Madras High Court
Murugendran vs The Inspector Of Police on 21 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
CRIMINAL APPEAL (MD).No.365 of 2010
,CRIMINAL APPEAL (MD).Nos.400, 405 and 410 of 2010
Murugendran : Appellant/A1 in
C.A.No.365/2010
Veeranan : Appellant/A2 in
C.A.No.400/2010
Selvi : Appellant/A5
C.A.No.405/2010
1.Ranjith
2.Senthil : Appellants/A3&4
in C.A.No.410/2010
Vs.
The Inspector of Police
Cumbum South Police Station
Cumbum,
Theni District.
in Crime No.328 of 2007 :Respondent in
all appeals.
PRAYER: Appeals are filed under Section 374(2) of the Code of Criminal
Procedure against the judgment passed by the Additional District Sessions
Judge, Fast Track Court, Periyakulam, in S.C.No.99 of 2008 dated 06.09.2010.
!For Appellants
in C.A.No.365 : Mr.Veera Kathiravan
For appellant
in C.A.No.400 : Mr.J.Lawrance
For appellant
in C.A.No.405 : Mr.K.Samidurai
For Appellants
in C.A.No.410 : Mrs.Vidya
^For Respondent : Mr.A.Ramar
in all appeals Additional Public Prosecutor
:COMMON JUDGMENT
(Judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellants are the accused 1 to 5 in S.C.No.99 of 2008 on the file of the Additional District and Sessions Judge, Fast Track Court, Periyakulam. The trial Court framed as many as two charges against the accused, which are as follows:
Charges Accused Penal provisions 1 A1 to A4 Under Sections 120(B) and 302 IPC 2 A5 Under sections 120(B), 302 read with 109 and 197 IPC. By judgment dated 06.09.2010, the trial Court found the accused guilty and accordingly, punished them as follows:
Accused Conviction under Section Sentence imposed A1 302 r/w 120(B) IPC To undergo imprisonment for life and fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment. A2 302 r/w 120(B) IPC To undergo imprisonment for life and fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment. A3 302 r/w 120(B) IPC To undergo imprisonment for life and fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment. A4 302 r/w 120(B) IPC To undergo imprisonment for life and fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment.
A5 120(B) read with 302 IPC To undergo imprisonment for life and fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment. Challenging the said conviction and sentence, the appellants are before this Court with these appeals.
2. The case of the prosecution in brief is as follows:
The deceased in this case was one Muthu. The 5th accused is his wife. The 5th accused used to go for coolie work to Surulipatti Village. The first accused also used to go there for similar work. In course of time, they became friendly and finally, they developed illicit intimacy. The 2nd accused also helped the accused 1 and 5 to have illicit intimacy. This came to the knowledge of the deceased. The deceased reprimanded the 5th accused and wanted her to disconnect all her relations with the first accused. According to the further case of the prosecution, the 5th accused did not change her attitude and she continued her illicit relationship with the 1st accused. Since the deceased was a hindrance for their illicit relationship, it is alleged that the accused 1 and 5 decided to kill the deceased. The 5th accused gave this idea to the accused 1 and 2, for which, they also agreed. It is further alleged that the 5th accused offered to pay Rs.20,000/- to the 2nd accused, if he were to kill the deceased. Accepting the said offer, the 2nd accused contacted the accused 3 and 4 and persuaded them to do away with the deceased. Thereafter, all the 5 accused had hatched a conspiracy to commit the murder of the deceased by making him to drown in water, so as to obviate any doubt regarding their involvement.
2.1. On 08.11.2007, when the 5th accused was at her home, the deceased came in a drunken state and scolded the 5th accused and assaulted her.
