Moorthy v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.394 OF 2008Moorthy.. AppellantVs.State rep. byInspector of Police,SIPCOT P.S.Vellore District(Crime No.243 of 2006).. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C.against the judgment of the learned Additional District and SessionsJudge, Fast Track Court-II, Ranipet made in S.C.No.24 of 2008, dated31.03.2008. For Appellant : Mr.K.EthirajaluFor Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional District andSessions Division, Fast Track Court-II, Ranipet made in S.C.No.24 of2008, whereby the sole accused/appellant stood charged under Sections 302and 201 IPC, tried and found guilty as per the charges and awarded lifeimprisonment and to pay a fine of Rs.1000/-, in default to undergo onemonth R.I. under Section 302 IPC and 7 years R.I. and to pay a fine ofRs.1000/-, in default to undergo one month R.I. under Section 201 IPC andthe sentences were ordered to run concurrently.2.The short facts necessary for the disposal of this appeal can bestated as follows:a)P.Ws.3 and 4 are the parents of the deceased Santhi. She was givenin marriage to the accused/appellant. They got three children. The https://hcservices.ecourts.gov.in/hcservices/ accused suspected the fidelity of his wife when he was away from thenative place. On 29.05.2006 at about 9.00 p.m., the accused took his wifeto the bank of Ponnai river and pursuant to the suspicion that heentertained, he attacked her with the stick and also buried her deadbody. P.Ws.3 and 4 were enquiring him about their daughter and he hasreplied that she was missing. b)On 10.08.2006 when P.W.1, the Village Administrative Officer wasin his office along with P.W.2, his assistant, the accused appearedbefore him and made extra judicial confession, which was recorded byP.W.1 and the same was marked as Ex.P.1. P.W.1 prepared his own report,which was marked as Ex.P.2 He along with Exs.P.1 and P.2 and the accusedwent to the police station and produced the accused along with thereports to P.W.18, the Inspector of Police, who on the strength of thereports, registered a case in Crime No.243 of 2006 under Sections 302 and201 IPC. Ex.P.22, the F.I.R. was despatched to the Court. c)At about 3.00 p.m. on 10.08.2006, P.W.18 caused the arrest of theaccused. At the time of interrogation, the accused came forward to giveconfessional statement, which was recorded in the presence of thewitnesses, the admissible part of which was marked as Ex.P.3. Pursuant tothe same, the accused took the police party to the place of occurrence.P.W.18 made an inspection and prepared Ex.P.5, the observation mahazarand Ex.P.23, the rough sketch. The accused produced M.O.1, stick, whichwas recovered under a cover of mahazar. d)On 11.08.2006, the accused took the police party to the placewhere the dead body was buried. P.W.18 made an inspection and preparedEx.P.7, the observation mahazar and Ex.P.24 the rough sketch. Anintimation was sent to P.W.17, the Tahsildar of the said circle, who cameover there and in his presence, the dead body was exhumed and an inquestwas conducted by him in the presence of the witnesses and panchayatdarsand he prepared Ex.P.21, the report. Thereafter, P.W.18 prepared Ex.P.8,the observation mahazar and Ex.P.25, the rough sketch. The materialobjects were recovered from that place under a cover of mahazar. Arequisition was forwarded to P.W.13, the Doctor attached to theGovernment Hospital, Valaja, who came over there and conducted post-mortem on the dead body of the deceased at the place where the dead bodywas buried and he has also found that the body was in decomposed stageand has issued Ex.P.14, the post-mortem certificate, wherein he hasopined that the probable cause of death is a forceful blow over the backof neck and instantaneous death due to injury to spinal cord. e)P.Ws.3 and 4 were called for and they identified all the M.Os.,namely jacket, petticoat and also saree, which were worn by the deceased.The accused was sent for judicial remand. All the material objects weresent for the purpose of chemical analysis and Exs.P.18 and P.19, thebiological reports were obtained. The Investigator has recorded thestatement of the witnesses. On completion of the investigation, he filedthe final report.3.The case was committed to the court of Sessions and necessarycharges were framed. In order to substantiate the charges levelled https://hcservices.ecourts.gov.in/hcservices/ against the accused, the prosecution examined 18 witnesses and alsorelied on 29 exhibits and 7 M.Os. On completion of the evidence on theside of the prosecution, the accused was questioned under Section 313Cr.P.C. as to the incriminating circumstances found in the evidence ofprosecution witnesses, which he flatly denied as false. No defencewitness was examined. The trial court, after hearing the argumentsadvanced and looking into the materials available, took the view that theprosecution has proved the case beyond reasonable doubt and found theaccused guilty as per the charges and awarded punishments as referred toabove. Hence this appeal