Madras High Court
K.Vikram vs State Through The Inspector Of Police on 1 October, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.10.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
CRL.A(MD).No.94 of 2012
K.Vikram : Appellant
Vs.
State through the Inspector of Police,
[Law and Order],
Cantonment Police Station,
Trichy, Crime No.1586 of 2011,
on the file of Cantonment Police Station.
: Respondent
PRAYER: Appeal is filed under Section 374 of the Code of Criminal Procedure
against the Judgment and conviction dated 30.04.2012 made in S.C.No.1 of
2012, on the file of the Principal Sessions Judge, Trichirappalli.
!For Appellant : Mr.Veera Kathiravan
^For Respondent : Mr.C.Ramesh
Additional Public Prosecutor
:JUDGMENT
[JUDGMENT of the Court was delivered by S.NAGAMUTHU, J] The appellant is the sole accused in S.C.No.1 of 2012, on the file of the learned Principal Sessions Judge, Trichirappalli. He stood charged for the offence punishable under Section 302 of the Indian Penal Code. By Judgment dated 30.04.2012, the Trial Court has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months. As against the said conviction and sentence, the appellant has come up with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The deceased, in this case, was one Mr.K.Rajarajan. The accused is his younger brother. PW-1 is his father and PW-2 is his mother. PW-1 and PW-2 have a daughter, by name, Ms.K.Mathavi. All of them were residing together under a common roof at Door No.6, S.M.Nivas, Milk Depot JP Nagar, Karumandapam, Trichirappalli. The deceased, the accused and Ms.K.Mathavi, the daughter of PW-1 and PW-2 were yet to be married. The deceased was working in a private company. The accused was working in a different private company. In course of time, the deceased became a drunkard an he stopped going for work. He used to quarrel with the family members frequently in drunken state. He also insisted PW-1 and PW-2 to arrange for his marriage. They were persuading the deceased not to insist for marriage, because Ms.K.Mathavi should get married first. The deceased was not persuaded by the same. Again and again, the deceased insisted for his marriage and quarreled with the family members. Almost this became a perennial feature.
2.1. While so, according to the case of the prosecution, on 27.09.2011, late in the evening, the deceased came to the house in a drunken state. He developed quarrel with PW-1 and the accused. He used abusive language against both. PW-1 persuaded him and sent him to his bedroom. The accused also went away to his bedroom. It is further alleged that on 28.09.2011, early in the morning, at about 06.00 AM, the accused trespassed into the bedroom of the deceased and cut the deceased with aruval. This, according to the case of the prosecution, was witnessed by PW-1 and PW-2. On seeing them, the accused fled away from the scene of occurrence.
2.2. PW-1 made a complaint regarding the above occurrence at 07.00 AM, on 28.09.2011. [PW-1, during trial, has disowned EX-P16]. Based on the complaint of PW-1, PW-12, the then Sub-Inspector of Police, attached to the Trichy Cantonment Police Station, registered a case in Crime No.1586 of 2011, under Section 302 of the Indian Penal Code. EX-P16 is the complaint and EX-
P17 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the investigation to the Inspector of Police.
2.3. Taking up the case for investigation, PW-13 proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of the witnesses. He recovered a bloodstained pillow with cover, [MO-2] bloodstained mosaic floor [MO-4] and sample mosaic floor [MO-3] from the place of occurrence. He conducted inquest on the body of the deceased. EX-P21 is the inquest report. Then, he forwarded the dead body for postmortem.
2.4. PW-9 - Dr.R.V.S.Renuga Devi conducted autopsy on the body of the deceased, at 03.00 PM, on 28.09.2011. She noticed the following injuries:-
"1. A transverse cut wound, 16.5 X 5 cm, exposing the underlying structures on the side aspect and back of right side of the neck. Edges are clean cut. The muscles blood vessels and nerves are clean cut. Cut fracture of C3-C4 vertebran joint present.
2. A transverse cut wound, measuring 6 X 3 cm X muscle deep on the back off left shoulder. O/E.The edges are clean cut.
3. A lacerated wound measuring 5 X 2 X bone deep on the back or right ear.
4.Contusion on the right parietal region of the scalp - dark red.
5. Depressed fracture of right frontal and right temporal bones.
6. Fissured fracture of right parietal bone.
7. Sub dural haematoma on the right temporal lobe of cerebral hemisphere.
8. Sub dural hemorrhage and sub arachnoid hemorrhage on both cerebral and cerebellar hemispheres.
9. Fracture base of skull into two halves along the pituitary fossa".
EX-P13 is the postmortem certificate. She gave opinion that the deceased would appear to have died of shock and hemorrhage due to multiple wounds.
