foot prints at the place of occurrence. " 7. As narrated earlier, it is the case of the prosecution that at 10.30 a.m. on 12.03.2002, the accused knocked at the door in the quarters, No.9, Sub Health Centre, Chellappa Goundan Valasu and the deceased Gayathri opened the door, the accused went inside, she bolted the door from inside and the accused asked about their marriage. It is further case of prosecution that during the discussion, she said no to him, stating that if she comes along with him, it will create a bad name to her family, and then, the accused slapped on her cheek and pulled her by tuft. The case of prosecution is that she went inside the kitchen room and came with a vegetable cutter (aruvamanai) and on seeing the same, the accused tried to snatch it and sustained simple injury on his right little finger, and thereafter, the accused with the intention of causing death, pushed her on the cot, sat on her and strangulated her neck with both the hands and again with nylon tape, due to which the deceased became unconscious and the accused took the vegetable cutter and cut her neck and she died due to injury to arteries and trachea. Thereby, according to the prosecution, the accused committed the offence of murder punishable under Section 302 IPC. 8. In this factual back ground, let us consider various circumstances relied on by the prosecution. Coming to the first circumstance, viz., motive, both PW.1 and PW.2 parents of the deceased referred to frequent wrong calls to their telephone No.47509. They also stated that the accused Nandakumar used to visit the Sub Health Centre frequently for securing medicine for cold and cough. Both of them referred to the suspected love affairs between the deceased and the accused. It is true that in Ex.P.1 complaint given by PW.1, there is no reference about the accused, except saying that there is a suspicion in the death of his daughter and he has not implicated any one, including the accused. 9. PW.6, brother-in-law of PW.1 has referred to the love affairs and the conduct of the accused in following the deceased on many occasions. He went to the extent of saying that he advised the deceased not to have the company of the accused while going to the school and temple. PW.9, brother of PW.2 also stated that he has seen the accused and the deceased together on several occasions. According to him, he conveyed the same to his sister, PW.2. PW.13 friend and classmate of the deceased has stated that she knew all the happenings from the deceased. PW.13 further stated that on many occasions the deceased complained that the accused was simply following her wherever she went. In cross examination she asserted that, “rk;gtj;jpw;F Kd;dhy; 6 khjj;jpw;F vjphp fhaj;hpia bjhlh;e;J tUtij ehd; ghh;j;jpUf;fpnwd;/ ” 10. Mr. V.K. Muthusamy, learned senior counsel for the https://hcservices.ecourts.gov.in/hcservices/ appellant would contend that even if we accept the statement of the above mentioned witnesses, at the most it would lead to an inference that the accused was just following her for some time and from this, it cannot be inferred that he has gone to the extent of murdering her. However, the fact remains that prior to the occurrence, as seen from the evidence of PWs.1 to 6, 9 and 13, both the deceased and the accused were seen going together and interacted over phone on several occasions. MO.8 photograph of the accused recovered at the residence of the deceased; MO.19 photograph of the deceased recovered from the residence of the accused and also the recovery of love letters Exs.P2 and P3 series written by both of them recovered at the residence of accused as well as the deceased also establish that both of them had love affairs. In order to prove the handwriting of the deceased as well as the accused, Exs.P2 and P3 series love letters written by the deceased and the accused respectively were sent to Handwriting Expert. His report is Ex.P.31, which confirms the handwriting of the accused and the deceased. 