has arisen at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learnedcounsel inter-alia has made the following submissions:a)According to the prosecution, the occurrence has taken place on29.05.2006 after 9.00 p.m. The prosecution mainly relied on two pieces ofevidence, since it had no direct evidence to offer. First was the extrajudicial confession alleged to have been given by the accused to P.W.1,the V.A.O. on 10.08.2006 when he was in his office. P.W.2, the assistantof P.W.1 was also present at the time when the confessional statement wasrecorded. The extra judicial confession should have been rejectedoutright by the trial court for the first reason that the extra judicialconfession was alleged to have been given on 10.08.2006, namely nearlyafter three months from the date of occurrence. According to P.W.1, whenhe was in his office, the accused came over there and gave extra judicialconfession and the same was recorded and thereafter, the accused tookP.Ws.1 and 2 to the place where the dead body was buried. Contrarily,P.W.2 has stated that first of all, they went to the spot and the accusedidentified the place of occurrence and only thereafter, the statement ofthe accused was recorded. Thus, there are lots of discrepancies, whichwould indicate that such an extra judicial confession could not have beenrecorded at all. b)The accused was taken to the police custody and he was in thecustody for a long time, as a result of which such a confessionalstatement was fabricated as if it was recorded by P.W.1, the V.A.O. Thelearned counsel would further add that P.W.1 was the VillageAdministrative Officer and he has come forward to oblige the respondentpolice. According to the prosecution, the accused, suspecting thefidelity of his wife, took her to the bank of Ponnai river, attacked herwith the stick and caused her death. In the instant case, though theprosecution came with the case that she had illicit intimacy with onePeethambaram, the said Peethambaram was not examined. Thus, the motivethat was attributed to the accused, was thoroughly failed and was notproved by the prosecution. c)Further, the prosecution has miserably failed to prove theidentity of the dead body that it was that of the deceased Santhi, thewife of the accused/appellant. Actually, she was found missing, butP.Ws.3 and 4, who are the parents of the deceased, had not taken anysteps further. But the accused made an attempt to give a complaint to thepolice, but it was not taken. The deceased eloped with the saidPeethambaram, with whom she developed illicit intimacy. Further, whatwere identified were the jacket, petticoat and saree which were allegedto have been worn by her, but with which, the identity of the body could https://hcservices.ecourts.gov.in/hcservices/ not be fixed. Even the skull was not subjected to superimposition testand under these circumstances, the identity of the deceased was not atall fixed by the prosecution. Apart from that, the cause of death, ascould be found, was not clearly proved by the prosecution and fractureswere found on the leg, but no evidence was available in this regard. Allwould go to show that the medical opinion was also not supporting theprosecution case. Thus, in the instant case, all these material aspectswere not considered by the trial court, but it has entered the judgmentof conviction and sentence and hence the judgment of the trial court hasgot to be set aside.5.The court heard the learned Additional Public Prosecutor on theabove contentions and has paid its anxious consideration on thesubmissions made.6.The accused/appellant stood charged for murder of his wife on29.05.2006 in the bank of Ponnai river and in order to screen theoffence, he buried the dead body. The prosecution, in order tosubstantiate the said charges, had no direct evidence to offer, but ithas relied on only circumstantial evidence. In the instant case, thefirst circumstance which was mainly relied on by the prosecution andaccepted by the trial court, was the extra judicial confession made bythe accused to P.W.1, the V.A.O. on 10.08.2006 when he was in his office.This extra judicial confession could be acted upon and the convictioncould be sustained if it satisfied the two tests, namely thecircumstances attendant in which the accused came forward to give extrajudicial confession and secondly, the evidence of the witness to whomsuch an extra judicial confession was made inspired the confidence of thecourt. If these two tests are applied in the instant case, the court isthoroughly satisfied that the extra judicial confession has got to beaccepted. 