C.Velu v. The Inspector of PoliceMelsengam Police StationMelsengam,Thiruvannamalai District.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.7.2009CORAM:THE HONOURABLE MR.JUSTICE C.NAGAPPANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANCriminal Appeal No.364 of 2008C.Velu ..Appellant/AccusedVersusThe Inspector of PoliceMelsengam Police StationMelsengam,Thiruvannamalai District.(Cr.No.221/2001) ..Respondent/ComplainantPrayer: Appeal against the Judgment, dated 26.7.2006, passed inSessions Case No.123 of 2003 on the file of District and SessionsJudge, Thiruvannamalai.For Appellant: Mr.V.BhimanFor Respondent : Mr.Babu Muthu Meeran Additional Public ProsecutorJ U D G M E N T (Judgment of the Court was delivered by C. NAGAPPAN, J.)Appellant Velu is the sole accused in Sessions Case No.123 of2003 on the file of District and Sessions Judge, Thiruvannamalaiand he has preferred this appeal challenging the conviction andsentence imposed on him by judgment dated 26.7.2006 in the case.For the sake of convenience, in this Judgment, the appellant will bereferred to as accused. 2. Charges under Sections 366, 376(1) and 302 IPC were framedagainst the accused. The learned Sessions Judge found the accusedguilty of the offence under Section 376 (1) IPC and convicted andsentenced him to undergo Rigorous Imprisonment for ten years and topay a fine of Rs.10,000/-, in default, to undergo RigorousImprisonment for two years and convicted him for the offence underSection 302 IPC and sentenced him to undergo Life Imprisonment andto pay a fine of Rs.10,000/-, in default, to undergo Rigorous https://hcservices.ecourts.gov.in/hcservices/ Imprisonment for two years and at the same time found the accused notguilty of the charge under Section 366 IPC and acquitted him of thesaid charge. 3. To prove its case, the prosecution examined P.Ws.1 to 20,marked Exs.P1 to P17 and M.Os.1 to 14.4. The case of the prosecution, as could be discerned from oraland documentary evidence, can be briefly summarised as follows:PW.2 Arumugam is the father of deceased Vennila. PW.3 Sakthivelis the elder brother of Vennila. PW.4 Santhi and PW.5 Vijayalakshmiand deceased Vennila were studying in Government Higher SecondarySchool, Melpallipattu. The accused Velu was residing next to thehouse of Vennila. Vennila used to go to the neighbouring house andview Television and accused Velu also used to go to that house andview Television along with Vennila. On 19.10.2001, PW.4 Santhi and PW.5 Vijayalakshmi were waitingin Karimalaipadi Bus Stop to board the Town Bus Route No.3 and theaccused Velu along with Vennila came there in his M.O.11 Bi-cycle andVennila asked PW.4 Santhi to give her M.O.3 Bag since PW.4 Santhihas to board the crowded bus and PW.4 Santhi handed over the Bag toVennila and Vennila went along with the accused Velu in the bi-cycle.PW.6 Sakthivel saw the accused carrying Vennila in his bi-cycle andhe requested the accused to drop Vennila and take him in the bi-cyclesince he was already late to board the bus and the accused Velu didnot reply and rode the cycle with Vennila. When the Town Bus Route No.3 stopped at Edhumedu Bus Stop,PW.4 Santhi and PW.5 Vijayalakshmi saw the accused Velu takingVennila into Edhumedu Forest Area. Vennila did not attend schoolon that day and did not return home. PW.2 Arumugam enquired PW.4Santhi and PW.5 Vijayalakshmi about Vennila and both of them toldhim that they saw Vennila going along with the accused Velu inhis cycle and going into Edhumedu Forest Area on the western side.PW.2 Arumugam went to the house of the accused Velu and found himmissing. PW.2 Arumugam met Ex. Panchayat Board President PW.8Mani and told him about the accused Velu taking Vennila in hiscycle and missing of her from then onwards. PW.8 Mani and otherstold him that a search can be made and going to Police would causedis-honour to the family and they went and searched in theneighbouring places and Hosur and Bangalore and she could not betraced. On 24.10.2001, in the morning at 6 am, PW.9 Ramasamy went insearch of his missing cow inside Edhumedu Forest Area and hefound the