IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.7.2009 CORAM: THE HONOURABLE MR.JUSTICE C.NAGAPPAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN Criminal Appeal No.364 of 2008 C.Velu ..Appellant/Accused Versus The Inspector of Police Melsengam Police Station Melsengam, Thiruvannamalai District. (Cr.No.221/2001) ..Respondent/Complainant Prayer: Appeal against the Judgment, dated 26.7.2006, passed in Sessions Case No.123 of 2003 on the file of District and Sessions Judge, Thiruvannamalai. For Appellant : Mr.V.Bhiman For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor J U D G M E N T (Judgment of the Court was delivered by C. NAGAPPAN, J.) Appellant Velu is the sole accused in Sessions Case No.123 of 2003 on the file of District and Sessions Judge, Thiruvannamalai and he has preferred this appeal challenging the conviction and sentence imposed on him by judgment dated 26.7.2006 in the case. For the sake of convenience, in this Judgment, the appellant will be referred to as accused. 2. Charges under Sections 366, 376(1) and 302 IPC were framed against the accused. The learned Sessions Judge found the accused guilty of the offence under Section 376 (1) IPC and convicted and sentenced him to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.10,000/-, in default, to undergo Rigorous Imprisonment for two years and convicted him for the offence under Section 302 IPC and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo Rigorous https://hcservices.ecourts.gov.in/hcservices/ Imprisonment for two years and at the same time found the accused not guilty of the charge under Section 366 IPC and acquitted him of the said charge. 3. To prove its case, the prosecution examined P.Ws.1 to 20, marked Exs.P1 to P17 and M.Os.1 to 14. 4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows: PW.2 Arumugam is the father of deceased Vennila. PW.3 Sakthivel is the elder brother of Vennila. PW.4 Santhi and PW.5 Vijayalakshmi and deceased Vennila were studying in Government Higher Secondary School, Melpallipattu. The accused Velu was residing next to the house of Vennila. Vennila used to go to the neighbouring house and view Television and accused Velu also used to go to that house and view Television along with Vennila. On 19.10.2001, PW.4 Santhi and PW.5 Vijayalakshmi were waiting in Karimalaipadi Bus Stop to board the Town Bus Route No.3 and the accused Velu along with Vennila came there in his M.O.11 Bi-cycle and Vennila asked PW.4 Santhi to give her M.O.3 Bag since PW.4 Santhi has to board the crowded bus and PW.4 Santhi handed over the Bag to Vennila and Vennila went along with the accused Velu in the bi-cycle. PW.6 Sakthivel saw the accused carrying Vennila in his bi-cycle and he requested the accused to drop Vennila and take him in the bi-cycle since he was already late to board the bus and the accused Velu did not reply and rode the cycle with Vennila. When the Town Bus Route No.3 stopped at Edhumedu Bus Stop, PW.4 Santhi and PW.5 Vijayalakshmi saw the accused Velu taking Vennila into Edhumedu Forest Area. Vennila did not attend school on that day and did not return home. PW.2 Arumugam enquired PW.4 Santhi and PW.5 Vijayalakshmi about Vennila and both of them told him that they saw Vennila going along with the accused Velu in his cycle and going into Edhumedu Forest Area on the western side. PW.2 Arumugam went to the house of the accused Velu and found him missing. PW.2 Arumugam met Ex. Panchayat Board President PW.8 Mani and told him about the accused Velu taking Vennila in his cycle and missing of her from then onwards. PW.8 Mani and others told him that a search can be made and going to Police would cause dis-honour to the family and they went and searched in the neighbouring places and Hosur and Bangalore and she could not be traced. On 24.10.2001, in the morning at 6 am, PW.9 Ramasamy went in search of his missing cow inside Edhumedu Forest Area and he found the decomposed body of Vennila near a thorny bush and he came and informed PW.2 Arumugam and he immediately rushed to the place https://hcservices.ecourts.gov.in/hcservices/ and by seeing the clothes, he identified the decomposed body as that of his daughter Vennila. PW.2 Arumugam went to the Office of PW.1 Village Administrative Officer Vediappan at 8 am on 24.10.2001 and gave a statement and PW.1 Vediappan