7.P.Ws.3 and 4 are the parents of the deceased Santhi. When on aparticular date, she was found missing, both were enquiring their son-in-law, namely the accused/appellant as to the whereabouts of theirdaughter, but he did not give proper answer and he was telling that shewas missing and thereafter, they were making a search for her. It ispertinent to point out that though it was claimed by theaccused/appellant that he approached the police to give the complaint, nomaterial was available in order to accept the same. Thus, havingcommitted the offence and buried the dead body, he has been kept quietfor a long time. Finally, he approached P.W.1, V.A.O. of that place andmade an extra judicial confession, which was recorded by him in thepresence of P.W.2. Immediately, P.Ws.1 and 2 verified the place, wherethe dead body was buried and then, they went to the police station alongwith the accused and Ex.P.1, the extra judicial confession of A-1 andEx.P.2, the report of V.A.O. On the strength of the said information, thecase came to be registered and the investigation was taken by P.W.18, theInspector of Police, immediately. He interrogated the accused, who cameforward to give confessional statement and thereafter, the accused tookthe police party to the place where the dead body was buried. In thepresence of P.W.17, the Tahsildar, the dead body was exhumed. Since thebody was in decomposed stage, the Doctor was summoned. Accordingly, https://hcservices.ecourts.gov.in/hcservices/ P.W.13, the Doctor has conducted post-mortem and has given his opinion inEx.P.14, the post-mortem certificate that the probable cause of death isa forceful blow over the back of neck and instantaneous death due toinjury to spinal cord. It is also clear that pursuant to the confessionalstatement, the accused has also produced M.O.1, stick, with which heattacked the deceased. Thus, the weapon of crime was also recovered fromhim pursuant to the confessional statement. Thus, the two circumstancesare one the place where the dead body has been buried was identified bythe accused and further, M.O.1, the stick has been recovered from theaccused on his production. Thus, these two circumstances will be pointingto the nexus of the accused with the crime. 8.In the instant case, the learned counsel brought to the notice ofthe court certain discrepancies found in the evidence of P.Ws.1 and 2 inrespect of extra judicial confession. P.W.1 was the VillageAdministrative Officer of the said place. P.W.2 was the menial attachedto him. Not even one circumstance or reason was brought to discard or tocast any doubt on the evidence of P.Ws.1 and 2. On the basis of theconfessional statement given by the accused, the mystery of the casebecame unfolded. Further, the evidence of P.Ws.3 and 4 was to the effectthat since their daughter was found missing, they were enquiring theirson-in-law, namely the accused/appellant, but he gave a different storyand they also believed the same for a while. Thus, it would be quiteclear that on the strength of the extra judicial confession made by theaccused to P.W.1, the case came to be registered and further, theinvestigation revealed the entire story. Under these circumstances, forthe reasons stated above, the court is of the considered opinion that theprosecution has brought home the guilt of the accused. 9.Now, the contention put forth by the learned counsel for theappellant that the identity of the dead body was not proved cannot beaccepted at all. P.Ws.3 and 4 went to the place where the dead body wasburied and in the place pointed out by the accused, the dead body wasexhumed and it was in decomposed stage. All the clothes worn by thedeceased were identified by P.Ws.3 and 4. The added circumstance was thateven before the trial court, the accused was unable to say what happenedto his wife and during the relevant time, they were living together,though he was absent for some time. The contention put forth by thelearned counsel for the appellant that one Peethambaram, with whom shedeveloped illicit intimacy, was not examined and thus, the nonexamination of the said Peethambaram was fatal to the prosecution, cannotbe accepted at all for the simple reason that what was actually passingin the mind of the accused at the time when he committed the offenceshould be within the special knowledge of the accused. From the evidence,it would be quite clear that during his absence, she had developedillicit intimacy with one Peethambaram and the same was passing in themind of the accused and there arose quarrel between them, which wasactually found in the evidence. Under these circumstances, thecontentions put forth by the learned counsel for the appellant do notcarry any merit whatsoever and they are liable to be rejected.Accordingly, they are rejected.10.Having attacked the deceased and caused her death, the https://hcservices.ecourts.gov.in/hcservices/ accused/appellant has buried the dead body in order to screen theevidence. Thus, the evidence available before the trial court aresufficient pointing to the guilt of the accused/appellant. 11.In the result, this criminal appeal fails and the same isdismissed, confirming the conviction and sentence imposed on theappellant by the trial court.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Additional District and Sessions Judge, Fast Track Court-II, Ranipet,2.The Inspector of Police, SIPCOT P.S. Vellore District.3.The Additional Public Prosecutor, High Court, Madras.+1cc to Mr.K.Ethirajulu, Advocate Sr 3772RB (CO)km/5.2.CRL.A.NO.394 OF 2008