IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.527 OF 2007 Sivakami .. Appellant/Accused No.1 Vs. State rep. by Inspector of Police, Mangadu Police Station, Chennai (Crime No.479 of 2004) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.IV, Poonamallee made in S.C.No.80 of 2006, dated 17.10.2006. For Appellant : Mr.S.Mohanakrishnan For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court No.IV, Poonamallee made in S.C.No.80 of 2006, dated 17.10.2006, whereby the appellant ranked as A-1 stood charged along with A-2 under Section 302 r/w S.34 IPC and on trial, the appellant/A-1 was found guilty under Section 302 IPC and sentenced to undergo life imprisonment, while the second accused was acquitted. Hence this appeal at the instance of the first accused. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts necessary for the disposal of this appeal can be stated thus: a)P.W.1 Velayudam is the father of the deceased Ramadoss. The first accused/the appellant herein is the wife of the deceased and their marriage took place a few years before and they had children. Two of the children were doing their education at Ranipet staying in a hostel. P.W.1 was living away. During the time of occurrence, the deceased was living with his wife and one child. A-2 was also residing nearby. The first accused was demanding for ancestral property, for which P.W.1 was replying that it would be given after his daughter's marriage. Apart from that, the first accused was suspecting her husband that he had got illicit intimacy with her younger sister. b)While the matter stood thus, on 12.7.2004 at 8.00 p.m., P.W.1 came to know that his son was dead. Immediately, he rushed to the house of his son, where he found his dead body. Jasmine flowers were tied around his neck and when P.W.1 removed the flowers, he saw a black mark around the neck. Immediately, he proceeded to the respondent police station, where P.W.8, the Sub Inspector of Police, was on duty at about 10.00 p.m. P.W.1 gave Ex.P.1, the complaint to P.W.8. On the strength of the same, a case came to be registered in Crime No.479 of 2004 under Section 174 Cr.P.C. Ex.P.6, the F.I.R. was despatched to the Court. c)P.W.8 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.7, the observation mahazar and Ex.P.8, the rough sketch. He recorded the statements of the witnesses. Following the same, the dead body of the deceased was sent to K.M.C. hospital. Then, he proceeded to K.M.C. Hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.10, the inquest report. Then, the dead body was sent to the Government Hospital, Royapettah for the purpose of autopsy. d)P.W.9, the Doctor attached to the Government Hospital, Royapettah, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.11, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of asphyxia due to strangulation. https://hcservices.ecourts.gov.in/hcservices/ e)Then, the case was converted to Section 302 IPC. Ex.P.12, the alteration report was sent to the Court. P.W.10, the Inspector of Police, took up the investigation. Pending investigation, he came to know that A-1 and A-2 were involved in the offence. On 15.7.2004, he arrested A-1, who has come forward to give confessional statement voluntarily, which was recorded in the presence of the witnesses. The confessional statements of A-1 and A-2 were marked as Exs.P.2 and P.3 respectively. P.W.10 recovered M.Os.4 to 6 blouses from A-1, which were recovered under a cover of mahazar. A-2 produced M.O.7, pillow, which was recovered under a cover of mahazar. Both the accused were sent for judicial remand. All the material objects recovered were sent for chemical analysis by the Forensic Science Department, which resulted in Ex.P.17, the serologist'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 10 witnesses and relied on 17 exhibits and 7 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutinizing the materials available, recorded a finding that the first accused has committed murder and has awarded punishment, while it has recorded an order of acquittal in respect of the second accused. Hence, this appeal at the instance of the first accused. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer; that it has rested its case only on circumstantial evidence; that the prosecution proceeded with the fact that both A-1 and A-2 committed murder of Ramadoss by strangulating him by using blouses; that it could be seen that the prosecution has failed to place and prove any one of the necessary circumstances; that the reasons for acquitting A-2 is also equally applicable to the first accused and hence the first accused should have been acquitted. 5.Added further the learned counsel that it was a case of commission of suicide; that the post-mortem certificate would clearly indicate that there was possibility of commission of suicide and under these circumstances, when two theories are possible, the theory which is more probable and which would be in favour of the accused should have been taken into account; that in the instant case, the https://hcservices.ecourts.gov.in/hcservices/ medical evidence did not support the case of prosecution as the death was caused due to strangulation; that both the accused persons were taken by police the very day and hence the alleged confession, recovery of M.Os. namely blouses and pillow, were nothing, but cooked up affair and hence that part of the evidence has got to be rejected; that in the instant case, not only the evidence is lacking, but there was absolutely no evidence at all and under these circumstances, the appellant herein has got to be acquitted and the judgment of the trial court has got to be set aside. