M.Veerappan v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30-07-2008THE HON'BLE MR.JUSTICE P.D.DINAKARANANDTHE HON'BLE MR.JUSTICE K.N.BASHACRIMINAL APPEAL NO: 996 OF 2007M.Veerappan.. Appellant/AccusedVsState rep.by Inspector of Police, Keezhaiyur Police Station, Nagapattinam District. (Crime No. 214 of 2004).. Respondent/ComplainantAppeal filed under Section 374(2) Cr.P.C against the judgmentdated 17.10.2005 made in S.C.No. 37 of 2005 on the file of thelearned Sessions Judge, Nagapattinam. For appellant: Mr.M.SankarFor respondent :Mr.N.R.Elango, Addl. Public Prosecutor JUDGMENT (Judgement of the Court was delivered by P.D.DINAKARAN,J.,) This appeal has been preferred against the judgement dated17.10.2005, made in S.C.No. 37 of 2005, on the file of the learnedSessions Judge, Nagapattinam. By the impugned judgement, theappellant was found guilty for offences under Sections 302 and 201IPC and accordingly, was convicted and sentenced to undergoimprisonment for life and also to pay a fine of Rs.1000/-, indefault, to undergo rigorous imprisonment for one year for the formeroffence, and to undergo rigorous imprisonment for one year for thelatter offence. The said conviction and sentence are under challengein the present appeal.

The prosecution case, as per the charge is that the accusedVeerappan, on 10.6.2004, at 8.30 a.m., near the land on the easternbank of Achakkarai Channel, with an intention to kill his wifeMuthammal, strangulated her neck with the help of the saree worn by https://hcservices.ecourts.gov.in/hcservices/ her, and caused her instantaneous death and thereby, committed theoffence punishable under Section 302 IPC. In continuance of the samecourse of action, to conceal the commission of crime, the accuseddragged the dead body of the deceased and put the same into thechanel water and thereby committed an offence punishable under Section 201 IPC.

The genesis of the prosecution version, as unfolded by theprosecution witnesses during the course of trial, are as follows:-(a)The accused Veerappan is the father of P.W.11, Senthilkumarand husband of the deceased Muthammal. They were doing vegetablevending business. They have two sons and a daughter. The firstdaughter was given in marriage and she was living with her husbandseparately. The accused and the deceased were living along with theirtwo sons. The elder son is a Lorry Cleaner, while the younger isworking in a provisional store. According to P.W.1, the accused wasaddicted to liquor and was in the habit of picking up quarrel withthe deceased very often. The accused did not stay for about onemonth prior to the date of occurrence. On the date of occurrence,i.e. on 10.6.2004 morning, the deceased and the two sons went forwork. While the two sons returned home in the evening, the deceaseddid not turn up.

After filing of the final report, the case was committed to Court of Sessions, which was taken up in Sessions Case No:37 of 2005by the learned Sessions Judge, Nagapattinam, and charges were framedby the learned Sessions Judge against the accused, for which, theaccused denied his complicity with the crime and therefore the trialof the case was taken up. In order to substantiate its case beforethe Sessions court, the prosecution relied on the ocular versions ofP.Ws.1 to 12 and marked Exs.P.1 to P.14 and also produced MaterialObjects 1 to 6.

On conclusion of the examination of the prosecution witnesses asreferred to above, when the accused was questioned under Section 313(1)(b) of the Criminal Procedure Code with regard to theincriminating materials appearing against him in the evidence of the https://hcservices.ecourts.gov.in/hcservices/ prosecution witnesses, he denied each and every incriminatingmaterial as false and pleaded not guilty. However, no witness wasexamined and no document was marked on the side of the defence.

The Learned Sessions Judge, Nagapattinam, after perusal ofthe materials on record and after hearing the arguments made by boththe parties, convicted and sentenced the appellant as mentioned aboveand aggrieved against the conviction and sentence, the present appealis preferred.

Learned counsel for the appellant contended that the evidenceof P.W.2 is not trustworthy and therefore the evidence of P.W.1 alsocannot be accepted and consequently, the complaint lodged by P.W.1,Village Administrative Officer also has to be disbelieved.

