Babu v. Inspector of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 6-1-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRL.A.No.296 of 2008Babu.. Appellant/AccusedvsState by:Inspector of PolicePeriyanaickenpalayam Police StationCrime No.463 of 2005Coimbatore District.. Respondent/ComplainantCriminal appeal preferred under Sec.374(2) of the Code of CriminalProcedure against the judgment of the Additional District and SessionsJudge, Fast Track Court No.II, Coimbatore, in S.C.No.208 of 2006 dated22.6.2007.For Appellant: Mr.N.ManokaranFor Respondent: Mr.P.Kumaresan Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Additional SessionsDivision, Fast Track Court No.II, Coimbatore, made in S.C.No.208 of 2006whereby the sole accused/appellant stood charged under Sec.302 of IPC,tried, found guilty as per the charge and awarded life imprisonmentalong with a fine of Rs.1000/- and default sentence. 2.The short facts necessary for the disposal of this appeal can bestated as follows:(a) The accused/appellant married the deceased Selvi six yearsprior to the occurrence. The accused was employed in a private companyin Narasimhanayakkanpalayam.The deceased Selvi, a B.Com Graduate, alsoapplied to a private company where P.W.5 was working as a Manager. Shewas appointed in the month of July 2005, and she was doing her work. Inthe said company, P.W.10 was the Spinning Master, and he was also thePresident of the Workers' Association. She had occasion to talk to himand move with him friendly.P.W.10 constructed a house and invited allfor the housewarming ceremony. The accused and his wife, the deceased,did not attend the same. After a week, both of them went to the houseof P.W.10 to make an enquiry over the same, and in turn, they invitedhim. P.W.10 on one or two occasions came to the house of the accused. https://hcservices.ecourts.gov.in/hcservices/ (b) On 14.8.2005, the deceased gave an application for leave andshe was actually on leave for a period of a week. On 18.8.2005, shereturned and got down from the bus at Narasimhanayakkanpalayam where herhusband and also P.W.10 were standing. On seeing P.W.10, both theaccused and the deceased invited him to their house. Accordingly, healso went to their house.Leaving his wife and P.W.10, the accused wentoutside to purchase milk.Thereafter, on his return, he was instructed byher to get tiffin from a hotel. When the accused returned, he found thedoor remained closed. He looked through the hole when he found thedeceased embracing P.W.10. Immediately, he opened the door andquestioned what happened. P.W.10 informed him that she narrated theearlier incidents that the accused did not like her attending the job.Then, P.W.10 left the place. (c) On 19.8.2005 at about 2.00 P.M., as usual P.W.5, the father ofthe deceased, informed to P.W.2 to take her home. P.W.2 went over thereand found the house locked. Next morning on 20.8.2005 also, he wentover there. Both the morning and in the afternoon, the house was keptlocked. They found bad odor emanating from the house. In the meanwhile,when P.W.1, the Revenue Divisional Officer, was in his house, theaccused was taken by P.W.17, a practising Advocate, and produced beforehim. At that time, the accused gave a confessional statement. The samewas typed by the typist of P.W.1. Ex.P1 is the said statement. Then,P.W.1 caused the production of the said statement, Ex.P1, and theaccused before the respondent police station through P.W.9, hisassistant. (d) On receipt of Ex.P1, P.W.14, the Sub Inspector of Police,attached to the respondent police station, registered a case in CrimeNo.463 of 2005 under Sec.302 of IPC. The printed FIR, Ex.P19, wasdespatched to the Court. A copy of the FIR was served upon P.W.18, theInspector of Police,who took up investigation, and the accusedvolunteered to give a confessional statement to P.W.19, which wasrecorded in the presence of witnesses. The admissible part is marked asEx.P3. Following the same, he produced M.O.1, key. Apart from that, hetook the police party to the house where the dead body was found. Healso further produced M.O.3, grinding stone, and M.O.4, iron box, whichwere recovered under a cover of mahazar. Then, the InvestigatingOfficer visited the scene of occurrence and prepared an observationmahazar, Ex.P6, and a rough sketch, Ex.P26. Then, the place ofoccurrence was photographed through P.W.12, the photographer, and thephotographs and negatives are marked as M.O.11 series. Thereafter, theInvestigator conducted inquest on the dead body of Selvi in the presenceof witnesses and panchayatdars and prepared an inquest report, Ex.P27.Then, the dead body was sent to the Government Hospital along with arequisition for the purpose of postmortem.(e) P.W.16, the Tutor in Forensic Medicine, Coimbatore MedicalCollege Hospital, on receipt of the requisition, conducted autopsy onthe dead body of Selvi and has noticed three injuries. He has issued apostmortem certificate, Ex.P23, with his opinion that the deceased wouldappear to have died of compression of neck due to ligature strangulation.