recorded the same and obtained his signature in Ex.P1 Complaint and he prepared his Ex.P2 Report and both of them went to Melsengam Police Station and PW.16 Ayyavu received Exs.P1 and P2 and registered a case in Crime No.221/2001 under Section 302 IPC and prepared Ex.P10 First Information Report and despatched the same to the Court and higher officers. PW.19 Inspector Thangaraj took up the investigation and reached the occurrence place at 9.30 am on 24.10.2001 and prepared Ex.P5 Observation mahazar in the presence of PW.10 Kadirvelu and another and Ex.P13 is the Rough Sketch drawn by him. At 10.30 am, he seized M.Os.6 to 9 from the occurrence place under Ex.P6 mahazar in the presence of above witnesses. He conducted inquest on the body of Vennila between 11 am to 2 pm in the presence of panchayatars and prepared Ex.P12 Inquest Report. He gave requisition to conduct post-mortem. P.W.12 Dr.Kasthuri conducted post-mortem on the body of Vennila at 2.30 pm on 24.10.2001 and found the following: "Its condition then was a highly decomposed female body lies on its back, arms apart, fleeded at elbow, legs fleed at knee, pupal seen all over the body and in all the natural orifices. Facial muscles, neck muscles, scalp hair, chest muscles, thigh muscles inner aspect, external genitalia, anus not found only skull facial bones, neck, mouth ribs, upper part of chest exposed. On opening the abdomen: Stomach contain 200 ml of food rice partially digested. Liver, spleen, kidneys intact decomposed, Urinary Bladder not found; uterus not found; rectum not found; pupal swarming in the peritoneal cavity. On opening the Thorax: Upper part of the ribs and exposed pupal swarming in the Thoracic cavity; Lungs and heart intact decomposed. Hyoid bone not found. On opening the skull: Only skull bone seen. Brain not found; neck and muscles are found; facial muscles not found. Cervical vertebra and facial bones are exposed. Disarticulation of lower jaw seen." https://hcservices.ecourts.gov.in/hcservices/ Viscera was sent for chemical examination and skull was sent for superimposition test. She expressed opinion that since the body is highly decomposed and most of the parts are not found in the body, she is not able to give opinion as to cause of death and the death could have occurred 5-6 days prior to post-mortem. Ex.P8 is the Post-Mortem Certificate issued by her. P.W.19 Inspector Thangaraj examined PW.2 Arumugam, PW.3 Sakthivel, PW.4 Santhi, PW.5 Vijayalakshmi, PW.6 Sakthivel, PW.8 Mani, PW.9 Ramasamy, PW.10 Kadirvel, PW.13 Ravisankar and some other witnesses and recorded their statements. On 25.10.2001 at 11 am, he arrested the accused Velu near Melsengam Central and State Farm Bus Stop and enquired him in the presence of PW.1 Vediappan and another and recorded the confession statement given by him in the presence of the said witnesses. Ex.P3 is the admissible portion of the confession statement. The accused Velu took them to the occurrence place and took and produced from a bush nearby MO.1 Bag belonging to Vennila containing M.O.2 (series) Books and Notebooks; M.O.5 (series) Pen and Pencil, and M.O.3 Bag belonging to PW.4 Santhi containing M.O.4 (series) Books and Notebooks and P.W.19 Inspector Thangaraj recovered the same under Ex.P4 mahazar in the presence of same witnesses. At 12.50 pm on the same day, the accused Velu took them to his house and took and produced M.O.11 Cycle from the backyard of his house and P.W.19 Inspector Thangaraj recovered it under Ex.P9 mahazar in the presence of PW.14 Narayanan and another. He examined PW.1 Vediappan, PW.14 Narayanan and some other witnesses and recorded their statements. On 4.1.2002, he gave requisition to Velur Government Hospital to examine the accused Velu and issue potency certificate. PW.18 Dr.Beemaraj examined the accused Velu at 12.50 pm on 5.1.2002 in Velur Government Hospital and found him potent and issued Ex.P11 Certificate. P.W.19 Inspector Thangaraj examined PW.12 Dr.Kasthuri, PW.18 Dr.Beemaraj and some other witnesses and recorded their statements and he obtained Ex.P14 School Certificate. Ex.P15 Chemical examiner report, Ex.P16 Viscera report and Ex.P17 Superimposition test report were received in Court. P.W.19 Inspector Thangaraj was transferred and PW.20 Inspector Ramachandran continued the investigation and he examined some more witnesses and recorded their statements. He completed the investigation and filed final report against the accused. 