On the other hand, the learned Additional Public Prosecutor, to sustain the conviction and sentence, submitted that though thereis no eye witness to the occurrence, before P.W.11, son of thedeceased and accused, as well as before P.W.2, an independentwitness, the accused has divulged the commission of the crime. Thatapart, the last seen theory and medical evidence are available onrecord to support the case of the prosecution.

We have given our careful and anxious consideration to therival contentions put forward by either side and also perused theentire materials and considered each and every circumstance putforward by the prosecution.

A perusal of Ex.P.9, Post-mortem Certificate, and Ex.P.10,Final Opinion, which was given after considering various pointsincluding the analysation of viscera and hyoid bone of the accused, as to the cause of death would go to show that the death was as aresult of asphyxia due to strangulation which would lead to thedefinite conclusion that it is a homicidal death.

Now, the points that arise for consideration in this appealis whether the prosecution has brought home the guilt of the accusedbeyond all reasonable doubts? and whether the conviction and sentencepassed by the learned Sessions Judge, Nagapattinam, against theaccused are sustainable?12. The case of the prosecution hinges upon circumstantialevidence as there are no direct eye witness to the commission of thecrime. It is well settled that the circumstances forming thatevidence must be conclusively established and even when soestablished, they must form such a complete chain that it is not onlyconsistent with his guilt but is inconsistent with any reasonablehypothesis of his innocence. https://hcservices.ecourts.gov.in/hcservices/

In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 709], itwas laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para10):"(1) the circumstances from which an inference of guilt issought to be drawn, must be cogently and firmlyestablished; (2) those circumstances should be of a definite tendencyunerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form achain so complete that there is no escape from theconclusion that within all human probability the crime wascommitted by the accused and none else; and (4) the circumstantial evidence in order to sustainconviction must be complete and incapable of explanation ofany other hypothesis than that of the guilt of the accusedand such evidence should not only be consistent with theguilt of the accused but should be inconsistent with hisinnocence. "

In the light of the above, let us analyse the evidence tofind out whether the circumstances brought forth by the prosecutionare consistent only with the guilt of the accused and inconsistentwith any hypothesis of his innocence.

The circumstances, which the prosecution relied upon to bringhome the guilt of the accused are: (i)motive - accused and deceased are husband and wife; theaccused was addicted to liquor and had been demanding moneywhich was resisted by the deceased and due to which therewere frequent quarrels between them; (ii) the deceased was last seen together in the company ofthe accused by P.Ws.5 and 6;(iii) evidence of P.W.11, son, and P.Ws.1 to 4, independentwitnesses with regard to the extra judicial confession madeby the accused; (iv) immediately after the extra judicial confession, complaint was lodged and the law was set in motion; https://hcservices.ecourts.gov.in/hcservices/ (v)medical evidence through P.W.7, post-mortem doctor andEx.P.10, final opinion; and(vi)recovery of M.O.1, vegetable basket, at the instance ofthe accused after his arrest.

P.W.11 is none other than the son of the accused. P.W.1 isthe Village Administrative Officer, who set the law in motion byfiling the complaint. P.W.2 is the friend of the accused, beforewhom, the accused admitted his guilt and thereafter only, the accusedwas produced before the VAO. P.Ws 3 and 4 are the Village Menials, who not only corroborate the voluntary confession made by the accusedto the VAO, but also stood as mahazar witnesses for recording theconfession. P.Ws 5 and 6 are the independent witnesses who have lastseen the deceased in the company of the accused on the fateful day at11.00 a.m.