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.P.W.1, the father of the deceased Ramadoss has given a complaint to P.W.8, the Sub Inspector of Police and a case came to be registered under Section 174 Cr.P.C. From the evidence of P.W.1, it would be quite clear that on hearing that his son Ramadoss died, he proceeded to his house and when he went inside, nobody was there and Jasmine flowers were tied around his neck and on removal of the same, he was able to saw a black mark around the neck and immediately, he proceeded to the police station and gave the complaint, which was registered by P.W.8, the Sub Inspector of Police. Thereafter, the case was taken up for investigation and the dead body was subjected to post-mortem. From the post-mortem certificate, it would be quite clear that the deceased would appear to have died of asphyxia due to strangulation. Apart from that, the Doctor has pointed out that there were injuries found on the occipital region skull. Further, he has given his categorical opinion in Ex.P.11, the post-mortem certificate and has also deposed before the Court that the death was caused out of asphyxia due to strangulation. Though a contention was now raised before the court that Ramadoss has committed suicide, it has got to be rejected for the simple reason that there were ample evidence available with the prosecution to indicate that the death has been caused out of asphyxia due to strangulation and not otherwise. Apart from that, not even one suggestion was put to medical person that Ramadoss died by committing suicide. Under these circumstances, the contention put forth by the learned counsel for the appellant that the deceased committed suicide and not homicidal death, has got to be rejected. The prosecution has brought sufficient evidence to record a finding that Ramadoss died out of asphyxia due to strangulation. 8.It is true, the prosecution had no direct evidence to offer, but it has rested its case exclusively on circumstantial evidence. The court is mindful of caution made by the Apex Court and also by the settled principles of law that in a given case where the https://hcservices.ecourts.gov.in/hcservices/ prosecution rested its case on circumstantial evidence, all the circumstances must be placed and proved and further it has to point out the hypotheses that except the accused no one has committed the offence. Even if this test is applied, the court is satisfied that the prosecution has proved the case beyond reasonable doubt. 9.P.W.1 is the father of the deceased Ramadoss. From the evidence, it would be quite clear that during the relevant point of time, both the husband and wife, namely the deceased and the first accused, were living together. The case of the prosecution was that she was staying in the house during night hours when Ramadoss was done to death. On the next day morning, the first accused informed the death of her husband to her neighbour. Thus, it would be quite clear that the first accused was staying with her husband during night hours and on the next day morning, she left the house along with the child and these were brought to the notice of P.W.1, the father of the deceased. Thus, there is clear evidence to show that she was the only person staying with her husband during night hours and no one else was staying with them. When the dead body was subjected to post-mortem, the Doctor has found that the death was actually due to asphyxia by strangulation. 10.The other circumstance was when the first accused was arrested, she voluntarily came forward to give confessional statement, which was recorded in the presence of the witnesses and the blouses, namely M.Os.4 to 6, were also recovered under a cover of mahazar and to that extent, the evidence is also available for the prosecution. Apart from that, the medical opinion was also canvassed. From the evidence of P.W.9, the Doctor and from the post-mortem certificate, it would be quite clear that ligature mark was found and such strangulation was possible by using the clothes, like blouses and asphyxia can be caused. Thus, the evidence was quite clear in this regard. All put together would indicate that it was the first accused/the appellant herein who was present with her husband, has committed murder by strangulation using blouse and has caused death and immediately, she left the place of occurrence. Thereafter, she has been arrested and she has given confessional statement. What would pass in the mind of anybody was that while she was living with her husband during the relevant time and was also staying with him that night and when the occurrence has taken place, a responsible answer would be expected from the wife, but she left the house without informing to anybody. The conduct of the first accused at that point of time would be clearly pointing to the fact that she has committed murder and has left away from the place and no one else was staying with the deceased. Thus, it would be quite clear that except https://hcservices.ecourts.gov.in/hcservices/ the first accused/the appellant herein, no one could have committed the offence. All would be indicative of the fact that the circumstances necessary were placed and proved by the prosecution. The lower court was perfectly correct in recording a finding that the first accused has committed murder and hence it has awarded life imprisonment, which in the opinion of the court, does not require any interference. Accordingly, the criminal appeal fails and the same is dismissed, confirming the judgment of conviction and sentence of the lower court. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar vvk To 1.The Additional District and Sessions Judge, Fast Track Court No.IV, Poonamallee. 2.- Do – Through the Principal Sessions Judge, Chengalpattu 3.The Judicial Magistrate No.II Poonamalle. 4 – do – Through The Chief Judicial Magistrate , Chengalpattu 5.The Superintendent Central Prison, Chennai.(Women Jail). 6.The Inspector of Police, Mangadu Police Station, Chennai. 7.The Additional Public Prosecutor, High Court, Madras. +1 cc to Mr.S.Mohan krishnan Advocate, SR.No.57150 CRL.A.NO.527 OF 2007 GV(CO) BK(22.10.2008) https://hcservices.ecourts.gov.in/hcservices/