Madras High Court
Paulraj vs State Rep By Its on 16 September, 2014
Author: P.N.Prakash
Bench: S.Rajeswaran, P.N.Prakash
THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16..09..2014 CORAM: THE HONOURABLE MR . JUSTICE S.RAJESWARAN AND THE HONOURABLE MR. JUSTICE P.N.PRAKASH Criminal Appeal No.375 of 2012 Paulraj ... Appellant Vs- State rep By its The Inspector of Police Annadanapatty Police Station Salem District. (Crime No.1096/2009) ... Respondent This Criminal Appeal has been preferred to set aside the judgment and sentence passed in S.C.No.216 of 2009 on the file of the Addl. District and Sessions Judge, Fast Track Court No.II, Salem, dated 18.08.2009 and set aside the same and acquit the appellant herein. For Appellant : Mr.Philip Ravindran Jesudoss For Respondent : Mr.V.M.R.Rajendiran Additional Public Prosecutor J U D G M E N T
P.N.PRAKASH, J.
Paulraj [A1], who was tried along with Kannadasan [A2], Balamurugan [A3] and Shanthi [A4] in S.C.No.216/2009 by the Additional Sessions Judge, Salem and convicted on 18.08.2009, is the appellant before us.
[a] Of the four accused tried by the trial Court, Shanthi [A4] was acquitted and A1 to A3 were found guilty. They were convicted and sentenced as follows:
Accused Section of law Conviction and sentence A1 to A3 302 IPC r/w 109 Imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo 6 months R.I. 201 IPC To undergo 3 years R.I.
2. It is reported by the learned Additional Public Prosecutor that Kannadasan [A2] died after the trial Courts verdict and Balamurugan [A3] has not chosen to appeal to this Court against the trial Court's judgment.
3. The prosecution case begins with the evidence of Loganathan [P.W.1], the Village Administrative officer of Annadanapatti village, that he received information from his Assistant around 7.00 in the evening on 08.08.2009 that, a human hand was found protruding from beneath the soil on the bank of Thirumanamuthar rivulet. He went to the place and found that people had already gathered there. A human hand with bangles was visible on the bank of the river and therefore, he went to the Police Station and lodged a written complaint [Ex.P1], which was received by Asokan [P.W.12], the Inspector of Police, who registered a case in Annadanapatti Police Station Cr.No.1096/2009 u/s 176 Cr.P.C. and prepared the printed FIR [Ex.P15].
[a] He took up the investigation of the case and proceeded to the place of occurrence and in the presence of Loganathan [P.W.1] prepared the Observation Mahazar [Ex.P2] and Rough Sketch [Ex.P16]. He made a requisition to Alagesan [P.W.7] the jurisdictional Executive Magistrate and Tahsildar for exhuming and conducting inquest over the body. In the presence of Alagesan [P.W.7] and panchayatdars, the body was exhumed on 09.08.2009 and the inquest was conducted by the Tahsildar. The Inquest Report was marked as Ex.P7. The body was identified by one Balamurugan, Nagaraj and Mariammal [P.W.3] as that of Karuvachi @ Selvi. Identity was also confirmed by the other villagers, including Dhanapal [P.W.2] the father of the deceased. As the body was in a very decomposed state, the Executive Magistrate [P.W.7] requisitioned the services of Dr.Meera [P.W.8] the Police Surgeon from Government Mohan Kumaramangalam Hospital, Salem, who came to the spot and conducted autopsy over the body. In her evidence as well in the Post-mortem Certificate [Ex.P10], Dr.S.S.meera [P.W.8] has given the following findings.
"Exhumation findings: On digging the soil, a decomposed female body was lying in left semiprone position- with both legs flexed at hip and knees - left leg crossed over right leg. A green coloured polyester blouse covers both hands and back but front of the chest and other parts of the body were found naked. Head was lying in the east and face faced south. Eyes closed. Total length - 145 cms. Chest breadth - 332 cms.
Post mortem findings: Signs of decomposition : face looked bloated peeling of skin seen all over the body. Scalp hair (48 cms) easily peeling off. Finger toe nails found loose. Tooth found loose. Abdomen distended with gas. Maggots crawling all over the body.
Injuries: Perioral swelling with underlying contusion (bluish black) 7 x 2 x 0.5 cms above upper lip and 6 x 3 x 0.5 cms below lower lip. Both lips swollen and contused on cut section (antermortem).
II fracture nasal bone with surrounding soft tissue contused.