Of the above witnesses, P.W.11, Senthilkumar, who is noneother than one of the two sons of the deceased Muthammal, and theaccused Veerappan, is of utmost importance. A close scrutiny of theevidence of P.W.11, Senthilkumar would reveal that his father/accusedVeerappan was addicted to liquor and was picking up quarrel with thedeceased quite often. A perusal of Ex.P.1, confession statement ofthe accused would show that he used to extract money from thedeceased/wife for food and miscellaneous expenses very often andthere were quarrels on account of that. On the date of occurrence, at 8.30 a.m., when the accused demanded money, the deceased refusedto part with the money and abused him. Infuriated by that, theaccused cajoled the deceased and took her to the bank of AchakkaraiChannel and suddenly twisted her hands, and throttled her neck byusing the saree worn by her, due to which the deceased breathed herlast. To conceal the act of commission of the crime, the accused thendragged and thrown the dead body into the channel water. Thereafterthe accused took the money from the Vegetable Basket and afterspending the sum, went to the house on the next day morning. Theabove admission of the accused to the P.W.1, VAO, in the presence ofP.Ws.3 and 4 who are all independent witnesses, would expose themotive on the part of the accused in committing the crime and alsothe manner of occurrence.

In the absence of eye witnesses to the occurrence and therebeing no strong motive, we have to only rely upon the extra judicialconfession, Ex.P.1. We are aware that before relying upon the extrajudicial confession, its truthfulness and credibility of the evidenceof the witness, before whom it has been made, are to be judged.

The Apex Court, time and again held that the extra judicialconfession cannot always be termed as a tainted evidence and https://hcservices.ecourts.gov.in/hcservices/ corroboration of such evidence is required only by way of abundantcaution. If the Court believes the witness before whom the confessionis made and is satisfied that the confession was true and voluntarilymade, then the conviction can be founded on such evidence alone andit is not open to the Court trying the criminal case to start with apresumption that extra judicial confession is always a weak type ofevidence and it depends upon several factors like the nature ofcircumstances, the time when the confession is made and thecredibility of the witnesses who speak for such a confession, videGURA SINGH -vs- STATE OF RAJASTHAN (2001 Supreme Court Cases (Crl.)323), as affirmed by its subsequent decisions in State of Rajasthanv. Raja Ram (2003 SCC Crl. 1965) and in Sivakumar v. State [(2006) 1SCC Crl. 470].

As regards the extra judicial confession, P.W.11, one of theson of the accused deposed that on the fateful day, in the morning, himself, his brother and their deceased mother left the house fortheir daily work and in the evening her mother did not come back torejoin them in the house. P.W.11 and one Veerasamy went in search ofthe deceased, but they could not succeed in their attempt. On thenext day also they could not trace out the deceased. But during thesaid two days, they noticed their father without any semblance ofworry and when P.W.11 questioned the propriety of the accused inremaining calm and irresponsible without doing anything to trace themissing wife Muthammal, the accused replied that he had no intereston her. Suspecting his attitude, P.W.11 took him to the Panchayatdars. Then, the accused admitted his acts of guilt and ranaway. This admission of the accused before P.W.11, who is nonethelesshis son, would amount to extra judicial confession.

As seen from Ex.P.1, confession statement of the accused, assoon as the occurrence was over at 8.30 a.m., on 10.6.2004, heparted with the amount of the deceased and returned to the home onlyon the next day morning and only when his sons insisted him toaccompany them to the Panchayatdars, he admitted the guilt and wentto the house of P.W.2 and confided in him and requested his help tosave him. Then, P.W.2 took the accused to P.W.1, VAO. According toP.W.2, the accused gave a voluntary statement, Ex.P.1 before the VAO,P.W.1. The VAO also speaks to the factum of P.W.2 bringing theaccused to him and the voluntary statement made by the accused. Atthat time, P.Ws 3 and 4, Village Menials, were present and theywitnessed the whole event and also signed as mahazar witnesses. Theevidence of P.Ws 3 and 4 would lend corroboration to the evidence ofP.Ws.1 and 2. Thereafter, P.W.1 sent the accused to police custodyalong with the Ex.P.1 statement of the accused and Ex.P.2, reportprepared by him. Thus, it is clear that the accused has given extrajudicial confession to P.Ws 1 to 4 at different point of times. https://hcservices.ecourts.gov.in/hcservices/

