D.Rangasamy v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.11.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.363 of 2009D.Rangasamy ..AppellantVs.State rep. bBy:The Inspector of Police,Negamam Police Station,Coimbatore District.(Crime No.18/2007) ..RespondentThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional District SessionsJudge, Fast Track Court No.III, Coimbatore made in S.C.No.207 of2008 dated 23.12.2008.]For Appellant : Mr.K.ThilageswaranFor 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 SessionsDivision, Fast Track Court-III, Coimbatore, whereby the soleaccused/appellant stood charged, tried and found guilty underSections 302 and 201 I.P.C. and awarded life imprisonment and twoyears rigorous imprisonment respectively. The sentences areordered to run concurrently.2. The short facts necessary for the disposal of this appealcan be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.1 is the younger brother of the deceased Pappathy. Theaccused is the husband of the deceased. The accused and thedeceased had two daughters, aged 12 and 14 years. The elderdaughter of the accused was examined as P.W.3. Theaccused/appellant developed illegal intimacy with one Baby, workingin Prasitha Hospital. Due to which, there was misunderstanding andfrequent 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 pacifiedthe same. At about 3.00 p.m. on the same day, the deceased finishedher work and went to P.W.1's house. At about 8.00 p.m, the accusedwent there in inebriated state and took the deceased Pappathy tohis 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, hewent to the house of the accused and advised him not to quarrelsince they have two daughters. (b) At about 2.00 a.m., the daughters of the deceased knockedthe door of P.W.1's house and informed that both accused and thedeceased were not found in the house. They searched for them in thenearby place and at 6.00 a.m. P.W.1 and others found the dead bodyof Pappathy in the well situate in the land belonged to oneBalusamy 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 NagamamPolice Station. Accordingly, P.W.1 went to the respondent Policestation and gave Ex.P1 report to P.W.17 Inspector of Police of thatcircle. On receipt of Ex.P1 report at 8.30 a.m., P.W.17 registereda case in Crime No.18 of 2007 under sections 302 and 201 IPC. Theprinted F.I.R. Ex.P13 was despatched to Court. (d) In the meanwhile, when P.W.8 Panahayat President was inhis house, at about 8.30 a.m., the accused appeared before him andgave confessional statement regarding the entire occurrence. Thesame was reduced into writing. The accused informed him that aftercommitting murder, he had thrown the dead body into the wellsituated in the land of P.W.6. The confessional statement recordedby P.W.8 was marked as Ex.P.2. P.W.8 took the accused and producedhim before P.W.17, Inspector of Police while he was conductinginspection at the place of occurrence. (e) P.W.17, made inspection and prepared the observationmahazar Ex.P3 and drew a rough sketch Ex.P14. He conducted inqueston the dead body of the deceased in the presence of witnesses andpanchayatdars 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 GovernmentHospital, 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.P8and gave final opinion in Ex.P9 that the deceased would appear tohave died of asphyxia due to strangulation. (g) The accused was arrested by the investigating officer. Theaccused came forward to give confessional statement. The same wasrecorded in the presence of witnesses and thereafter, he took thepolice party and produced M.O.10 pillow cover from the place ofoccurrence which was also recovered under a cover ofmahazar,Ex.P.4. Then, the accused was sent for judicial remand.All the material objects which were recovered were subjected toanalysis and the reports were received and produced before theCourt. On completion of the investigation, the investigatingofficer filed a final report.(h) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 17 witnesses andrelied on 17 exhibits and 11 material objects. On completion of theevidence on the side of the prosecution, the accused was questionedunder section 313 Cr.P.C. procedurally as to the incriminatingcircumstances found in the prosecution witnesses and he denied themas false. No defence witnesses were examined. On hearing thearguments advanced on either side, the trial Court found theaccused guilty under sections 302 and 201 IPC and awarded thepunishments 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, thelearned counsel would submit that the occurrence has taken placeduring the night hours on 3.1.2007 and P.W.3 was the only witnessexamined by the prosecution to prove that the accused strangulatedand caused the death of the deceased and took the body of thedeceased from his house, but, P.W.3 has turned hostile. Hence, theprosecution has no use of her evidence. Further, the prosecutionhas no other evidence to offer. The prosecution much relied on theextra judicial confession alleged to have been given by theaccused/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.8would clearly indicate that the accused/appellant should not haveappeared before him and gave confessional statement. The HeadConstable P.W.13 who was examined by the prosecution would submitthat he was present all along with the Inspector of Police nearbythe well while the investigation was going on from 8.00 a.m. to3.00 p.m. Therefore, the statements that the accused gave extrajudicial confession to the Panchayat President and the same wasrecorded by him; that the accused was produced by the PanchayatPresident before the Investigating officer along with Ex.P2 allegedconfessional 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 occurrenceare all false story. 4. Added further learned counsel, the medical opinioncanvassed was not in favour of the prosecution. The prosecutioncame with a specific story that the deceased died of asphxia due tostrangulation but the doctor's opinion at the time of crossexamination was contrary. The hyoid bone was also found to be intact. No abrasion injuries are found in the neck. The cause ofdeath by strangulation is thoroughly ruled out since the medicalopinion did not support the case of the prosecution.5. Added further learned counsel, at the time when the accusedwas arrested, he came forward to give confessional statementvoluntarily and the same was recorded, pursuant to which, M.O.10pillow cover produced by the appellant was recovered by theinvestigating officer. But at the time of analysis, no watersubstance or blood stains found in the same. Hence, the recovery,pursuant to the confession statement given to the investigatingofficer did not support the case of the prosecution. All would goto show that the prosecution has miserably failed to prove its casebeyond reasonable doubt, but the trial Judge has taken an erroneousview and found the accused guilty. Hence, the judgment of thetrial Court has got to be set aside and the appellant has got to beacquitted by the hands of this Court.6. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.7. It is not in controversy that the dead body of one Papathywas found in the well situate in the land belonged to P.W.6 on4.1.2007 and following the inquest made by the InvestigatingOfficer, P.W.17 the dead body was subjected to post mortem. On therequisition made, P.W.14, doctor conducted autopsy and gave opinionas a witness before Court and through post mortem certificate,Ex.P8 and the final opinion in Ex.P9 that the deceased Pappathydied of asphyxia due to strangulation. The first contentionputforth by the learned counsel for the appellant that the medicalevidence did not support the case of the prosecution has got to berejected. The doctor has categorically given opinion as found inthe final opinion, Ex.P9 that the decided died out asphyxia due tostrangulation. This opinion was thoroughly fortified by theinjuries 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 sideon lateral aspect of Adam's apple." https://hcservices.ecourts.gov.in/hcservices/ "Internal injuries:On dissection of the neck, contusion of underlyinganterior neck muscles seen below abrasions; Larynx– Normal. Contusion of right carotid artery. Otherstructures normal. Hyoid Intact....""Appearance found at the postmortem: On a body of a female lies on its back. Eyesclosed. Eyes, Tongue kept inside. Watery, Frothydischarge seen from nose and mouth."8. The doctor has given opinion that after dissection of thebody, particularly neck part, contusion was found. It is true thatthe hyoid bone was found in tact. In all cases of strangulation,the fracture of hyoid bone is not a must. But the doctor's opinionthat the deceased died of asphyxia due to strangulation wasthoroughly fortified when the doctor found the injury on the neckon dissection of the body. Hence, the contention of the learnedcounsel for the appellant in that regard has got to be rejected.9. It is true that the prosecution marched P.W.3 as the onlyeye witness to the occurrence, but, P.W.3 who is the daughter ofthe accused and the deceased, has turned hostile. The prosecutionhas to its advantage, the evidence of P.W.8, the PanchayatPresident. He has categorically deposed to the fact that on theearly hours of 4.1.2007, P.W.1 came to his house and informed thathis sister Pappathy and his bother-in-law/ accused/appellant werefound missing. Thereafter, P.W.1 came and informed him that thedead body of his sister Pappathy was found in the well situated inthe land of P.W.6. At about 8.00 a.m., the accused appeared beforehim and gave confessional statement that he strangulated his wifeand thrown the dead body in the well. P.W.8 has categoricallydeposed to the fact that the extra judicial confession given by theaccused was recorded in Ex.P2. The contention putforth by thelearned counsel for the appellant that the evidence of P.W.8 hasgot to be rejected, in the considered opinion of the Court, did notcarry any merit whatsoever. 10. It well settled principle of law that a Court can sustainconviction on the confession if it inspires the confidence of theCourt. Before recording the conviction on the strength of theextra judicial confession, the Court must satisfy the two tests.Firstly, to whom and under what circumstances the extra judicialconfession was given. Secondly, whether the evidence of the personto whom the said extra judicial confession was made, inspires theconfidence of the Court. In the instant case, both the tests, onapplication, are found to be satisfied. https://hcservices.ecourts.gov.in/hcservices/

11. P.W.8 was the Panchayat President of the very same placeand he was well acquainted with the accused/appellant. Theaccused/appellant was unable to show why P.W.8 should comeforward to give such evidence against him. It is not the case ofthe appellant that P.W.8 was in inimical terms or on strainedrelationship with the accused. The occurrence has taken place at2.00 a.m. on 4.1.2007 and the accused/appellant appeared beforeP.W.8 at about 8.00 a.m. It is pertinent to point out that at thetime of occurrence during night hours on 3.1.2007, the accused wasin inebriated mood and on the next morning, he appeared beforeP.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 statementwhich was made by the appellant/accused, he took the accused andproduced before the investigating officer where he was carrying oninvestigation. 12. It is further to be pointed out that when the accused wasarrested, he also gave confession statement. It is true that thepillow cover was recovered and it did not contain any blood stainsor water substance. But as per the evidence of P.W.8, the accusedappeared before him and gave confessional statement where he hasnarrated the entire incident and this fact was also supported bycorroborative piece of evidence namely the medical opinioncanvassed through the post mortem doctor and hence, there is nodoubt muchless reasonable doubt in the mind of the Court inrecording the finding that the appellant was the person who causedthe death of the deceased by strangulation and thereafter thrownthe dead body into the well. All would go to show that theprosecution has proved the case beyond reasonable doubt. Thecontention putforth by the learned counsel narrated above, do notcarry any merit whatsoever. Accordingly, the same is liable to berejected, accordingly rejected.13. In the instant case, the occurrence has taken place at2.00 a.m. on 3.1.2007 when the accused/appellant along with twominor children were in the house. As per the evidence available, itis seen that the accused developed illegal intimacy with one ladynamed Baby, pursuant to which, there was often quarrel between thespouse. On the date of occurrence also, there was a quarrel betweenthe spouse. Hence, the act of the accused cannot but be termed onlyas murder. The accused has murdered his wife and has taken thedead body of his wife and thrown it into the well. Under suchcircumstances, the trial court is perfectly correct in finding theaccused guilty under sections 302 and 201 I.P.C. and awarding lifeimprisonment and two years rigorous imprisonment respectively.This Court is unable to see any reason to interfere with thejudgment 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 dismissedconfirming the judgement of conviction and sentence passed by thetrial Court. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vsiTo1. 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 SuperintendentCentral Prison, Coimbatore1 cc to Mr.K. Thilageswaran, Advocate, SR. 63109CRL. APPEAL No.363 of 2009PA (CO)kk 4/12