III Bluish black contusion medial side of right upper thigh 4 x 2 x 0.5 cms and medial side of left upper thigh 3 x 2 x 0.5 cms. Swelling of labia majora with haemorrhagic contusion on cut section. (antemortem) IV Bluish black contusion frontal region of scalp 4 x 2 x 0.5 cms (antemortem) Other findings: Pleural, peritoneal and pericardial cavities empty. All neck structures - decomposed. Hyoid - intact, No neck contusion. Heart - empty. Myocardium - decomposed, Flabby, valves and great vessels - patent, lungs - c/s decomposed, stomach - empty, decomposed. No specific smell. Liver, spleen and both kidneys - greasy to touch - Highly decomposed. Bladder empty. Skull, pelvis, spinal column - intact. Brain liquefied. Uterus - cavity empty.
Opinion : Died of effects of Smothering Died 7-8 days prior to autopsy."
[b] After post-mortem, the body was handed over to P.W.2, the father of the deceased for cremation. While so, on 10.08.2009, Paulraj [A1] appeared before Loganathan [P.W.1] the Village Administrative Officer and gave a confession statement. In the confession he stated that he belongs to nearby Viriyur village and that he had taken on rent a place from one Mariappan on a monthly rent of Rs.200/- in Annadanapatti village; that when he was young his father had gone away with another woman and he was living with his mother who was into selling illicit arrack; that he would also some times join her and on account of harassment by police, he started trading in old iron scrap materials; that he came to know Kannadasan [A2] who was also into similar business and they became thick friends; they both got introduced to Balamurugan [A3], a cycle rickshaw man, who would help them in wench chasing by procuring sex workers for them. Accordingly, on 01.08.2009, around 10.00 in the morning, he contacted Balamurugan [A3] and gave him Rs.200/- for arranging a whore for him. Balamurugan [A3] brought the deceased, who is a sex worker. He took the deceased along with Kannadasan [A2] and Balamurugan [A3] to a few places and as there were people around, they found it difficult for their act. Ultimately he brought her into his house in Annadanapatti and when they wanted to enjoy her, she, for some reasons, refused to accede. In the meantime, Paulraj [A1] had also consumed liquor. Around 11.00 in the night, when they tried to force themselves on her, she started shouting and in order to silence her, Paulraj [A1] took a pillow and pressed it over her face, while Kannadasan [A2] and Balamurugan [A3] were holding her leg. When her body became motionless, they realised that she had died and fearing serious consequences, Paulraj [A1] called his mother-in-law Shanthi [A4] and all of them carried the body together to the river bank and buried the same. Thereafter, they went on their own. This is the long and short of the extra judicial confession given by Paulraj [A1] to Loganathan [P.W.1].
[c] Loganathan [P.W.1] recorded the confession in his own hand and obtained the thumb impression of Paulraj [A1] and took him to the Inspector of Police and produced him at 8.30 a.m. on 10.08.2009. Asokan [P.W.12], the Inspector of Police, arrested Paulraj [A1] and recorded his confession statement. Based on the disclosure made by him, he recovered the pillow [M.O.1] from his house under the cover of Mahazar [Ex.P6] in the presence of Loganathan [P.W.1] and Kaliappan [not examined].
[d] As the involvement of A2 to A4 surfaced in the confession statement of Paulraj [A1], the police arrested them on the very same day. Based on the disclosure statement of Kannadasan [A2] and Balamurugan [A3], the police recovered the implements, namely, spade [M.O.6] under the cover of Mahazar [Ex.P13] that was used by them to dig the pit. On the disclosure statement of Balamurugan [A3], the police also recovered one nylon saree [M.O.7] and an in skirt [M.O.8] from a bush which was allegedly worn by the deceased. Ashokan [P.W.12] sent an Alteration Report [Ex.P17] to the jurisdictional Magistrate on 11.08.2009 seeking to alter the case in Cr.No.1098/2009 from one under Section 174 Cr.P.C. to Sections 302, 201 IPC. All the four arrested accused were sent to judicial custody. The seized material objects were sent to the Court on 11.08.2009. On 09.08.2009 itself the Investigating Officer collected the Post-mortem Report and also examined the Doctor. He completed the investigation and filed a final report before the jurisdictional Magistrate on 13.08.2009. The accused, who were in custody were produced before the committal Magistrate, who served on them the papers u/s 207 Cr.P.C. and committed the case to the Court of Sessions on 14.08.2009. The case was taken up on file as S.C.No.216/2009 and was made over to the Additional Sessions Judge, who framed two charges against them on 14.08.2009.
Charge I: Against A1 to A3 u/s 302 r/w 109 IPC for causing the death of Karuvachi @ Selvi on 01.08.2009 around 11.00 in the night by smothering her with a pillow.
Charge II: Against A1 to A4 for disposing of the dead body by burying in the bank of the river punishable u/s 201 IPC.
