Unknown vs Thangapandian

[Cites 17, Cited by 0]

Madras High Court

Unknown vs Thangapandian

The appellants are accused Nos.1 and 2 in S.C.No.131 of 2009, on the file of the III Additional District and Sessions Court [PCR], Madurai. The Trial Court framed as many as four charges, as detailed below.

                               Charge     Accused            Penal Provisions
                                 1        1 and 2      120-B IPC r/w 3(2)(v) of the
                                                       Scheduled        Castes   and
                                                       Scheduled Tribes [Prevention
                                                       of Atrocities] Act, 1989.
                                 2        1 and 2      302 IPC r/w 34 r/w 3(2)(v) of
                                                       the Scheduled Castes and
                                                       Scheduled Tribes [Prevention
                                                       of Atrocities] Act, 1989.
                                 3        1            404 IPC
                                 4        1 and 2      201 IPC




http://www.judis.nic.in
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By judgment dated 10.07.2015, the Trial Court has acquitted both the accused of all the charges framed against them. Challenging the said acquittal, the State has come up with this Criminal Appeal.

2. The facts obtaining, in this case, are as follows:-

2.1 The deceased–Lakshmi, a Dalit, was the younger daughter of Chinnammal [PW-1]. Thanikodi [PW-2] is the brother of Lakshmi.

Thayammal [PW-3] is yet another daughter of Chinnammal [PW-1] and elder sister of Lakshmi. Lakshmi was given in marriage to one Subramanian [PW-4], through whom, she has a son by name Manikandan. She got estranged from her husband and lived with her mother-Chinnammal [PW-1]. Lakshmi went missing from 16.05.2007 and after the attempts to trace her failed, Chinnammal [PW-1] lodged a complaint on 27.05.2007 [EX-P1], based on which, Mareeshwari [PW-19], the then Sub-Inspector of Police, registered a case in Crime No.116 of 2007 for “Woman Missing” and prepared the printed First Information Report, [EX-P12], which reached the jurisdictional Magistrate, on 28.05.2007.

http://www.judis.nic.in 4 2.2 In the complaint, [EX-P1], Chinnammal [PW-1] stated that her daughter Lakshmi was given in marriage to Subramanian [PW-4] and she has an 11 year old son, by name, Manikandan; Lakshmi got estranged from her husband and started living with her along with Manikandan; on 16.05.2007, she [PW-1] went to Madurai to see her elder daughter-Thayammal [PW-3] and on return, she did not find Lakshmi at home; she searched for her at various places including the houses of her relatives, but, to no avail; on coming to know that Lakshmi was found talking to Thangapandian [A-1] intimately, she enquired with Thangapandian [A-1]; but, he gave evasive replies; she suspects Thangapandian's [A-1's] hand in the matter.

2.3 Since there was no satisfactory progress in the investigation, Chinnammal [PW-1] filed H.C.P.(MD).No.353 of 2007, on 31.07.2007, for the issuance of a writ of habeas corpus, in which Thangapandian [A-1] was arrayed as the first respondent. On notice, Thangapandian [A-1] entered appearance and the matter was getting adjourned from time to time. Even in the affidavit sworn to by Chinnammal [PW-1] filed in support of the habeas corpus petition, she has stated that she learnt that her daughter-Lakshmi developed illicit intimacy with Thangapandian [A-1] and became pregnant and http://www.judis.nic.in 5 Thangapandian [A-1] had given her a sum of Rs.1,500/- for abortion. During the pendency of the Habeas Corpus Petition, Thangapandian [A-1] appeared before Saravanan [PW-11], Revenue Inspector, Usilampatti Taluk, on 03.10.2007, around 03.00 p.m. and confessed that he had committed the murder of Lakshmi, since she did not abort the foetus and started demanding money from him. The confession statement [EX-P2] given by him was recorded by Saravanan [PW-11] and Thangapandian [A-1] along with the confession statement [EX- P2], was produced before Ghulam, Inspector of Police, [PW-22], who was investigating the 'Woman Missing” case in Crime No.116 of 2007. Ghulam [PW-22] arrested Thangapandian [A-1] at 16.45 hours in the Police Station, on 03.10.2007 and recorded his statement, in which, Thangapandian [A-1] disclosed that he would show the place of occurrence and also produce the gold chain of Lakshmi, pursuant to which, on the showing of Thangapandian [A-1], Ghulam [PW-22] recovered a gold chain [MO-1] from the shop of Thangapandian [A-1] in the presence of Saravanan [PW-11] and Aandi [not examined]. Ghulam [PW-22] sent the confession statement [EX-P2] recorded by Saravanan [PW-11], the mahazar [EX-P7] and the seized gold chain [MO-1] to the jurisdictional Magistrate, who received them on 03.10.2007, at 08.30 p.m., in his residence, as could be seen from the http://www.judis.nic.in 6 endorsement made by the Magistrate on these documents. Since Lakshmi was a Dalit, Ghulam [PW-22] filed alteration report in Crime No.116 of 2007, altering the case from "Woman Missing" to one under Section 302 IPC r/w Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989, [for brevity, "the SC/ST Act"]. Since a case registered under the SC/ST Act should be investigated into by the Deputy Superintendent of Police, Ghulam [PW-22] obtained orders from the Superintendent of Police and handed over the investigation of the case to Balasubramanian, [PW-23], the Deputy Superintendent of Police.

