IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-11-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.567 of 2010 Sivsankar .. Appellant/Accused vs Inspector of Police Bahour Police Station Pondicherry .. Respondent /Complainant Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the II Additional Sessions Judge, Puducherry, in S.C.No.4 of 2006 dated 24.8.2010. For Appellant : Mr.Venkataraman Senior Counsel for Mr.V.Krishnakumar For Respondent : Mr.A.P.Suryaprakasam Public Prosecutor (Pondicherry) JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the II Additional Sessions Division, Puducherry, made in S.C.No.4 of 2006 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty of murder and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the husband of P.W.2. The deceased Sellathangal was the brother's daughter of P.W.1. She was given in marriage to the accused/appellant 15 years back. As a result of the same, P.W.6, the son, was born. He was 11 years old at the time of the occurrence. The deceased Sellathangal and the appellant had misunderstanding, and P.W.1 and the other family members used to intervene and pacify the same. Prior to the occurrence, he attempted to cause her death by smothering. The same was actually brought to the notice of P.W.1. Thereafter, a panchayat was convened, and the situation was pacified. https://hcservices.ecourts.gov.in/hcservices/ (b) On the date of occurrence that was on 30.10.2005, the accused/appellant came to the house of P.W.1 and made a request to P.W.2 to send Sellathangal with him to his house. At that time, P.W.2 also assured to do so. After sometime, leaving Sellathangal and the accused in the house, P.Ws.1 and 2 went to a nearby house to witness TV. After witnessing TV, they slept there. The next morning, when they came back to the house, they did not find Sellathangal, and after sometime, P.W.6 informed them that Sellathangal was found dead. Immediately, they proceeded to the house of the accused and found the dead body. Then P.W.1 proceeded to the respondent police station and gave Ex.P1, the complaint, on the strength of which, P.W.14, the Sub Inspector of Police, registered a case in Crime No.201/2005 under Sec.302 of IPC. The printed FIR, Ex.P26, was despatched to the Court. (c) P.W.15, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P27, and also a rough sketch Ex.P28. The police photographer was also taken to the place of occurrence, and it was photographed. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P31. The dead body was sent to the Government Hospital for the purpose of postmortem. (d) P.W.7, the Specialist G-II & Head, Department of Forensic Medicine, General Hospital, Pondicherry, on receipt of the requisition, has conducted autopsy on the dead body of Sellathangal and has issued a postmortem certificate, Ex.P8. The Doctor has opined in Ex.P9 that the cause of death of the deceased Sellathangal was due to asphyxia due to strangulation. (e) The accused/appellant surrendered before the Court on 31.10.2005, and a memo was filed for taking him to police custody. Accordingly, the same was ordered. When he was under police custody, he came forward to give a confessional statement, and the same was recorded in the presence of P.W.10, the Village Administrative Officer (VAO), and another. The admissible part of the confessional statement is marked as Ex.P17. He also produced M.O.2, a piece of saree, which was used by him to strangulate her, and the same was also recovered under a cover of mahazar. He was sent for judicial remand. On completion of the investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution marched 15 witnesses and also relied on 32 exhibits and 10 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 trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded the above punishment. Hence this appeal at the instance of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.Venkataraman would submit that in the instant case, the prosecution has miserably failed to prove the charge levelled against him; that the charge specifically speaks that the accused entertained a suspicion over the fidelity of his wife which impelled him to commit the offence; but there is no iota of evidence in that regard, and thus the motive part that was attributed to the accused for committing the crime, was not actually proved. 5.Added further the learned Senior Counsel that P.W.1 did not whisper that the accused was present at that time when he left the house; and that on the contrary, P.W.2 has stated that at the time when she left for the next house for witnessing TV, the accused was present; but at the same time, she has also stated that even before starting, she sent the accused outside. 6.The learned Senior Counsel would further add that in the case on hand, it is true that P.W.6 brought the information that Sellathangal was found dead in the house of the accused to P.Ws.1 and 2; that though P.W.6 has turned hostile, he has categorically stated that when he went to the house, the front door was closed, and he witnessed through the window; that on the contrary, P.W.2 has stated that when she went to the house, the back door was kept open; that the Investigator has categorically deposed that the investigation revealed that she had got intimacy with one Kovai Thambi; and that under such circumstances, it would have been committed by the said person or somebody else. 7.Further the learned Senior Counsel pointing to the alleged confessional statement given by the accused/ appellant on 3.11.2005 itself, would submit that a piece of cloth which, according to the prosecution, was used for the purpose of strangulation, was recovered only on 4.11.2005; that the explanation given by the Investigator is that though the confessional statement was given and recorded on 3.11.2005 itself, it was not recovered immediately because it was a night time and it was recovered on the next day; that even P.W.7, the VAO, has deposed that from the place of occurrence, it was only just five minutes walk; and that under the circumstances, it is doubtful whether such a recovery could have been made on 4.11.2005, following the confessional statement alleged to have been given by him on 3.11.2005. 8.Added further the learned Senior Counsel that as far as the evidence of P.Ws.1 and 2 are concerned, it cannot in any way brought about the last seen theory in view of the inconsistency in their evidence; that apart from that, it is a clear case where she has got illicit intimacy with other persons; and that under the circumstances, who committed the murder, the prosecution was unable to bring home. 9.It is further submitted by the learned Senior Counsel that in the instant case, the case was rested by the prosecution not on the direct evidence, but only on the circumstantial evidence; that the circumstances were neither placed nor proved and, it failed; that under the circumstances, the trial Judge should have acquitted the accused by rejecting the case of the prosecution, but has taken an https://hcservices.ecourts.gov.in/hcservices/ erroneous view, and hence the judgment of the trial Court has got to be set aside. 