decomposed body of Vennila near a thorny bush and he cameand informed PW.2 Arumugam and he immediately rushed to the place https://hcservices.ecourts.gov.in/hcservices/ and by seeing the clothes, he identified the decomposed body as thatof his daughter Vennila. PW.2 Arumugam went to the Office ofPW.1 Village Administrative Officer Vediappan at 8 am on 24.10.2001and gave a statement and PW.1 Vediappan recorded the same andobtained his signature in Ex.P1 Complaint and he prepared hisEx.P2 Report and both of them went to Melsengam Police Stationand PW.16 Ayyavu received Exs.P1 and P2 and registered a case inCrime No.221/2001 under Section 302 IPC and prepared Ex.P10 FirstInformation Report and despatched the same to the Court and higherofficers. PW.19 Inspector Thangaraj took up the investigation andreached the occurrence place at 9.30 am on 24.10.2001 and preparedEx.P5 Observation mahazar in the presence of PW.10 Kadirvelu andanother and Ex.P13 is the Rough Sketch drawn by him. At 10.30 am,he seized M.Os.6 to 9 from the occurrence place under Ex.P6 mahazarin the presence of above witnesses. He conducted inquest on the bodyof Vennila between 11 am to 2 pm in the presence of panchayatars andprepared Ex.P12 Inquest Report. He gave requisition to conductpost-mortem.P.W.12 Dr.Kasthuri conducted post-mortem on the body of Vennilaat 2.30 pm on 24.10.2001 and found the following: "Its condition then was a highly decomposed femalebody lies on its back, arms apart, fleeded at elbow,legs fleed at knee, pupal seen all over the body andin all the natural orifices. Facial muscles, neckmuscles, scalp hair, chest muscles, thigh musclesinner aspect, external genitalia, anus not foundonly skull facial bones, neck, mouth ribs, upper partof chest exposed.On opening the abdomen: Stomach contain 200 ml offood rice partially digested. Liver, spleen, kidneysintact decomposed, Urinary Bladder not found; uterusnot found; rectum not found; pupal swarming in theperitoneal cavity.On opening the Thorax: Upper part of the ribs andexposed pupal swarming in the Thoracic cavity; Lungsand heart intact decomposed. Hyoid bone not found.On opening the skull: Only skull bone seen. Brainnot found; neck and muscles are found; facialmuscles not found. Cervical vertebra and facialbones are exposed. Disarticulation of lower jawseen." https://hcservices.ecourts.gov.in/hcservices/ Viscera was sent for chemical examination and skull was sent forsuperimposition test. She expressed opinion that since the body ishighly decomposed and most of the parts are not found in the body,she is not able to give opinion as to cause of death andthe death could have occurred 5-6 days prior to post-mortem.Ex.P8 is the Post-Mortem Certificate issued by her. P.W.19 Inspector Thangaraj examined PW.2 Arumugam, PW.3Sakthivel, PW.4 Santhi, PW.5 Vijayalakshmi, PW.6 Sakthivel, PW.8Mani, PW.9 Ramasamy, PW.10 Kadirvel, PW.13 Ravisankar and someother witnesses and recorded their statements. On 25.10.2001 at 11am, he arrested the accused Velu near Melsengam Central and StateFarm Bus Stop and enquired him in the presence of PW.1 Vediappan andanother and recorded the confession statement given by him in thepresence of the said witnesses. Ex.P3 is the admissible portion ofthe confession statement. The accused Velu took them to theoccurrence place and took and produced from a bush nearby MO.1 Bagbelonging to Vennila containing M.O.2 (series) Books and Notebooks;M.O.5 (series) Pen and Pencil, and M.O.3 Bag belonging to PW.4 Santhicontaining M.O.4 (series) Books and Notebooks and P.W.19 InspectorThangaraj recovered the same under Ex.P4 mahazar in the presence ofsame witnesses. At 12.50 pm on the same day, the accused Velu tookthem to his house and took and produced M.O.11 Cycle from thebackyard of his house and P.W.19 Inspector Thangaraj recovered itunder Ex.P9 mahazar in the presence of PW.14 Narayanan and another.He examined PW.1 Vediappan, PW.14 Narayanan and some other witnessesand recorded their statements. On 4.1.2002, he gave requisition toVelur Government Hospital to examine the accused Velu and issuepotency