2.4 Balasubramanian [PW-23] who took over the investigation of the case on 04.10.2007, went along with Thangapandian [A-1] and others, including the family members of Lakshmi, to the foothills of Aandipatti water channel and on the showing of Thangapandian [A-1], the police found human bones. As a part of the team, Dr.Gokulnath Premchand, [PW-16] also accompanied the police and he gathered the bones and conducted spot postmortem and submitted his report [EX- P8]. Dr.Gokulnath Premchand, [PW-16], in his evidence as well in the postmortem report [EX-P8], has stated as follows:-

http://www.judis.nic.in 7 "Identification not be made out as only pieces of bones were there.

The body was first seen by the undersigned at 11.30 AM, on 04.10.2007.

Appearances found at the postmortem:

The following bones were found at the scene of crime, right humerus, piece of right forearm bone, right scapula, lower jaw with few teeth about 14 in numbers, right and left femur bones, left tibia, left humerus, two clavicle bones, second cervical and third cervical vertebra.

Opinion could not be given as the cause of death is not known".

2.5 The bones were collected and sent to the jurisdictional Magistrate with a request to send the same to the Tamil Nadu Forensic Sciences Department for examination and report.

2.6 At the place of occurrence, Balasubramanian [PW-23] seized the following items under the cover of mahazar, which has been wrongly marked EX-P7, instead of EX-P8:-

● A pair of anklets [MO-2], ● thali chain with Meenakshi Dollar [MO-3], ● Maroon Colour Saree [Mo-4], ● inskirt [MO-5], ● a key [MO-7], http://www.judis.nic.in 8 ● broken bangle pieces [MO-8], ● two bundles of thread [MO-9], ● bloodstained soil [MO-10] ● and soil without blood [MO-11].

2.7 The seizure mahazar reached the jurisdictional Magistrate on 04.10.2007, at 05.30 p.m. Thangapandian [A-1] was sent to judicial custody. Balasubramanian [PW-23] examined some witnesses and recorded their statements.

2.8 At that juncture, pursuant to the order dated 11.10.2007 passed by this Court in H.C.P.(MD).No.353 of 2007, the case in Crime No.116 of 2007 was transferred to the file of the CB-CID, Madras and thereafter, the investigation was taken over by Manmathapandian [PW-24], the Deputy Superintendent of Police, who, hereinafter, shall be referred to as the "Investigating Officer".

2.9 The Investigating Officer sought police custody of Thangapandian [A-1], which was not granted by the Magistrate. He sought permission to interrogate Thangapandian [A-1] in the Prison, which was also denied by the Magistrate, on 21.11.2007, strangely.

http://www.judis.nic.in 9 The Magistrate was right in not giving police custody after the first 15 days of remand, but, in our view, the Magistrate should have granted permission to the Investigating Officer to interrogate Thangapandian [A-1] in the Central Prison. The Investigating Officer filed an application for DNA profiling of Subramanian [PW-4] and Manikandan, son of Lakshmi, in order to find out whether the bones recovered from the place of occurrence relate to Lakshmi. On the direction of the learned Judicial Magistrate, blood samples of Subramanian [PW-4] and Manikandan were drawn at the Forensic Sciences Department, Chennai. The bones were examined by Pushparani, [PW-17], Scientific Assistant Grade-II, Anthropology Division, Tamil Nadu Forensic Science Laboratory, who, in her evidence as well in the report, [EX-P9], has stated as follows:-

"The bones described as item I belonged to adult human individual. And the right and left innominate bones in item I belonged to an adult female individual with the age range between 30 and 40".

2.10 Scrappings from the bones were taken and Lakshmi Balasubramani [PW-18], who conducted the DNA profiling, has stated in her evidence as well in the DNA report, [EX-P10] as follows:-

"The cumulative probability of maternity of the lady to whom the bones [of ref 2] belong for being the mother of the child S.Manikandan is 99.9999999%.

http://www.judis.nic.in 10 The cumulative chance of exclusion of any random woman from the maternity of the child S.Manikandan is 99.99999999999999%."

2.11 During the course of investigation by Balasubramanian [PW-23], it came to light that Thangapandian [A-1] had developed illicit intimacy with Lakshmi and she became pregnant; he wanted her to undergo abortion; but, she refused and started demanding money from him; Thangapandian [A-1] conspired with Vasi [A-2], a month prior to 19.06.2007 to eliminate Lakshmi; pursuant to the conspiracy, on 19.06.2007, the duo took her to a deserted place in the foothills of Aandipatti water channel and murdered her by slitting her throat and took away some ornaments worn by her; Vasi [A-2] is stated to have burnt the bloodstained shirt worn by him near Thottappa Naickanoor Road in order to erase the evidence.

2.12 After completing the investigation, the Investigating Officer filed final report in P.R.C.No.12 of 2008 before the Judicial Magistrate No.I, Usilampatti against Thangapandian [A-1] and Vasi [A-2].

2.13 On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed http://www.judis.nic.in 11 to the Special Court of Session in Special Sessions Case No.131 of 2009 and was tried by the Additional District and Sessions Judge [PCR], Madurai.

2.14 The Trial Court framed charges against the accused, as detailed in Paragraph No.1 supra. When questioned, the accused pleaded "not guilty". To prove the case, the prosecution examined 24 witnesses, marked 21 exhibits and 11 material objects. No witness was examined on the side of the accused. On behalf of the accused, two documents were marked, viz, EX-D1 and EX-D2.

2.15 When the accused were questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against them, they denied the same.

2.16 The Trial Court, after considering the evidence on record and hearing either side, by judgment dated 10.07.2015, acquitted both the accused, aggrieved by which, the State is before this Court in this Criminal Appeal.

http://www.judis.nic.in 12 3 Heard Mr.K.Chellapandian, learned Additional Advocate General, assisted by Mr.R.Anandharaj, learned Additional Public Prosecutor for the State, Mr. T.K. Gopalan, learned counsel for Thangapandian [A-1] and Mr. R. Pandi, learned counsel for Vasi [A-2].

