Madras High Court
Arulmani vs State By The on 18 March, 2008
Author: M.Chockalingam
Bench: M.Chockalingam, K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN CRL.A.(MD) No.1166 of 2000 and CRL.A.(MD) Nos.1175 of 2000 and 111 of 2001 1.Arulmani 2.Isravel .. Appellants in CA 1166/2000 Sasikumar .. Appellant in CA 1175/2000 Selvaraj .. Appellant in CA 111/2001 vs State by the Inspector of Police Manavalakurichi Police Station Kanyakumari District Cr.No.194 of 1997 .. Respondent in all appeals Criminal appeals preferred under Sec.374 of Cr.P.C. against the judgment of the Additional District and Sessions Judge, Nagercoil, made in S.C.No.93 of 1999 dated 16.11.2000. !For Appellants in CA 1166/2000 ... Mr.V.Kathirvelu Amicus Curiae For Appellant in CA 1175/2000 ... Mr.M.R.Sreenivasan for Mr.A.Selvaraj For Appellant in CA 111/2001 ... Mr.C.K.M.Appaji ^For Respondent ... Mr.N.Senthurpandian Additional Public Prosecutor :COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern all these three appeals C.A.Nos.1166 of 2000 by A-1 and A-2, 1175/2000 by A-4 and 111/2001 by A-3.
2.All these appeals challenge the judgment of the Additional Sessions Division, Nagercoil, made in S.C.No.93/99 whereby these appellants stood charged, tried and found guilty as shown hereunder:
ACCUSED CHARGES FINDING PUNISHMENT A-3 364 IPC Guilty 5 years RI along with a fine of Rs.1000/- i.d. 1 year RI A-1 and A-2 364 r/w 109 IPC Guilty 5 years RI along with a fine of Rs.1000/- i.d. 1 year RI A-1 to A-3 302 IPC Guilty Life imprisonment with a fine of Rs.5000/- i.d. 1 year RI. A-1 to A-4 201 IPC Guilty
3 years RI with a fine of Rs.1000/- i.d. 9 months RI
3.Necessary facts for the disposal of these appeals can be stated thus:
(a) P.W.1 is the wife of the deceased Chelladurai. A-1 on the misrepresentation of marrying one Palthangam, the younger sister of the deceased, committed rape on her. The same was questioned by the deceased, and therefrom, A-1 and the deceased were on inimical terms. A-2 is the co-brother of A-1. A-3 was a close associate of A-1 and A-2. The occurrence has taken place on the night of 16.6.1997. On that day, during day time, both A-1 and A-2 went to the Judicial Magistrate's Court at Eraniel, where they enquired about the whereabouts of the deceased and further informed to P.Ws.2 and 3, who were there, that the deceased had escaped that day, and they would finish him off.
(b) At about 9.00 p.m. on 16.6.1997, when P.W.1 was taking food along with others in the house, A-3 came over there and called the deceased stating that they would go to cinema. Despite the objections raised by P.W.1, A-3 took him, and they were proceeding on the way. At that time, it was P.Ws.2 and 3 who met him on the way. When they asked, A-3 told them that they were proceeding to cinema. At about 10.00 p.m. when P.W.7 was coming with a torchlight near the place of occurrence, he found A-1 and A-2, and after crossing a distance of 50 feet, he found both the deceased and A-3. At that time, he found the deceased coming in a drunken mood. When P.W.7 questioned them, they answered that they were proceeding to Manavalakurichi to witness a cinema. When P.W.8 was coming in a cycle driven by Rajamani, he found all the accused along with the deceased nearby Isakkiamman Temple, and when he got down and asked them, they were telling that they were doing "pidivali" i.e., they were in scuffle. P.W.9 at about 12.00 a.m., was searching for a tempo. He found A-4 along with the tempo and asked him whether he could hire the same; but, A-4 told him that he has got some other engagement. Sometime later, he found A-1 to A-3 taking the deceased in the tempo of A-4, and it was taken for some distance. Then, when he asked A-
4 whether he has to go for a trip, he replied that the deceased was in a drunken mood, and hence, he was to be taken to his house.
(c) The next morning, when P.W.1 was in the house, she was informed that the dead body of her husband was found in the place of occurrence. Immediately, she proceeded along with the relations to the place of occurrence and found the dead body. Then, she proceeded to the respondent police station where P.W.19, the Head Constable, was on duty. P.W.1 gave a complaint which is marked as Ex.P1. On the strength of Ex.P1, P.W.19 registered a case in Crime No.194/94 under Sec.174 of Cr.P.C. The express FIR, Ex.P13, has also been sent to the Court.
(d) On receipt of the copy of the FIR, P.W.21, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P16. Then, he conducted inquest on the dead body of Chelladurai in the presence of witnesses and panchayatdars and prepared Ex.P17, the inquest report. He recovered M.Os.1, 2 and 6, the wine bottle, poison bottle and tempo respectively, under a cover of mahazar.
