IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.227 of 2007 Muthiyan .. Appellant vs State rep. By Inspector of Police, Veppur Police Station, Veppur, Cuddalore District. (Cr.No.10 of 2006) .. Respondent Criminal appeal preferred under Sec.374 of Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Tract Court No.III, Vridhachalam, in S.C.No.399 of 2006 dated 12.1.2007. For Appellant : Mr.S.Swamidoss Manokaran For Respondent : Mr.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.III, Vridhachalam, made in S.C.No.399 of 2006 whereby the sole accused/appellant stood charged, tried and found guilty as per the charge under Sections 302 and 201 read with 302 of IPC and awarded life imprisonment with a fine of Rs.1000/- and default sentence for the first charge and 3 years Rigorous Imprisonment with a fine of Rs.500/- and default sentence for the second charge. 2. The short facts necessary for the disposal of this appeal can be stated thus: (a) The deceased Sangeetha is the wife of the appellant/accused. P.W.4 is the father and P.W.5 is the mother of the deceased. The deceased and the accused had illicit intimacy even prior to the marriage, and due to the intervention of P.W.12 at the panchayat, the marriage took place between the accused and the deceased one and half years prior to the occurrence. The accused was employed at Bangalore; but, during the relevant time, he was living in the native place called Pasar Village. He was suspecting https://hcservices.ecourts.gov.in/hcservices/ the fidelity of his wife since she was dressing in order to make her good. On 20.1.2006, when P.W.1 was in his house, P.W.2 informed him that some bad odor was coming from the field, and hence it was doubtful whether a dead body would have been buried there. Then, P.W.1 went over there and found so. Immediately, he proceeded to the respondent police station on 21.1.2006 by 9.00 A.M., and gave a complaint marked as Ex.P1. P.W.24, the Sub Inspector of Police, received the complaint, Ex.P1, on the strength of which a case came to be registered in Crime No.10 of 2006 under Sec.174(3) of Cr.P.C. The printed FIR, Ex.P22, was despatched to the Court. (b) On receipt of the copy of the FIR, P.W.25, the Inspector of Police, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P23, and a rough sketch, Ex.P24. He immediately gave an intimation to P.W.23, the Tahsildar, of the concerned division, who went over there and in his presence, the dead body was exhumed. Then, P.W.25 conducted inquest in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P25. Thereafter, the dead body was sent to the Government Hospital for the purpose of autopsy. (c) P.W.15, the Assistant Surgeon, attached to the Government Hospital, Vriddhachalam, conducted autopsy on the dead body of Sangeetha and has issued a postmortem certificate, Ex.P8, with his opinion that she died 4 to 8 days prior to postmortem. He gave his final opinion under Ex.P9 that the deceased would appear to have died of asphyxia. (d) P.Ws.4 and 5 are the persons who actually went to the place of occurrence and identified the dead body as that of their daughter. At the time when the interrogation was made by the Investigator, they informed that on 15.1.2006, Sangeetha was not found; that they immediately informed the accused; that the accused in turn told them that they need not go to the police station; that they were waiting, and thereafter, they came to know that the dead body was actually found. (e) At the time of the enquiry, P.W.9 gave a statement to the effect that the accused and the deceased were actually chatting with each other in the ridge of Rangaraj Garden. P.W.10 also gave a statement that on that evening when he was going, he saw the deceased and questioned her where she was going, and she replied that she was going to Rangaraj Garden for taking bath, and he believed to be so. (f) On 22.1.2006, when P.W.17, the Village Administrative Officer, was in his office, the accused appeared before him and gave a confessional statement narrating the entire incident, which was also recorded. The said statement is marked as Ex.P4. Thereafter, he was produced before the police. The Investigator also enquired him to whom he gave a confessional statement which was recorded in the presence of witnesses. The admissible part is marked as Ex.P30. Thereafter, he took the police party to his house where from he produced the jewels which were worn by the deceased, and they were recovered under a cover of mahazar. Then the case was converted to Sections 302 and 201 of IPC. The further investigation was done. https://hcservices.ecourts.gov.in/hcservices/ All other witnesses were examined and their statements were recorded. On completion of the investigation, the Investigating Officer filed the final report. 