S.Muruganandam v. State by: Inspector of Police Kevalur Police Station Nagapattinam District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.764 of 20081.S.Muruganandam2.P.Chellappa.. Appellant vsState by:Inspector of PoliceKevalur Police StationNagapattinam District(Crime No.733 of 2005).. RespondentCriminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Sessions Judge,Nagapattinam, made in S.C.No.108/2006 dated 20.6.2008.For Appellant: Mr.P.VijendranFor Respondent: Mr.N.R.Elango Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenging a judgment of the Sessions Division, Nagapattinam,made in S.C.No.108/2006, whereby the appellants/A-1 and A-3 stoodcharged, tried and found guilty as follows, this criminal appeal isbrought forth. ACCUSEDCHARGESFINDINGPUNISHMENTA-1376(2) IPCNot guiltyA-3376 r/w 109 IPCNot guiltyA-1 & A-3302 IPCGuilty underSec.302 r/w 34IPCLifeimprisonmentalong with afine ofRs.30000/- anddefault sentence https://hcservices.ecourts.gov.in/hcservices/

2.Short facts necessary for the disposal of this appeal can be statedas follows:(a) P.W.1 is a native of Vandalur. The deceased Muthazhagi washis wife. P.W.5 is their son. P.W.4 was the Panchayat President ofthe said place. P.W.12 was driving an auto in the said village.P.Ws.10 and 11 were also residents of the said place. P.W.1 was aBarber by profession. His wife was doing agricultural work. Twomonths prior to the occurrence, when the deceased was proceeding fromthe shop of P.W.1 in the evening hours, A-1 dragged her hand andoutraged her modesty. It was witnessed by P.W.1, who went to hishouse by a cycle. He reported the matter to P.W.4 the PanchayatPresident, who called A-1 and warned him. Thus A-1 developedanimosity against P.W.1 and his wife, and he hatched up a plan withA-2 and A-3 to have sexual assault on her. (b) On the evening hours of 20.11.2005, P.W.5 was in his house,and P.W.1 was in his shop. At about 4.30 P.M., the deceased went tothe field for cutting grass. At that time, A-1 to A-3 engaged theauto of P.W.12, and first they proceeded to a hotel and had theirfood. Thereafter, they went to a petrol bunk near Venmani and thenproceeded to the bridge which is situated at Parappanur. When theywere proceeding in the auto, P.Ws.8 to 10 saw all the three accusedin the auto driven by P.W.12. At about 5.00 P.M., P.W.7 saw thedeceased cutting the grass near the channel situated aside the abovebridge. The accused who came in the auto, stopped the vehicle nearbythe bridge. Leaving the auto there, all of them went to the placewhere she was cutting grass. A-3 was asked to send back the auto.A-1 and A-2 went near the deceased and removed her clothes. A-2placed a patta knife on her neck, pushed her down and intimidatedher. Both A-1 and A-2 had sexual intercourse with her one afteranother. A-3 came back to the place, and then all of them decidednot to leave her and to finish her off. A-1 and A-2 immersed herinto the water in the channel. A-3 caught hold of her legs tofacilitate the crime. She died out of asphyxia caused by immersingher into water. All the three took the dead body, and leaving thesame near the bush, they left the place. At that time, P.W.11 metthe accused nearby Iyyanar Temple which is situated nearby the placeof occurrence. A-1 asked him a match box to light a beedy.Accordingly, it was given and thereafter, P.W.9 has also seen them.He found the auto parked nearby, and P.W.12 sitting in the auto, andall the three accused standing nearby the place of occurrence.Thereafter, all the three accused left the place of occurrence. (c) At about 6 or 6.30 P.M., P.W.1 after closing his shop cameto the house, and when he could not find his wife he asked P.W.5, andP.W.5 informed him that at about 4 or 4.30 P.M. she went to cut thegrass. P.W.1 made a search during night hours; but, he could findher. The next morning at about 6.00 A.M., when P.W.6 went to attendthe nature's call, he found a dead body and informed to P.Ws.2 and 3,who in turn informed to P.W.1. Immediately, P.W.1 went to therespondent police station on 21.11.2005 at 8.00 A.M. and gave areport, Ex.P1, to P.W.20, the Head Constable. On the strength of https://hcservices.ecourts.gov.in/hcservices/ Ex.P1, the report, a