On going through the evidence of P.Ws.1 to 4, we could seethat it comes from the mouth of the witnesses who are totallyunbiased and not even remotely inimical to the accused and in spiteof lengthy cross-examination, nothing was elicited which may tend toindicate that they may have a motive of attributing an untruthfulstatement to the accused. The words spoken to by P.Ws.1 to 4 areclear, unambiguous and unmistakably convey that it was the accusedwho committed murder of his wife and nothing was omitted by thewitnesses which may militate against it. The evidence of P.W.1 getsstrengthened by the evidence of P.Ws 3 and 4, Village Assistants andP.W.12, Inspector of Police. We are, therefore, of the opinion thatthe evidence of P.Ws 1 to 4, who are independent witnesses, andP.W.11, who is none other than one of the sons of the accused, couldbe accepted as reliable and trustworthy.

As regards the last seen theory, it is the deposition ofP.W.6 that at about 8.00 a.m., on 10.6.2004, when he was conversingwith his friend Michael Raj in Kameswaran New Road, he saw thedeceased Muthammal with the vegetable basket in her hand and herhusband accused Veerappan together proceeding on the westerndirection, and after his visit to Marapidagai and return at about9.30 a.m., he found near the Kameswaran Bus stand, the accusedalone was returning with the basket which was carried by the deceasedfor selling the vegetables. P.W.5 also identified the vegetablebasket, M.O.1, which was recovered by P.W.12 in the presence ofmahazar witnesses Sambasivam and Packirisamy. Likewise, the evidenceof P.W.5 is also noteworthy. He asserted that at 11.00 a.m., on10.6.2004 he saw the accused alone returning with vegetable basketand when he questioned him as to where his wife was, the accusedreplied that she was out of town and would be returning only aftertwo days. This would show the evasive reply made by the accused toconceal his act of committing the crime. Therefore, the testimony ofP.Ws.5 and 6 as to the last seen theory is a decisive circumstance asagainst the accused. Thus, we have no hesitation in holding that theevidence of P.Ws.5 and 6 are convincing and trustworthy. Thiscircumstantial evidence considered in conjunction with the extrajudicial confession made to P.Ws.1 to 4 would entail the consequenceof proving the guilt of the accused and as such would be consistentwith the hypothesis of the guilt and inconsistent with innocence. Theextra judicial confession made by the accused to P.Ws 1 to 4 alongwith the circumstantial evidence together is of conclusive innature, excluding the possibility of the guilt of any person, otherthan the accused.

P.W.7, the Doctor, who conducted the autopsy, deposed that inthe case of strangulation with a soft material like nylex saree, theligature mark will not be well defined and in a decomposed state, theligature mark could not be clearly seen as in this case. In https://hcservices.ecourts.gov.in/hcservices/ addition to the ligature mark, the usual abrasions, contusions wouldhave been masked due to the decomposition changes. The Doctor furtheropined that the congestion noted in the liver, spleen, kidney and thecyanosis of nail bed suggest the possibility of asphyxial death. Thus the testimony of the Doctor would lend support to theprosecution case that the death was as a result of asphyxia due tostrangulation by the nylex saree.

The above clinching circumstances, viz., quarrel between thedeceased and the accused with regard to parting of money; last seentheory, as spoken to by P.Ws.5 and 6; extra judicial confession madeto P.Ws.1 to 4; and recovery of M.O.1 vegetable basket; and thefinal opinion given by the post-mortem doctor, conclusively establishthat it was the accused and none else, who committed uxoricide, bystrangulating her neck by use of the nylex saree worn by her, and asa result of asphyxia, the deceased died. Moreover, the fact remainsthat the accused is the husband of the deceased and they both wereresiding under the same roof and hence, it is for the accused toexplain as to how his wife was murdered. Further, when the accusedwas questioned under Section 313 Cr.P.C., with regard to theincriminating circumstances appearing against him in the evidence ofthe prosecution witnesses, he has baldly denied them as falsehood andpleaded not guilty. Since no explanation was offered by the accused, it is a strong circumstance against the accused.

Therefore, on going through the materials, we find that theprosecution has succeeded in establishing its case against theaccused beyond all reasonable doubts and hence we do not see anyreason to interfere with the conviction and sentence imposed by thelearned Sessions Judge, Nagapattinam.