Unable to bear with the same, it is alleged that the 5th accused consumed pesticide. She was immediately taken to the Government Hospital at Cumbum and admitted as inpatient. On 09.11.2007, at about 5.00 p.m., when the 5th accused was taking treatment as inpatient in the said hospital, the accused 1 and 2 came to the hospital under the guise of seeing the 5th accused. At that time, P.Ws.11 and 12 were present. In the presence of them, it is further alleged that the 5th accused told the accused 1 and 2 as to why they were delaying to commit murder of the deceased. She directed them to finish the task of killing the deceased forthwith. The deceased, who had earlier come to the hospital after visiting the 5th accused was returning home. On his way, when he was standing near Pillayar temple at Surulipatti Road, P.Ws.8 and 9, the cousins of the deceased, saw him and enquired as to how the 5th accused was progressing in the hospital. They also advised the deceased not to quarrel with the 5th accused but to purchase peace. At that time, it is alleged that the third accused came in a motorcycle bearing registration No.TN 60 A 0484 to the said place. In the presence of P.Ws.8 and 9, it is alleged that A3 told the deceased to come with him, as he was wanted by the 5th accused in the hospital. The deceased told him that he had just returned from the hospital. But the 3rd accused persuaded him to come with him. A2 also joined with them. Thereafter, all the three left in the motorcycle. Thus, the deceased was lastly seen alive on 09.11.2007 near Pillayar Temple between 6 and 6.30 p.m. by P.Ws.8 and 9. After that, the whereabouts of the deceased were not known.
2.2. While so, on 11.11.2007, at about 5.00 p.m., the dead body of the deceased was found floating in the Odaipatti Village Tank. But the body was in a highly decomposed condition and so the identity could not be made out. P.W1 ? Village Administrative Officer of Uthamapuram Village made a complaint to the police about the fact that the dead body of an unidentified person was floating in the village Tank. Based on the same, P.W.21, the then Sub Inspector of Police of Cumbum South Police Station, registered a case at 6.30 p.m., on 11.11.2007 in Crime No.328 of 2007 under Section 174 Cr.P.C. He forwarded the complaint and the FIR to the Executive Magistrate/Tahsildar concerned and handed over the case diary to the Inspector of Police for investigation. Ex.P1 is the complaint of P.W.1 and Ex.P20 is the FIR.
2.3. P.W.23 the then Inspector of Police, Cumbum South Police Station, took up the case for investigation. Since it was too late in the night, on 11.11.2007, he did not visit the place of occurrence. On 12.11.2007, at 6.30 a.m., he visited the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of P.Ws.3 and 4. The body was already taken from the Tank by the Sub Inspector of Police and forwarded to the Government Hospital at Cumbum Government Hospital. P.W.23, however, did not conduct inquest on the body of the deceased on 12.11.2007, as he wanted to ascertain the identity of the body. On 13.11.2007, the family members of the deceased identified the dead body as that of the deceased Mr.Muthu. Thereafter, he conducted inquest on the body of the deceased on 13.11.2007 and prepared Ex.P25 report. Then, he forwarded the body for postmortem.
2.4. P.W.20 - Dr.Ponnarasan conducted autopsy on the body of the deceased on 13.11.2007 at 12.45 p.m. He found the following injuries:
Neck: Hyoid Bone intact. Thorax : Lungs congested Lobes enlarged on cut section frothy fluid seen. Heart : empty. Abdomen : Stomach filled with water. Liver : pale. Intestine distended with gas. Ex.P18 is the postmortem certificate. He preserved the viscera and other internal organs for chemical examination.
According to the analyst report, there was no poison detected in the internal organs. Based on the same, P.W.20 gave final opinion that the death might be due to asphyxia due to drowning. Ex.P18 is the final opinion. The final opinion was so given by him on 29.01.2008.