case came to be registered in Crime No.733/2005under Sec.174 of Cr.P.C. The printed FIR, Ex.P14, was despatched tothe Court. He proceeded to the spot and prepared an observationmahazar, Ex.P9, and also a rough sketch, Ex.P15. An intimation wassent to the Tahsildar. Then inquest was conducted in the presence ofwitnesses and panchayatdars and Ex.P16 is the inquest report. (d) P.W.23, the Inspector of Police of that Circle, on receiptof the copy of the FIR, took up investigation, proceeded to the spot,made an inspection, examined the witnesses and recorded theirstatements. The photographs were taken through P.W.10, thephotographer, and M.O.1 is the photo. The dead body was sent to theGovernment Hospital along with a requisition for the purpose ofautopsy.(e) P.W.14, the Civil Assistant Surgeon, attached to theGovernment Head Quarters Hospital, Nagapattinam, on receipt of thesaid requisition, conducted autopsy on the dead body of Muthazhagiand has issued a postmortem certificate, Ex.P7. She gave her finalopinion under Ex.P8 that the deceased would appear to have died dueto asphyxia due to drowning. (f) P.W.23 after verifying the postmortem certificate, convertedthe case to Sections 376 and 302 of IPC. The amended FIR, Ex.P22,was sent to the Court. He recorded the statements of the witnesses.He came to know about the involvement of A-1 to A-3. Then on26.11.2005, he arrested A-1 to A-3. A-1 came forward to give aconfessional statement which was recorded, and the admissible part ismarked as Ex.P23, pursuant to which he produced M.O.10, dhothi,M.O.11, shirt, and M.O.12, underwear, which were recovered under acover of mahazar, Ex.P24. A-2 came forward to give a confessionalstatement which was recorded in the presence of witnesses. Theadmissible part is Ex.P25, pursuant to which he produced M.O.13,dhothi, and M.O.14, underwear, which were recovered under Ex.P26,mahazar. A-3 came forward to give a confessional statement, and theadmissible part is Ex.P27. A-1 produced an aruval, M.O.16, which wasrecovered under a cover of mahazar. A-3 produced a knife, M.O.18,which was recovered under a cover of mahazar. They were all sent forjudicial remand. The material objects were subjected to chemicalanalysis by the Forensic Sciences Department, which brought forthEx.P12, the chemical analyst's report, and Ex.P13, the serologist'sreport. P.W.24, the Inspector of Police, took up furtherinvestigation and on completion of investigation, filed the finalreport.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges theprosecution examined 24 witnesses and also relied on 33 exhibits and18 material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyond https://hcservices.ecourts.gov.in/hcservices/ reasonable doubt in respect of A-1 and A-3 and hence found themguilty and awarded punishment referred to above which is the subjectmatter of challenge before this Court. Since A-2 died before theframing of charges, the case against him stood abated.4.Advancing arguments on behalf of the appellants, the learnedCounsel would submit that the prosecution had no direct evidence tooffer, but it rested its case upon the circumstantial evidence; thataccording to the prosecution, the occurrence has taken place at about4.30 or 5.00 P.M. on 20.11.2005; that the case was originallyregistered under Sec.174 of Cr.P.C. and the same was altered toSec.302 IPC only on 26.11.2005; that the postmortem was conductedactually on the very next day that was on 21.11.2005; that even theinquest report which is claimed to have been prepared by theInvestigating Officer on 21.11.2005, would clearly indicate thatthree accused are actually involved in the crime; that if to be so,the case should have been altered to Sec.302 IPC immediately; but thecase was converted to Sections 376 and 302 IPC only on 26.11.2005,and thus it would be quite clear that the FIR originally registeredfor Sec.174 Cr.P.C. reached the Court along with the amended FIRunder Sec.302 IPC only on 26.11.2005; and that all would indicatethat A-1 to A-3 were roped in in view of the earlier incident allegedto have happened two or three months earlier. 