(e) Pursuant to a requisition, Ex.P10, the dead body of Chelladurai was subjected to postmortem by P.W.20, the Assistant Surgeon, attached to the Government Hospital, Colachel, and he has given a postmortem certificate, Ex.P15, wherein he has opined that the deceased would appear to have died of administration of poisonous substance namely monocrotophos and ethyl alcohol.
(f) The further investigation was taken up by P.W.22, the Inspector of Police. He took A-3 to police custody when he came forward to give a confessional statement, which was recorded in the presence of witnesses. The admissible part is marked as Ex.P4. Thereafter, he took the Investigator to the shops where he purchased the poisonous substance and also the brandy bottle respectively, and all the bill books therefrom were also recovered under a cover of mahazar in the presence of P.Ws.13 and 16 respectively. On 23.7.1997, the Investigator arrested A-4. He was sent for judicial remand.
(g) P.W.23, the Inspector of Police, took up further investigation, and he examined the witnesses and recorded their statements. He came to know that both A-1 and A-2 have come out on bail. The further investigation was proceeded with by P.W.24, the Inspector of Police. On completion of investigation, the Investigating Officer filed the final report.
4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 24 witnesses and also relied on 19 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On their side, one witness was examined, and three documents were relied on. On completion of evidence on both sides, the lower Court heard the arguments advanced on either side, looked into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt, found the appellants/accused guilty and awarded punishments as referred to above. Hence, these appeals at the instance of the appellants.
5.Advancing arguments on behalf of the respective appellants, the learned Counsel inter alia made the following submissions:
(a) The occurrence has taken place, according to the prosecution, between 9.00 p.m. on 16.6.1997 and 7.00 a.m. on 17.6.1997 i.e., during night hours.
According to the prosecution, it was A-3 who took the deceased from his house to the place of occurrence where A-1 to A-3 administered the poisonous substance as a result of which he died. The prosecution had no direct evidence to offer, but rested its case on the circumstantial evidence.
(b) The first circumstance, according to the prosecution, was that it was A-3 who went to the house of the deceased on 16.6.1997 at 9.00 p.m. and took him to the cinema theatre at Manavalakurichi. It is an admitted fact that A-3 was actually an associate of A-1, and hence, not only there was strained relationship between A-3 and the deceased, but also they were on inimical terms. Under such circumstances, the deceased would not have gone with him, and hence, A-3 taking him on that day as deposed by P.W.1, could not be believed, and it could not have taken place at all.
(c) As far as the other circumstance is concerned, according to P.Ws.2 and 3, for a few days and in particular, that day, at the Judicial Magistrate's Court, Eraniel, A-1 and A-2 were searching for the deceased, which would not have taken place at all. If really they had an intention to kill him, there was no need for them to search him in a Court or inform to others that they had got such an intention. This would falsify the evidence of P.Ws.2 and 3.
(d) The evidence of P.W.7 was that he found A-3 and the deceased together, and the deceased was in a drunken mood. That by itself would not be sufficient to foist a criminal liability. As far as A-1 and A-2 are concerned, even according to P.W.7, they were not found in the company of A-3 and the deceased, and they were available 50 feet away, and hence, all were not found in the same company.
(e) As regards P.W.8, he found all the four near the scene of occurrence.
(f) As far as P.Ws.7 and 8 were concerned, the statement of P.W.7 was recorded by the Investigator on 10.9.1997 after three months. Curiously, the statement of P.W.8 was recorded on 18.11.1998 i.e., about 1 year and 5 months. This would indicate that the police wanted to introduce these witnesses in order to show the circumstances as spoken to by them, and it should not have been given any evidentiary value.
(g) Further, as regards P.W.9, according to him, he was to engage the tempo of A-4, and originally, A-4 was not ready to hire his tempo; but, sometime later, P.W.9 found all the three namely A-1 to A-3, taking the dead body in the tempo of A-4, and it was A-4 who took the dead body, and the dead body was dropped at the place where it was found, and thus, they screened the evidence. Even the statement of P.W.9 was recorded only on 17.12.1997, and it was after a long lapse of time.
(h) It is pertinent to point out that the statements of the above witnesses have reached the Court only on 2.2.1999 i.e., after a period of nearly two years. Thus, no evidentiary value could be attached to the statements of P.Ws.7 to 9. Further, this evidence should not have been given any effect at all.
(i) Two witnesses have been examined for the purpose of recovery of bill books for the sale and purchase of the brandy bottle and also the poisonous substance, and they were P.Ws.13 and 16 respectively. These two witnesses have actually turned hostile, and under the circumstances, that could not be given any effect at all.