5. The accused was questioned under Section 313 Cr.P.C and he denied complicity. No witness was examined and no document was marked on his side. 6. The Trial Court found the accused guilty of the charges under Section 376(1) and 302 IPC and sentenced him as stated earlier. Challenging the same, the accused has preferred the present appeal. https://hcservices.ecourts.gov.in/hcservices/ 7. The prosecution case is that accused Velu committed rape on Vennila and caused her death at the time of occurrence. Nobody witnessed the occurrence and the case is based on circumstantial evidence. Though many circumstances were relied on, the last seen was projected as the main circumstance against accused Velu. P.W.4 Santhi, P.W.5 Vijayalakshmi and P.W.6 Sakthivel have been examined to prove the said circumstance. P.W.4 Santhi and P.W.5 Vijayalakshmi were studying in the same school in which the deceased Vennila studied and according to them, on 19.10.2001 they were waiting in Karimalaipadi Bus Stop to board the town bus Route No.3 and accused Velu along with Vennila came there in his bi-cycle and Vennila asked PW.4 Santhi to give her bag since PW.4 Santhi has to board the crowded bus and PW.4 Santhi handed over the Bag to Vennila and she went along with accused Velu in the bi-cycle. It is their further testimony that when the town bus Route No.3 stopped at Edhumedu bus stop, they saw accused Velu taking Vennila inside Edhumedu Forest Area and Vennila did not attend the school on that day and they informed P.W.2 Arumugham, father of Vennila, in the evening about accused Velu taking Vennila inside the forest. P.W.6 Sakthivel has deposed that he saw accused Velu carrying Vennila in his bi-cycle and he requested accused Velu to drop Vennila and take him in the bi-cycle since he was already late to board the bus and accused Velu did not reply and rode the bi-cycle with Vennila. 8. The learned counsel for the appellant submits that the testimonies of P.W.4 Santhi, P.W.5 Vijayalakshmi and P.W.6 Sakthivel are not trustworthy and the body was found out only on 24.10.2001 and thereafter, P.W.2 Arumugham, father of Vennila, lodged the complaint and there is a long gap and possibility of other persons coming in between exists and the accused cannot be held liable for the offence of having caused the death. Per contra, the learned Additional Public Prosecutor submits that P.W.4 Santhi and P.W.5 Vijayalakshmi are the schoolmates of deceased Vennila and they had seen Vennila coming with accused Velu in the bi-cycle and Vennila had taken the school bag of P.W.4 Santhi in order to help her to board the crowded bus and that bag has been recovered near the dead body of Vennila and their testimonies are natural and convincing and P.W.6 Sakthivel is also an independent witness and his testimony is also credible and thus, there is positive evidence to conclude that the deceased was last seen along with accused Velu. 9. It is true that P.W.4 Santhi and P.W.5 Vijayalakshmi being schoolmates of deceased Vennila had every chance to meet Vennila in the bus stop while going to school. Their testimonies that when they were in the bus stop, Vennila came along with accused Velu in his bi-cycle and she asked P.W.4 Santhi to give her school bag for being carried in the bi-cycle and obtained the same and went away in the bi-cycle of accused Velu and their further testimonies that they saw accused Velu going into Edhumedu Forest Area along with Vennila when the bus halted in Edhumedu bus stop, appear to be natural and https://hcservices.ecourts.gov.in/hcservices/ convincing. In the same way, the testimony of P.W.6 Sakthivel that he saw accused Velu carrying Vennila in his bi-cycle in the morning on the occurrence day is also infusing confidence since he is an independent witness. But, the question is as to whether the last seen theory can be applied to this case. As per the testimonies of the above witnesses, they had seen the deceased Vennila with accused Velu in the morning on 19.10.2001. The body of Vennila was noticed by P.W.9 Ramasamy on 24.10.2001, at 6.00 a.m., inside Edhumedu Forest area and he informed the same to P.W.2 Arumugham, who went and identified the decomposed body as that of his daughter Vennila by seeing the clothes, and thereafter, PW.2 Arumugam went to the Office of the Village Administrative Officer P.W.1 Vediappan at 8 am and gave Ex.P1 Statement and P.W.1 V.A.O. Vediappan prepared Ex.P2 Report and took P.W.2 Arumugham along with him to Melsengam Police Station to lodge the complaint. The body of Vennila had been recovered after five days after the date on which deceased Vennila was last seen in the company of accused Velu. Accused Velu when questioned under Section 313 CrPC, has only denied and did not offer any explanation. 