IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.12.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.461 of 2009 1. Saravanan 2. Arputham ..Appellants/Accused Nos.1&2 Vs. State by Inspector of Police, Omerabad Police Station, (Crime No.120 of 2008) ..Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District Sessions Judge, Fast Track Court, Tirupattur at Vellore District in S.C.No.180 of 2008 dated 22.7.2009 for the offence in respect of A1 under section 302 I.P.C and Sentenced to life imprisonment and in respect of A2 under section 498 A.I.P.C and Sentenced to two years R.1 and under section 4 of the Dowry Prohibition Act and sentenced to two years R.1. For Appellants : Mr.V.Gopinath, Senior Counsel for Mr.L.Mahendran For Respondent : Mr.Babu Muthu Meeran, Addl.P.P J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Division, Tirupattur, Vellore District made in S.C.No.180 of 2008 whereby the appellants stood charged, tried and on trial, A1 was https://hcservices.ecourts.gov.in/hcservices/ found guilty under section 302 IPC and awarded life imprisonment and A2 was found guilty under section 498(A) IPC and Section 4 of the Dowry Prohibition Act and awarded two years rigorous imprisonment for each charge. The sentences are ordered to run concurrently. Hence, this appeal at the instance of the appellants. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the father and P.W.7 is the mother of the deceased Gomathi. After marriage, the deceased was living with her husband along with other family members viz., A2, mother-in-law and A1, the younger brother of her husband. Due to wedlock, the deceased had a child. P.Ws.1 and 7 were leaving in a nearby place Ravarthampatti. (b) Few days prior to the occurrence, the deceased went to the house of her parents along with her husband. After her husband went to bed, she informed P.Ws.1 and 7 that her mother-in-law and brother-in-law, A2 & A1 respectively were demanding Rs.50,000/- for purchase of share auto and they were torturing her and she further told them that A2 and A1 have informed her not to come back home without money. She also informed that A1 was attempting to outrage her modesty and misbehaving with her in drunken mood. P.Ws. 1 and 7 pacified her and sent her back to the matrimonial home. (c) On 25.3.2008, when P.W.1 was at the place of work, he was informed that her daughter died due to severe sickness. On coming to know about this, he along with P.W.7/wife and others proceeded to the house of the accused. They saw the dead body of their daughter and noticed that the cheek of the deceased swelling. Therefore, P.W.1 entertained suspicion. He proceeded to the respondent Police Station at about 7.00 p.m. and gave Ex.P1 report to P.W.5, Sub Inspector of Police. On the strength of Ex.P1, report a case came to be registered in Crime No.120/2008 under section 174 Cr.P.C. The express F.I.R., Ex.P16 was sent to Court. A copy of the F.I.R was sent to R.D.O. since the occurrence has taken place within 7 years from the date of marriage of the deceased. The R.D.O., P.W.6 proceeded to the spot, made an inspection and conducted inquest on the dead body of the deceased and prepared the inquest report, Ex.P.8. He found that there was dowry harassment, as a result of which, death has occurred. (d) The Deputy Superintendent of Police of that circle took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar, Ex.P9 in the presence of witnesses and panchayatdars and drew a rough sketch, Ex.P.20. (e) The dead body was subjected to post mortem. P.W.4, doctor conducted autopsy and has given his opinion in Ex.P11 post mortem certificate that the deceased died due to head injury and homicidal strangulation. https://hcservices.ecourts.gov.in/hcservices/ (f) While the matter was pending investigation, on 28.5.2008, when P.W.2, Village Administrative officer was in his office, A1 appeared before him at 9.00 a.m. and gave the confessional statement narrating the entire incident. The same was recorded by P.W.2, Village Administrative Officer. The said confessional statement was marked as Ex.P3. Then, the Village Administrative Officer took A1 to the police station and produced him before the Investigator. He came forward to give confessional statement before the Investigator and the same was recorded in the presence of witnesses. Ex.P5 is the admissible part of the confessional statement given by A1. Thereafter, he produced M.O.2 saree and also M.O.1 iron pipe. They were recovered under a cover of mahazar. Pursuant to the confession statement given by A1, A2 was arrested. She also came forward to give confessional statement and the same was recorded. Thereafter, the accused were sent for judicial remand. The case was altered to section 302 IPC and the altered F.I.R., Ex.P.21 was despatched to Court. On completion of the investigation, the investigating officer filed a final report. (g) The case was committed to the Court of Sessions. Necessary charges were framed. In order o substantiate the charges, the prosecution examined 8 witnesses and relied on 22 exhibits and 3 material objects. On completion of the evidence on the side of the prosecution, both the accused were questioned under section 313 Cr.P.C. and they flatly denied them as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and found A1 guilty under section 302 IPC and A2 guilty under section 498-A IPC and under section 4 of Dowry Prohibition Act and awarded the punishment as referred to above. Hence, this appeal at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants, the