10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 11.It is not in controversy that the dead body of Sellathangal the wife of the appellant, was found in his house, and following the inquest made by P.W.15, the Inspector of Police, the dead body was subjected to postmortem by P.W.7, the Doctor, who has given opinion through the contents of the postmortem certificate marked as Ex.P8, and the final opinion Ex.P9, and also as a witness before the Court that she died out of asphyxia due to strangulation. The cause of death as put forth by the prosecution was never a subject matter of controversy before the trial Court, and hence, the trial Judge was perfectly correct in recording so. 12.In order to substantiate that it was the accused/ appellant who committed the cause of death of his wife by strangulation, the prosecution, it is true, had no direct evidence. It relied upon the circumstantial evidence. It is not that this Court is unmindful of the caution made by the settled principle of law that in a given case like this, when the prosecution rested its case exclusively on the circumstantial evidence, it must place and prove all the necessary circumstances making a complete chain, without a snap and also pointing to the hypothesis that except the accused, no one could have committed the offence. Even after the application of this cardinal principle, this Court is satisfied that the prosecution has proved the case beyond reasonable doubt. 13.In the case on hand, P.W.1 is the husband of P.W.2. The deceased Sellathangal was the brother's daughter of P.W.1. Admittedly, she was given in marriage to the accused/appellant 15 years back, and as a result, P.W.6 was the only child born to them. Sellathangal, her husband and their child P.W.6 were also residents of the same Village, a nearby one. From the evidence available, it would be quite clear that after marrying Sellathangal, he contracted second marriage with P.W.11, and though P.W.11 deserted him and married another, from the evidence of P.W.11, it would be quite clear that the accused/appellant was living with both of them at the same time. From the evidence of P.W.1, it could be seen that even before the occurrence, he had actually tried to cause the death of his wife by smothering, and it was also brought to the notice of the panchayatdars, and thereafter, a panchayat was also convened, and he was also warned. But, within a short span of time, the occurrence had taken place. The evidence of P.Ws.1 and 2 would go to show that on the day of occurrence that was on the night hours of 30.10.2005, the accused came to their house, made a request to send Sellathangal with him, and P.W.2 also assured to do so. P.W.2 has further deposed that along with her husband, P.W.1, she went to the nearby house to witness TV leaving both the accused/appellant and also the deceased in the house, but they did not come back that night, and they stayed over there, and when they came to the house next morning, they did not find Sellathangal in the house, and while they were marking a search, it was P.W.6 who informed to P.Ws.1 and 2 that the dead body https://hcservices.ecourts.gov.in/hcservices/ of Sellathangal was found in the house of the appellant. At this juncture, two circumstances are noticed by the Court. Firstly, from the evidence of P.W.2, it would be quite clear that on the night of 30.10.2005 at about 9.00 P.M., Sellathangal was in the company of the accused/appellant in the house of P.W.2 when she left to the next house for witnessing TV. Secondly, the dead body of the lady was found in the house of the appellant on that night. In such circumstances, it is for him to explain. 14.In a given case which is rested upon circumstantial evidence, if any circumstance is found missing and it is well within the knowledge of the accused, it is for him to explain the same, and if he does not explain or he comes with suppression of a fact or if he comes with the false story, that circumstance must be taken to be acted against him. In the instant case, how the death happened to his wife in his house on the night of 30.10.2005 and that too when he was found in the company of his wife in the house of P.Ws.1 and 2 on the very night itself, he had no explanation. Apart from the same, he surrendered before the Court on 31.10.2005, and the police custody was ordered. He was taken to custody on 3.11.2005, and he gave a confessional statement voluntarily. As regards the confessional statement voluntarily made by the accused and recorded by the Investigator, the evidence of P.W.10 is clear. It is true that the a small piece of cloth which, according to the prosecution, was actually used by the accused for the purpose of strangulation, was recovered the next day. The delay that was caused in that regard, by itself cannot be a reason to doubt the prosecution case. It is true that there was a delay when there was some irregularity on the part of the Investigating Officer. But, the evidence of P.W.10, the VAO, as to the confessional statement made by the accused and the recovery of the piece of cloth has got to be accepted. Under the circumstances, the medical opinion canvassed that he strangulated her by causing asphyxia and caused the death also stood proved. 15.The contention put forth by the learned Senior Counsel for the appellant is that the evidence of P.Ws.1 and 2 are inconsistent apart from the evidence of P.W.6. These are all minor most particulars which, in the considered opinion of the Court, will not tilt the balance. Under the circumstances, for the reasons stated above, it can be well stated that the prosecution has placed and proved the above circumstances pointing to the guilt of the accused. Hence the trial Judge was perfectly correct in finding him guilty and awarding the punishment as referred to above. 16.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar nsv https://hcservices.ecourts.gov.in/hcservices/ To: 1.The II Additional Sessions Judge Puducherry 2.Do Thro The Principal Sessions Judge, Puducherry. 3.The Judicial Magistrate No.1, Pondicherry. 4.Do Thro The Chief Judicial Magistrate, Pondicherry. 5.The Superintendent, Central Prison, Pondicherry. 6.The Inspector of Police Bahour Police Station Pondicherry 7.The Public Prosecutor Puducherry. 8.The Section Officer, Criminal Section, High Court, Chennai-104. 1 cc to Sr.Government Pleader,(Pondicherry) Sr.No.81598 CRL.A.No.567 of 2010 GV {CO} TP/24.11.2010. https://hcservices.ecourts.gov.in/hcservices/