certificate. PW.18 Dr.Beemaraj examined the accused Velu at12.50 pm on 5.1.2002 in Velur Government Hospital and found himpotent and issued Ex.P11 Certificate. P.W.19 Inspector Thangarajexamined PW.12 Dr.Kasthuri, PW.18 Dr.Beemaraj and some otherwitnesses and recorded their statements and he obtained Ex.P14School Certificate. Ex.P15 Chemical examiner report, Ex.P16Viscera report and Ex.P17 Superimposition test report were receivedin Court. P.W.19 Inspector Thangaraj was transferred and PW.20Inspector Ramachandran continued the investigation and he examinedsome more witnesses and recorded their statements. He completed theinvestigation and filed final report against the accused.5. The accused was questioned under Section 313 Cr.P.C and hedenied complicity. No witness was examined and no document wasmarked on his side.6. The Trial Court found the accused guilty of thecharges under Section 376(1) and 302 IPC and sentenced him as statedearlier. Challenging the same, the accused has preferred thepresent appeal. https://hcservices.ecourts.gov.in/hcservices/

7. The prosecution case is that accused Velu committed rapeon Vennila and caused her death at the time of occurrence. Nobodywitnessed the occurrence and the case is based on circumstantialevidence. Though many circumstances were relied on, the last seenwas projected as the main circumstance against accused Velu. P.W.4Santhi, P.W.5 Vijayalakshmi and P.W.6 Sakthivel have been examined toprove the said circumstance. P.W.4 Santhi and P.W.5 Vijayalakshmiwere studying in the same school in which the deceased Vennilastudied and according to them, on 19.10.2001 they were waiting inKarimalaipadi Bus Stop to board the town bus Route No.3 and accusedVelu along with Vennila came there in his bi-cycle and Vennila askedPW.4 Santhi to give her bag since PW.4 Santhi has to board thecrowded bus and PW.4 Santhi handed over the Bag to Vennila and shewent along with accused Velu in the bi-cycle. It is their furthertestimony that when the town bus Route No.3 stopped at Edhumedubus stop, they saw accused Velu taking Vennila inside EdhumeduForest Area and Vennila did not attend the school on that day andthey informed P.W.2 Arumugham, father of Vennila, in the eveningabout accused Velu taking Vennila inside the forest. P.W.6 Sakthivelhas deposed that he saw accused Velu carrying Vennila inhis bi-cycle and he requested accused Velu to drop Vennila and takehim in the bi-cycle since he was already late to board the bus andaccused Velu did not reply and rode the bi-cycle with Vennila. 8. The learned counsel for the appellant submits that thetestimonies of P.W.4 Santhi, P.W.5 Vijayalakshmi and P.W.6 Sakthivelare not trustworthy and the body was found out only on 24.10.2001and thereafter, P.W.2 Arumugham, father of Vennila, lodged thecomplaint and there is a long gap and possibility of other personscoming in between exists and the accused cannot be held liable forthe offence of having caused the death. Per contra, the learnedAdditional Public Prosecutor submits that P.W.4 Santhi and P.W.5Vijayalakshmi are the schoolmates of deceased Vennila and they hadseen Vennila coming with accused Velu in the bi-cycle and Vennila hadtaken the school bag of P.W.4 Santhi in order to help her to boardthe crowded bus and that bag has been recovered near the dead bodyof Vennila and their testimonies are natural and convincing and P.W.6Sakthivel is also an independent witness and his testimony is alsocredible and thus, there is positive evidence to conclude that thedeceased was last seen along with accused Velu. 9. It is true that P.W.4 Santhi and P.W.5 Vijayalakshmi beingschoolmates of deceased Vennila had every chance to meet Vennila inthe bus stop while going to school. Their testimonies that when theywere in the bus stop, Vennila came along with accused Velu in hisbi-cycle and she asked P.W.4 Santhi to give her school bag for beingcarried in the bi-cycle and obtained the same and went away in thebi-cycle of accused Velu and their further testimonies that they sawaccused Velu going into Edhumedu Forest Area along with Vennila whenthe bus