Madras High Court
P.Ganesan vs State Through Rep. By Inspector Of ... on 15 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
CRIMINAL APPEAL (MD).No. 70 of 2011
P.Ganesan : Appellant/Accused
Vs.
State through rep. by Inspector of Police,
Manamadurai Town Police Station,
In Crime No.579 of 2004 :Respondent/Complainant
PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal
Procedure against the judgment passed by the District and Sessions Judge,
Sivagangai, in S.C.No.24 of 2007 dated 27.01.2011.
!For Appellant :Mr.V.Kathirvelu
Senior Counsel
for Mr.V.Nagendran
^For Respondent : Mr.C.Mayilvahana Rajendran
Additional Public Prosecutor
:J U D G M E N T
(Judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellant is the sole accused in S.C.24 of 2007 on the file of the learned Sessions Judge, Sivagangai. He stood charged for the offences punishable under Sections 364, 302 and 201 IPC. By judgment, dated 27.01.2011, the trial Court convicted him under all the three charges and sentenced him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.250/- in default to undergo rigorous imprisonment for 2 years for the offence under Section 364 IPC, to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for two years for the offence under Section 302 IPC and to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.250/- in default to undergo rigorous imprisonment for 1 year for the offence under Section 201 IPC. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution, in brief, is as follows:
The deceased, in this case, was one Karpagavalli. The accused is her husband. The marriage between them was celebrated on 29.11.1998. After the marriage, the accused had suspicion over her fidelity. Therefore, he took the deceased to the house of her parents and entrusted her to them. P.W.1 is the father and P.W.2 is the mother of the deceased. They were all residing at Paramakudi Village. The accused was residing at K.Mayavaram Village, Madurai District. The deceased had filed a case against the accused claiming maintenance. In the said maintenance case, the appellant/accused was directed to pay Rs.500/- per month. The accused filed a civil case in H.M.O.P.No.60 of 2001 against the deceased seeking divorce. That was also pending.
2.2. While so, it is alleged that the accused, had hatched a plan to do away with the deceased to come out from the above legal battles.
Therefore, on 09.06.2002, he had gone to the parent's house of the deceased and told the deceased to come with him so as to live at Villapuram, Madurai to resume the marital life. Accordingly, the deceased accompanied the accused. On 10.06.2002 at 08.00 p.m, under the guise of taking the deceased to Villapuram, Madurai, the accused took the deceased to Manamadurai Bus Stand. In the bus stand, it is alleged that he mixed a sedative drug with 'Sarbath'(a beverage) and gave the same to the deceased. The deceased consumed the same and she started walking with the accused. The accused took her to Chinnakannanoor channel. Near the bridge at Karisalkulam Village, the deceased fainted. Then, it is alleged that the accused strangulated her neck by using one nylon rope. The deceased died on the spot. It is further alleged that the accused buried the body in the nearby place.
2.3 P.W.1 the father of the deceased was not in the village either on 09.06.2002 or on 10.06.2002. He came to the village after few days. The accused told him that the deceased was taken by him and she disappeared at Mattuthavani Bus stand when they were waiting for the bus. The accused told him that he went in search of his wife to various places, but he could not find her anywhere. P.Ws. 1 and 2 also searched for the deceased and they could not succeed. Finally, on 28.06.2002, P.W. 1 gave a complaint to the Police.
2.4 P.W.12, the Sub-Inspector of Police, Alanganallur Police Station registered a case in Crime No.93 of 2002 for woman missing, on the complaint of P.W.1. Ex.P.1 is the complaint. Ex.P.23 is the First Information Report. He forwarded both the documents to the court. Thereafter, P.W.12 handed over the case diary to the Inspector of Police for investigation.
2.5. The efforts taken by the police and the relatives of the deceased to find out the deceased could not succeed. While so, it is alleged that on 30.10.2002 at 05.00 p.m, the accused appeared before the Village Administrative Officer (P.W.4) and made a voluntary confession, in which, he disclosed that he committed murder of the deceased and buried the body in the nearby place. The same was reduced to writing by P.W.4 under Ex.P.2 at 05.00 p.m on 30.10.2002. Then, P.W.4 took the accused to Alanganallur Police Station and produced him before the Inspector of Police - P.W.13 along with Ex.P.2.
2.5 P.W.13 - the then Inspector of Police took up the investigation on 30.10.2002 at 08.00 p.m. and in the presence of P.W.4 and the Village Menial, he examined the accused. The accused gave a voluntary confession and that was reduced to writing (No portion of the same was marked in evidence). Then, he made a request to the Tahsildar (Executive Magistrate) to exhume the body. P.W.5 the then Tahsildar of Manamadurai visited the property comprised in Survey No.248/2 at Annavasal Village in Sivagangai District. He had made a request to P.W.11 also to be present for conducting autopsy on the body. Accordingly, on 31.10.2002, the dead body was exhumed from a pit in the said land at 01.00 p.m in the presence of witnesses. What was found was only a skeleton with some dress materials. The dead body was identified by means of a jacket and a saree by the relatives.
