D.Dhanabal v. State by: Inspector of Police,B-5,singanalur Police Station,Coimbatore

Bail SlipThe above said appellant/accused viz. A.Dhanabal was directed tobe released on bail as per order of this Court dated 12.7.2007 madein Crl.M.P.No.1/2007 in Crl.A.No.372/2007 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL No.372 of 2007D.Dhanabal.. Appellant/AccusedVs.State by:Inspector of Police,B-5,singanalur Police Station,Coimbatore.(Crime No.261/2005).. Respondent/Complainant This criminal appeal has been preferred under Section 374Cr.P.C. against the judgment of the learned Additional District andSessions Judge at Coimbatore made in S.C.No. 11 of 2006 dated22.12.2006For Appellant : Mr.R.John Sathyan, Amicus CuriaeFor Respondent : Mr.R.Elango,A.P.P.JUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)This appeal challenges the judgement of the Additional Districtand Sessions Division, Coimbatore in S.C.No.11/2006 whereby the soleaccused/ appellant stood charged under section 302 I.P.C. for murderand on trial found the accused guilty and awarded punishment of lifeimprisonment along with a fine of Rs.30,000/- in default to undergotwo years rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/

2. The short facts necessary for the disposal of this appeal canbe stated as follows:(a) The deceased Renukadevi was the resident ofNeelikalampalayam. She was employed in Card Board Company. P.W.4 isthe husband and P.W.5 is the mother of the deceased. Theaccused/appellant was employed in Sri Vijeshwari Industries. Whenthe accused and the deceased came to know each other they developedillicit intimacy and the same continued for some time. P.W.14 who isthe owner of the factory where the accused was employed had occasionto see him in the company of Renukadevi and the same was informed toP.W.15 is the Supervisor of the company in which Renugadevi wasemployed. When the news of illicit intimacy of the accused and thedeceased spread out, the accused/appellant attempted to avoid thecompany of the deceased but the deceased was not for it. On anoccasion, she threatened the accused that if he did not continue hisrelationship with her, she would inform about the illicit intimacyto his wife. Therefore, the accused decided to finish her off and healso informed this to his friend who was examined as P.W.8. On thedate of occurrence, that was on 19.3.2005, the deceased, who wentfor work did not return till night hours. Then, P.W.4 made a phonecall to the factory where she was then employed. P.W.6 informedP.W.4 that the accused made two telephone calls about 7.00 to 7.30p.m. to Renugadevi and on receiving the call, Renugadevi left theplace. Then, P.W.4 went to Peelamedu Police Station and gave Ex.P.2report to P.W.22 Sub Inspector of Police, on the strength of which,a case came to be registered in Crime No.268/2005. The FirstInformation Report was marked as Ex.P15.(b) On 20.3.2005, when P.W.1 he was working as Station Masterof Podanur, he received an information from P.W.5 Station Master ofSulur Railway Station stating that P.W.2 Keyman of Shop No.42 gaveinformation that a dead body of female was found in the railwaytrack. Then, P.W.1 gave Ex.P.1 complaint to the Head Constable ofPodanur Railway Station and a case in Crime No.82/2005 under section174 Cr.P.C came to be registered and the First Information Reportwas Ex.P.19. Thereafter, the case came to be registered bySinganallur in Crime No.261/2005 and on coming to know that the caseoriginally registered on the complaint given by P.W.4, was not tobe proceeded with, the case in Crime No.261/2005 was take up forinvestigation by P.W.27. (c) P.W.27, Inspector of Police, proceeded to the spot made anobservation and prepared an Observation mahazar Ex.P4 and also drewa rough sketch Ex.P20. The dead body was subjected to post mortemand P.W.19 who actually conducted autopsy on the dead body has givenopinion as a witness before the court and also through the contentsin the post mortem certificate that the deceased would appear tohave died of asphyxia due to violent compression over the necksustained by her. The case was then converted to section 302 I.P.C.and the amended F.I.R. was despatched to the Court. Furtherinvestigation was made by P.W.27 in Crime No.261/2005. Pending https://hcservices.ecourts.gov.in/hcservices/ investigation, the accused was arrested on 5.4.2005 pursuant to theproduction before the police officer by P.W.10 to whom he gave extrajudicial confession. He also came forward to give confessionalstatement voluntarily before the Police Officer and the same wasrecorded in the presence of witnesses. Pursuant to the same, heproduced M.O.13 pant and M.O.14 shirt which were recovered under acover of mahazar. The accused was also produced before P.W.25 formedical treatment in respect of the injuries sustained by him andthe Accident Register copy is marked as Ex.P18. Then, he was sentfor judicial remand. All the material objects were subjected toanalysis to forensic department which resulted in Ex.P.30- Forensicreport, Ex.P31- Biology report, Ex.P32- Forensic Report and Ex.P.33-Viscera report and they were placed before the Court.