2.5. In the meanwhile, it is alleged that the 1st accused appeared before P.W.1 the then Village Administrative Officer of Uthammapuram Village on 06.12.2007 and gave a voluntary confession to him, in which, he disclosed that he along with accused 2 to 4, in pursuance of the conspiracy hatched between all the accused, had committed murder of the deceased by pushing him into the water in the Tank until he died. He reduced the same to writing in the presence of P.W.2. Ex.P1 is the said statement. Along with the said report, he produced the first accused before P.W.23. While in police custody, the first accused gave a voluntary confession, in which, he disclosed the place, where he had hidden the Nokia cell phone, a horoscope note book of one Prabhu, the son of the deceased and the community certificate of one Jeyapraba, the daughter of the deceased. In pursuance of the said disclosure statement, it is alleged that the 1st accused produced these documents and an yellow bag. P.W.23 recovered all the above materials under a mahazar. Then, he altered the case into one under Section 302 IPC and forwarded the report to the Court.
2.6. On 08.12.2007, it is alleged that A2, A3 and A5 appeared before P.W.19. All the three accused made oral confessions to P.W.19. One after the other, their oral confessions were reduced to writing. Then, P.W.19 took all the three accused to P.W.23 and produced them at 1.30 p.m. The 4th accused surrendered before the Judicial Magistrate No.3, at Madurai. Then, P.W.23 gave a request to the Court to forward the material objects for chemical examination. He took custody of the 4th accused on 26.12.2007 and after interrogation, sent him back to the Court. On completing the investigation, he filed a final report against all the 5 accused on 29.02.2008.
2.7. Based on the above materials, the trial Court framed charges as detailed 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 23 witnesses were examined, 25 documents and 7 material objects were marked.
2.8. Out of the said witnesses, P.W.1, the then the Village Administrative Officer of Uthammapuram Village, has stated that on 11.11.2007, he found the dead body of the deceased floating in the village tank. He has spoken about the complaint made by him and he has also spoken about the extra judicial confession given by the first accused to him on 06.12.2007. He has also spoken about the discovery of M.O.1 ? cell phone, M.O.2 ? yellow bag, Horoscope and Community Certificate at the instance of the first accused. P.W.2 is the Village Assistant, who has also spoken the same facts as spoken to by P.W.1. P.Ws.3 and 4 have turned hostile and they have not supported the case of the prosecution in any manner.
2.9. P.W.5 is the brother of the deceased. He has spoken about the fact that he identified the dead body as that of the deceased on 12.11.2007.
P.W.6 is yet another brother of the deceased. He has spoken about the illicit relationship between the accused 1 and 5 and he has also spoken about the fact that he identified the dead body of the deceased. P.W.7 is the brother of A5, who has stated that the 5th accused was in the hospital and later, he found the dead body and identified the same. P.Ws.8 and 9 have stated that on 09.11.2007, at 6.00 p.m., the deceased was found in the company of the accused 2 and 3 at Pillayar Temple at Surulipatti. P.W.10 is the employer of the accused 1 and 5. He has not stated anything incriminating against the accused. P.Ws.11 and 12 have stated about the fact that on 09.11.2007, when they visited the hospital, the 5th accused instigated the accused 1 and 2 to commit murder of the deceased, as already decided. P.Ws.13 to 15 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.16 has spoken about the fact that he handed over the alteration report to the Court. P.W.17 has spoken about the fact that he handed over the FIR to the Tahsildar on 11.11.2007. P.W.18 is the Head Constable, who carried the dead body to the hospital for postmortem. P.W.19 has spoken about the extra judicial confession said to have been made by the accused 2,3 and 5 on 08.12.2007 at 10.00 a.m. at his office. P.W.20 is the Doctor, who conducted autopsy on the body of the deceased. He has given his opinion that the death was due to drowning. P.W.21 has spoken about the registration of the case. P.W.22 is the Head Clerk of the Court, who has stated that he received the material objects from the police. P.W.23 has spoken about the investigation done and the final report filed by him.
3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witness on their side nor marked any documents. Their defence was a total denial. Having considered all the above, the trial Court convicted all the 5 accused as detailed in the first paragraph of this judgment. That is how, they are before this Court with this appeal.