2.6 P.W.11, Dr.Natarajan, conducted autopsy on the body of the skeletal remains. Ex.P.21 is the post-mortem certificate. Ex.P.22 is the exhumation report. He stated that no opinion could be given in respect of the cause of death. He preserved the skull for superimposition. The skull was subjected to superimposition examination with the photographs of the deceased. P.W.10 conducted the said examination and gave opinion that the skull tallied with the photograph of the deceased. Ex.P.10 is the superimposition report of skull.
2.7 P.W.13 prepared an Observation Mahazar and a Rough Sketch at the place of occurrence. Based on the exhumation report, he altered the case one into under Sections 364, 302 and 201 IPC. After his transfer, the investigation was taken over by his successor (P.W.14). P.W.14 conducted further investigation and finally, laid charge sheet against the accused under Sections 364, 302 and 201 IPC.
2.8 Based on the above materials, the trial Court framed charges, as narrated in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 14 witnesses were examined, 26 documents and 4 material objects were marked.
2.9 Out of the said witnesses, P.W.s. 1 and 2 have spoken only about the motive and identification of the dead body. P.W.3 the brother of the deceased has also spoken about the motive. P.W.4 is the Village Administrative Officer, who has stated that the accused appeared before him on 30.10.2002 and gave a voluntary confession. P.W.5 is the Tahsildar in whose presence the dead body was exhumed and he has stated about the exhumation and the report submitted by him. P.W.6, the Head Clerk of the Court, has spoken about sending of the skull and photograph of the deceased for superimposition examination. P.W.7 is the Village Assistant, who was present at the time of exhumation of the body.
2.10. P.W.8 is the Head Constable, who had handed over the alteration report to the court. P.W.9 is the photographer, who has spoken about the photographs taken on the dead body. P.W.10 is the Scientific Assistant, who conducted superimposition examination. She has stated that the photographs of the deceased tallied with the skull of the dead body. P.W.11, Dr.Natrajan has spoken about the post-mortem conducted and his final opinion. P.W.12 is the Sub Inspector of Police, who registered the case. P.W.13 and 14 have spoken about the investigation done.
3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness nor to mark any document on his side. His defence was that the deceased disappeared at Mattuthavani Bus Stand, Madurai and thereafter, she was not traceable. He would further submit that he had not given any confession to the Village Administrative Officer and the dead body was not discovered at his instance.
4.Having considered all the above, the trial Court convicted the accused/appellant and accordingly, punished him under Sections 364, 302 and 201 IPC. That is how, he is before this Court with this appeal.
5. We have heard the learned Senior Counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
6. The learned Senior Counsel appearing for the appellant would submit that the extra judicial confession given by the accused to P.W.4 cannot be true. He would point out that the accused was either in the custody of the police or in the company of P.Ws.1 and 2 and they had no suspicion over the accused. When that be so, there would not have been an occasion for him to go to the Village Administrative Officer and to make a confession. He would further submit that the Village Administrative Officer had no acquaintance with the accused and therefore, the accused would not have gone to him to give any confession. He would next submit that the place, where the dead body was buried, was not discovered out of any disclosure statement made by the accused nor has he identified the place. He would further submit that there is no other evidence incriminating the accused. Thus, according to the learned Senior Counsel, absolutely there is no case against the appellant and he is entitled for acquittal.
7. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, the fact that the deceased was lastly taken by the accused as admitted in his confession need not be doubted. The accused voluntarily gave confession to the Village Administrative Officer. In the said confession, he has vividly spoken about the entire occurrence and there is no reason to reject the same. He would further submit that the place, where the dead body was buried, was identified only on the disclosure statement made by the accused. But, the accused has not explained as to how he came to know about the place where the dead body was buried. He would further submit that though the Doctor, who conducted autopsy, has stated that the cause of death could not be ascertained, on that score, the entire case of the prosecution cannot be rejected, because, the cause of death has been spoken by the accused in the extra judicial confession. The learned Additional Public Prosecutor would finally submit that the prosecution has proved the case beyond reasonable doubts and therefore, the appeal deserves to be dismissed.
8. We have considered the above submissions.
9. The appellant is the husband of the deceased and there was no love-last between them. There was a divorce case pending between the accused and the deceased, and a maintenance case was also filed by the deceased against the accused. When that be so, it is doubtful that the deceased would have accompanied the accused on the crucial date. Though it is stated that the accused took the deceased under the guise of setting up of separate family at Villapuram, P.W.1 and P.W.2 have not stated so. P.W.1 was not at his house during the relevant time as he had gone to Chennai. P.W.2 the mother of the deceased, has not at all stated that the accused came to the house and took the deceased to live at Villapuram.