4 While dealing with an appeal against acquittal, this Court is required to bear in mind the guidelines issued by the Supreme Court in various decisions, which have been referred to in V.Sejappa Vs. State1, the relevant portion of which reads as under:-

“23. In Muralidhar alias Gidda and Anr. v. State of Karnataka (2014) 5 SCC 730, this Court noted the principles which are required to be followed by the appellate court in case of appeal against order of acquittal and in paragraph (12) held as under:-

"12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu AIR 1954 SC 1, Madan Mohan Singh AIR 1954 SC 637, Atley AIR 1955 SC 807, Aher Raja Khima AIR 1956 SC 217, Balbir Singh AIR 1957 SC 216, M.G. Agarwal AIR 1963 SC 200, Noor Khan AIR 1964 SC 286, Khedu Mohton (1970) 2 SCC 450, Shivaji Sahabrao Bobade (1973) 2 SCC 793, Lekha Yadav (1973) 2 SCC 424, Khem Karan (1974) 4 SCC 603, Bishan Singh (1974) 3 SCC 288, Umedbhai Jadavbhai (1978) 1 SCC 228, K. Gopal Reddy (1979) 1 SCC 355, Tota Singh (1987) 2 SCC 529, Ram Kumar (1995) Supp 1 SCC 248, Madan Lal (1997) 7 SCC 677, Sambasivan (1998) 5 SCC 412, Bhagwan Singh (2002) 4 SCC 85, Harijana Thirupala (2002) 6 SCC 470, C. Antony (2003) 1 SCC 1, K. Gopalakrishna (2005) 9 SCC 291, Sanjay Thakran (2007) 3 SCC 755 and Chandrappa (2007) 4 SCC 415. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently 1 (2016) 12 SCC 150 http://www.judis.nic.in 13 held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and (iv) Merely because the appellate court on reappreciation and re-

evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial Court."

5 The case of the prosecution rests principally on the following circumstances:

i. Lakshmi was estranged from her husband and was living with her child Manikandan in her mother's house.

http://www.judis.nic.in 14 ii. Thangapandian [A-1] was a caste Hindu and a married man and was running a grocery shop in the village.

iii. Lakshmi developed illicit intimacy with Thangapandian [A-1] and became pregnant thrice.

iv. At the instance of Thangapandian [A-1], she underwent abortion twice and on the third occasion, she refused to undergo abortion and was dodging and was also extracting money from Thangapandian [A-1] from time to time.

v. Lakshmi's whereabouts were not known from 16.05.2007.

vi. After the habeas corpus petition in H.C.P. (MD) No.353 of 2007 was filed by Chinnammal [PW-1], in which, Thangapandian [A-1], was arrayed as first respondent, Thangapandian [A-1] tried to square up the matter with Thanikodi [PW-2], son of Chinnammal [PW-1] and brother of Lakshmi, by offering to pay a sum of Rs.2 lakhs.

vii.Extra judicial confession [EX-P2] given by Thangapandian [A1] to Saravanan [PW-11], Revenue Inspector.

viii.Recovery of gold chain [MO-1] of Lakshmi from the shop of Thangapandian [A1] pursuant to his disclosure.

http://www.judis.nic.in 15 ix. Recovery of bones of Lakshmi from the foothills of Andipatti Water Channel on the showing of Thangapandian [A-1].

x. DNA report [EX-P10] established that the bones were those of the mother of Manikandan, viz., Lakshmi.

xi. Vasi [A-2] and Thangapandian [A-1] had conspired to eliminate Lakshmi.

6 The facts which have been proved beyond doubt are:

i. Lakshmi was a Dalit vide community certificate (Ex.P.21) and a street flower vendor.

ii. She was the daughter of Chinnammal [PW-1] and sister of Thanikodi [PW-2] and Thayammal [PW-3].

iii. She was married to Subramanian [PW-4] and has a son Manikandan through him.

iv. She got estranged from Subramanian [PW-4] and was living with her mother Chinnammal [PW-1].

v. Thangapandian [A-1] and Vasi [A-2] were from the same village.

vi. Thangapandian [A-1] and Vasi [A-2] were caste Hindus as per their community certificate [EX-P20].

http://www.judis.nic.in 16 vii.Thangapandian [A-1] was married and was running a grocery shop in the village.

viii.Lakshmi went missing from 16.05.2007 and nobody had seen her after that.

ix. The DNA report [EX-P10] shows that the bones were those of the mother of Manikandan, viz., Lakshmi.