3. The case was committed to Court of Session and necessary charges were framed. The prosecution in order to substantiate the charges, examined 25 witnesses and also relied on 37 exhibits and 19 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. The lower Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence entered the judgment of conviction and sentence which is the subject matter of challenge in this appeal before this Court. 4. Advancing arguments on behalf of the appellant, the learned Counsel Mr.S.Swamidoss Manokaran would submit that in the instant case, the prosecution had no direct evidence to offer, but had rested its entire case on the circumstantial evidence. He also cautioned the Court that in the instant case, the prosecution had neither placed the necessary circumstances nor proved the same. 5. Added further the learned Counsel that according to the prosecution, the occurrence has taken place on 15.1.2006; but, the deceased Sangeetha was not found from that day onwards; that P.Ws.4 and 5, the parents, have also kept mum; that they did not inform to anybody and did not also go to the police station for a period of five days which itself would cast a doubt whether such an occurrence could have taken place at all; that even the villagers had suspicion that she ran away from the place with somebody; that apart from that, as far as the recovery part is concerned, they were all jewels worn by her; and that from that, it could not be taken as proof. 6. The learned Counsel would further submit that even according to P.W.10, the villagers were talking that she ran away; that if to be so, the evidence of P.W.9 as if he saw both of them talking with each other near the ridge could not be believed, and hence the last seen theory was of no avail to the prosecution. 7. The learned Counsel would further add in the second line of his argument that she was of a doubtful character; that even in the confessional statement made by the appellant, he has categorically stated that she was lacking in character, and despite the warning, she did not reform herself, and under the circumstances, the occurrence has taken place; that even from the confessional statement, it could be seen that at the time of occurrence, they had an intercourse; that thereafter, he asked her to reform her; but, she replied that she would continue to go in her own way; that naturally any husband would be provoked; that due to the provocation only, he has done so; that under the circumstances, the act of the accused even if the factual position is said to have been taken as proved, would not lead to the conclusion that he has committed the act of murder, but culpable homicide not amounting to murder, and hence this legal plea has got to be considered by this Court. https://hcservices.ecourts.gov.in/hcservices/ 8. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its full attention over the same. 9. It is not in controversy that one Sangeetha the daughter of P.Ws.4 and 5, was done to death, and her body was buried in Rangaraj Garden. After the case was registered by P.W.24, the Sub Inspector of Police, under Sec.174 of Cr.P.C. for suspicious death, the matter was taken up by P.W.25, the Inspector of Police, for investigation. On request, in the presence of P.W.23, the Tahsildar of the said division, the dead body was exhumed. Thereafter, the Investigator conducted the inquest. After the inquest was over, the dead body was subjected to postmortem by P.W.18, the Doctor, who has given opinion that she died out of asphyxia, and the death would have occurred 5 to 8 days prior to postmortem. The dead body of Sangeetha was identified by P.Ws.4 and 5, and the jewels worn by her and also the apparels were identified. The fact that the dead body was of Sangeetha was not questioned by the appellant. Apart from that, she has also met with homicidal violence which was also not a fact in dispute before the trial Court. As far as the identity or the cause of death is concerned, the findings recorded by the trial Court have got to be affirmed so. 10. True it is, in the instant case, the prosecution had no direct evidence to offer, but it rested its case on the circumstantial evidence. The Court is not unmindful of the caution made by the Apex Court. But, it is settled principles of law that in a given case like this, where the prosecution has placed and proved necessary circumstances pointing to the guilt of the accused and also the hypothesis that except the accused, no one could have committed the offence, the Court can sustain a conviction. Even if this test is applied, the Court is satisfied that the prosecution has brought home the guilt of the accused leaving no doubt much less reasonable doubt, in the mind of the Court. 