(j) As far as A-4 was concerned, he has disclaimed the ownership to the tempo; but, the lower Court has accepted the evidence put forth by the prosecution, which was not worth mentioning. Under the circumstances, the prosecution has also not proved that part of the case.
(k) For the above reasons, the circumstances placed by the prosecution, would not, in any way, be pointing to the guilt of any one of the accused, and hence, they are entitled for acquittal. But, the lower Court has not considered any one of the aspects of the matter, and they have got to be considered by this Court.
6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7.The fact that the husband of P.W.1 Chelladurai was done to death on the night of 16.6.1997 is not in controversy. After the registration of the case and following the inquest made by the Investigating Officer, the dead body was subjected to postmortem by P.W.20, the Doctor, who has given the postmortem certificate wherein he opined that the deceased died out of poisonous substance namely monocrotophos and ethyl alcohol. The fact that Chelladurai died out of the said poisonous substance is proved by the prosecution. Nowhere before the trial Court, it was the defence plea that he committed suicide. The Doctor has also given a categorical opinion that after the death of a person, if the poisonous substance is administered, it could not enter into the intestine; but, in the instant case, it was found in the intestine and caused the death. Thus, it can be well stated that the prosecution has proved the fact that it was by way of administration of poisonous substance to him.
8.In order to substantiate the charges levelled against A-1 to A-3 that the deceased was abducted from his house and death was caused by administering the poisonous substance, the prosecution had no direct evidence to offer. It rested its case exclusively on the circumstantial evidence. This Court is very mindful of the caution made by the settled principles of law that before accepting the case of the prosecution which is rested exclusively on the circumstantial evidence, the circumstances must be complete without a snap and pointing to the hypothesis that except the accused no one could have committed the offence. In the instant case, the following circumstances are noticed by the Court pointing to the guilt of the accused:
(i) The occurrence has taken place on 16.6.1997 at night hours. The dead body was found on the morning of 17.6.1997. According to P.W.1, the wife of the deceased, the deceased Chelladurai was in the house along with others, and it was A-3 who was moving with him for a week, came to him and took him to the cinema. P.W.1 has categorically deposed that she objected that he could not come. Despite the same, A-3 took him. Hence, the first contention that while the inimical circumstances prevailed between A-3 and the deceased, the deceased would not have gone with him cannot be countenanced. In the instant case, A-3 was moving with him for one week closely, and despite the objections raised by P.W.1, he was taken. Thus, the first circumstance that A-3 had taken the deceased from the house at 9.00 p.m. on 16.6.1997, is proved.
(ii) The next circumstance is that immediately after the deceased was taken by A-3, when they were proceeding on the way, they were first met by P.Ws.2 and 3, and when questioned, they have answered that they were proceeding to witness a cinema at Manavalakurichi. Now, at this juncture, it is pertinent to point out the evidence of P.Ws.2 and 3 who stated to the effect that on the day time of 16.6.1997, both A-1 and A-2 were waiting for the deceased at the Judicial Magistrate's Court, Eraniel, and they also questioned P.Ws.2 and 3 as to the whereabouts of the deceased. This would be indicative of the fact that they were waiting for the deceased on that day. It remains to be stated that the occurrence has taken place that night. From the evidence of P.W.7, it would be quite clear that when he was proceeding on his way, he found A-1 and A-2 standing in the place, and 50 feet away, he found A-3 and the deceased who was in a drunken mood. Thus, it was P.W.7 who found all the four nearby the place of occurrence.
(iii) Yet other circumstance is that it was P.W.8 who, when he was coming in a cycle along with the other, found all the four persons at about 12.00 a.m. Since all the persons were known to him, he asked them why they were all found in that place during odd hours. Immediately, it was the accused who replied that they were in scuffle (pidivali), and therefore, he had nothing to suspect, and he went away.
(iv) Another circumstance pointing to the guilt of the accused is the evidence of P.W.9. P.W.9 desired to engage the tempo of A-4. A-4 when asked, informed him that he had some other engagement. After some time, P.W.9 noticed A-1 to A-3 taking the body of the deceased in that tempo, and it was actually driven by A-4. When he again questioned A-4, he replied that the deceased Chelladurai was in a drunken mood, and therefore, he should be taken to the house, and the body was dropped within a short distance. The evidence of P.W.9 would directly be to the effect that all the three persons have taken the dead body in the tempo of A-4.