10. The settled law is that the last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible and even in such cases, some corroboration is required. In this context, the latest decision of the Apex Court in the case in MALLESHAPPA V.. STATE OF KARNATAKA [(2009) 2 SCC (Cri) 394] is relevant and for better appreciation the relevant portion is extracted below: "23. In the light of the evidence available on record, can it be said that the circumstances of last seen together by itself and necessarily lead to the inference that it was the appellant who committed the crime? The High Court took the view that Accused 6 and 7 are entitled to the benefit of doubt though, PW 10 stated in her evidence that the appellant, Accused 6 and 7 took her son Yankanna on the fateful day. No motive was shown with regard to Accused 6 and 7 for their involvement in the crime. It is under those circumstances, the High Court said that the burden shifts to the appellant to show as to what happened to the deceased Yankanna. In our considered opinion, the High Court committed serious error in arriving at such conclusion. The first information report lodged by PW 10 itself is highly doubtful. PW 10's evidence itself does not reveal any circumstances to hold that the prosecution has established the charge against the appellant. The appellant's failure to offer any explanation in his statement under Section 313 CrPC is not a circumstance to hold the appellant guilty of the charge. The prosecution has failed to establish as to https://hcservices.ecourts.gov.in/hcservices/ when the death of Yankanna took place, it could be at any time between 12-7-2001 to 21-7-2001. There is nothing on record to show as to what transpired between 12-7- 2001 to 21-7-2001. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. Learned counsel for the State relied upon the decision in Mohibur Rahman v. State of Assam [(2002) 6 SCC 715 : 2002 SCC (Cri) 1496 which in fact is in support of the defence and not the prosecution: (SCC pp. 720-21, para 10) "10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence https://hcservices.ecourts.gov.in/hcservices/ worth the name available against him. He is entitled to an acquittal". 24. In the present case also, there is no proximity of time and place. We have already noted that the dead body, even if it is to be accepted, was that of the deceased Yankanna, had been recovered after 10 days after the date on which the deceased was last seen in the company of the appellant. This singular piece of circumstantial evidence available against the appellant, even if the version of PW 10 is to be accepted, is not enough." In the present case also, there is nothing on record to show as to what had happened between 19.10.2001 and 24.10.2001 and even if the testimonies of P.W.4 Santhi, P.W.5 Vijayalakshmi and P.W.6 Sakthivel are to be accepted, there is no proximity of time. Further, mere non-explanation on the part of accused Velu in his statement under S.313 CrPC by itself cannot lead to proof of guilt against him. 11. The next circumstance relied on by the prosecution is the information furnished by accused Velu in his confession statement leading to recovery of school bags of deceased Vennila and P.W.4 Santhi and the bi-cycle. The Investigation Officer P.W.19 Thangaraj has testified that he arrested accused Velu on 25.10.2001 near Melsengam Central and State Farm bus stop and enquired him in the presence of PW.1 V.A.O. Vediappan and another and recorded the confession statement, containing Ex.P3 the admissible portion, given by him and accused Velu took them to the occurrence place and took and produced from a bush nearby M.O.1 Bag belonging to the deceased Vennila containing M.O.2-series Books and Notebooks; M.O.5- series Pen and Pencil and M.O.3 Bag belonging to