IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.11.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.363 of 2009 D.Rangasamy ..Appellant Vs. State rep. bBy: The Inspector of Police, Negamam Police Station, Coimbatore District. (Crime No.18/2007) ..Respondent 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 No.III, Coimbatore made in S.C.No.207 of 2008 dated 23.12.2008.] For Appellant : Mr.K.Thilageswaran 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.) This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court-III, Coimbatore, whereby the sole accused/appellant stood charged, tried and found guilty under Sections 302 and 201 I.P.C. and awarded life imprisonment and two years rigorous imprisonment respectively. The sentences are ordered to run concurrently. 2. The short facts necessary for the disposal of this appeal can be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.1 is the younger brother of the deceased Pappathy. The accused is the husband of the deceased. The accused and the deceased had two daughters, aged 12 and 14 years. The elder daughter of the accused was examined as P.W.3. The accused/appellant developed illegal intimacy with one Baby, working in Prasitha Hospital. Due to which, there was misunderstanding and frequent quarrel between the spouse. On 3.1.2007 at 6.00 a.m., there a quarrel as usual. P.W.1 and others intervened and pacified the same. At about 3.00 p.m. on the same day, the deceased finished her work and went to P.W.1's house. At about 8.00 p.m, the accused went there in inebriated state and took the deceased Pappathy to his house. There was quarrel during night hours between the spouse. At about 10.30 p.m., when P.W.1 came to know about the same, he went to the house of the accused and advised him not to quarrel since they have two daughters. (b) At about 2.00 a.m., the daughters of the deceased knocked the door of P.W.1's house and informed that both accused and the deceased were not found in the house. They searched for them in the nearby place and at 6.00 a.m. P.W.1 and others found the dead body of Pappathy in the well situate in the land belonged to one Balusamy Naicker examined as P.W.6. (c) P.W.1 informed the same to the Panchayat President, P.W.8, who in turn advised him to give a complaint to Nagamam Police Station. Accordingly, P.W.1 went to the respondent Police station and gave Ex.P1 report to P.W.17 Inspector of Police of that circle. On receipt of Ex.P1 report at 8.30 a.m., P.W.17 registered a case in Crime No.18 of 2007 under sections 302 and 201 IPC. The printed F.I.R. Ex.P13 was despatched to Court. (d) In the meanwhile, when P.W.8 Panahayat President was in his house, at about 8.30 a.m., the accused appeared before him and gave confessional statement regarding the entire occurrence. The same was reduced into writing. The accused informed him that after committing murder, he had thrown the dead body into the well situated in the land of P.W.6. The confessional statement recorded by P.W.8 was marked as Ex.P.2. P.W.8 took the accused and produced him before P.W.17, Inspector of Police while he was conducting inspection at the place of occurrence. (e) P.W.17, made inspection and prepared the observation mahazar Ex.P3 and drew a rough sketch Ex.P14. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared the inquest report Ex.P.15. Thereafter, the dead body was sent for autopsy. (f) P.W.14, doctor attached to the Pollachi Government Hospital, on receipt of the requisition conducted autopsy on the https://hcservices.ecourts.gov.in/hcservices/ dead body of Pappathy and issued the post mortem certificate Ex.P8 and gave final opinion in Ex.P9 that the deceased would appear to have died of asphyxia due to strangulation. (g) The accused was arrested by the investigating officer. The accused came forward to give confessional statement. The same was recorded in the presence of witnesses and thereafter, he took the police party and produced M.O.10 pillow cover from the place of occurrence which was also recovered under a cover of mahazar,Ex.P.4. Then, the accused was sent for judicial remand. All the material objects which were recovered were subjected to analysis and the reports were received and produced before the Court. On completion of the investigation, the investigating officer filed a final report. (h) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 17 witnesses and relied on 17 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. procedurally as to the incriminating circumstances found in the prosecution witnesses and he denied them as false. No defence witnesses were examined. On hearing the arguments advanced on either side, the trial Court found the accused guilty under sections 302 and 201 IPC and awarded the punishments as referred to above. Aggrieved by the said judgment, the appellant has brought forth this appeal. 