IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30-07-2008 THE HON'BLE MR.JUSTICE P.D.DINAKARAN AND THE HON'BLE MR.JUSTICE K.N.BASHA CRIMINAL APPEAL NO: 996 OF 2007 M.Veerappan .. Appellant/Accused Vs State rep.by Inspector of Police, Keezhaiyur Police Station, Nagapattinam District. (Crime No. 214 of 2004) .. Respondent/Complainant Appeal filed under Section 374(2) Cr.P.C against the judgment dated 17.10.2005 made in S.C.No. 37 of 2005 on the file of the learned Sessions Judge, Nagapattinam. For appellant : Mr.M.Sankar For respondent : Mr.N.R.Elango, Addl.Public Prosecutor JUDGMENT (Judgement of the Court was delivered by P.D.DINAKARAN,J.,) This appeal has been preferred against the judgement dated 17.10.2005, made in S.C.No. 37 of 2005, on the file of the learned Sessions Judge, Nagapattinam. By the impugned judgement, the appellant was found guilty for offences under Sections 302 and 201 IPC and accordingly, was convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for one year for the former offence, and to undergo rigorous imprisonment for one year for the latter offence. The said conviction and sentence are under challenge in the present appeal. 2. The prosecution case, as per the charge is that the accused Veerappan, on 10.6.2004, at 8.30 a.m., near the land on the eastern bank of Achakkarai Channel, with an intention to kill his wife Muthammal, strangulated her neck with the help of the saree worn by https://hcservices.ecourts.gov.in/hcservices/ her, and caused her instantaneous death and thereby, committed the offence punishable under Section 302 IPC. In continuance of the same course of action, to conceal the commission of crime, the accused dragged the dead body of the deceased and put the same into the chanel water and thereby committed an offence punishable under Section 201 IPC. 3. The genesis of the prosecution version, as unfolded by the prosecution witnesses during the course of trial, are as follows:- (a) The accused Veerappan is the father of P.W.11, Senthilkumar and husband of the deceased Muthammal. They were doing vegetable vending business. They have two sons and a daughter. The first daughter was given in marriage and she was living with her husband separately. The accused and the deceased were living along with their two sons. The elder son is a Lorry Cleaner, while the younger is working in a provisional store. According to P.W.1, the accused was addicted to liquor and was in the habit of picking up quarrel with the deceased very often. The accused did not stay for about one month prior to the date of occurrence. On the date of occurrence, i.e. on 10.6.2004 morning, the deceased and the two sons went for work. While the two sons returned home in the evening, the deceased did not turn up. The search made by P.W.11 (one of the son) and one Veerasamy ended in vain. On the next day also, the sons could not find out their mother. However, the accused father remained very quiet and irresponsible and when questioned by the sons, he replied that he has no affection for the deceased. Then, P.W.11 compelled the accused to accompany him to the Panchyatdars of the Village, where the accused disclosed the modus operandi adopted by him to commit the murder of his wife/deceased. (b) The evidence of P.W.6, is that when he was chatting with one Michael Raj at 8.00 a.m., on 10.6.2004, he had seen the accused and the deceased together, near Achakkarai Channel, proceeding towards west, carrying a vegetable basket. Thereafter, while he was returning from Karapidagai to Kameswaram Bus-stand, he saw the accused alone with the vegetable basket in his hand in the same place. P.W.5 Village President, Ramalingam, to whom, the deceased Muthammal was supplying vegetables, also found the accused alone returning with vegetable basket in hand proceeding from south to north in Sinthamani Main Road at 11.00 a.m., on 10.6.2004, and when P.W.5 questioned the accused, as to why his wife Muthammal did not accompany him, the accused replied that she is out of town and will be returning after two days. (c) The accused went to the house of P.W.2, Councillor at 10.00 a.m., on 12.6.2004 and revealed the commission of the crime and sought for his help. Then P.W.2 took the accused to P.W.1 https://hcservices.ecourts.gov.in/hcservices/ Sivasubramanian, Village Administrative Officer at 10.45 a.m., to whom the accused gave voluntary confession statement, Ex.P.1, in the presence of village menials P.Ws.3 and 4 and the same was recorded. P.W.1 handed over the accused to the custody of the Village Menials P.W.3 and P.W.4 and went to the Achakkarai Channel