(d) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution marked 27 witnesses and also relied on 33 exhibits and14 material objects. On completion of the evidence on the side ofthe prosecution, the accused was questioned under Section 313Cr.P.C. as to the incriminating found in the evidence of theprosecution witnesses and he denied them as false and on the side ofthe defence, two witnesses were examined and three documents, D1 toD3 were marked. The Court heard the arguments advanced on eitherside and took a view that the prosecution has proved its case beyondreasonable doubt and found the accused guilty. Hence, this appeal atthe instance of the appellant.3. Advancing the argument on behalf of the appellant, thelearned counsel made the following submissions.(a) In the instant case, the prosecution had no direct evidenceto offer. It relied on circumstantial evidence but neither necessarycircumstances are placed nor they were proved indicating the guiltof the accused. Despite the same, the trial Court has taken anerroneous view. It is true, except pointing to the illicit intimacydeveloped between the accused and the deceased, all the evidencethat were produced before the trial Court were not worth mentioning.The prosecution fully relied on the circumstantial evidence viz.,P.W.6 watchman of the factory where the deceased was employedduring the relevant time and on that day, he received call fromP.W.4 and he informed to P.W.4 informed that he received two phonecalls for the deceased Renugadevi from the accused and the same wereattended by the deceased at about 7.00 to 7.30 p.m. on the dateof occurrence i.e., on 19.3.2005 and thereafter, she left the place.So far as the evidence of P.W.6 was concerned, he could notidentify the phone call from where it was from and by whom it wasspoken and also the statement of P.W.6 recorded after long lapse oftime was actually creation of evidence in order to prove thecircumstance. (b) Learned counsel further submitted that the prosecutionrelied on the next circumstantial evidence of P.W.10 calling him asfriend of the accused. The occurrence has taken place on 19.3.2005but the alleged extra judicial confession was made to P.W.10 on https://hcservices.ecourts.gov.in/hcservices/

5.4.2005. There was no reason for the accused to suddenly appearbefore P.W.10 a politician after 15 days to make such a confession.Thus, it would go to show that the extra judicial confession couldnot have been made at all. It was further added by the prosecutionthat P.W.10 produced him before the police station and the accusedcame forward to give confession statement to the police officerpursuant to which the accused produced M.O.13 and 14 shirt and pantrespectively and if the confessional statement made orally is notbelieved all the other things would automatically go. Hence, thispart of the evidence was of no avail to the prosecution. (c) Coming to the last seen theory, learned counsel would submitthat the evidence of P.W.7 that he had seen the accused and thedeceased at 10.00 p.m. near the place of occurrence on the date ofoccurrence, should not have been believed by the trial Court for thesimple reason that his evidence remains shaky at the time of crossexamination but the trial Court has believed the same. Barringthese circumstances, the prosecution had no evidence to offer. Thus,it would be quite clear that the prosecution was unable to placenecessary circumstances. Hence, the appellant is entitled foracquittal but the trial Court has taken an erroneous view findingthe accused guilty. Hence, the judgement of conviction and sentencepassed by the trial Court has got to be set aside by this Court.4. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.5. It is not in controversy that one Renugadevi was found deadand her body was found in two parts viz., head and trunk part inthe railway track. Following the inquest made by the investigatingofficer, the dead body was subjected to post mortem. P.W.19 doctorwho conducted autopsy has given categoric opinion that there areanti mortem injuries found on the neck which would clearly indicatethat those injuries had caused asphyxia due to the strong forceapplied on the neck. The evidence of the doctor remains unshaky,when it was scrutinized. Hence, no impediment was felt by the trialcourt in recording that though the dead body was in the railwaytrack in two parts, actually death was caused by homicidalviolence and rightly too.6. It is true that the prosecution had no direct evidence tosubstantiate the charges levelled against the appellant/accused butthe following circumstances are noticed by the Court. P.W.14 who isthe owner of the factory where the accused was employed and P.W.15supervisor of the factory where the deceased was employed havespoken to the illicit intimacy between the deceased and theaccused. Secondly, the evidence of P.W.6 was to the effect that hewas employed in the factory where the deceased was employed and on19.3.2005, when the deceased was in the factory, P.W.6 received twophone calls from the accused at 7.00 to 7.30 p.m. who asked for thedeceased and he handed over the phone to the deceased who attendedthe same and after sometime, she left the factory. https://hcservices.ecourts.gov.in/hcservices/

7. The next circumstance, which was actually a strongcircumstance against the accused was the evidence of P.W.7 who wouldcategorically depose that, at or about the time of occurrence, hefound the accused and the deceased in close proximity to the placeof occurrence. When the evidence of P.W.7 was scrutinised, it wouldclearly indicate that it was cogent and convincing and natural also.Thus, the prosecution has proved the last seen theory through theevidence of P.W.7. 8. The prosecution had the advantage of examining P.W.10. Fromthe evidence of P.W.10, it is seen that the accused was alreadyknown to him and the accused came to him and revealed about theentire incident. At this juncture, it has to be pointed out thatbefore accepting the extra judicial confession like this, the Courtmust apply two tests. Firstly, to whom and under what circumstancesthe extra judicial confession was made. Secondly, whether theevidence of the person to whom the extra judicial confession allegedto have been made inspires the confidence of the Court. When thesetwo tests are applied, the Court is satisfied with the evidence ofP.W.10 which has been rightly accepted by the trial Court. Addedcircumstance was that, after production of the accused before thepolice station, the accused has given confession statementvoluntarily and the same was recorded by P.W.27 investigatingofficer, pursuant to which the accused produced M.O.13 and M.O.14shirt and pant. When these two items were analised it contained thesame blood group as the blood group found in the clothes worn by thedeceased Renugadevi. Hence, the scientific evidence was also infavour of the prosecution. Thus, the prosecution was able to placethe above circumstances pointing to the guilt of the accused .Therefore, the contentions putforth by the learned counsel andrecorded above do not merit acceptance. Even though the prosecutionhad no direct evidence to offer it relied on the circumstantialevidence and the circumstances were cogent pointing to thehypothesis, except the accused no one could have committed theoffence. Under such circumstances, this Court has no hesitation inconfirming the judgement of the trial Court. Therefore, the judgmentof the trial court has got to be affirmed and there is nothing tointerfere either factually or legally. 9. In the result, the judgment of conviction and sentenceimposed by the trial court is sustained. This criminal appeal failsand the same is dismissed. It is reported that accused/appellant ison bail and hence, the concerned Sessions Judge shall take steps tosecure his presence and commit him to prison to undergo the lifeimprisonment. Sd/Asst.Registrar/true copy/Sub Asst.Registrarvsi https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District and Sessions Judge at Coimbatore 2.The Principal Sessions Judge,Coimbatore.3.The Inspector of Police,B-5,singanalur Police Station,Coimbatore.4.The Judicial Magistrate No.3,Coimbatore.5.The Chief Judicial Magistrate,Coimbatore.6.The Superintendent,Central Prison,Coimbatore.7.The District Collector,Coimbatore.8.The Director General of Police,Mylapore, Madras-4.9. The Public Prosecutor, High Court,Madras. 10. The Section Officer,Criminal Section, High Court,Madras.KS(CO)km/20.7. CRL.A.No.372 of 2007