(f) All the material objects were subjected to analysis by theForensic Sciences Department, which resulted in Ex.P17, the chemicalanalyst's report, and Ex.P18, the serologist's report. On completion of https://hcservices.ecourts.gov.in/hcservices/ the investigation, the Investigator filed the final report.3.The case was committed to Court of Sessions, and necessary chargewas framed. In order to substantiate the charge, the prosecutionexamined 18 witnesses and relied on 32 exhibits and 16 material objects.On completion of the evidence on the side of the prosecution, theaccused was questioned under Sec.313 of Cr.P.C., as to the incriminatingcircumstances found in the evidence of the prosecution witnesses. Heflatly denied the entire evidence as false. No defence witness wasexamined. The trial Court heard the arguments advanced and took theview that the prosecution has proved the case beyond reasonable doubtand hence, found him guilty as per the charge of murder and awarded lifeimprisonment which is the subject matter of challenge before this Court.4.Advancing arguments on behalf of the appellant, the learnedCounsel made the following submissions:(i) The occurrence has taken place on 18.8.2005 at 10.00 P.M.according to the prosecution. The prosecution had no direct evidence tooffer. It rested its entire case on the circumstantial evidence. Thefirst circumstance relied on by the prosecution was the extra judicialconfession alleged to have been given by the accused to P.W.1, theRevenue Divisional Officer, in the presence of P.W.17, a practisingLawyer. From the evidence, it would be quite clear that P.W.17, theAdvocate, at no point of time was acquainted or already known to theaccused, and hence there was no occasion either for the accused toapproach P.W.17 or for P.W.17 to take him to the R.D.O. These are alldocuments which have been created to suit the prosecution case. (ii) The second circumstance relied on by the prosecution is thelast seen theory through P.W.10. It is not the evidence of P.W.10 thathe saw both of them just prior to the occurrence. On the date ofoccurrence, actually the accused was not at all available in the house.In fact, she has committed suicide, and the ligature mark would clearlyindicate the same. (iii) The recovery of key following the so-called allegedconfessional statement was nothing but false. After the door was brokeopen, the dead body was found. Under the circumstances, the police havecreated a case roping in the accused/appellant falsely. (iv) In the instant case, the prosecution has miserably failed toplace and prove the necessary circumstances, and hence he is entitledfor acquittal in the hands of this Court. 5.Added further the learned Counsel in the second line of hisargument that even if the Court believes the case of the prosecution asto the factual position, the act of the accused would not attract thepenal provision of murder; that in the instant case, it is quite evidentfrom the testimony of P.W.10 that on the date of occurrence i.e.,18.8.2005, he went to the house of the accused, and while he was stayingover there for a short while, the accused went outside to get milk andthereafter, tiffin, and he came back, and at that time, she embraced himsuddenly and kissed him, and this was actually witnessed by the accused;that even from the evidence, it would be quite clear that he suspectedher fidelity, and he also advised her not to continue the job, but she https://hcservices.ecourts.gov.in/hcservices/ was very particular to continue the job; that on the date of occurrence,such a scene was actually witnessed by him, and naturally a husbandwould be provoked; that on the very day within a few hours, theoccurrence has taken place; that in such circumstances, the act of theaccused was due to the sudden provocation; that the same cannot betermed as murder, and this has got to be considered by the Court.6.The Court heard the learned Additional Public Prosecutor on allthe above contentions and paid its anxious consideration on thesubmissions made.7.It is not in controversy that the dead body of Selvi, thedaughter of P.W.5, was found in the house where she was living with herhusband, the accused/appellant herein. After the inquest was made onthe dead body by the Investigator on 20.8.2005, the same was subjectedto postmortem by P.W.16, the Doctor, who has given his opinion that shedied out of compression of neck due to ligature strangulation. The factthat she died out of homicidal violence was never disputed by theappellant. Hence without any impediment, it could be recorded so.8.In order to prove the case that it was the accused whostrangulated her to death, the prosecution had no direct evidence tooffer, but relied upon circumstances. It is not that this Court isunmindful of the settled principles of law and also the dictum of theApex Court that in a given case like this, the prosecution must placeand prove all necessary circumstances which should constitute a chaineven without a snap and also be pointing to the hypothesis that exceptthe accused no one could have committed the offence. In the instantcase, even after the application of this test, this Court is thoroughlysatisfied that the prosecution has brought