and after verifying that the corpse of Muthammal was lying there, he came back to his office, prepared Ex.P.2 Report and sent the same along with Ex.P.1 statement of the accused to Keelzhaiyur Police Station through P.W.4. (d) P.W.8, Vadivelu, Head Constable on receipt of Ex.P.1 and Ex.P.2, registered a case in Cr.No.214/04 under Section 302 IPC and prepared the printed FIR Ex.P.11 and sent the same to the Magistrate's Court and copies to higher officials. (e) P.W.12, Inspector of Police, on receipt of message at 12.00 p.m., on 12.6.2004, went to Achakkarai Channel and prepared Observation Mahazar Ex.P.3 and Rough Sketch Ex.P.13 in the presence of P.Ws.3 and 4. He made arrangements to take photographs of the dead body. He conducted inquest on the dead body of Muthammal in the presence of Panchayatdars and witnesses P.W.1 Senthil, and one Kannagi and prepared inquest report Ex.P.14. Then he arranged to send the dead body for postmortem along with requisition through Head Constable Kumarasamy to the Government Hospital, Nagapattinam. (f) P.W.7, Dr.Sivanandavalli, performed the autopsy on the dead body, and found the following injuries:- The External appearance of the body were as follows:- Rigor mortis present in all the four limbs. Tongue swollen protruding through mouth. Decomposed body seen. Discolouration of the face x seen. Internal Examination: Thorax-no ribs fractured, no haemorrhage. Mucosa congested. Liver, spleen, kidney congested. Hyoid bone fractured. Bladder empty. No pelvis fracture. Nails cyanosed. Brain liquified. (g) The hyoid bone and viscera were sent to the chemical examination and analysis. Hyoid bone report is Ex.P.7. Postmortem certificate is Ex.P.8. Viscera Report is Ex.P.9. On the basis of the above reports, the Doctor has given her opinion as under:- (i)The negative chemical analysis report ruled out the possibility of death due to poisoning. (ii) No findings in the post-mortem certificate suggest any natural cause. (iii) No definite opinion could be given regarding the cause of death. However, the following points can be taken for considering the possibility of mode and manner of death. https://hcservices.ecourts.gov.in/hcservices/ (a) The ligature mark in strangulation by soft cloth material like nylex saree will not be well defined and that too in a decomposed stage it would not have been clearly seen as in this case. (b) Though in homicidal strangulation in addition to ligature mark certain other injuries are also expected to be present, those injuries usually abrasion, contusion would have been masked by the decomposition changes. (c) The congestion noted in the liver, spleen, kidney and the cyanosis of nail bed suggest the possibility of Asphyxial death. OPINION: (i) Taking into consideration the above points, the possibility of death as a result of Asphyxia due to strangulation cannot be ruled out in this case. (ii) The Post-mortem decomposition changes noted all other body suggests the death would have taken place 2 to 4 days prior to P.M.examination. (h) After postmortem was over, P.W.10, Head Constable recovered M.Os.2 to 4 dress materials from the dead body and handed them over to P.W.12, Inspector of Police along with Special Report Ex.P.12. P.W.12 arrested the accused who was brought by P.W.3 and P.W.4 to Achakkarai Channel. The accused gave a confession statement and as per the confession he produced M.O.1, Vegetable Basket, and the admissible portion is Ex.P.5. (i) Continuing with his investigation, P.W.12, examined and recorded statements of the witnesses. P.W.13, successor in office took up further investigation of the case on 19.6.2004. After examining the other witnesses, including the Doctors, and after completing his investigation, he laid the charge sheet on 24.7.2004 for offences punishable under Sections 302 and 201 IPC. 4. After filing of the final report, the case was committed to Court of Sessions, which was taken up in Sessions Case No:37 of 2005 by the learned Sessions Judge, Nagapattinam, and charges were framed by the learned Sessions Judge against the accused, for which, the accused denied his complicity with the crime and therefore the trial of the case was taken up. In order to substantiate its case before the Sessions court, the prosecution relied on the ocular versions of P.Ws.1 to 12 and marked Exs.P.1 to P.14 and also produced Material Objects 1 to 6. 