2.5. PW-13, during the course of investigation, arrested the accused on, 28.09.2011, at 12.00 noon, near IOB Nagar Bridge at Karumandapam. On such arrest, he gave a voluntary confession, in which he disclosed the place, where he had hidden an aruval. In pursuance of the same, he took PW-13 and the witnesses to the place, from where he produced the aruval [MO-6]. PW-13 recovered the same under a mahazer. Then, he forwarded the accused to the Court for judicial remand. Then, he made a request to the Court to forward the material objects for chemical examination. The report revealed that there was human blood on all the material objects, including the aruval and the said blood group is that of '`' group. Finally, on completing the investigation, he laid charge sheet against the accused, on 18.11.2011.
2.6. Based on the above materials, the Trial Court framed a lone charge, under Section 302 of the Indian Penal Code. When the accused was questioned in respect of the charge, he pleaded not guilty. In order to prove the charge, on the side of the prosecution, 14 witnesses were examined, 31 documents and 7 material objects were marked. Out of the said 14 witnesses, PW-1 and PW-2, who were expected to speak about the occurrence as eye- witnesses, have completely turned hostile and they have not stated anything incriminating against the accused. According to them, on 28.09.2011, at about 05.30 AM, they had gone out for regular morning walk. At 06.15 AM, when they returned back home, they found the deceased in the bedroom lying dead with injuries. When they were cross-examined by the learned Public Prosecutor, nothing incriminating was elicited against the accused.
2.7. PW-3 to PW-5, who were examined to speak about the preparation of the observation mahazer and the recoveries of the material objects from the place of occurrence, have turned hostile and they have not supported the case of the prosecution in any manner. PW-6 was examined to speak about the arrest of the accused and the consequential recovery of MO-6, the aruval on his disclosure statement. But, PW-6 has turned hostile and he has not supported the case of the prosecution in any manner. PW-7 has stated that he had heard about the occurrence subsequently. He has not stated anything incriminating against the accused. PW-8, who was examined to speak about the recovery of MO-6, has turned hostile and he has not supported the case of the prosecution in any manner.
2.8. PW-9 has spoken about the autopsy conducted by her and her final opinion regarding the cause of death. PW-10 is the Head Constable, who has spoken about the carrying of the dead body from the place of occurrence to the hospital for postmortem. PW-11 is yet another Head Constable, who has stated that he carried the First Information Report from the Police Station to the learned Judicial Magistrate on 28.09.2011. PW-12, the then Sub- Inspector of Police, has spoken about the complaint made by PW-1 and the case registered by him. PW-13 has spoken about the arrest of the accused and the consequential recovery of MO-6, the aruval. He has also spoken about the investigation done by him and the filing of the final report. PW-14 is the Head Clerk of the Court, who has spoken about the forwarding of the material objects for chemical examination, on the orders of the learned Judicial Magistrate.
3. From the narration of the above facts, it is crystal clear that there was no evidence at all against the accused incriminating him. But, strangely, the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure, thereby framing as many as 37 questions. The accused has stated that either he had nothing to do with the facts stated or some facts were false. The Trial Court, then, heard the arguments on both sides and finally gave the Judgment, on 30.04.2012, convicting the accused under Section 302 of the Indian Penal Code and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.
4. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
5. The learned counsel for the appellant would submit that this is a case, where absolutely, there is no evidence at all against the accused. But, still, the Trial Court has convicted him on mere surmises, which is not permissible in law. He would point out that PW-1 and PW-2 have turned hostile and they have not supported the case of the prosecution in any manner. He would further submit that there is no evidence at least to prove some circumstances pointing to the alleged guilt of the accused. Thus, the conviction and sentence imposed on the appellant by the Trial Court is wholly baseless. He would further submit that the Judgment of the Trial Court is a clear violation of fair trial contemplated in Article 21 of the Constitution of India. He would further submit that the personal liberty of the appellant has been deprived of by the Judgment of the Trial Court, which is not based on the fair procedure contemplated under Article 21 of the Constitution of India.
6. The learned Additional Public Prosecutor would state the facts of the case and he would pray for dismissal of the Criminal Appeal.
7. We have considered the above submissions.
8. The life and liberty of a citizen of this country are so precious and the same cannot be deprived of, except in accordance with the procedure established by law. Article 21 of the Constitution of India, which is considered to be the soul of the Constitution, guarantees a dignified life and personal liberty. Fair trial to an accused is implicit in Article 21 of the Constitution of India. If there is any conviction, depriving the personal liberty of an individual, without following the procedure established by law, then, the said deprivation is unconstitutional and the same is void. A Court of law, which is considered to be the custodian of the fundamental rights of the citizens of this country, should have concern to protect the same and in a very callous manner, the personal liberty of an individual cannot be deprived of by the Court on mere surmises. It needs to be mentioned, at this juncture, that the penal laws, like, the Indian Penal Code, the procedural laws, like, the Indian Evidence Act, 1872 and the Code of Criminal Procedure are all relating to the procedure in tune with Article 21 of the Constitution of India and only by following the same, the personal liberty of an individual could be deprived of by the Court. We are forced to make these observations because of the disturbed features, which we have noticed in the Judgment of the Trial Court and in order to remind the Trial Courts of their onerous responsibility while conducting trial.
