Challenge is made to the judgement of the learned Principal Sessions Division, Salem, made in S.C.No.136 of 2002 whereby the sole accused/appellant stood charged tried and found guilty under section 302 IPC and awarded life imprisonment

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.12.2009

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH

CRIMINAL APPEAL No.571 of 2009


M.Selvaraj ..Appellant


Vs.



State by
Inspector of Police,
Attavampatti Police Station.          ..Respondent


This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Division, Salem made in S.C.No.136 of 2002 dated 13.11.2002

For Appellant     :  Mr.A.Thamizharasan

For Respondent  :  Mr.Babu Muthu Meeran, Addl.P.P







J U D G M E N T

(The judgment of the Court was made by M.CHOCKALINGAM, J.)

Challenge is made to the judgement of the learned Principal Sessions Division, Salem, made in S.C.No.136 of 2002 whereby the sole accused/appellant stood charged tried and found guilty under section 302 IPC and awarded life imprisonment.

2. The short facts necessary for the disposal of this appeal can be stated as follows:

(a) P.W.2 is the mother of the deceased Sumathi aged 15 years. P.W.1 is the brother of the deceased. P.W.3  a boy aged 9 years, was residing with his parents in the neighbour house of the deceased. P.W.4 was conducted a petti shop nearby  the house of the accused.  The accused is the father of the deceased. He was a drunkard and was carrying on a wayward life. A few months prior to the  occurrence, he pledged M.O.3, Videocon TV and other things with P.W.6. The accused  did not heed to the advise made by the others. He continued to carry on the said activities.

(b) On 27.1.2002, P.W.2 went to S.Palam for attending  his coolie work . P.W.1 who went to weaving   work and came back at 4.00 p.m.  and went to witness panchayat TV and was there till night hours. At that time, the deceased Sumathi was alone in the house. She requested P.W.3, a neighbour boy to come and sleep with her. Accordingly, P.W.3 came to the house of Sumathi and was sleeping with her. At about 10.00 p.m, P.W.9 a neighbour found the accused  entering the house of the deceased. P.W.3 saw Sumathi entering into the other room of the house and within a short span of time, he heard the distress cry of Sumathi. Due to fear, P.W.3 ran away to his house. P.W.9 noticed the accused coming out of the house after some time.

(c) When P.W.4 was in her petty shop, the accused went to her shop and purchased beedi. At that time, the accused informed P.W.4 that there was a death in his house and she would enquire  about the same. So saying, he left the place.  P.w.1 returned to the house at about 11.00 p.m. and went to bed. At about 4.00 a.m., he noticed the accused who came to the house and after some time, he saw him leaving the house. P.W.1 had nothing to entertain suspicion. At about 6.30 a.m., When he  woke up, Sumathi did not raise from bed. Then, he went near her and found her dead with injuries on the neck. Immediately, he informed to the neighbours. P.W.2 was also informed.

(d) P.W.1 proceeded to the respondent Police Station and gave Ex.P1 complaint to P.W.13 Inspector of Police. The case was registered in Crime No.92/2002 under section 302 IPC. The FIR, Ex.P10 was despatched to Court. P.W.13 took up investigation. He proceeded to the spot, made an inspection and prepared the Observation Mahazar Ex.P2 and drew a rough sketch ex.P11. He conducted inquest on the dead body of the deceased and prepared inquest report, Ex.P12 in the presence of witnesses and panchayatdars. Following the same, the dead body was sent for the purpose of post mortem.

(e) P.W.8 doctor attached to the Government Hospital conducted autopsy on the dead body of Sumathi and gave his opinion through the contents of post mortem certificate, Ex.P6  and also as witness before the Court that the deceased died out of asphyxia due to strangulation on the neck.

(f) Pending   investigation, on 29.1.2002, the accused was arrested. He gave the confessional statement voluntarily in the presence of the witnesses and the same was recorded. The admissible part of the same was marked as Ex.P13. Following the same, he took the investigator to P.W.5 from whom M.O.1 Silver anklet was recovered. He also took them to P.W.6 from whom the T.V. and other things which were pledged by the accused earlier were recovered. Thereafter, the accused was sent for judicial remand. All the material objects were subjected to chemical analysis by the department and the reports were received and placed before the Court. On completion of the investigation, the investigating officer filed a final report.

(g) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 13 witnesses and relied on 14 exhibits and 10 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and the accused denied them as false. No defence witness was examined. On hearing the arguments advanced on either side, the trial court found the prosecution has proved the case beyond reasonable doubt and found the  accused guilty of the charges levelled against him and rendered the judgment of conviction and sentence as referred to above. Hence, this  appeal at the instance of the appellant.

