Bail Slip The above said appellant/accused viz. A.Dhanabal was directed to be released on bail as per order of this Court dated 12.7.2007 made in Crl.M.P.No.1/2007 in Crl.A.No.372/2007 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.372 of 2007 D.Dhanabal .. Appellant/Accused Vs. State by: Inspector of Police, B-5,singanalur Police Station, Coimbatore. (Crime No.261/2005) .. Respondent/Complainant This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of the learned Additional District and Sessions Judge at Coimbatore made in S.C.No. 11 of 2006 dated 22.12.2006 For Appellant : Mr.R.John Sathyan, Amicus Curiae For Respondent : Mr.R.Elango,A.P.P. JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgement of the Additional District and Sessions Division, Coimbatore in S.C.No.11/2006 whereby the sole accused/ appellant stood charged under section 302 I.P.C. for murder and on trial found the accused guilty and awarded punishment of life imprisonment along with a fine of Rs.30,000/- in default to undergo two years rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) The deceased Renukadevi was the resident of Neelikalampalayam. She was employed in Card Board Company. P.W.4 is the husband and P.W.5 is the mother of the deceased. The accused/appellant was employed in Sri Vijeshwari Industries. When the accused and the deceased came to know each other they developed illicit intimacy and the same continued for some time. P.W.14 who is the owner of the factory where the accused was employed had occasion to see him in the company of Renukadevi and the same was informed to P.W.15 is the Supervisor of the company in which Renugadevi was employed. When the news of illicit intimacy of the accused and the deceased spread out, the accused/appellant attempted to avoid the company of the deceased but the deceased was not for it. On an occasion, she threatened the accused that if he did not continue his relationship with her, she would inform about the illicit intimacy to his wife. Therefore, the accused decided to finish her off and he also informed this to his friend who was examined as P.W.8. On the date of occurrence, that was on 19.3.2005, the deceased, who went for work did not return till night hours. Then, P.W.4 made a phone call to the factory where she was then employed. P.W.6 informed P.W.4 that the accused made two telephone calls about 7.00 to 7.30 p.m. to Renugadevi and on receiving the call, Renugadevi left the place. Then, P.W.4 went to Peelamedu Police Station and gave Ex.P.2 report to P.W.22 Sub Inspector of Police, on the strength of which, a case came to be registered in Crime No.268/2005. The First Information Report was marked as Ex.P15. (b) On 20.3.2005, when P.W.1 he was working as Station Master of Podanur, he received an information from P.W.5 Station Master of Sulur Railway Station stating that P.W.2 Keyman of Shop No.42 gave information that a dead body of female was found in the railway track. Then, P.W.1 gave Ex.P.1 complaint to the Head Constable of Podanur Railway Station and a case in Crime No.82/2005 under section 174 Cr.P.C came to be registered and the First Information Report was Ex.P.19. Thereafter, the case came to be registered by Singanallur in Crime No.261/2005 and on coming to know that the case originally registered on the complaint given by P.W.4, was not to be proceeded with, the case in Crime No.261/2005 was take up for investigation by P.W.27. (c) P.W.27, Inspector of Police, proceeded to the spot made an observation and prepared an Observation mahazar Ex.P4 and also drew a rough sketch Ex.P20. The dead body was subjected to post mortem and P.W.19 who actually conducted autopsy on the dead body has given opinion as a witness before the court and also through the contents in the post mortem certificate that the deceased would appear to have died of asphyxia due to violent compression over the neck sustained by her. The case was then converted to section 302 I.P.C. and the amended F.I.R. was despatched to the Court. Further investigation was made by P.W.27 in Crime No.261/2005. Pending https://hcservices.ecourts.gov.in/hcservices/ investigation, the accused was arrested on 5.4.2005 pursuant to the production before the police officer by P.W.10 to whom he gave extra judicial confession. He also came forward to give confessional statement voluntarily before the Police Officer and the same was recorded in the presence of witnesses. Pursuant to the same, he produced M.O.13 pant and M.O.14 shirt which were recovered under a cover of mahazar. The accused was also produced before P.W.25 for medical treatment in respect of the injuries sustained by him and the Accident Register copy is marked as Ex.P18. Then, he was sent for judicial remand. All the material objects were subjected to analysis to forensic department which resulted in Ex.P.30- Forensic report, Ex.P31- Biology report, Ex.P32- Forensic Report and Ex.P.33- Viscera report and they were placed before the Court. (d) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution marked 27 witnesses and also relied on 33 exhibits and 14 material objects. 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 found in the evidence of the prosecution witnesses and he denied them as false and on the side of the defence, two witnesses were examined and three documents, D1 to D3 were marked. The Court heard the arguments advanced on either side and took a view that the prosecution has proved its case beyond reasonable doubt and found the accused guilty. Hence, this appeal at the instance of the appellant. 3. Advancing the argument on behalf of the appellant, the learned counsel made the following submissions. (a) In the instant case, the prosecution had no direct evidence to offer. It relied on circumstantial evidence but neither necessary circumstances are placed nor they were proved indicating the guilt of the accused. Despite the same, the trial Court has taken an erroneous view. It is true, except pointing to the illicit intimacy developed between the accused and the deceased, all the evidence that were produced before the trial Court were not worth mentioning. The prosecution fully relied on the circumstantial evidence viz., P.W.6 watchman of the factory where the deceased was employed during the relevant time and on that day, he received call from P.W.4 and he informed to P.W.4 informed that he received two phone calls for the deceased Renugadevi from the accused and the same were attended by the deceased at about 7.00 to 7.30 p.m. on the date of occurrence i.e., on 19.3.2005 and thereafter, she left the place. So far as the evidence of P.W.6 was concerned, he could not identify the phone call from where it was from and by whom