home the guilt of theaccused. The following circumstances are noticed by the Court from thematerials available.9.It is not in controversy that the accused during the relevanttime was living with his wife in the same house being a separateresidence. P.W.10 has categorically spoken to the last seen theory.While they were actually living together, the accused after thecommission of the offence, has kept the doors locked and has taken awaythe key also. At this juncture, two points have got to be pointed out.Firstly, the occurrence has taken place inside the house where he wasliving, and even on the day he was staying with his wife, and secondly,how the death has happened it is for the accused to explain because itis a relevant fact which is within the special knowledge of the accused.But, he has no explanation to offer. In a given case like this, when acircumstance which is actually within the special knowledge of theaccused, if he suppresses the same or comes with the false explanation,the link of the circumstance could be taken as applied. Further, thekey of the house was actually recovered by the Investigating Officerfrom him pursuant to the confessional statement. The admissible part ofthe same is marked as Ex.P3. A witness has also been examined in thatregard. Only after opening the lock with the key recovered from theaccused, the dead body was found. 10.Added circumstance is the evidence of P.W.1. P.W.1 is theRevenue Divisional Officer, a responsible Officer on the executive side.According to P.W.1, the accused was produced by P.W.17, a practising https://hcservices.ecourts.gov.in/hcservices/ Lawyer, and he gave the confessional statement, and the same wasrecorded which is Ex.P1, and following the same, the accused was alsoproduced before the respondent police station. It remains to be statedthat the case came to be registered for murder only on the confessionalstatement given by the accused to P.W.1. Following the same, the housewas opened with the key recovered from the accused, and the dead bodywas fond. 11.The further circumstance is that the medical opinion canvassedwould clearly indicate that it was a case of murder. The defence pleathat it was a commission of suicide has got to be discountenanced inview of the medical opinion canvassed, and also the house was keptlocked outside. From the key recovered from the accused, it was opened,and hence it is also ruled out. Further, the subsequent conduct that heleft the place immediately after the commission of the offence, would beclearly indicative of his involvement in the crime. All put togetherwould go to show that it was the accused who committed the murder of hiswife and left the place of occurrence. 12.As far as the second line of argument is concerned, this Courtis able to see force in the same. P.W.10 was the President of theWorkers' Association of a mill where she was employed during therelevant time, and she developed association with him, and whether itwas friendly or very closer, but her fidelity was suspected by theaccused. Actually, he went to the extent of attempting to stop her fromcontinuing the job, but she was not for that. Even from the evidence ofP.W.10, it would be quite clear that on the date of occurrence i.e.,18.8.2005, when he was staying for a while at about 8.00 P.M., theaccused went outside to get milk and thereafter tiffin, and when he cameback, he found both of them in a compromising position. Apart from that,he has given a consistent statement even before P.W.15, the JudicialMagistrate, and also before the Court to that effect. All would go toshow that naturally a husband, under the circumstances, would beprovoked, and following the same, within a few hours, the occurrence hastaken place. Hence the act of the accused was actually due to the suddenprovocation, and it cannot be termed as murder. But, at the same time,the act of the accused would attract the penal provision of Sec.304(Part I) of IPC, and awarding punishment of 7 years RigorousImprisonment, in the considered opinion of this Court, would meet theends of justice. 13.Accordingly, the conviction and sentence of life imprisonmentimposed by the trial Court on the appellant under Sec.302 of IPC are setaside, and instead, he is convicted under Sec.304 (Part I) of IPC and isdirected to undergo seven years Rigorous Imprisonment. The sentencealready undergone by him shall be given set off. The fine and defaultsentence imposed by the trial Court will hold good.14.With the above modification in conviction and sentence, thiscriminal appeal is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ nsv/To:1.The Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore.2.The Inspector of Police, Periyanaickenpalayam Police Station, Crime No.463 of 2005, Coimbatore District.3.The Public Prosecutor, High Court, Madras.4.-do- thro' The Principal Sessions Judge,Coimbatore.5.The Superintendent,Central Prison,Coimbatore.6.The District Collector, Coimbatore.7.The Director General of Police, Chennai.+ 1 cc to Mr.N.Manokaran,Advocate, SR.402Copy to: The Section Officer, Criminal Section, High Court, Madras.CRL.A.No.296 of 2008vsv(co)em/20.1.09