5. On conclusion of the examination of the prosecution witnesses as referred to above, when the accused was questioned under Section 313 (1)(b) of the Criminal Procedure Code with regard to the incriminating materials appearing against him in the evidence of the https://hcservices.ecourts.gov.in/hcservices/ prosecution witnesses, he denied each and every incriminating material as false and pleaded not guilty. However, no witness was examined and no document was marked on the side of the defence. 6. The Learned Sessions Judge, Nagapattinam, after perusal of the materials on record and after hearing the arguments made by both the parties, convicted and sentenced the appellant as mentioned above and aggrieved against the conviction and sentence, the present appeal is preferred. 7. Learned counsel for the appellant contended that the evidence of P.W.2 is not trustworthy and therefore the evidence of P.W.1 also cannot be accepted and consequently, the complaint lodged by P.W.1, Village Administrative Officer also has to be disbelieved. 8. On the other hand, the learned Additional Public Prosecutor, to sustain the conviction and sentence, submitted that though there is no eye witness to the occurrence, before P.W.11, son of the deceased and accused, as well as before P.W.2, an independent witness, the accused has divulged the commission of the crime. That apart, the last seen theory and medical evidence are available on record to support the case of the prosecution. 9. We have given our careful and anxious consideration to the rival contentions put forward by either side and also perused the entire materials and considered each and every circumstance put forward by the prosecution. 10. A perusal of Ex.P.9, Post-mortem Certificate, and Ex.P.10, Final Opinion, which was given after considering various points including the analysation of viscera and hyoid bone of the accused, as to the cause of death would go to show that the death was as a result of asphyxia due to strangulation which would lead to the definite conclusion that it is a homicidal death. 11. Now, the points that arise for consideration in this appeal is whether the prosecution has brought home the guilt of the accused beyond all reasonable doubts? and whether the conviction and sentence passed by the learned Sessions Judge, Nagapattinam, against the accused are sustainable? 12. The case of the prosecution hinges upon circumstantial evidence as there are no direct eye witness to the commission of the crime. It is well settled that the circumstances forming that evidence must be conclusively established and even when so established, they must form such a complete chain that it is not only consistent with his guilt but is inconsistent with any reasonable hypothesis of his innocence. https://hcservices.ecourts.gov.in/hcservices/ 13. In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 709], it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10): "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 14. In the light of the above, let us analyse the evidence to find out whether the circumstances brought forth by the prosecution are consistent only with the guilt of the accused and inconsistent with any hypothesis of his innocence. 15. The circumstances, which the prosecution relied upon to bring home the guilt of the accused are: (i) motive - accused and deceased are husband and wife; the accused was addicted to liquor and had been demanding money which was resisted by the deceased and due to which there were frequent quarrels between them; (ii) the deceased was last seen together in the company of the accused by P.Ws.5 and 6; (iii) evidence of P.W.11, son, and P.Ws.1 to 4, independent witnesses with regard to the extra judicial confession made by the accused; (iv) immediately after the extra judicial confession, complaint was lodged and the law was set in motion; https://hcservices.ecourts.gov.in/hcservices/ (v)medical evidence through P.W.7, post-mortem doctor and Ex.P.10, final opinion; and (vi)recovery of M.O.1, vegetable basket, at the instance of the accused after his arrest. 16. P.W.11 is none other than the son of the accused. P.W.1 is the Village Administrative Officer, who set the law in motion by filing the complaint. P.W.2 is the friend of the accused, before whom, the accused admitted his guilt and thereafter only, the accused was produced before the VAO. P.Ws 3 and 4 are the Village Menials, who not only corroborate the voluntary confession made by the accused to the VAO, but also stood as mahazar witnesses for recording the confession. P.Ws 5 and 6 are the independent witnesses who have last seen the deceased in the company of the accused on the fateful day at 11.00 a.m. 17. Of the above witnesses, P.W.11, Senthilkumar, who is none other than one of the two sons of the deceased Muthammal, and