5.Added further the learned Counsel that in the instant case,the prosecution much relied on the evidence of P.W.12, an autodriver; but, he has turned hostile; that if his evidence was notavailable to the prosecution, the prosecution had no furthercircumstance to offer; that the prosecution examined P.Ws.8 to 11 inorder to show that the accused persons were found nearby the place ofoccurrence and also at the time when the occurrence has taken place;that a careful scrutiny of their evidence would clearly indicate thatthey could not have been present at the place of occurrence at all;that it is true that they actually stood charged under Sec.376 IPC;that even the medical opinion canvassed was not in favour of theprosecution, and hence the trial Court was not ready to believe thatthere was any sexual assault, and it acquitted them; that under thecircumstances, the medical opinion canvassed did not support the caseof the prosecution; that the trial Court should have acquitted theaccused but failed to do so and hence it has got to be rendered bythis Court.6.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.7.It is not in controversy that one Muthazhagi the wife ofP.W.1, was done to death in an incident that had taken place at about5.00 P.M. on 20.11.2005. On the strength of the complaint given byP.W.1, the husband of the deceased, the case was registeredoriginally under Sec.174 Cr.P.C. on the very day of the complaint.Following the inquest made, the dead body was subjected to postmortemby P.W.14, the Doctor, who has given final opinion in Ex.P8 that shedied out of asphyxia due to drowning. That apart, the cause of death https://hcservices.ecourts.gov.in/hcservices/ was not disputed by the appellants before the trial Court. 8.Before the trial Court, specific charges of murder and alsorape were actually levelled against these appellants. P.W.14, theMedical Officer, has conducted autopsy on the dead body of thedeceased. She has given a categorical opinion that there was noevidence of any sexual assault on the deceased. That apart, noexternal injuries were also noticed by the Doctor. As rightlypointed out by the trial Court, in the absence of any evidence, thecase of the prosecution that A-1 and A-2 have raped the deceasedcannot be accepted. Thus the trial Court has rightly rejected thatpart of the case of the prosecution. 9.As regards the other charge that all the three accused had thecommon intention to cause the death of the deceased and have causeddeath by immersing her into the canal water, it is true that theprosecution had no direct evidence to offer; but, the circumstancesplaced before the trial Court would be clearly indicative of theirinvolvement in the crime. P.W.1 is the husband of the deceased.P.W.4 was the Village President during the relevant time. From theirevidence, it would be quite evident that 2 or 3 months prior to theoccurrence, A-1 attempted to outrage the modesty of the deceased.Then, the same was reported to P.W.4, who in turn called A-1 andadmonished him. From that time onwards, A-1 developed animosityagainst P.W.1 and his wife and had entertained a grudge against them.On the date of occurrence, according to P.W.5, at about 4.30 P.M.,the deceased left to the field for cutting the grass. P.W.9 hasstated that on the date of occurrence, he was returning from Thevuralong with one Raj; that he found an auto parked nearby the place ofoccurrence; and that the auto driver was actually inside the auto,while all the three accused were standing nearby and were chatting toeach other. Equally, P.W.10 has deposed that himself, Selvam andKarthick were walking along the road at about 5.30 P.M., and at thattime, all the three accused were found nearby the channel area wherethe deceased was actually cutting the grass. From their evidence, itwould be quite clear that the witnesses have found the auto parkedthere and the driver sitting in the auto and the accused standingnearby where she was actually cutting the grass. Thus it would bequite clear that all the three accused were present at the time andplace where the occurrence has taken place. Apart from that, thedeceased was also found cutting the grass nearby. In the consideredopinion of the Court, this is a strong circumstance where thedeceased and the accused were found at the