9.When all the above circumstances are actually noticed by the Court, the additional circumstances are that according to the prosecution, there was administration of poisonous substance which was mixed with liquor and given to the deceased on that night by A-1 to A-3. The Investigator had taken A-3 to police custody. He has given a confessional statement, and immediately, he has also taken the Investigator to the brandy shop and also the shop where from he purchased the poisonous substance, and therefrom bill books have been recovered. It is true that the salesmen from both the shops have turned hostile; but, it is pertinent to point out that A-3 has signed the bill books in both the shops, and those bill books have also been recovered and have been placed before the Court. Both the documents would bear the date 16.6.1997. Under the circumstances, no explanation was forthcoming from A-3 how he happened to purchase the pesticides, a poisonous substance, from one shop and also brandy from the other shop. He had no explanation to offer. This evidence coupled with the medical opinion that he died out of poisonous substance namely monocrotophos would be pointing to the guilt of the accused directly. Merely because the salesmen from both the shops have turned hostile, it would in no way affect the prosecution case.
10.Now, the contentions put forth by the learned Counsel for the appellants, have got to be considered. The main line of contention was that the statement of P.W.7 was recorded on 10.9.1997 after three months, and that of P.W.8 was recorded on 18.11.1998, and the statement of P.W.9 was recorded on 17.12.1997, and thus, there was a long delay in recording the statements. Apart from that, they reached the Court after a longtime. This Court is of the considered opinion that this delay though noticed by the Court, will not affect the prosecution case for more reasons than one. In the case on hand, the earliest document, which has come into existence is Ex.P1, the complaint, given by P.W.1, and the case was registered under Sec.174 of Cr.P.C. Even in the FIR, it has been clearly averred that A-3 came to the house at 9.00 p.m. on 16.6.1997, and it was he who despite objections, took the deceased in the guise of taking him to cinema on that night, and he was actually murdered. Further, it is not a case on direct evidence. It is actually rested upon the circumstantial evidence. When A-3 actually surrendered before the Court, he was taken to police custody within a short span of time. Only on his pointing to the shops wherefrom he purchased the poisonous substance and brandy respectively, the bill books have been recovered, and two bottles have been recovered from the place of occurrence, one containing poisonous substance.
11.It remains to be stated that the investigation was going on after the fixing of the accused, and it was long pending. The case was actually investigated by four persons. When the circumstances are came to be known, the statements of those witnesses have been recorded and placed before the Court. Had it been a cooked up and a fabricated case, such delay could not have happened. When the information came to the police, the witnesses have been enquired, and their statements have been recorded. This Court is unable to see anything to suspect though the delay was caused and in particular, it is a case on circumstantial evidence.
12.In the instant case, one fact which remains to be stated, is that pending the trial, A-4 by suggestion and by specific plea has disowned M.O.6, tempo. This tempo pending the investigation, was recovered and produced before the Court. It was a specific case put forth by the prosecution through P.W.9 that he wanted to engage the tempo, when it was in the hands of A-4, and it was the tempo in which the dead body of Chelladurai was taken. Now, the investigation and also the evidence would thoroughly go to show that the said tempo originally belonged to one Soundararajan; that he got finance from the Cooperative Agricultural Development Bank; that at that juncture, he sold it to A-4; that A-4 has purchased the same by getting finance from Dhandapani Finance Limited, Tirunelveli, under hire purchase agreement; and that they have made the payment also. Pending the trial, an application was filed by the said finance company stating all the facts, for return of the vehicle. This would clearly indicate that the vehicle at the time of occurrence was actually with A-
4. But, A-4 has disowned the same by putting forth a false plea. In a given case like this, where one circumstance is missing and that circumstance is within the special knowledge of the accused, and he attempts to suppress that circumstance, that itself will be taken as a clear link to be supplied. In the instant case, the same, in the opinion of this Court, was the link which was actually missing, and by false explanation and suppression of a fact, A-4 has attempted to create so. Now, that link is also now filled up by proper evidence. Therefore, the contentions put forth by the learned Counsel for the appellants either all or any one, do not merit acceptance. The lower Court has marshaled the evidence proper and found that at the instigation of A-1 and A-2, in view of the enmity prevailed, it was A-3 who took the deceased from the house; that all of them took him to the place of occurrence, administered the poisonous substance along with liquor and caused his death, and thereafter, the dead body was taken in the A-4's vehicle. All have been proved by necessary circumstances. Hence, the lower Court was perfectly correct in finding them guilty and awarding punishment as referred to above.
13.For the foregoing reasons, all these criminal appeals fail, and accordingly, they are dismissed confirming the judgment of conviction and sentence passed by the lower Court. It is reported that the appellants are on bail. Hence, the Sessions Judge will take steps to commit them to prison to undergo the sentence.
14.Mr.V.Kathirvelu, Advocate, appointed as Amicus Curiae to argue the appeal in C.A.No.1166/2000, is entitled to get remuneration from the Legal Service Committee, Madurai.
nsv/ To:
1.The Additional District and Sessions Judge Nagercoil
2.The Inspector of Police Manavalakurichi Police Station Kanyakumari District Cr.No.194 of 1997
3.The Additional Public Prosecutor Madurai Bench of Madras High Court