7 Coming to the motive aspect, the Trial Court, in paragraph nos.34 and 35 of its judgment, has given a positive finding that the prosecution have proved the illicit intimacy between Thangapandian [A-1] and Lakshmi and also the fact that Lakshmi became pregnant twice, by placing reliance on the evidence of Thayammal [PW-3], elder sister of Lakshmi. We also perused the evidence of Chinnammal [PW-1], Thanikodi [PW-2] and Thayammal [PW-3]. We are convinced that Lakshmi had illicit intimacy with Thangapandian [A-1] and she became pregnant twice, but, did not undergo delivery. The Trial Court has held that the prosecution have failed to prove the third pregnancy of Lakshmi by rejecting the testimony of Manjula [PW-7]. http://www.judis.nic.in 17 8 This Court carefully plodded through the evidence of Manjula [PW-7]. Manjula [PW-7], in her evidence, has stated that she is a Dalit and knows Lakshmi; in the year 2007, she was working as a Cook in Tikka Hotel at Usilampatti and at that time, she had seen Thangapandian [A-1] coming there; one day, Thangapandian [A-1] and Lakshmi came to her house around 06.00 p.m. and spent time in her house; three days later, they came again around 06.00 p.m. and spent one hour in her house; at that time, Lakshmi has stated that she was pregnant and Thangapandian [A-1] gave a sum of Rs.2,500/- to her and asked her to undergo abortion; Lakshmi took that money, but, did not undergo abortion; on coming to know of this, Thangapandian [A-1] asked her (Lakshmi) as to why she did not undergo abortion; she [PW-7] herself was pregnant at that time; Thangapandian [A-1] gave a sum of Rs.200/- to her [PW-7] on that day and together, they (Lakshmi and PW-7) left her house, after which, she (PW-7) did not see Lakshmi at all; she came to know that Lakshmi went missing only after Thanikodi [PW-2], her brother, came in search of her; at that time, she told Thanikodi [PW-2] that she does not know the whereabouts of Lakshmi. Manjula [PW-7] has stated further facts in the chief-examination, about which, we will discuss a little later. http://www.judis.nic.in 18 9 In Paragraph No.37 of the judgment of the Trial Court, the evidence of Manjula [PW-7] has been disbelieved on the ground that in the cross-examination, she has stated that she was not acquainted with Thangapandian [A-1] and she came to know him only through Lakshmi, whereas, in the chief-examination, she has stated that she knows Thangapandian [A-1]; when Usilampatti Police enquired her, she has not stated these facts, but, has stated that Lakshmi was taken by her brother Thanikodi [PW-2] to Ettumanoor in Kerala and was pushed into a river; she has stated in the cross-examination that she knows one Durga Naidu and later, she has stated that it is not Durga Naidu, but Durga Nayar.

10 In our view, the Trial Court has failed to appreciate the evidence of Manjula [PW-7] in the right perspective. On reading of her evidence, it appears that Usilampatti Police, who were investigating the case, were attempting to fix Thanikodi [PW-2] in the crime and only after the CB-CID took over the investigation, Manjula [PW-7] was assured protection by the police and she spoke the truth. Even, in the chief-examination, she has stated that when Usilampatti police enquired her, she did not say that Thangapandian [A-1] and Lakshmi http://www.judis.nic.in 19 came to her house and spent nights, etc. Only after the CB-CID police assured her protection, she gathered courage to say everything. It must be borne in mind that Manjula [PW-7] was also pregnant during the relevant point of time. However, she has given a statement to the Magistrate under Section 164 Cr.P.C. after the CB-CID police took over the investigation, which is in consonance with her testimony and hence, her previous statement under Section 164 Cr.P.C. can be used for the purpose of corroboration.

11 Manjula [PW-7] has been subjected to a grilling cross- examination and some of the questions put to her, in our view, are indeed scandalous, touching upon her morality. In the cross- examination, she was asked to say about her illicit intimacy with one Nagarajan and she was further asked whether she has the habit of permitting couples to come and just like that spend nights in her house. In the chief-examination, she has not stated any specific date as to when Thangapandian [A-1] and Lakshmi came to her house and stayed. In the chief-examination, she has stated that she had seen Thangapandian [A-1] and Vasi [A-2] coming to the hotel, where she was working. A complete reading of her evidence shows that she got acquainted with Thangapandian [A-1] only through Lakshmi. She has http://www.judis.nic.in 20 identified the red colour saree [MO-4] as the one worn by Lakshmi, when she saw her last. It must be borne in mind that she is a rustic villager who gave evidence on 15.05.2013 in respect of events which took place in the year 2007, i.e., after a span of nearly six years and therefore, one cannot expect her to give the date on which Lakshmi and Thangapandian [A-1] came to her house and stayed. It is also to be borne in mind that cross-examination is an unequal duel between a refined advocate and a rustic witness.

12 The evidence of Manjula [PW-7] does clearly establish that Lakshmi became pregnant for the third time and Thangapandian [A-1] was insisting that she had to undergo abortion and Lakshmi was evading. To that extent, we believe the testimony of Manjula [PW-7] and we disagree with the finding of the Trial Judge that her evidence is totally unreliable.

13 The prosecution wanted to establish that Lakshmi deliberately refused to undergo abortion since she wanted to prove to the world that she is the wife of Thangapandian [A-1] by delivering the child conceived through him. As rightly held by the Trial Court at paragraph no.38 of the judgment, except the evidence of Thanikodi http://www.judis.nic.in 21 [PW-2], who is a hearsay witness, there is no legal evidence to prove this fact.

14 However, the failure of the prosecution to prove this fact, would, by itself, not lead to the inference that Thangapandian [A-1] had no motive at all to eliminate Lakshmi. As stated above, Thangapandian [A-1] was already a married man, a caste Hindu and was the owner of a grocery shop in the village. So, he had to maintain his reputation. On the flip side, Lakshmi was after all a flower vendor belonging to a Scheduled Caste. It will defy all credulity if the Court is to infer that Thangapandian [A-1] would have been glad to have a child born through him to Lakshmi, given the circumstances which obtain in our villages.

15 In Paragraph No.40 of the judgment, the learned Trial Judge has given a finding that the prosecution have proved that Lakshmi went missing from 16.05.2007. We agree with the said finding, because, Chinnammal [PW-1], the mother of Lakshmi, in her evidence, as well in the complaint given by her, [EX-P1], has stated that Lakshmi was last seen by her on 16.05.2007. However, in Paragraph No.41 of the judgment, the learned Trial Judge has given a http://www.judis.nic.in 22 finding that the prosecution had failed to prove that Lakshmi was last seen on 19.06.2007. Admittedly, it is the case of the prosecution that Lakshmi was last seen alive on 19.06.2007 around 12.15 p.m. by one Nallasamy. Unfortunately, the said Nallasamy died during trial and the prosecution filed his death certificate, which has been referred to in Paragraph No.41 of the judgment of the Trial Court. In the absence of the evidence of Nallasamy, we have to hold that after 16.05.2017, none had seen Lakshmi alive.