11. The prosecution has also pressed into service the evidence of PW.8, who is related to PWs.1 and 2. He secured the horoscope of the deceased in order to arrange for her marriage. It is the evidence of PW.2 that it was she who handed over the horoscope to PW.8. Though a comment was made by the learned senior counsel for the appellant that PW.8 had not performed his part as spoken to by PW.2, inasmuch as the death occurred within 2 or 3 days of handing over the copy of the horoscope, there was no necessity for PW.8 to compare her horoscope with the horoscope of other bridegrooms. It is clear from the evidence of Pws.1,2,6,8,9 and 13 that prior to the occurrence the deceased and the accused were having relationship and on coming to know that the parents of the deceased were arranging for her marriage, the accused came to the house of the deceased on 12.03.2002. To this extent, we are satisfied that the prosecution has established the case with regard to motive part. 12. Coming to the evidence of PW.10, according to prosecution, who saw the accused knocking at the door of the deceased, PW.10 is aged about 29 years and he is a resident of Anthiyoor Town. According to him, he is an Accountant. He further deposed that both the accused and Pws.1 and 2 were known to him. He is a batsman in Anthiyoor Cricket Team. He referred one Dhanapal (PW.12) of Prammadesam. According to him, during 2001-2002, when he was playing cricket, he came to know the accused, who is a left hand batsman. Regarding his visit to Chellappa Gowndan Valasu, on the date of occurrence, it is his claim that he studied a Two Months certificate course at Sakthi Institute of Technology and in order to ascertain the result, on 12.03.2002 he was proceeding in his cycle through Muniappan Palayam and when he was nearing the Sub Health Centre at about 10.30 a.m. he had to stop, since a goat suddenly crossed the road and at that time, he saw the accused knocking at the door of the sub Health Centre. In his cross examination he admitted that he belongs to the community of Pws.1 and 2. 13. Mr. V.K. Muthusamy, learned senior counsel for the appellant by drawing our attention to Ex.P.33 rough sketch, would https://hcservices.ecourts.gov.in/hcservices/ contend that first of all, PW.10 is a stock witness or a chance witness, and he had no occasion to notice the accused entering the house of the deceased. Even otherwise, according to learned senior counsel, it would not be possible for PW.10 to notice the accused from the road when he was proceeding in his cycle. We verified Ex.P.33. It is the case of the prosecution that since PW.2 is Village Health Worker of Chellappa Goundan Valasu Sub Health Centre, both Pws.1 and 2 along with the deceased are residing in the quarters attached to the said Health Centre. It is also the case of the prosecution that PW.10 noticed the accused knocking at the door of the Health Centre on the southern side, which is noted as No.22 in Ex.P.33. We also verified from Ex.P.33 rough-sketch that Aappakudal Anthiyoor Main Road, Erode is proceeding towards Muniappan Palayam. According to PW.10, when he was proceeding on the road going for Muniappan Palayam, he noticed the accused knocking at the door. On the verification of the sketch, particularly the road on which PW.10 was proceeding in his cycle, we are of the view that it would be possible for PW.10 to note down if some one knocked at the door marked as point 22 in Ex.P33. In other words, it is not far away as claimed or as pointed out by the learned senior counsel for the appellant. Though it was commented that PW.10 did not visit the house of the deceased after the incident and also did not inform the same to the police, inasmuch as he had nothing to do with the family of the deceased, there was no need for him to visit her house. Like wise, it is not his (PW.10) case that it was the accused who murdered her. His evidence is limited to the extent that while proceeding on the Muniappan Palayam Road, he noticed the accused knocking at the door in the Quarters of Sub Health Centre. In such circumstance, there is no need for him to go and complain to the police. Accordingly, we reject the objection raised by the learned senior counsel for the appellant in so far as the evidence of PW.10 is concerned. 14. The prosecution has also relied on the evidence of PW.12. He is a resident of Prammadesam. He is running a power-loom factory. According to him, he is a all-rounder in the cricket team, wherein Nandakumar (accused) of Muniappan Palayam is a leading batsman. He also speaks about the love affairs of the deceased with the accused. His evidence is useful only to the extent that accused Nandakumar is a cricket player as spoken to by PW.9 and he fell in love with the deceased. 