halted in Edhumedu bus stop, appear to be natural and https://hcservices.ecourts.gov.in/hcservices/ convincing. In the same way, the testimony of P.W.6 Sakthivel thathe saw accused Velu carrying Vennila in his bi-cycle in the morningon the occurrence day is also infusing confidence since he is anindependent witness. But, the question is as to whether the lastseen theory can be applied to this case. As per the testimonies ofthe above witnesses, they had seen the deceased Vennila with accusedVelu in the morning on 19.10.2001. The body of Vennila was noticedby P.W.9 Ramasamy on 24.10.2001, at 6.00 a.m., inside Edhumedu Forestarea and he informed the same to P.W.2 Arumugham, who went andidentified the decomposed body as that of his daughter Vennila byseeing the clothes, and thereafter, PW.2 Arumugam went to theOffice of the Village Administrative Officer P.W.1 Vediappan at 8am and gave Ex.P1 Statement and P.W.1 V.A.O. Vediappan preparedEx.P2 Report and took P.W.2 Arumugham along with him to MelsengamPolice Station to lodge the complaint. The body of Vennila had beenrecovered after five days after the date on which deceased Vennilawas last seen in the company of accused Velu. Accused Velu whenquestioned under Section 313 CrPC, has only denied and did not offerany explanation. 10. The settled law is that the last-seen theory comes intoplay where the time gap between the point of time when the accusedand the deceased were seen last alive and when the deceased is founddead is so small that possibility of any person other than theaccused being the author of the crime becomes impossible and even insuch cases, some corroboration is required. In this context, thelatest decision of the Apex Court in the case in MALLESHAPPA V..STATE OF KARNATAKA [(2009) 2 SCC (Cri) 394] is relevant and forbetter appreciation the relevant portion is extracted below:"23. In the light of the evidence available on record,can it be said that the circumstances of last seen togetherby itself and necessarily lead to the inference that it wasthe appellant who committed the crime? The High Court tookthe view that Accused 6 and 7 are entitled to the benefit ofdoubt though, PW 10 stated in her evidence that theappellant, Accused 6 and 7 took her son Yankanna on thefateful day. No motive was shown with regard to Accused 6and 7 for their involvement in the crime. It is under thosecircumstances, the High Court said that the burden shifts tothe appellant to show as to what happened to the deceasedYankanna. In our considered opinion, the High Courtcommitted serious error in arriving at such conclusion. Thefirst information report lodged by PW 10 itself is highlydoubtful. PW 10's evidence itself does not reveal anycircumstances to hold that the prosecution has establishedthe charge against the appellant. The appellant's failureto offer any explanation in his statement under Section 313CrPC is not a circumstance to hold the appellant guilty ofthe charge. The prosecution has failed to establish as to https://hcservices.ecourts.gov.in/hcservices/ when the death of Yankanna took place, it could be at anytime between 12-7-2001 to 21-7-2001. There is nothing onrecord to show as to what transpired between 12-7-2001 to 21-7-2001. Mere non-explanation on the part ofthe appellant, in our considered opinion, by itself cannotlead to proof of guilt against the appellant. Learnedcounsel for the State relied upon the decision in MohiburRahman v. State of Assam [(2002) 6 SCC 715 : 2002 SCC (Cri)1496 which in fact is in support of the defence and not theprosecution: (SCC pp. 720-21, para 10) "10. The circumstance of last seen togetherdoes not by itself and necessarily lead to theinference that it was the accused who committed thecrime. There must be something more establishingconnectivity between the accused and the crime.There may be cases where, on account of closeproximity of place and time between the event ofthe accused having been last seen with the deceasedand the factum of death, a rational mind may bepersuaded to reach an irresistible conclusion thateither the accused should explain how and in