16 Coming to circumstance (vi) in paragraph 5 above, this Court has no reason to disbelieve the evidence of Thanikodi [PW-2] on this aspect for the following reasons:

The habeas corpus petition filed by Chinnammal [PW-1],in which, Thangapandian [A-1] was arrayed as first respondent was coming up for hearing before this Court from time to time. The Usilampatti police were on Thangapandian's [A-1's] heels. It is not the case of Thanikodi [PW-2] that Thangapandian [A-1] confessed to him that he had eliminated his sister. It is Thanikodi's [PW-2's] assertion that Thangapandian [A-1] was sending http://www.judis.nic.in 23 feelers through community leaders to soften the stand against him. Albeit the fact that Rajasekaran [PW-6] and Solai Ravi [PW-8] turned hostile, the evidence of Thanikodi [PW-2] on this aspect cannot be rejected.

17 The most powerful circumstance against Thangapandian [A-1] is that he appeared before Saravanan [PW-11] and gave extra judicial confession on 03.10.2007, around 04.30 p.m., which has been recorded and marked as EX-P2 and the free English translation of it runs as under:-

"Today, 3.10.2007, about 3.00 p.m., I, the Revenue Inspector of Usilampatti Circle, went to the Office of the Village Administrative Officer Thottappa Naickanur, with regard to issuance of Patta in respect of house plots and when I was seeking the details from the Village Administrative Officer, one Thangapandi, S/o.Ponniah Thevar, aged 42, of our Thottappanaickanur Village, has appeared before me and voluntarily gave the following statement:-

"I am residing at Thottappanaickanur Village along with my family. My wife’s name is Malarkodi. My son’s name is Dinesh. My daughter’s name is Kousalya. I am running a grocery shop at Thottappa Naickanur Village in my own building. One Lakshmi, daughter of Muthukannan, who belongs to Hindu Paraiyar Community and belongs to our village, used to come to my shop frequently to purchase groceries. The above said Lakshmi already got married at Periyakulam and due to dispute between Lakshmi and her husband, a case was filed in the Court and they are living separately. I know the fact that the above said Lakshmi is not living with her husband. I used to go to Usilampatti Town daily to purchase groceries required for my shop. At that time, Lakshmi also used to come to Usilampatti Town daily to purchase flowers.

http://www.judis.nic.in 24 Both of us have met together and relationship was developed between us. In course of time, the above said relationship went up to the extent of sexual intercourse. We used to have sexual intercourse at Andipatti Kanavai Hill near our village. At that time, I will give money to Lakshmi. On many occasions, Lakshmi used to come to my shop and get the groceries free of cost and also get money from me for her expenses. In course of time, she started to come to my shop frequently and caused nuisance. I was aggrieved that I was losing money by entangling with a woman of Paraiyar Community. Lastly on the first day of Vaikasi Tamil Month, Lakshmi asked me to give money. I told her that I will give it on the next day. I have decided to murder Lakshmi who belongs to Paraiyar Community tomorrow (2nd day of Vaikasi) and took a knife from my house and kept it on my hip. On the 2nd day of Vaikasi 2007, about 8.30 a.m., I went to Usilampatti in a bus to purchase grocery articles required for my shop and after purchasing the groceries, when I was coming to Usilampatti Bus Stand about 11.00 a.m., Lakshmi intercepted me and called for sexual intercourse as usual and demanded money. I thought that this is the right opportunity and told her to come to Andipatti Town Bus and sent the groceries purchased by me to the Driver of the bus proceeding towards our village and Lakshmi and I got into the Andipatti Town Bus. I sat at the front side of the bus. Lakshmi has sat on the backside of the bus. When the bus was crossing Andipatti Kanavai Gate, I told the driver to stop the bus and as usual, Lakshmi and I got down from the bus and went near the bridge. We went to the place where we used to have sexual intercourse and I acted as if I was going to have sexual intercourse with her and sat on her, pressed her hands with my legs and cut her neck with the knife kept in my hip. Lakshmi had died. Then, I took the gold chain on the neck of Lakshmi and threw the knife in a bush there and returned to my village. Then, on the basis of the complaint lodged by Lakshmi’s mother Chinnammal at Usilampatti Police Station, the Police enquired me. At that time, I did not disclose any details about Lakshmi to the Police. As Lakshmi’s mother Chinnammal has filed a case before the Madurai Bench of Madras High Court and as the said case is going to come up for hearing tomorrow on 4.10.2007, I am very confused and disturbed today 3.10.2007 from the morning itself. I thought that if the police officials enquired me continuously, they will find out the truth at any cost and have the thought to go to the Police Station and tell the truth. But, I was afraid of the fact that the police will beat me and torture me and hence I have appeared before you, the http://www.judis.nic.in 25 Revenue Inspector, Usilampatti Circle and Village Administrative Officer of Thottappa Naickanur and gave this statement out of my own consent and conscience. I have read it out. The statement given by me is found to be correct".