place and time. 10.Added circumstance was the evidence of P.W.11. According tohim, at about 5 or 5.30 P.M., it was raining, and he was comingalong, and at that time, when he was just crossing the IyyanarTemple, A-1 asked for a match box, and he gave it to him, and at thattime, he found the other accused persons also. This would clearlyindicate that at the time and place of occurrence, the deceased wascutting the grass and three accused were also standing nearby.Thereafter the dead body was only found, and these three accused havealso fled away from the place of occurrence. The prosecution reliedon the recovery of the material object, which was rightly rejected by https://hcservices.ecourts.gov.in/hcservices/ the trial Court since it could not be accepted for the simple reasonthat both the witnesses examined for that purpose have turnedhostile. 11.Another circumstance in favour of the prosecution was themedical opinion given by the Doctor. The specific case of theprosecution was that they caused death of the deceased by immersingher into the water. The Doctor has given opinion that she died ofasphyxia due to drowning. It is noticed that there was a channelhaving a small depth namely two or three feet, and water was actuallyfound in the air passage along with sand. This would be quiteindicative of the fact that the death of the lady cannot be caused byjust falling into the water, and unless and until the front portionof the body was forcibly immersed into the water, there was nooccasion for the sand and water getting into the air passage as foundby the medical opinion. All would go to show that these threeaccused at the time of occurrence have forcibly immersed her bodyinto the water and caused her death by asphyxia. 12.Now, the contentions put forth by the learned Counsel for theappellants, in the considered opinion of the Court, do not carry anymerit whatsoever. The occurrence has taken place on 20.11.2005. Itis true that the inquest report was prepared on 21.11.2005. ColumnNo.9 of the inquest report would narrate the entire incident where A-1 attempted to outrage the modesty of the lady, and further they hadentertained suspicion against these accused. When the investigationwas taken up by the Investigating Officer and after perusal of themedical opinion, the case was actually converted to Sections 376 and302 of IPC. It is true that P.W.12 has turned hostile. P.W.12 wasthe auto driver who took them from the village to the place ofoccurrence and dropped them there. Though P.W.12 has turned hostile,the prosecution to its advantage had the evidence of P.Ws.9 to 11,who have seen all the three accused near the place of occurrence andalso the deceased at or about the time of occurrence. Thereafter shewas not found, and only the dead body was found the next morning.These circumstances would clearly indicate that except the accused noone could have committed the offence. 13.The other contention that the FIR registered under Sec.174Cr.P.C. was sent to the Court only on 26.11.2005 when it was amendedto Sec.302 IPC cannot be a reason to doubt the veracity of theprosecution case. Under the circumstances, the contentions put forthby the learned Counsel for the appellants have got to be rejected,and accordingly, they are rejected. Thus the evidence of P.Ws.9 to11 coupled with the medical opinion in the considered opinion of theCourt would suffice pointing to the guilt of the accused. The trialCourt was perfectly correct in finding them guilty. There is nothingto interfere either in the conviction or in the sentence imposed bythe trial Court. https://hcservices.ecourts.gov.in/hcservices/

14.In the result, this criminal appeal fails, and the same isdismissed confirming the judgment of the trial Court.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnsvTo:1.The Sessions Judge Nagapattinam2.The Inspector of Police Kevalur Police Station Nagapattinam District (Crime No.733 of 2005)3.The Public Prosecutor High Court, Madras.4.The Judicial Magistrate No.1, Nagapattinam(Crime No.733/05 of Kevalur Police Station)5.The Inspector Of Plice, Kevalur Police Station, Nagapattinam District.1 cc To Mr.P.Vijendran, Advocate, SR.32866CRL.A.No.764 of 2008ka(co)pmk.11.8.2009.