15. Though Pws.3, 4 and 5 turned hostile, as rightly pointed out by the learned trial Judge, it is clear from their evidence that they saw the accused at about the time of occurrence near the place of occurrence. Inasmuch as they are neighbours, though they have been treated hostile, their evidence is also trustworthy and we are satisfied that they are not deposing falsehood. In the statements under Section 161 Cr.P.C. three local residents informed the Investigating Officer about the presence of the accused. It is also relevant to note that it was P0W.5, who saw the accused going from the house of the deceased immediately after the occurrence. Though while deposing before Court they turned hostile, their earliest statements cannot be brushed aside and their version, as rightly observed by the learned trial Judge, provides a link to the prosecution case. https://hcservices.ecourts.gov.in/hcservices/ 16. Another important aspect is that the accused sustained injury as has been stated by the Doctor, PW.16, who treated him. Ex.P.6 is the wound certificate of the accused issued by PW.16. In his cross examination, PW.16 has specifically stated that on 17.03.2002, at about 5.00 p.m., the accused was brought by PW.25 with a memo to examine his injury on right little finger. According to him, the accused informed him that on 12.03.2002 at about 10.45 a.m. he sustained the said injury inflicted by a known person. No doubt, in the cross examination PW.16 has expressed that in the absence of any scar, it would be difficult for him to say when the accused sustained the said injury. In the light of the evidence of Doctor PW.16, inasmuch as the accused has not given any explanation about the injury sustained by him, it is an additional link to connect the accused with the crime. Even in his statement under Section 313 Cr.P.C., the accused has not explained the injury sustained by him. 17. Now, let us consider the recovery of MO.9 jimikki, recovered from the house of the accused on 17.03.2002, which was identified as belonging to the deceased by PW.2, who is none else than the mother of the deceased. One Muthusamy, the then Veppampattu Village Administrative Officer, Bhavani Taluk, was examined as PW.19. He is an attestor of the Mahazar Ex.P.7. In the presence of PW.19 and Village Assistant one Gunasekaran, PW.25 Investigating Officer collected blood stained cement floor, blood stained vegetable cutter (aruvamanai) MO.1, blood stained foot mat MO3 and gold jimikki MO.2. PW.19 is also an attestor of confession statement made by the accused. Based on the statement of the accused, jimikki of the deceased, certain love letters Ex.P.2 series, pocket note book of the accused MO.20, shirt MO.21, lungi MO.22, passport size photo of accused MO.23 were seized. No doubt, in his cross examination, PW.19 has stated that when he saw the dead body he noticed the presence of ear studs and jimikki in both ears. By pointing out the above statement, it is contended that recovery of jimikki MO.2 from the pocket of the accused is highly doubtful. Though there is no further explanation by PW.19 by way of re-examination, in the light of the fact that the accused handed over Jimikki MO.2 in the presence of PW.19 and his Assistant Gunasekaran and of the fact that in the photographs there is no Jimikki found, we are of the view that the statement of PW.19 that he saw Jimikki on the dead body need not be given importance. We have already observed that the love letters and pongal greetings were sent by the deceased as well as the accused and the handwriting in the letters and greetings, particularly of the deceased is tallied with the handwriting in her note books Mos.10 and 11. Hence, there is no reason to disbelieve the above prosecution evidence. 18. Now, let us consider the photographs and the presence of foot mark of the accused in the place of occurrence. Based on the information of Investigating Officer PW.25, photographer attached to District Superintendent of Police, Erode, came to the place of occurrence at 4.00 p.m. on 12.03.2002 and took photographs of the blood stained foot marks MO.14 are negatives and MO.15 are positives. In addition to the same, PW.24, Scientific Officer of the Forensic Lab, Coimbatore, on receipt of the intimation, came to the place of https://hcservices.ecourts.gov.in/hcservices/ occurrence on the same day, i.e., on 12.03.2002 and noted the deep cut injury on the neck of the deceased, the vegetable cutter (aruvamanai) found and also the blood stained foot mark. She also requested PW.25 to collect those materials and sent them to the Laboratory through Court. The said requisition is marked as Ex.P.32. In her cross examination, she admitted that she spent nearly three hours to complete the work. She is a M.Sc., degree holder (Forensic). 19. By pointing out that the proper procedure has not been followed while recording the foot mark as per the Police Standing Orders, learned senior counsel for the appellant contended that the evidence of Pws.18 and 24 are inadmissible in evidence and cannot be used in support of the prosecution case. Even if it is accepted that the Investigating Officer has