18 After recording the confession of Thangapandian [A-1], Saravanan [PW-11] handed over Thangapandian [A-1] and his confession statement [EX-P2] to the Usilampatti police on the same day, viz., on 03.10.2007, at 05.30 p.m. and the confession statement [EX-P2] reached the jurisdictional Magistrate at his residence on 03.10.2007 itself. The reasons for the Trial Court disbelieving the confession of Thangapandian [A-1] have been set out in paragraph no. 46 of its judgment, which are as under:-

● Saravanan [PW-11] has not stated that he knew Thangapandian [A-1] earlier and that Thangapandian [A-1] had trust and confidence in him and hence, he gave the confession;

● Thangapandian [A-1], in his confession, has stated that Lakshmi demanded money on the 1st of Vaikasi month [Tamil calendar month] and on the 2nd of Vaikasi month, he took her to the foothills of Aandipatti Water Channel and murdered her. The 2nd of Vaikasi month, according to the almanac, corresponds to 16.05.2007 and not 19.06.2007, which is the prosecution case.

http://www.judis.nic.in 26 19 In this case, the confession statement [Ex-P2] was given by Thangapandian [A-1] on 03.10.2007, when the case was under

investigation by the Usilampatti police and only thereafter, on the orders of this Court, the case was handed over to the CB-CID. In the said confession statement [Ex-P2], there is absolutely no reference to the role played by Vasi [A-2]. However, the CB-CID did not make any attempt to find out the corresponding English calendar date for the 2nd of Vaikasi Month. The investigation conducted by the CB-CID revealed that Vasi [A-2] was a part of the conspiracy and from their investigation, they fixed the date of murder as 19.06.2007. What surprises this Court is that, while referring to the date of murder, Thangapandian [A-1] has used the Tamil calendar month, but, subsequently, he has also given the English calendar dates, while referring to the date of hearing of the Habeas Corpus Petition before the High Court. This shows that he is conversant with both the calendars. Had the police wanted to concoct the confession, they could have made Thangapandian [A-1] implicate Vasi [A-2] also and ensure that the date of the offence referred to in the final report is in consonance with the confession. This was not done by the police. Thus, the CB-CID did not tailor their case in accordance with the confession.

http://www.judis.nic.in 27

20 In the confession statement [EX-P2], Thangapandian [A-1], has stated that he had taken away the gold chain (M.O.1) worn by Lakshmi and had thrown the knife nearby and left the place. On the same day, after he was handed over to the police, on his showing, the gold chain [MO-1] was recovered from his grocery shop under the cover of mahazar [EX-P7]. The Trial Court, in paragraph no.48 of the judgment, has given a finding in favour of the prosecution by holding that the prosecution have proved the recovery of gold chain [MO-1] from the shop of Thangapandian [A-1], pursuant to the confession given by him, but, surprisingly has disbelieved the confession statement [Ex-P2].

21 It is not the case of the prosecution that Thangapandian [A-1] had given the confession to a total stranger. It is the case of the prosecution that Thangapandian [A-1] appeared before Saravanan [PW-11], who was the Revenue Inspector of the area and had given the confession. In the confession, Thangapandian [A-1] has stated that he was scared to surrender before the police fearing torture by them. Hence, the first reason given by the Trial Judge, cited supra, lacks substance.

http://www.judis.nic.in 28 22 The learned counsel appearing for Thangapandian [A-1] submitted that the police ought to have taken Thangapandian [A-1] immediately on the same night to the hillock of Aandipatti to identify the dead body, but, they failed to do so and instead, they have taken him only on the next day, viz., on 04.10.2007. The learned counsel further submitted that the hillock was not far away from the police station.

23 Every decision taken by an Investigating Officer, in our view, cannot be subjected to a critical scrutiny. Nagarajan [PW-20], Inspector of Police, Usilampatti Police, has stated that Saravanan [PW-11] handed over the accused to him, only after sunset and soon thereafter, he placed him under arrest, recorded his confession and effected recovery of gold chain [MO-1] from his grocery shop and sent the documents, including the recovery mahazar, to the jurisdictional Magistrate. He has further deposed that since Lakshmi was a Dalit, he handed over the investigation to the Deputy Superintendent of Police, after obtaining orders of the Superintendent of Police. In the facts and circumstances of the case, the failure on the part of the police to immediately rush to the hillock, which is a deserted place, to identify http://www.judis.nic.in 29 the dead body in the night hours, cannot be stated to be fatal to the case of the prosecution.

24 Yet another powerful circumstance against Thangapandian [A-1] is that pursuant to the confession given by him only, on his showing, the remnants of Lakshmi's dead body, viz., bones were recovered by the police from the foothills of Aandipatti Water Channel.

25 As regards the recovery of bones from the foothills of Aandipatti Water Channel, the Trial Court has given a very specious finding that no witness has deposed that the dead body was recovered based on the disclosure statement of Thangapandian [A-1]. This is clearly a mis-appreciation of evidence by the Trial Judge. We have the evidence of Saravanan [PW-11], Amanullakhan [PW-14], Dr.Gokulnath Premchand [PW-16] and Balasubramanian [PW-23], which would go to show that Thangapandian [A-1] accompanied the police to the place of occurrence and showed the place from where the bones were found and spot postmortem was done by Dr. Gokulnath Premchand [PW-16]. The learned Trial Judge has not disbelieved the evidence of these witnesses, but, has stated that they did not specifically say in their evidence that the bones were discovered, pursuant to the showing of http://www.judis.nic.in 30 Thangapandian [A-1]. In fact, even in the extra judicial confession of Thangapandian [A-1], he has stated that he had taken Lakshmi near the bridge at Aandipatti Water Channel. The observation mahazar [EX- P6] and rough sketch [EX-P17] tally with the description in the extra judicial confession [EX-P2]. The Trial Judge has not returned a finding that the bones and MO-2 to MO-11 were not recovered from the place of occurrence. He has only returned a finding that no witness had deposed that the recovery was done pursuant to the confession of Thangapandian [A-1]. This, in our view, is a rank misreading of the evidence on record. All the witnesses have deposed that Thangapandian [A-1] accompanied them to the foothills of the hillock, from where, the bones and other material objects were recovered. Even in an extreme case, where the accused had not accompanied the police, the discovery of the fact, pursuant to the disclosure of the accused, cannot be rejected. For example, if an accused arrested in Delhi, says that he has planted a bomb in Chennai, at a particular place, it will be ludicrous to expect the Delhi police to come all the way to Chennai along with the accused for defusing the bomb. It would suffice if the police in Chennai discover and defuse the bomb, based on the information provided by the police in Delhi. Such a discovery of a fact will also come within the scope of Section 27 of the Evidence Act. http://www.judis.nic.in 31 This Court has no reason to disbelieve the evidence of Dr.Gokulnath Premchand [PW-16], who was a part of the Police Team and who has clearly stated, in his evidence that Thangapandian [A-1] accompanied him, when he went to the place of occurrence.