4. We have heard the learned counsel for the appellants, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully.
5. This is a case based on circumstantial evidence. The learned counsel for the appellants would submit that the prosecution has not proved any of the circumstances against the accused beyond reasonable doubts and thus, the prosecution has failed to prove the charges against the accused.
6. Per contra, the learned Additional Public Prosecutor submitted that the prosecution has clearly established all the circumstances projected by it beyond reasonable doubts and thus, the prosecution has clearly proved the charges beyond reasonable doubts against all the accused.
7. We have considered the above submissions.
8. The circumstances projected by the prosecution are as follows:
(1) The accused 1 and 5 had illicit relationship and because of the same, the deceased used to quarrel and even assaulted the 5th accused. Since the deceased was a hindrance for the illicit relationship, they decided to do away with the deceased. This is stated to be the motive.
(2) The 5th accused offered to pay Rs.20,000/- to the 2nd accused, who is the friend of the first accused for killing the deceased. Then, A2 engaged A3 and A4 and all the five conspired to commit murder of the deceased.
(3) On 08.11.2007, the deceased attacked the 5th accused in drunken state, since she was not willing to give up her connection with the first accused. She consumed pesticide and therefore, she was admitted at the Government Hospital at Cumbum on 08.11.2007.
(4) On 09.11.2007, when she was in the hospital, the accused 2 and 3 visited her. At that time, in the presence of P.Ws.11 and 12, the 5th accused directed the accused 2 and 3 to accomplish their earlier conspiracy to commit murder of the deceased.
(5) On 09.11.2007, in the evening, the deceased had visited the 5th accused in the hospital and returned to Pillayar Temple and he was standing near the Pillayar Temple. Between 6 and 6.30 p.m., on the day, in the presence of P.Ws.8 and 9, the deceased was taken by the accused 2 and 3 in a motorcycle and thereafter, the deceased was not seen.
(6) On 11.11.2007, the dead body of the deceased was found floating in the local tank. On the complaint of P.W.1, a case was registered for suspicious death. The body was identified on 13.11.2007. On 13.11.2007, postmortem was conducted and the opinion is that the deceased died due to drowning.
(7) On 06.12.2007, the first accused gave a voluntary confession to P.W.1 in the presence of P.W.2 admitting his guilt and that of all the other accused.
(8) On 08.12.2007, at 10.00 a.m., the accused 2,3 and 5 made voluntary confessions to P.W.19.
9. Now, let us examine, whether the prosecution has proved these circumstances.
(1) It is in evidence that the 5th accused had illicit intimacy with the first accused. There is no reason to reject the said evidence of the brother of the deceased. Thus, this circumstance, in our considered view, has been proved.
(2). On 08.11.2007, the 5th accused consumed poison and she was in the hospital taking treatment. This circumstance has also been proved, as there is no dispute about the same.
(3) The next very important circumstance is that, according to P.Ws.11 and 12, the 5th accused told the accused 1 and 2 to commit murder of the deceased, as had already been conspired. P.Ws.11 and 12 are none else than the cousins of the deceased. They were present, when the dead body was found on 11.11.2007. When inquest was held on 12.11.2007, they were very much present. Had it been true that the 5th accused told the accused 1 and 2 to commit murder of the deceased, after having seen the dead body of the deceased, by all natural human conduct, P.Ws.11 and 12 would have disclosed the same to the police. But, admittedly, according to P.W.23, they were examined only on 18.11.2007, absolutely, there is no explanation for the same. This creates enormous doubt in the veracity of P.Ws.11 and 12.
Further, it is highly improbable that the 5th accused would have told A1 and A2 to commit the murder of the deceased in the very presence of the cousins of the deceased. For all these reasons, in our considered view, the evidences of P.Ws.11 and 12 are liable to be rejected and thus, the prosecution has failed to prove this circumstance.