whatcircumstances the victim suffered the death orshould own the liability for the homicide. In thepresent case there is no such proximity of time andplace. As already noted the dead body has beenrecovered about 14 days after the date on which thedeceased was last seen in the company of theaccused. The distance between the two places isabout 30-40 km. The event of the two accusedpersons having departed with the deceased and thuslast seen together (by Lilima Rajbongshi, PW 6)does not bear such close proximity with the deathof the victim by reference to time or place.According to Dr. Ratan Ch. Das the death occurred 5to 10 days before 9-2-1991. The medical evidencedoes not establish, and there is no other evidenceavailable to hold, that the deceased had died on24-1-1991 or soon thereafter. So far as theaccused Mohibur Rahman is concerned this is thesingular piece of circumstantial evidence availableagainst him. We have already discussed theevidence as to recovery and held that he cannot beconnected with any recovery. Merely because he waslast seen with the deceased a few unascertainablenumber of days before his death, he cannot be heldliable for the offence of having caused the deathof the deceased. So far as the offence underSection 201 IPC is concerned there is no evidence https://hcservices.ecourts.gov.in/hcservices/ worth the name available against him. He isentitled to an acquittal".24. In the present case also, there is noproximity of time and place. We have already noted thatthe dead body, even if it is to be accepted, was that ofthe deceased Yankanna, had been recovered after 10days after the date on which the deceased was last seen inthe company of the appellant. This singular piece ofcircumstantial evidence available against the appellant,even if the version of PW 10 is to be accepted, is notenough." In the present case also, there is nothing on record to show as towhat had happened between 19.10.2001 and 24.10.2001 and even if thetestimonies of P.W.4 Santhi, P.W.5 Vijayalakshmi and P.W.6 Sakthivelare to be accepted, there is no proximity of time. Further, merenon-explanation on the part of accused Velu in his statement underS.313 CrPC by itself cannot lead to proof of guilt against him. 11. The next circumstance relied on by the prosecution is theinformation furnished by accused Velu in his confession statementleading to recovery of school bags of deceased Vennila and P.W.4Santhi and the bi-cycle. The Investigation Officer P.W.19 Thangarajhas testified that he arrested accused Velu on 25.10.2001 nearMelsengam Central and State Farm bus stop and enquired him in thepresence of PW.1 V.A.O. Vediappan and another and recorded theconfession statement, containing Ex.P3 the admissible portion,given by him and accused Velu took them to the occurrence place andtook and produced from a bush nearby M.O.1 Bag belonging to thedeceased Vennila containing M.O.2-series Books and Notebooks; M.O.5-series Pen and Pencil and M.O.3 Bag belonging to PW.4 Santhicontaining M.O.4-series Books and Notebooks and he recovered the sameunder Ex.P4 Mahazar in the presence of the same witnesses and at12.50 pm accused Velu took them to his house and took and producedM.O.11 Bi-Cycle from the backyard of his house and P.W.19 InspectorThangaraj recovered it under Ex.P9 Mahazar in the presence of PW.14Narayanan and another. P.W.1 V.A.O. Vediappan in his testimony hasstated that the accused gave information in the confession statementthat led to the recovery of M.Os.1 to 5-series by the InvestigationOfficer, in their presence. P.W.14 Narayanan has testified aboutthe information given by accused Velu leading to recovery ofM.O.11 bi-cycle from his house. 