26 Lastly, in paragraph no.52 of the judgment, the Trial Judge has held that the prosecution case is not clear as to the place of occurrence, inasmuch as in the final report, the police have stated that the incident had taken place on the right side of Usilampatti-Aandipatti Road, whereas, the observation mahazar [EX-P6] and rough sketch [EX-P17] showed that the incident had taken place about 200 feet away from the road. The Trial Judge has failed to understand that the final report is not legal evidence and it is only the opinion of the police. When the prosecution have proved their case beyond doubt, via, legal evidence, viz., observation mahazar [EX-P6] and rough sketch [EX- P17], which are relevant under Section 7 of the Evidence Act and which show that the bones were found about 200 feet away from the main road near the bridge, the reliance placed on the final report for entertaining a doubt is totally misconceived.

http://www.judis.nic.in 32 27 Mr.T.K.Gopalan, learned counsel appearing for Thangapandian [A-1], produced several treatises on DNA Science for assailing the evidence of Lakshmi Balasubramani [PW-18]. But, we find no good reasons to disbelieve her testimony. After recovery of the bones, the police produced the same to the jurisdictional Magistrate. It was the jurisdictional Magistrate who sent the bones to the Tamil Nadu Forensic Science Laboratory for various tests. Pushparani [PW-17], Scientific Assistant, Grade-II, Anthropology Division, Tamil Nadu Forensic Sciences Laboratory, has stated in her report [EX-P9] that the bones belong to an adult female individual with the age range of 30 to 40 years. On the request of the police, the jurisdictional Magistrate directed DNA profiling. Accordingly, blood was drawn from Subramanian [PW-4], husband of Lakshmi and Manikandan, son of Lakshmi, at the Forensic Sciences Department. The DNA scrappings were extracted from the bones and Lakshmi Balasubramani [PW-18] conducted the DNA profiling, the result of which, confirmed that the DNA extracted from the bones is that of the mother of Manikandan. Ergo, we find no good reason to disbelieve the testimony of Pushparani [PW-17] and Lakshmi Balasubramani [PW-18]. In fact, the Trial Court also has not disbelieved their evidence. http://www.judis.nic.in 33 28 Though an extra judicial confession is a weak piece of evidence, in this case, pursuant to the confession of Thangapandian [A-1], the gold chain [MO-1] has been recovered from his grocery shop and on the very next day, the mortal remains of Lakshmi have been recovered from the place referred to in the confession statement, which is a deserted place. The motive for the occurrence has been established by the prosecution through the evidence of Chinnammmal [PW-1], Thanikodi [PW-2], Thayammal [PW-3] and Manjula [PW-7].

29 Coming to the charge of conspiracy between Thangapandian [A-1] and Vasi [A-2], the Trial Court, in paragraph no. 38 of its judgment, has held that the conspiracy has not been proved, since Anbarasan [PW-10] turned hostile. We agree with the said finding and hold that the charge of conspiracy has not been established by the prosecution. In our opinion, had the local police continued with the investigation, they would not have probably introduced a wierd character like Vasi [A-2] to hold that there was a conspiracy to eliminate Lakshmi. The CB-CID took the stand that Lakshmi was kept in hiding from 16.05.2007 to 19.06.2007 by Thangapandian [A-1] and that she was eliminated on 19.06.2007, which theory stood belied. However, this Court cannot close its eyes to the overwhelming http://www.judis.nic.in 34 evidence on record discussed above to show the involvement of Thangapandian [A-1] in the murder of Lakshmi and simply acquit him on the ground that the date of offence projected by the CB-CID in the final report is different from the one given in the confession statement (EX-P2]. The fact remains that after 16.05.2007, none had seen Lakshmi. Thereafter, the remnants of her dead body were discovered on 04.10.2007 on the showing of Thangapandian [A-1]. Under such circumstances, an error in the charge cannot have the effect of vitiating the entire prosecution case, in the light of Section 464 Cr.P.C.

30 Though both sides cited several authorities to buttress their respective contentions, we are consciously not alluding to them, for, law of precedents has very little application in criminal law, which is essentially predicated on facts of the particular case. At this juncture, it may be profitable to refer to the following passage of the judgment of the Supreme Court in Charan Singh and others vs. State of Punjab2:

“32. ..... Criminal cases cannot be put in a strait jacket. Though there may be similarity between the facts of some cases there would always be shades of difference and quite often that difference may prove to be crucial. The same can also be said about the evidence adduced in one case and that produced in another. Decided cases can be of help if there be a question of law like the admissibility of evidence. Likewise, decided 2 (1975) 3 SCC 39 http://www.judis.nic.in 35 cases can be of help if the question be about the applicability of some general rule of evidence, e.g., the weight to be attached to the evidence of an accomplice. This apart, reference to decided cases hardly seems apposite when the question before the Court is whether the evidence of a particular witness should or should not be accepted.”