learned senior counsel, Mr.V.Gopinath would submit, in the instant case, the prosecution has miserably failed to prove its case. There is no direct evidence available and the prosecution rested its case upon circumstantial evidence. The main piece of evidence which was relied on by the prosecution was the extra judicial confession alleged to have been made by A1 to P.W.2, Village Administrative Officer. The occurrence has taken place at about 6.30 a.m on 25.3.2008. It is admitted by P.W.2 that A1 was not already known to him or a friend of him. Therefore, there was no reason for A1 to appear before P.W.2/ V.A.O., that too, after three days from the date of occurrence. From the evidence of P.W.1, P.W.7 and the mahazar witness/P.W.3, it is seen that A1 was very well available in the police station for nearly about 3 days. Thus, it would be quite clear that the accused was actually in the custody of the police. The said document could not have come into existence as putforth by the prosecution. The prosecution has taken the service of P.W.2 to strengthen their case. https://hcservices.ecourts.gov.in/hcservices/ 4. Added further learned counsel, P.W.2 has candidly admitted that he got the signature of A1 in all the pages of the confessional statement given by him. The said confessional statement was marked as Ex.P3 but it does not contain the signature of the accused in any one of the pages. Thus, it is quite clear that the document which claimed to have been prepared by P.W.2 was not before the Court. Hence, the evidence of P.W.2 becomes highly doubtful and no evidentiary value could be attached to such document or the evidence of P.W.2. 5. Added further learned counsel, so far as the extra judicial confession is concerned, it should not have been accepted by the trial Court for the simple reason that even the extra judicial confession would indicate that he actually attacked her with pipe on the cheek but the injury was found on the skull as per the doctor who conducted autopsy. Further, it is the defence plea that she committed suicide. Even as per the post mortem certificate , injury was found in the neck. Thus, the defence plea should have been accepted . All put together would clearly indicate that the prosecution has failed to prove its case but the trial Court has taken an erroneous view as if the prosecution has proved its case. 6. Insofar as A2 is concerned, she was found guilty under section 498(A) IPC and under section 4 of the Dowry Prohibition Act. So far as the case of the prosecution is concerned, P.Ws. 1 and 7 was informed by the deceased few days prior to the occurrence that there was demand of Rs.50,000/- by A1 and A2 for purchase of share auto. This cannot form a basis for recording A2 guilty of section 498(A) and section 4 of the Dowry Prohibition Act without any proper proof of evidence. Thus, the prosecution miserably failed to prove its case beyond reasonable doubt. Hence, the appellants are entitled for acquittal in the hands of this Court. 7. The Court heard the Additional Pubic Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 8. It is not in controversy that the dead body of Gomathi, daughter-in-law of A2, following the registration of the case under section 174 Cr.P.C was subjected to post mortem. P.W.4, doctor conducted autopsy and gave the opinion through the contents of the post mortem certificate, Ex.P.11 that " Death occurred 24-30 hrs prior to P.M. due to following reasons (1) Head Injury. (2) Homicidal strangulation." It is true, ligature marks were found on the neck of the deceased. The contents in the post mortem certificate and the doctor's evidence was to the effect that due to homicidal violence, https://hcservices.ecourts.gov.in/hcservices/ death has occurred. Hence, the plea putforth by the appellants side that death has caused due to commission of suicide, cannot be accepted in view of the medical opinion canvassed as referred to above. Hence, the trial court is perfectly correct in recording so. 9. In order to substantiate the charge levelled against A1 that he has committed murder of his elder brother's wife, the prosecution had no direct evidence to offer but relied on circumstantial evidence. The main circumstance as could be seen from the available material is the extra judicial confession recorded by P.W.2 which was marked as Ex.P3. It is well settled proposition of law that in a given case where the prosecution relied on the only piece of evidence namely the extra judicial confession, the Court can sustain the conviction provided, it inspires the confidence of the Court. Before accepting the extra judicial confession, the Court has to apply two tests, namely, to whom and under what circumstance the extra judicial confession was given and whether the evidence of the person to whom the extra judicial confession was made inspires the confidence of the Court. 