10. Next comes the conduct of the accused. It is stated by P.Ws.1 and 2 that they enquired the accused about the whereabouts of the deceased and he told that the deceased disappeared at Mattuthavani bus-stand on 10.06.2002 itself, when they were waiting for the bus. Assuming that the deceased was taken by the accused, the accused has got an explanation that the deceased disappeared at Mattuthavani Bus stand, Madurai. After 10.06.2002, it is not as though the accused was absconding. The accused was very much available in the village and he was either in the company of P.Ws.1 and 2 or in the custody of the police. That is the admitted case of the prosecution itself. This would go to show that P.Ws 1 and 2 would not have had suspicion over the accused about missing of the deceased. If really P.Ws 1 and 2 had any semblance of doubt about the accused, certainly they would have informed about the same to the police. This would go to show that P.Ws 1 and 2 had no doubt about the veracity of the accused. When that be so, it is quite surprising as to how the accused went to the Village Administrative Officer(P.W.4) after four months to make a confession. It is not as though P.W.4 was known to the accused so that the accused could have given confession before him reposing confidence in him. It is too difficult to believe that the accused would have chosen P.W.4 to confess. Therefore, it is very difficult to believe that the accused made a confession to P.W.4. Assuming that such confession was really made by the accused to P.W.4, it is settled law that the extra judicial confession being a weak piece of evidence cannot be the sole foundation for conviction, unless that inspires the confidence of the court. But, in a case, where there are doubts regarding the extra-judicial confession, then as a rule of caution, the Court is required to look for some corroboration from independent sources. Here in this case, as we have already pointed out the extra judicial confession said to have been made by the accused has not inspired the confidence of the court. Absolutely, there is no other evidence corroborating the extra judicial confession. Therefore, in our considered view, solely based on the said confession, the conviction cannot be sustained.
11. The learned Additional Public Prosecutor would submit that the place where the dead body was buried was only identified by the accused. Absolutely, there is no evidence in respect of the same. In Ex.P.2, the extra judicial confession, the accused has not stated as to where the dead body had been buried. Thus, there was no disclosure statement found in Ex.P.2 regarding the place where the dead body was buried. It is stated by the Inspector of Police that after the accused was produced, he gave a voluntary confession. But unfortunately, the same has not seen the light of the day. Admittedly, the disclosure statement has not been proved in evidence. If there had been any disclosure statement made by the accused in respect of the place where the dead body was buried, certainly, the said statement would have been brought on record under Section 27 of the Indian Evidence Act. The Inspector of Police also did not say that the accused confessed before him. It is well settled that for the purpose of Section 27 of the Indian Evidence Act, it is not the discovery of every fact, which makes the statement admissible, but it is only the discovery of a relevant fact, that makes the statement admissible.
12. P.W.5, the then Tahsildar, who was present at the time of excavation of the body, has stated that the Inspector of Police told him about the place where the dead body was buried and he wanted him to come to the said land to exhume the body. He has further stated further that accordingly he went to the said land in Survey No.248/2 and the body was excavated from that place. Thus, it is crystal clear that the place where the dead body was found was not identified by the accused or by any body else. No where it is stated in the evidence that as to how the Inspector of Police came to the place where the dead body had been buried.
13. Next comes the cause of death. The body was in a highly decomposed condition. The cause of death could not be found out. In a case based on circumstantial evidence, the cause of death has to be proved beyond reasonable doubts. But, at the same time, we would hasten to add that it is not necessary that in every case the cause of death should be proved by medical evidence. There are cases, where even in the absence of any medical evidence, the Court can come to the conclusion that the deceased was done to death. But, such proof can be made by means of other clinching circumstantial evidence. In this case, absolutely, there is no other evidence even to remotely suggest that the deceased was done to death.
14. The learned Senior Counsel appearing for the appellant would next contend that the reliance should not have been made in respect of identity of the dead body based on the superimposition examination. According to the learned Senior Counsel appearing for the appellant, if the skull of two persons are similar, then both would tally with the photograph of a person. We do not want to go into this issue. In this case, it would be unnecessary as we are convinced that in all other aspects, the prosecution has failed to prove the case beyond reasonable doubts.
15. In view of the reasons stated above, we hold that the prosecution has failed to prove the charges levelled against the accused beyond reasonable doubts. The petitioner is, therefore, entitled for acquittal.
16.In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the accused/appellant by the trial court in S.C.No.24 of 2007, is set aside and the appellant/accused is acquitted. Fine amount, if any, paid by him shall be refunded to him. The bail bond, if any, executed by him shall stand terminated.
To
1.The Sessions Court, Sivagangai,
2.The Inspector of Police, Manamadurai Town Police Station.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.