3. Advancing the argument on behalf of the appellant, the learned counsel would submit that the occurrence has taken place during the night hours on 3.1.2007 and P.W.3 was the only witness examined by the prosecution to prove that the accused strangulated and caused the death of the deceased and took the body of the deceased from his house, but, P.W.3 has turned hostile. Hence, the prosecution has no use of her evidence. Further, the prosecution has no other evidence to offer. The prosecution much relied on the extra judicial confession alleged to have been given by the accused/appellant to P.W.8 Panchayat President at about 8.00 a.m. on the next morning, that was on 4.1.2007. The evidence of P.W.8 would clearly indicate that the accused/appellant should not have appeared before him and gave confessional statement. The Head Constable P.W.13 who was examined by the prosecution would submit that he was present all along with the Inspector of Police nearby the well while the investigation was going on from 8.00 a.m. to 3.00 p.m. Therefore, the statements that the accused gave extra judicial confession to the Panchayat President and the same was recorded by him; that the accused was produced by the Panchayat President before the Investigating officer along with Ex.P2 alleged confessional statement, and that the accused was also produced by https://hcservices.ecourts.gov.in/hcservices/ P.W.8 before the Investigating officer at the place of occurrence are all false story. 4. Added further learned counsel, the medical opinion canvassed was not in favour of the prosecution. The prosecution came with a specific story that the deceased died of asphxia due to strangulation but the doctor's opinion at the time of cross examination was contrary. The hyoid bone was also found to be in tact. No abrasion injuries are found in the neck. The cause of death by strangulation is thoroughly ruled out since the medical opinion did not support the case of the prosecution. 5. Added further learned counsel, at the time when the accused was arrested, he came forward to give confessional statement voluntarily and the same was recorded, pursuant to which, M.O.10 pillow cover produced by the appellant was recovered by the investigating officer. But at the time of analysis, no water substance or blood stains found in the same. Hence, the recovery, pursuant to the confession statement given to the investigating officer did not support the case of the prosecution. All would go to show that the prosecution has miserably failed to prove its case beyond reasonable doubt, but the trial Judge has taken an erroneous view and found the accused guilty. Hence, the judgment of the trial Court has got to be set aside and the appellant has got to be acquitted by the hands of this Court. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that the dead body of one Papathy was found in the well situate in the land belonged to P.W.6 on 4.1.2007 and following the inquest made by the Investigating Officer, P.W.17 the dead body was subjected to post mortem. On the requisition made, P.W.14, doctor conducted autopsy and gave opinion as a witness before Court and through post mortem certificate, Ex.P8 and the final opinion in Ex.P9 that the deceased Pappathy died of asphyxia due to strangulation. The first contention putforth by the learned counsel for the appellant that the medical evidence did not support the case of the prosecution has got to be rejected. The doctor has categorically given opinion as found in the final opinion, Ex.P9 that the decided died out asphyxia due to strangulation. This opinion was thoroughly fortified by the injuries that were noted, viz., the external and internal injuries, by the medical person as narrated in the post mortem certificate, Ex.P.8. "External injuries: 1) 2 linear abrasions, 2 cms long over either side on lateral aspect of Adam's apple." https://hcservices.ecourts.gov.in/hcservices/ "Internal injuries: On dissection of the neck, contusion of underlying anterior neck muscles seen below abrasions; Larynx – Normal. Contusion of right carotid artery. Other structures normal. Hyoid Intact...." "Appearance found at the postmortem: On a body of a female lies on its back. Eyes closed. Eyes, Tongue kept inside. Watery, Frothy discharge seen from nose and mouth." 8. The doctor has given opinion that after dissection of the body, particularly neck part, contusion was found. It is true that the hyoid bone was found in tact. In all cases of strangulation, the fracture of hyoid bone is not a must. But the doctor's opinion that the deceased died of asphyxia due to strangulation was thoroughly fortified when the doctor found the injury on the neck on dissection of the body. Hence, the contention of the learned counsel for the appellant in that regard has got to be rejected. 