11. The first circumstance is that during the relevant point of time, admittedly, the appellant/accused, the husband of the deceased, and the deceased were living together. From 15.1.2006 she was not found. As a responsible husband, a duty is cast upon the accused immediately to bring to the notice of the police by giving a complaint. On the contrary, when P.Ws.4 and 5 not finding her, informed him that they would better go to the police station to give a complaint, but it was the accused who stopped the same. 12. The second circumstance is that according to P.W.10, on the date of occurrence in the evening hours, Sangeetha was moving towards Rangaraj Garden, and when she was questioned by P.W.10, she informed that she wanted to go there for taking bath. From the evidence of P.W.9, it would be clear that on 15.1.2006 evening at about 4.00 P.M., he found both the accused and the deceased chatting with each other near a ridge. Now, at this juncture, it is pertinent to point out that from the night of 15.1.2006, she was not found, and hence he was last seen within the company of the deceased by P.W.9. 13. Added circumstance was that a confessional statement was given by the accused on 22.1.2006 to the Village Administrative https://hcservices.ecourts.gov.in/hcservices/ Officer wherein he has narrated the entire incident. The confessional statement is marked as Ex.P4. It is settled principle of law that before accepting the extra-judicial confession made, the Court has to apply two tests namely (1) under what circumstance such an extra judicial confession was given; and (2) whether the evidence of the person to whom the extra-judicial confession was made, inspires the confidence of the Court. In the case on hand, even if these tests are applied, the Court is thoroughly satisfied that the evidence of the Village Administrative Officer has got to be accepted. 14. Above all, added circumstance was the recovery of the jewels of Sangeetha which were produced by the accused on confession from his house. According to P.W.19, M.O.7, a silver ornament, was purchased from his shop. It would also be indicative of the fact that the jewels worn by Sangeetha were removed from the body by the accused and they were also kept by the accused in his house. All the circumstances would clearly indicate that it was the accused and none else has committed the crime. Thus, the prosecution has proved the said factual position. 15. As far as the second line of argument advanced by the learned Counsel for the appellant is concerned, the same will not stand even for a moment. In the instant case, even from the evidence available, it would be quite clear that Sangeetha and the deceased had illicit intimacy even prior to the marriage. From the confessional statement given by him, it would be evident that by force he married her, and he continued to have suspicion over her fidelity, and the occurrence has taken place on 15.1.2006 where he murdered her and buried the body, and for about 5 or 6 days he was keeping mum, and he did not come out. If the contention put forth by the learned Counsel that there was some provocation due to which he has acted is accepted, there was no need for him to bury the body. In the instant case, after the crime was over, he came back to his house and took a spade with which he dug and buried the body in order to screen the evidence. Thus, it would be quite clear that it was an act intentionally done. Under the circumstances, no question of any quarrel or provocation as put forth by the learned Counsel would have arisen to the help of the accused. Hence the act of the accused cannot but be termed only as murder as defined in the Code, and also it is a case of screening evidence. The lower Court was perfectly correct in recording a finding both factually and legally that he is guilty of murder and screening evidence. This Court is unable to see any reason to interfere in the judgment. 16. In the result, this criminal appeal fails and the same is dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District and Sessions Judge, Fast Track Court No.III, Vridhachalam. 2. The Inspector of Police, Veppur Police Station, Veppur, Cuddalore District. (Cr.No.10 of 2006) 3. The Public Prosecutor High Court, Madras. 4. The Superintendent, Central Prison, Cuddalore. + 1 c.c. to Mr. S. Swamidoss Manokaran, Advocate. S.R.No.61641. CRL.A.No.227 of 2007 KA (CO) GSK 12.11.2008. https://hcservices.ecourts.gov.in/hcservices/