9. In the case on hand, PW-1 and PW-2, who were the parents of the deceased, have not stated anything incriminating against the accused. They have stated that they went for a routine walk early in the morning at 06.00 AM and when they returned back home, they found the deceased in a pool of blood in his bedroom. They have not stated that the accused was at least present in the house along with the deceased. The Trial Court, in Paragraph No.21 of the Judgment, has stated that the accused did not prove that he was not present in the house. This approach adopted by the Trial Court is not correct. That apart, the presumption of innocence of an individual has been affirmed as a human rights by the Hon'ble Supreme Court in Noor Aga Vs. State of Punjab, reported in 2008 (16) SCC 417, wherein in Paragraph No.33, it has been held as follows:-
"33. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India). A cursory reading of the said Judgment of the Hon'ble Supreme Court, it is crystal clear that the presumption of innocence of an individual, which has been affirmed as a human rights, is safeguarded by Chapter III of the Constitution of India. Therefore, it is for the prosecution to prove the circumstances against the accused beyond reasonable doubts. Further, there was no question put to the accused under Section 313 of the Code of Criminal Procedure as to whether he was present in the house of the accused on the crucial date or not.
10. In the absence of any evidence to show that the accused alone was present in the house of the deceased and in the absence of any such specific question under Section 313 of the Code of Criminal Procedure, this cannot be used as a circumstance against the accused at all. But, according to the Trial Court this circumstance has conclusively proved the guilt of the accused. This, in our considered view, is not only illegal, but it has shaken the very fundamental criminal jurisprudence. Apart from the above, the Trial Court has stated that the medical evidence has proved that the deceased died due to injuries. From the medical evidence, one can only say that the death was due to homicide. But, from and out of the same, it cannot be concluded that the homicide was caused by the accused.
11. The other evidence relied on by the Trial Court is the evidence of PW-13, who has stated that on the arrest of the accused, the aruval [MO-6] was recovered. In our considered view, the said disclosure statement made by the accused itself is not admissible in evidence. It is the law that it is not as though discovery of every fact is relevant for the purpose of Section 27 of the Indian Evidence Act, 1872. To make such a discovery admissible in evidence under Section 27 of the Indian Evidence Act, 1872, the link between the discovered fact and the crime or the accused should be established by the prosecution. Here, in this case, absolutely, there is no evidence that MO-6 was the one, which was used to cut the deceased by the assailant.
12. The adversarial system of criminal administration, which we have adopted as one of the cardinal principles, which has always to be kept in view is that the burden of proving the guilt of the accused is upon the prosecution and unless it relives the guilt of that burden, the Courts cannot record a finding of the guilt of the accused. There is no reverse burden for the accused to prove his innocence. But, strangely and also, shockingly, the Trial Court has thrown these fundamental principles to wind and had placed the burden to prove his innocence on the accused. The Trial Court has, we regret to say, failed to notice that there is no such legal burden for the accused to prove his innocence. In the instant case, there was no need or occasion for the accused to discharge his evidential burden also, as there was absolutely no evidence, whatsoever, against the accused let in by the prosecution.
13. From the foregoing discussions, it is crystal clear that the learned Sessions Judge has convicted the accused only on mere surmises, which is illegal. The learned Additional Public Prosecutor, during the course of arguments, submitted that probably, the Trial Court had convicted the accused on moral grounds. In our considered view, it is not permissible for a Court of law to convict an accused on moral grounds in the absence of any evidence to prove the guilt of the accused. The Trial Court is a Court of law to do justice according to law and not a Court run on moral grounds. In view of all the above, we are impelled to say that the Trial Court had exceeded in its jurisdiction to convict the accused only on mere surmises. Thus, the conviction and sentence imposed on the appellant by the Trial Court is liable to be set aside.
14. In the result, this Criminal Appeal is allowed; the conviction and sentence imposed on the appellant, by Judgment dated 30.04.2012, made in S.C.No.1 of 2012, on the file of the learned Principal Sessions Judge, Trichirappalli, is set aside and the appellant is acquitted. Fine amount, if any, paid by the appellant shall be refunded to him. Bail bond executed by the appellant and the sureties shall stand terminated.
To
1.The Inspector of Police, [Law and Order], Cantonment Police Station, Trichy.
2.The Principal Sessions Judge, Trichirappalli.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..