3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that the prosecution had no direct evidence to offer. Even the boy who was examined as P.W.3 has categorically deposed that he did not see the accused  at the time of occurrence. After hearing the distress cry, he ran away from the place and no where he has whispered that the accused entered into the house. Hence,  the evidence of P.W.3, though shown by the prosecution as eye witness, it did not serve the purpose. Insofar as P.W.1  was concerned, he admitted that he left the house at 4.00 p.m. and returned at 11.00 p.m. Hence he could not have seen the occurrence at all. Added further learned counsel,  even according to P.W.1, the accused came at 4.00 a.m. and left the house . Had it been true that accused has done the crime of murder of his daughter he could not have come to the house at 4.00 a.m., the next day. Hence, it is the case where the prosecution had no evidence to offer.

4. The learned counsel would further submit that the evidence of P.W.4 was of no significant at all. A person who commit the crime of murder would not go  and inform to any body that he had committed such a crime. So far as the arrest, confessional statement and the recovery of the material objects are concerned, they were the documents prepared and subsequently introduced in order to strengthen the prosecution case. The investigator could not have fixed the accused. Under such circumstances, the prosecution has come with a false story and foisted a case as against the  accused/appellant. The trial Court has taken an erroneous view without appreciation of the fact that the accused was absent during the relevant time.  The prosecution has miserably failed to prove the nexus between the crime and the accused. Hence, the accused is entitled for acquittal in the hands of this Court.

5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

6. It is not in controversy that one Sumathi aged 15 years was done to death in an incident that had taken place on 27.1.2002 in the house of the accused/appellant. Admittedly, P.W.2 mother of the deceased has left the house for agricultural work to the nearby village named S.Palam. P.W.1 , brother of the deceased and son of the accused went for weaving work and thereafter, went  to watch panchayat T.V. The accused and Sumathi were  only available in the house.  From the evidence of P.W.3, a boy of 9 years old, he was living in the neighbour house of the deceased. It is quite clear that at about 9.00 p.m. Sumathi made a request to stay along with her. Therefore, he came to her house and was sleeping with her. At about 10.00 p.m., P.W.3 noticed the deceased Sumathi entering into the other room and within a short span of time, he heard the distress cry of Sumathi from the nearby room of the house. Due to fear, he ran away from the house. At this juncture, this occurrence has taken place. The prosecution had brought the medical evidence to the effect which would indicate that she died out of asphyxia due to the injuries on the neck. Hence, it was not a natural death. It is very clear that she has not committed suicide but death was caused due to homicidal violence by others. Now, the question that arise for consider of the Court is who had committed such an act? P.W.9 had categorically deposed that just before the time of occurrence, he saw the accused entering into the house and after a short while, he saw him coming out of the house. P.W. 9 is the neighbour of the accused and there is nothing noticed or any reason  brought about  to suspect his evidence.  Apart from that, the statement of P.W.9 was recorded the very next day and sent to Court immediately.

7. Added circumstance which is against the accused was the evidence of P.W.4. Immediately, after committing the crime, he went to a petty shop and purchased beedi. At that time, he informed the petty shop owner, P.W.4 that there was a death in his house and she would come and enquiry  regarding the same and left the place . He was arrested on 29.1.2002 and he came forward to give confessional statement. Pursuant to the confessional statement, the silver anklet, M.O.1 which was worn by the deceased was actually recovered from P.W.5  to whom it was pleaded by the accused. All would go to show that it was the accused/appellant who entered into the house and taking advantage of the loneliness of the deceased, he has murdered her and taken away the silver anklet. Therefore, all the contentions putforth by the learned counsel for the appellant, in the face of the evidence available, have got to be rejected,accordingly, rejected.

8. It is not that the court is unmindful of caution that in a given case like this when the prosecution rested its case on circumstantial evidence, it must place and prove necessary circumstances, which must constitute a chain without a snap and also point to the  hypotheses that except the accused no one else could have committed the offence. In the instant case, even after application of the above principle of law, the court is satisfied that the prosecution has placed and proved necessary circumstances pointing to the guilt of the accused. It is also a case where presumption available under Section 114-A of the Indian Evidence Act has got to be applied, since the accused has pledged the stolen property within a reasonable time from the time of occurrence.

9. The accused has committed a heinous crime of murdering his own daughter,  aged 15 years and taken the silver anklet worn by her. Thus, after scrutiny of the materials available, the Court is convinced that the prosecution has brought home the guilt of the accused. Hence, the lower court was perfectly correct in finding the accused/appellant guilty and awarding life imprisonment, which in the opinion of the court does not require any interference, factually or legally.

10. In the result, this criminal appeal fails and the same is dismissed confirming the judgement of conviction and sentence passed by the trial Court.


(M.C.J.)       (V.P.K.J.)     04.12.2009
Index : Yes/No
Internet : Yes/No
vsi

To
1.  Principal Sessions Division, Salem.

2.  Inspector of Police,
    Attavampatti Police Station.

3. The Public Prosecutor, High Court, Chennai.




































M.CHOCKALINGAM.,J.
AND
V. PERIYA KARUPPIAH.,J.

Vsi











CRL. APPEAL No.571 of 2009







04.12.2009