10. In the instant case, P.W.2 is the Village Administrative Officer of the said place. The occurrence has taken place on 25.3.2008. According to P.W.2, when he was in his office at 9.00 a.m. On 28.3.2008, A1 appeared before him and gave extra judicial confession and the same was recorded by him. The said document was marked as Ex.P3 and the said document reached the Court the very day, that was on 28.3.2008 and the same has been initialled by the Judicial Magistrate concerned on the very day on all the pages. Much comment was made by the learned counsel for the appellants on the extra judicial confession, Ex.P3. The Court is unable to agree with the contention put forth by the learned counsel for the appellants. In the instant case, P.W.2 as a witness before the Court has stated that he got the signature of the accused/ A1 in all the pages but it is true as could be seen from Ex.P3, the signature of the accused was not found. The Court is unable to see any reason to disbelieve the evidence of P.W.2 since the said document has reached the Court on the very day. Merely because of the mistake committed by P.W.2 stating that the signature was obtained by him from the accused in all the pages, his testimony cannot be rejected. His evidence inspires the confidence of the Court. The confessional statement was recorded on 28.3.2008 and on the very day it has reached the Court. The Court is unable to entertain any doubt in the evidence of P.W.2. 11. Apart from that, in the instant case, the Court is able to see strong circumstance against A1. Admittedly the deceased, her husband, A1 and A2 were living under the same roof jointly. On the date of occurrence, that was on 25.3.2008, except the deceased husband, all were in the house. It is not the case of the appellant / accused before the trial Court or any suggestion was put to any one of the witnesses that A1 was actually absent at the https://hcservices.ecourts.gov.in/hcservices/ time of occurrence. It is pertinent to point out that when the deceased died in the house, the cause of death should be known only to the inmates of the house. So long as the accused persons were very well available, one would expect reasonable answer from them. When they were examined on the day, they were very well available in the house. The case came to be registered under section 174 Cr.P.C. They did not go to the police station to give a complaint. It was P.W.1, after coming to the house of the deceased and finding the cheeks of the deceased swelling, went to the police station and gave a complaint. Hence, a case came to be registered under section 174 Cr.P.C. The next day also the R.D.O. of the concerned place conducted enquiry and recorded their statements. 12. It is pertinent to point out that at no point of time, the accused came with truth how the death had happened. On the contrary, they have stated that it was natural death. The defence plea before the trial Court and before this Court was that it was the commission of suicide but the medical opinion canvassed would show that it was homicidal death. In the instant case, death could have occurred in three ways either by homicidal violence or commission of suicide or natural death. From the evidence of the prosecution, it is seen that the accused have suppressed how the death has occurred. They have suppressed the same before the investigator, at the time of enquiry by R.D.O. and at the time of trial before the Court. 13.In a case of circumstantial evidence, if any one of the circumstances is actually within the knowledge of the accused, he is bound to bring to the notice of the Court the said circumstance but if the accused fails to explain or suppresses the circumstance, the Court can infer that he has got something to do with it or connected with the circumstance. In the instant case, they have suppressed the death of the deceased. They were the persons inside the house at the time of occurrence. Further, the R.D.O has recorded in his report that the accused misbehaved with her and attempted to outrage her modesty. This part of the evidence pointing to the above circumstances, coupled with the evidence of P.W.2 and the extra judicial confession given by him as found in Ex.P3, the Court is fully satisfied that A1 has committed the crime of causing the death of the deceased and enacted a drama as if she died naturally. Under such circumstances, the trial Court is perfectly correct in finding A1 guilty of murder. The judgment relied on by the learned Additional Public Prosecutor reported in 2009(6) SCALE 537 (Velayuda Pulavar vs. State by Inspector of Police) will squarely applicable to the facts of this case. 14. Insofar as A2 is concerned, she was charged for dowry harassment. The prosecution had no direct evidence but the evidence adduced in this regard was only P.Ws.1 and 7. They have stated as if the deceased informed them that A2 demanded Rs.50,000/- for purchase https://hcservices.ecourts.gov.in/hcservices/ of share auto. These evidence, in the considered opinion of the Court would not be suffice to make a charge against A2 or finding A2 guilty of the charges. Hence, she has got to be acquitted. 15. Under such circumstances, insofar as A1 is concerned, the judgment of conviction and sentence passed for the trial Court is confirmed. Insofar as A2 is concerned, the judgment of conviction and sentence passed by the trial Court is set aside. A2 is acquitted of the charges levelled against her. Bail bond if any executed by the 2nd appellant/A2 shall stand cancelled. Accordingly, the appeal is partly allowed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vsi To 1. Additional District Sessions Judge, Fast Track Court, Tirupattur at Vellore District. 2. -do- Through the Principal District and sessions Judge, Vellore. 3. The Judicial Magistrate, Ambur. 4. -do- Through The Chief Judicial Magistrate Vellore. 5. The District Collector, Vellore. 6. The Director General of Police,Chennai-4 7. The Superintendent, Central Prison, Vellore. 8.The Inspector of Police, Omerabad Police Station, 9. The Public Prosecutor, High Court, Chennai. + 1 cc to M/s. L. Mahendran, Advocate SR.67228 CRL. APPEAL No.461 of 2009 KSK(CO) EU 19.12.2009. https://hcservices.ecourts.gov.in/hcservices/