(4) The next circumstance is that on 09.11.2007, between 6.00 and 6.30 p.m., the deceased was taken by the accused 2 and 3 in the motorcycle under the guise of taking him to the hospital to see the 5th accused. P.Ws.8 and 9 were very much present, when the dead body was found floating on 11.11.2007. They were present at the time when the inquest was held on 12.11.2007. But they did not disclose about the above vital fact to anyone until 18.11.2007. As we have already pointed out, had it been true that these two witnesses had really seen the deceased in the company of the accused 2 and 3, on 09.11.2007, they would have, by all natural human conduct, disclosed the same to the police at the time of inquest or to the family members of the deceased. Absolutely, there is no explanation as to why they did not disclose this fact to anyone till 18.11.2007. Therefore, the evidences of P.Ws.8 and 9 also deserve only to be rejected, as it is too difficult to believe them.
(5) The next circumstance is that the recovery of material objects, like cellphone (M.O.1), yellow bag (M.O.2), horoscope and community certificate. There is no evidence that these properties were in the hands of the deceased, when he was lastly seen. Even the cellphone has not been proved to be that of the deceased. Thus, in our considered view, the connection between the objects discovered and the crime has not been established by the prosecution and therefore, the disclosure statement allegedly made by the first accused to P.W.23 itself is inadmissible.
(6) The prosecution next relies on the so called extra judicial confession said to have been made by the accused 1 to 3 and 5 before P.Ws.1 and 19 respectively. It is too difficult to believe these extra judicial confessions for the reason that these accused had no acquaintance with P.Ws.1 and 19 respectively. Thus, there is no reason for them to repose confidence or trust in them. It is uncommon that an accused, who were involved in a serious crime, would have gone to a total stranger to make extra judicial confession. In general, the extra judicial confession being a very weak piece of evidence requires corroboration, if it is surrounded by doubts. In this case, the extra judicial confessions said to have been given by these accused themselves are not believable and even assuming that they can be believed to some extent, since there is no corroboration from any other independent source, this Court cannot act upon the same.
(7) Next comes the medical evidence. According to the medical evidence, the death was due to drowning. Between 11.11.2007 and 08.12.2007, the investigation was taken in the direction that the deceased had died due to accidental fall in the water. There were no external injuries found on the deceased. According to the extra judicial confessions, the deceased was made to fully drink liquor, and when he was under the influence of alcohol, he was taken to the tank and immersed in the water until he died. Curiously, in the internal organs of the deceased, alcohol was not found at all. The absence of alcohol in the internal organs of the deceased, though it is stated that he was fully drunk, would only go to make the so called extra judicial confessions unbelievable. The accused has got an alternative hypothesis, namely, the deceased would have fallen in the water accidentally and died due to drowning. This hypothesis has not been ruled out by the prosecution. There were no other injuries found on the dead body. According to the medical opinion, the deceased died only due to drowning. Thus, the prosecution has failed to rule out the possibility of accidental fall of the deceased into water.
(8) In a case based on circumstantial evidence, it is too well settled, the circumstances projected by the prosecution should be proved beyond reasonable doubts and such proved circumstances should have a close link to form a complete chain so as to unerringly point to the guilt of the accused and there should not be any other alternative hypothesis, which is inconsistent with the guilt of the accused. In this case, as we have already pointed out, the prosecution has not proved many of the vital circumstances and there is no chain of circumstances unerringly leading to the irresistible conclusion that the deceased was murdered by these accused 1 to 4. For conspiracy also, absolutely, there is no evidence against any of the accused. The alternative hypothesis that the accidental drowning, which is inconsistent with the guilt of the accused, has not been ruled out.
10. In view of all the above, we hold that the prosecution has failed to prove the case beyond reasonable doubts and thus, the appellants are entitled for acquittal.
11. In the result, the criminal appeals are allowed; the conviction and sentence imposed on the appellants are set aside and they are acquitted of all the charges. Fine amount, if any paid by them, shall be refunded to them. Bail bonds shall stand terminated.
To
1.The Additional District Sessions Judge, Fast Track Court, Periyakulam
2.The Inspector of Police Cumbum South Police Station Cumbum, Theni District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.