it was spoken and also the statement of P.W.6 recorded after long lapse of time was actually creation of evidence in order to prove the circumstance. (b) Learned counsel further submitted that the prosecution relied on the next circumstantial evidence of P.W.10 calling him as friend of the accused. The occurrence has taken place on 19.3.2005 but the alleged extra judicial confession was made to P.W.10 on https://hcservices.ecourts.gov.in/hcservices/ 5.4.2005. There was no reason for the accused to suddenly appear before P.W.10 a politician after 15 days to make such a confession. Thus, it would go to show that the extra judicial confession could not have been made at all. It was further added by the prosecution that P.W.10 produced him before the police station and the accused came forward to give confession statement to the police officer pursuant to which the accused produced M.O.13 and 14 shirt and pant respectively and if the confessional statement made orally is not believed all the other things would automatically go. Hence, this part of the evidence was of no avail to the prosecution. (c) Coming to the last seen theory, learned counsel would submit that the evidence of P.W.7 that he had seen the accused and the deceased at 10.00 p.m. near the place of occurrence on the date of occurrence, should not have been believed by the trial Court for the simple reason that his evidence remains shaky at the time of cross examination but the trial Court has believed the same. Barring these circumstances, the prosecution had no evidence to offer. Thus, it would be quite clear that the prosecution was unable to place necessary circumstances. Hence, the appellant is entitled for acquittal but the trial Court has taken an erroneous view finding the accused guilty. Hence, the judgement of conviction and sentence passed by the trial Court has got to be set aside by this Court. 4. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 5. It is not in controversy that one Renugadevi was found dead and her body was found in two parts viz., head and trunk part in the railway track. Following the inquest made by the investigating officer, the dead body was subjected to post mortem. P.W.19 doctor who conducted autopsy has given categoric opinion that there are anti mortem injuries found on the neck which would clearly indicate that those injuries had caused asphyxia due to the strong force applied on the neck. The evidence of the doctor remains unshaky, when it was scrutinized. Hence, no impediment was felt by the trial court in recording that though the dead body was in the railway track in two parts, actually death was caused by homicidal violence and rightly too. 6. It is true that the prosecution had no direct evidence to substantiate the charges levelled against the appellant/accused but the following circumstances are noticed by the Court. P.W.14 who is the owner of the factory where the accused was employed and P.W.15 supervisor of the factory where the deceased was employed have spoken to the illicit intimacy between the deceased and the accused. Secondly, the evidence of P.W.6 was to the effect that he was employed in the factory where the deceased was employed and on 19.3.2005, when the deceased was in the factory, P.W.6 received two phone calls from the accused at 7.00 to 7.30 p.m. who asked for the deceased and he handed over the phone to the deceased who attended the same and after sometime, she left the factory. https://hcservices.ecourts.gov.in/hcservices/ 7. The next circumstance, which was actually a strong circumstance against the accused was the evidence of P.W.7 who would categorically depose that, at or about the time of occurrence, he found the accused and the deceased in close proximity to the place of occurrence. When the evidence of P.W.7 was scrutinised, it would clearly indicate that it was cogent and convincing and natural also. Thus, the prosecution has proved the last seen theory through the evidence of P.W.7. 8. The prosecution had the advantage of examining P.W.10. From the evidence of P.W.10, it is seen that the accused was already known to him and the accused came to him and revealed about the entire incident. At this juncture, it has to be pointed out that before accepting the extra judicial confession like this, the Court must apply two tests. Firstly, to whom and under what circumstances the extra judicial confession was made. Secondly, whether the evidence of the person to whom the extra judicial confession alleged to have been made inspires the confidence of the Court. When these two tests are applied, the Court is satisfied with the evidence of P.W.10 which has been rightly accepted by the trial Court. Added circumstance was that, after production of the accused before the police station, the accused has given confession statement voluntarily and the same was recorded by P.W.27 investigating officer, pursuant to which the accused produced M.O.13 and M.O.14 shirt and pant. When these two items were analised it contained the same blood group as the blood group found in the clothes worn by the deceased Renugadevi. Hence, the scientific evidence was also in favour of the prosecution. Thus, the prosecution was able to place the above circumstances pointing to the guilt of the accused . Therefore, the contentions putforth by the learned counsel and recorded above do not merit acceptance. Even though the prosecution had no direct evidence to offer it relied on the circumstantial evidence and the circumstances were cogent pointing to the hypothesis, except the accused no one could have committed the offence. Under such circumstances, this Court has no hesitation in confirming the judgement of the trial Court. Therefore, the judgment of the trial court has got to be affirmed and there is nothing to interfere either factually or legally. 9. In the result, the judgment of conviction and sentence imposed by the trial court is sustained. This criminal appeal fails and the same is dismissed. It is reported that accused/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 life imprisonment. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District and Sessions Judge at Coimbatore 2.The Principal Sessions Judge, Coimbatore. 3.The Inspector of Police, B-5,singanalur Police Station, Coimbatore. 4.The Judicial Magistrate No.3, Coimbatore. 5.The Chief Judicial Magistrate, Coimbatore. 6.The Superintendent, Central Prison,Coimbatore. 7.The District Collector, Coimbatore. 8.The Director General of Police, Mylapore, Madras-4. 9. The Public Prosecutor, High Court,Madras. 10. The Section Officer, Criminal Section, High Court,Madras. KS(CO) km/20.7. CRL.A.No.372 of 2007 https://hcservices.ecourts.gov.in/hcservices/