the accused Veerappan, is of utmost importance. A close scrutiny of the evidence of P.W.11, Senthilkumar would reveal that his father/accused Veerappan was addicted to liquor and was picking up quarrel with the deceased quite often. A perusal of Ex.P.1, confession statement of the accused would show that he used to extract money from the deceased/wife for food and miscellaneous expenses very often and there were quarrels on account of that. On the date of occurrence, at 8.30 a.m., when the accused demanded money, the deceased refused to part with the money and abused him. Infuriated by that, the accused cajoled the deceased and took her to the bank of Achakkarai Channel and suddenly twisted her hands, and throttled her neck by using the saree worn by her, due to which the deceased breathed her last. To conceal the act of commission of the crime, the accused then dragged and thrown the dead body into the channel water. Thereafter the accused took the money from the Vegetable Basket and after spending the sum, went to the house on the next day morning. The above admission of the accused to the P.W.1, VAO, in the presence of P.Ws.3 and 4 who are all independent witnesses, would expose the motive on the part of the accused in committing the crime and also the manner of occurrence. 18. In the absence of eye witnesses to the occurrence and there being no strong motive, we have to only rely upon the extra judicial confession, Ex.P.1. We are aware that before relying upon the extra judicial confession, its truthfulness and credibility of the evidence of the witness, before whom it has been made, are to be judged. 19. The Apex Court, time and again held that the extra judicial confession cannot always be termed as a tainted evidence and https://hcservices.ecourts.gov.in/hcservices/ corroboration of such evidence is required only by way of abundant caution. If the Court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone and it is not open to the Court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence and it depends upon several factors like the nature of circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession, vide GURA SINGH -vs- STATE OF RAJASTHAN (2001 Supreme Court Cases (Crl.) 323), as affirmed by its subsequent decisions in State of Rajasthan v. Raja Ram (2003 SCC Crl. 1965) and in Sivakumar v. State [(2006) 1 SCC Crl. 470]. 20. As regards the extra judicial confession, P.W.11, one of the son of the accused deposed that on the fateful day, in the morning, himself, his brother and their deceased mother left the house for their daily work and in the evening her mother did not come back to rejoin them in the house. P.W.11 and one Veerasamy went in search of the deceased, but they could not succeed in their attempt. On the next day also they could not trace out the deceased. But during the said two days, they noticed their father without any semblance of worry and when P.W.11 questioned the propriety of the accused in remaining calm and irresponsible without doing anything to trace the missing wife Muthammal, the accused replied that he had no interest on her. Suspecting his attitude, P.W.11 took him to the Panchayatdars. Then, the accused admitted his acts of guilt and ran away. This admission of the accused before P.W.11, who is nonetheless his son, would amount to extra judicial confession. 21. As seen from Ex.P.1, confession statement of the accused, as soon as the occurrence was over at 8.30 a.m., on 10.6.2004, he parted with the amount of the deceased and returned to the home only on the next day morning and only when his sons insisted him to accompany them to the Panchayatdars, he admitted the guilt and went to the house of P.W.2 and confided in him and requested his help to save him. Then, P.W.2 took the accused to P.W.1, VAO. According to P.W.2, the accused gave a voluntary statement, Ex.P.1 before the VAO, P.W.1. The VAO also speaks to the factum of P.W.2 bringing the accused to him and the voluntary statement made by the accused. At that time, P.Ws 3 and 4, Village Menials, were present and they witnessed the whole event and also signed as mahazar witnesses. The evidence of P.Ws 3 and 4 would lend corroboration to the evidence of P.Ws.1 and 2. Thereafter, P.W.1 sent the accused to police custody along with the Ex.P.1 statement of the accused and Ex.P.2, report prepared by him. Thus, it is clear that the accused has given extra judicial confession to P.Ws 1 to 4 at different point of times. https://hcservices.ecourts.gov.in/hcservices/ 22. On going through the evidence of P.Ws.1 to 4, we could see that it comes from the