9. It is true that the prosecution marched P.W.3 as the only eye witness to the occurrence, but, P.W.3 who is the daughter of the accused and the deceased, has turned hostile. The prosecution has to its advantage, the evidence of P.W.8, the Panchayat President. He has categorically deposed to the fact that on the early hours of 4.1.2007, P.W.1 came to his house and informed that his sister Pappathy and his bother-in-law/ accused/appellant were found missing. Thereafter, P.W.1 came and informed him that the dead body of his sister Pappathy was found in the well situated in the land of P.W.6. At about 8.00 a.m., the accused appeared before him and gave confessional statement that he strangulated his wife and thrown the dead body in the well. P.W.8 has categorically deposed to the fact that the extra judicial confession given by the accused was recorded in Ex.P2. The contention putforth by the learned counsel for the appellant that the evidence of P.W.8 has got to be rejected, in the considered opinion of the Court, did not carry any merit whatsoever. 10. It well settled principle of law that a Court can sustain conviction on the confession if it inspires the confidence of the Court. Before recording the conviction on the strength of the extra judicial confession, the Court must satisfy the two tests. Firstly, to whom and under what circumstances the extra judicial confession was given. Secondly, whether the evidence of the person to whom the said extra judicial confession was made, inspires the confidence of the Court. In the instant case, both the tests, on application, are found to be satisfied. https://hcservices.ecourts.gov.in/hcservices/ 11. P.W.8 was the Panchayat President of the very same place and he was well acquainted with the accused/appellant. The accused/appellant was unable to show why P.W.8 should come forward to give such evidence against him. It is not the case of the appellant that P.W.8 was in inimical terms or on strained relationship with the accused. The occurrence has taken place at 2.00 a.m. on 4.1.2007 and the accused/appellant appeared before P.W.8 at about 8.00 a.m. It is pertinent to point out that at the time of occurrence during night hours on 3.1.2007, the accused was in inebriated mood and on the next morning, he appeared before P.W.8 and narrated the incident which has been recorded by P.W.8. It is also claimed by P.W.8 that after recording Ex.P2 statement which was made by the appellant/accused, he took the accused and produced before the investigating officer where he was carrying on investigation. 12. It is further to be pointed out that when the accused was arrested, he also gave confession statement. It is true that the pillow cover was recovered and it did not contain any blood stains or water substance. But as per the evidence of P.W.8, the accused appeared before him and gave confessional statement where he has narrated the entire incident and this fact was also supported by corroborative piece of evidence namely the medical opinion canvassed through the post mortem doctor and hence, there is no doubt muchless reasonable doubt in the mind of the Court in recording the finding that the appellant was the person who caused the death of the deceased by strangulation and thereafter thrown the dead body into the well. All would go to show that the prosecution has proved the case beyond reasonable doubt. The contention putforth by the learned counsel narrated above, do not carry any merit whatsoever. Accordingly, the same is liable to be rejected, accordingly rejected. 13. In the instant case, the occurrence has taken place at 2.00 a.m. on 3.1.2007 when the accused/appellant along with two minor children were in the house. As per the evidence available, it is seen that the accused developed illegal intimacy with one lady named Baby, pursuant to which, there was often quarrel between the spouse. On the date of occurrence also, there was a quarrel between the spouse. Hence, the act of the accused cannot but be termed only as murder. The accused has murdered his wife and has taken the dead body of his wife and thrown it into the well. Under such circumstances, the trial court is perfectly correct in finding the accused guilty under sections 302 and 201 I.P.C. and awarding life imprisonment and two years rigorous imprisonment respectively. This Court is unable to see any reason to interfere with the judgment of the Court below either factually or legally. https://hcservices.ecourts.gov.in/hcservices/ 14. In the result, the appeal fails and the same is dismissed confirming the judgement of conviction and sentence passed by the trial Court. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vsi To 1. The Additional District Sessions Judge, Fast Track Court No.III, Coimbatore. 2. The Inspector of Police, Negamam Police Station, Coimbatore District.. 3. The Public Prosecutor, High Court, Chennai. 4. The Superintendent Central Prison, Coimbatore 1 cc to Mr.K. Thilageswaran, Advocate, SR. 63109 CRL. APPEAL No.363 of 2009 PA (CO) kk 4/12 https://hcservices.ecourts.gov.in/hcservices/