PW.4 Santhi containing M.O.4-series Books and Notebooks and he recovered the same under Ex.P4 Mahazar in the presence of the same witnesses and at 12.50 pm accused Velu took them to his house and took and produced M.O.11 Bi-Cycle from the backyard of his house and P.W.19 Inspector Thangaraj recovered it under Ex.P9 Mahazar in the presence of PW.14 Narayanan and another. P.W.1 V.A.O. Vediappan in his testimony has stated that the accused gave information in the confession statement that led to the recovery of M.Os.1 to 5-series by the Investigation Officer, in their presence. P.W.14 Narayanan has testified about the information given by accused Velu leading to recovery of M.O.11 bi-cycle from his house. 12. The learned counsel for the appellant relying on the testimony of P.W.14 Narayanan submits that the arrest claimed by the Investigation Officer is false. P.W.14 Narayanan in his cross- examination has stated that when accused Velu gave the confession statement, the body of Vennila was lying in the occurrence place. Indisputably, the post-mortem on the body was conducted on 24.10.2001 https://hcservices.ecourts.gov.in/hcservices/ itself and the body was cremated on the same day. The arrest is said to have been made on 25.10.2001 and on that day, the body of Vennila was not available. Hence, the arrest claimed by the Investigation Officer on 25.10.2001 cannot be true in view of the testimony of mahazar witness P.W.14 Narayanan. Further, it cannot be said that M.Os.1 to 5-series came to be recovered only on the information given by accused Velu in his statement. P.W.2 Arumugham, father of deceased Vennila, in his testimony has stated that on being informed about the lying of body of Vennila by P.W.9 Ramasamy, he along with 100 villagers went to the occurrence place and found the decomposed body of his daughter Vennila and he saw the clothes; school bags and books near the dead body. In view of the above testimony of P.W.2 Arumugham, it cannot be said that the recovery was made only on the information furnished by accused Velu. 13. The next question is whether deceased Vennila died of homicidal violence. According to P.W.12 Dr. Kasthuri, the body was highly decomposed and facial muscles, neck muscles, thigh muscles, external genitalia, anus were not found and only skull facial bones, neck mouth ribs and upper part of chest were found. The post-mortem doctor has stated that since the body is highly decomposed and most of the parts are not found in the body, she is not able to give opinion as to cause of death and according to her, the death could have occurred 5-6 days prior to post-mortem. Ex.P8 is the Post- Mortem Certificate issued by her. In view of the above medical evidence, it is not possible to conclude that it is a homicidal death. 14. The skull was sent for Superimposition test and according to P.W.13 Ravishankar, Scientific Assistant of Forensic Sciences Department, the skull was oriented in accordance with the posture of the face in the photograph and superimposition test was conducted and the opinion given was that the skull could very well have belonged to the female individual seen in the photograph. Ex.P17 is the Report in this regard. The learned counsel for the appellant relying on the testimony of the post-mortem doctor submits that M.O.14 Skull could not be that of deceased Vennila. The post-mortem doctor, P.W.12 Dr. Kasthuri, in the cross-examination has stated that she opened the skull at the time of autopsy with hammer and knife and it was not re- fixed and whereas M.O.14 Skull appears to be a natural skull without any breaking and it does not appear to be a re-fixed one. The above testimony of the post-mortem doctor raises a doubt as to whether M.O.14 Skull is that of Vennila. 15. For the above said reasons, we hold that the circumstances let in by the prosecution are not proved and as such, deceased Vennila, who died in suspicious circumstances, even if held that she died due to homicidal violence, accused Velu cannot be held liable for the death as the prosecution failed to establish its https://hcservices.ecourts.gov.in/hcservices/ case. The conviction and sentence imposed by the trial Court are liable to be set aside. 16. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the Appellant/Accused in Sessions Case No.123 of 2003 on the file of the District