31 However, while appreciating the evidence, we bore in mind, the salutary rule that an order of acquittal should not be easily disturbed, unless the situation warrants. But, in the instant case, we not only found overwhelming evidence against Thangapandian [A-1], but also found that the reasons assigned by the Trial Judge for acquitting him were flimsy.

32 In view of the above discussion, we hold that, qua Thangapandian [A-1], the prosecution have proved the charge under Section 302 IPC r/w 3(2)(v) of the SC/ST Act beyond doubt and ergo, his acquittal recorded by the Trial Court warrants interference. However, there is no legal evidence to fasten criminal liability on Vasi [A-2] and hence, his acquittal by the Trial Court is liable to be maintained.

33 As for the charge against Thangapandian [A-1]under Section 404 IPC qua removal of gold chain [MO-1] from the dead body of Lakshmi, this Court is of the view that the same does not have legs http://www.judis.nic.in 36 to stand, in view of the law laid down by a Division Bench of this Court in K.Ramajayam @ Appu Vs. The Inspector of Police3, in which, one of us (PNPJ) was a Member, wherein this Court, after extracting Section 404 IPC, has held as follows:-

"Section 404 IPC falls within the sub-Chapter ‘Of Criminal misappropriation of property’ under the main Chapter XVII - ‘Of Offences against Property’. From a reading of Section 404 IPC, it is clear that the ingredients of it cannot fit within the definition of the word “theft” or “robbery”. This section applies to a situation where a person in a sly manner appropriates to himself a property in the possession of the deceased person at the time of his death. We are fortified in our view by the Division Bench Judgment of the Madhya Pradesh High Court in Jamnadas Parashram v.The State of M.P, AIR 1963 M.P 106, wherein in paragraph 34 it is held thus, “34. An argument arose during the course of the hearing whether the facts constituted an offence under Section 392 or under Section 404, Indian Penal Code. The basis for the argument was that in order to constitute ‘robbery’ all the elements of theft must exist and one of the ingredients of that offence, as defined in Sec.378 of the Penal Code is that the property stolen must have been in the possession of a “person”. Now, in a case such as the one at hand it is difficult to hold precisely whether the articles were stolen before the murder or after it. In case the properties were taken by Jamnadas only after Mr. Raghuram breathed his last and was a dead body, could it be said that the offence committed was theft? This argument at first appeared attractive (and we may also say that in another set of circumstances it may possibly be given effect to) but on a little reflection we find that where murder and robbery are committed in the course of the same transaction by the same person, the offence would fall under Sec.392 and not under Sec.404 In that context, the word “person” cannot be so narrowly construed as to exclude the dead body of a human being who was killed in the course of the same transaction in which theft was committed. The matter would be different if a thing is stolen from a dead body apart from the transaction in which death occurred. In our opinion, therefore, the offence committed by 3 2016 (2) CTC 135 http://www.judis.nic.in 37 Jamnadas is punishable under Section 392, Indian Penal Code, and not under Section 404 of the Code.”

34 Insofar as the charge under Section 201 IPC, we do not find any evidence to convict Thangapandian [A-1] and Vasi [A-2] and hence, both of them are acquitted of the said charge.

35 Coming to the question of sentence, the minimum sentence described for the offence under Section 302 IPC is imprisonment for life. Since this Court is not proposing to slap capital punishment on Thangapandian [A-1], there is no requirement for this Court to question him on sentence. The motive for the murder of Lakshmi was that on account of her illicit intimacy with Thangapandian [A-1], she became pregnant. If Lakshmi had delivered a child, it would have been a shame for Thangapandian [A-1], inasmuch as, he was a caste Hindu and Lakshmi was a Dalit and therefore, the charge under Section 3(2)(v) of the SC/ST Act stands established. However, the Trial Court has not framed any separate charge for the said offence, but, has read it with 302 IPC. Hence, no separate sentence is imposed on Thangapandian [A-1] qua the charge under Section 3(2)(v), ibid. http://www.judis.nic.in 38 36 Ex consequenti:

● the judgment dated 10.07.2015 made in S.C.No.131 of 2009, on the file of the III Additional District and Sessions Court [PCR], Madurai, is set aside, insofar as it relates to the acquittal recorded by the Trial Court in respect of Thangapandian [A-1] alone and Thangapandian [A-1] is convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for three months. The Trial Court is directed to secure the presence of Thangapandian [A-1] and commit him to prison to undergo the remaining period of sentence.

● Since there is no legal evidence to fasten criminal liability on Vasi [A-2], his acquittal recorded by the Trial Court stands maintained.

In the upshot, this criminal appeal preferred by the State stands allowed in part.

                                                                    [P.N.P.J.] &        [B.P.J.]
                                                                               28.02.2019
                      Index : Yes/No
                      Speaking order/Non speaking order
                      NB/cad




http://www.judis.nic.in
                                                        39



                      To

                      1.   The Public Prosecutor
                           High Court, Madras

2. The III Additional District and Sessions Court [PCR] Madurai

3. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai

4. The Record Keeper Vernacular Section Madurai Bench of Madras High Court Madurai http://www.judis.nic.in 40 P.N.PRAKASH, J.

and B.PUGALENDHI, J.

NB/cad CRL.A. [MD].No.227 of 2016 28.02.2019 http://www.judis.nic.in

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