12. The learned counsel for the appellant relying on thetestimony of P.W.14 Narayanan submits that the arrest claimed bythe Investigation Officer is false. P.W.14 Narayanan in his cross-examination has stated that when accused Velu gave the confessionstatement, the body of Vennila was lying in the occurrence place.Indisputably, the post-mortem on the body was conducted on 24.10.2001 https://hcservices.ecourts.gov.in/hcservices/ itself and the body was cremated on the same day. The arrest is saidto have been made on 25.10.2001 and on that day, the body of Vennilawas not available. Hence, the arrest claimed by the InvestigationOfficer on 25.10.2001 cannot be true in view of the testimony ofmahazar witness P.W.14 Narayanan. Further, it cannot be said thatM.Os.1 to 5-series came to be recovered only on the information givenby accused Velu in his statement. P.W.2 Arumugham, father ofdeceased Vennila, in his testimony has stated that on being informedabout the lying of body of Vennila by P.W.9 Ramasamy, he along with100 villagers went to the occurrence place and found the decomposedbody of his daughter Vennila and he saw the clothes; school bags andbooks near the dead body. In view of the above testimony of P.W.2Arumugham, it cannot be said that the recovery was made only on theinformation furnished by accused Velu. 13. The next question is whether deceased Vennila died ofhomicidal violence. According to P.W.12 Dr. Kasthuri, the body washighly decomposed and facial muscles, neck muscles, thigh muscles,external genitalia, anus were not found and only skull facial bones,neck mouth ribs and upper part of chest were found. The post-mortemdoctor has stated that since the body is highly decomposed and mostof the parts are not found in the body, she is not able to giveopinion as to cause of death and according to her, the death couldhave occurred 5-6 days prior to post-mortem. Ex.P8 is the Post-Mortem Certificate issued by her. In view of the above medicalevidence, it is not possible to conclude that it is a homicidaldeath. 14. The skull was sent for Superimposition test and accordingto P.W.13 Ravishankar, Scientific Assistant of Forensic SciencesDepartment, the skull was oriented in accordance with the posture ofthe face in the photograph and superimposition test was conducted andthe opinion given was that the skull could very well have belonged tothe female individual seen in the photograph. Ex.P17 is the Reportin this regard. The learned counsel for the appellant relying on thetestimony of the post-mortem doctor submits that M.O.14 Skull couldnot be that of deceased Vennila. The post-mortem doctor, P.W.12 Dr.Kasthuri, in the cross-examination has stated that she opened theskull at the time of autopsy with hammer and knife and it was not re-fixed and whereas M.O.14 Skull appears to be a natural skull withoutany breaking and it does not appear to be a re-fixed one. The abovetestimony of the post-mortem doctor raises a doubt as to whetherM.O.14 Skull is that of Vennila. 15. For the above said reasons, we hold that the circumstanceslet in by the prosecution are not proved and as such, deceasedVennila, who died in suspicious circumstances, even if held thatshe died due to homicidal violence, accused Velu cannot be heldliable for the death as the prosecution failed to establish its https://hcservices.ecourts.gov.in/hcservices/ case. The conviction and sentence imposed by the trial Court areliable to be set aside. 16. In the result, the Criminal Appeal is allowed andthe conviction and sentence imposed on the Appellant/Accused inSessions Case No.123 of 2003 on the file of the District and SessionsJudge, Thiruvannamalai, are set aside and the Appellant/Accused isacquitted of all the charges and the fine amount paid, if any, isto be refunded to him. The Appellant/Accused is directed to bereleased forthwith if his custody is not required in any other case. sd/-Asst.Registrar/true copy/Sub Asst.Registrar vks/pbTo1. The District & Sessions Judge, Thiruvannamalai.2. -Do– Through the Principal District & Sessions Judge, Thiruvannamalai.3. The Superintendent of Prisons, Central Prison, Vellore.4. The Inspector of Police, Melchengam Police Station, Melchengam, Thiruvannamalai district.5. The Director General of Police, Mylapore, chennai 4.6. The District Collector, Thiruvannamalai.7. The Public Prosecutor, High Court, Madras. 8. The Section Officer, Criminal Section, High Court, Madras 104.+ 1 c.c. to Mr. V. Bhiman, Advocate. S.R.No.31494.Crl.A.No.364 of 2008PUR (CO)GSK 24.07.2009.