mouth of the witnesses who are totally unbiased and not even remotely inimical to the accused and in spite of lengthy cross-examination, nothing was elicited which may tend to indicate that they may have a motive of attributing an untruthful statement to the accused. The words spoken to by P.Ws.1 to 4 are clear, unambiguous and unmistakably convey that it was the accused who committed murder of his wife and nothing was omitted by the witnesses which may militate against it. The evidence of P.W.1 gets strengthened by the evidence of P.Ws 3 and 4, Village Assistants and P.W.12, Inspector of Police. We are, therefore, of the opinion that the evidence of P.Ws 1 to 4, who are independent witnesses, and P.W.11, who is none other than one of the sons of the accused, could be accepted as reliable and trustworthy. 23. As regards the last seen theory, it is the deposition of P.W.6 that at about 8.00 a.m., on 10.6.2004, when he was conversing with his friend Michael Raj in Kameswaran New Road, he saw the deceased Muthammal with the vegetable basket in her hand and her husband accused Veerappan together proceeding on the western direction, and after his visit to Marapidagai and return at about 9.30 a.m., he found near the Kameswaran Bus stand, the accused alone was returning with the basket which was carried by the deceased for selling the vegetables. P.W.5 also identified the vegetable basket, M.O.1, which was recovered by P.W.12 in the presence of mahazar witnesses Sambasivam and Packirisamy. Likewise, the evidence of P.W.5 is also noteworthy. He asserted that at 11.00 a.m., on 10.6.2004 he saw the accused alone returning with vegetable basket and when he questioned him as to where his wife was, the accused replied that she was out of town and would be returning only after two days. This would show the evasive reply made by the accused to conceal his act of committing the crime. Therefore, the testimony of P.Ws.5 and 6 as to the last seen theory is a decisive circumstance as against the accused. Thus, we have no hesitation in holding that the evidence of P.Ws.5 and 6 are convincing and trustworthy. This circumstantial evidence considered in conjunction with the extra judicial confession made to P.Ws.1 to 4 would entail the consequence of proving the guilt of the accused and as such would be consistent with the hypothesis of the guilt and inconsistent with innocence. The extra judicial confession made by the accused to P.Ws 1 to 4 along with the circumstantial evidence together is of conclusive in nature, excluding the possibility of the guilt of any person, other than the accused. 24. P.W.7, the Doctor, who conducted the autopsy, deposed that in the case of strangulation with a soft material like nylex saree, the ligature mark will not be well defined and in a decomposed state, the ligature mark could not be clearly seen as in this case. In https://hcservices.ecourts.gov.in/hcservices/ addition to the ligature mark, the usual abrasions, contusions would have been masked due to the decomposition changes. The Doctor further opined that the congestion noted in the liver, spleen, kidney and the cyanosis of nail bed suggest the possibility of asphyxial death. Thus the testimony of the Doctor would lend support to the prosecution case that the death was as a result of asphyxia due to strangulation by the nylex saree. 25. The above clinching circumstances, viz., quarrel between the deceased and the accused with regard to parting of money; last seen theory, as spoken to by P.Ws.5 and 6; extra judicial confession made to P.Ws.1 to 4; and recovery of M.O.1 vegetable basket; and the final opinion given by the post-mortem doctor, conclusively establish that it was the accused and none else, who committed uxoricide, by strangulating her neck by use of the nylex saree worn by her, and as a result of asphyxia, the deceased died. Moreover, the fact remains that the accused is the husband of the deceased and they both were residing under the same roof and hence, it is for the accused to explain as to how his wife was murdered. Further, when the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, he has baldly denied them as falsehood and pleaded not guilty. Since no explanation was offered by the accused, it is a strong circumstance against the accused. 26. Therefore, on going through the materials, we find that the prosecution has succeeded in establishing its case against the accused beyond all reasonable doubts and hence we do not see any reason to interfere with the conviction and sentence imposed by the learned Sessions Judge, Nagapattinam. 27. In the result,