[e] The accused pleaded not guilty to the charge. 15.08.2009 and 16.08.2009 were Saturday and Sunday and were holidays. On 17.08.2009, the prosecution examined 11 witnesses including the Investigating Officer and on 18.08.2009, the Investigation Officer [P.W.12] was cross examined. On the same day, all the four accused were questioned u/s 313 Cr.P.c. Each of them were put 17 questions. The answers given by them were recorded and the arguments of the learned Public Prosecutor and the defence were heard and on the same day, the judgment was delivered convicting and sentencing the accused as aforesaid. Hence, the appeal.
4. Heard Mr.Philip Ravindra Jesudas, learned counsel for the appellant and Mr.V.M.R.Rajendiran, learned Additional Public Prosecutor appearing for the State.
5. The learned counsel for the appellant gave the following chart of dates and events, which indeed shocked our judicial conscience.
08.08.2008 Occurrence/Complaint/FIR 09.08.2009 Post mortem from 2 PM to 3 pm. Inquest From 11.35 am to 3 pm 09.08.2009 Inquest report from Tahsildar received - 5 PM. Section altered from 174 Cr.P.C. to Sec.302, 201 IP - 6 PM 10.08.2009 A1 to A4 arrested. FIR sent to Court 11.08.2009 M.O.1 to M.O.8 sent to Court 13.08.2009 Charge sheet filed 14.08.2009 Committed to Sessions Court and charges framed 15.08.2009 Independence day & Saturday 16.08.2009 Sunday 17.08.2009 PW1 to PW-11 examined in full and PW-12 (I.O.) chief examined 18.08.2009 PW-12 cross 18.08.2009 Examination/Questioning of accused (Sec.313 Cr.P.C.) A1-17 questions and answers Pages 45 to 80(a) A2-17 questions and answers 36 pages A3-17 questions and answers A4-17 questions and answers 18.08.2009 Argument of P.P. & Defence - Judgment
6. We note with consternation at the undue haste and hurry in which the entire process of investigation and trial has been conducted in this case. We are not saying that investigation and trial should be conducted at snail's pace, for we know that under the Code, the Investigating Officer is required to complete the investigation within 24 hrs of the arrest of an accused and if he does not complete the investigation, he should produce him before the Magistrate for remand u/s 167 Cr.P.C. U/s 309 Cr.P.C., the Courts should not grant unnecessary adjournments and trials should be conducted day-to-day. We are also alive to the shrill noise that is being made on the gross delay in the judicial system in bringing the offenders to book. Alas! This is a case which does not fit into any of these parameters of speedy trial for the following reasons:
[i] The body according to the prosecution was recovered at the instance of the Village Administrative Officer on 08.08.2009 and the post-mortem was conducted on 09.08.2009. Even the pillow and the clothes that allegedly were seized on the confession of the accused were not even sent to the Forensic Sciences Laboratory to find out, if there are any blood stains in that or saliva or other materials linking it with that of the deceased.
[ii] U/s 226 Cr.P.C., it is incumbent on the Sessions Judge to ask the Public Prosecutor to open the case and state by what evidence he proposes to prove the guilt of the accused. At that juncture, the Sessions Court is required to satisfy itself that the accused are being adequately represented by counsel. Of course, here we find that the accused were represented by Advocates, who seem to have not even protested to this undue hurry. We should remember that the accused were in jail and were not on bail when the trial proceedings commenced. We are not saying that the trial should be commenced only when the accused are on bail, but we are only noting this as one of the aspects that is bothering us in this sordid episode. Even the charges have not been properly framed in this case. The overt act against Kannadasan [A2] and Balamurugan [A3] is that they had held the legs of the deceased and Paulraj [A1] had smothered her with a pillow. Therefore, Paulraj [A1] should have been charged u/s 302 IPC and Kannadasan [A2] and Balamurugan [A3] should have been charged u/s 302 r/w 109 IPC. But, the Sessions Judge has mechanically replicated the charge enumerated by the police in the final report without application of mind, because he was in a hurry to complete the trial.
[iii] Similarly, the 313 Cr.P.C. examination of the accused has been done in gross violation of fundamental principles of law. Time and again, the Supreme Court has deprecated the practice of Courts framing one single question with jumbled up facts and confronting the accused for answers. Here, all the accused are unlettered persons who have affixed their thumb impression, both in the charge as well in the 313 Cr.P.C. answers. The judgments on the importance of 313 Cr.P.C. examination and the manner in which it has to be done, are legion. We are quoting only one judgment of the Supreme Court in Naval Kishore Singh vs. State of Bihar [2004 AIR SCW 4764] "5. ..... We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in slipshod manner, it may result in imperfect appreciation of evidence."
[iv] It would have been impossible for the accused to even understand and comprehend the complex questions that have been framed by the trial Court using compound sentences. Immediately after the 313 Cr.P.C. examination, the accused seems to have asked whether they have witnesses to examine on their behalf and on their saying that they have no witness, the Judge has heard the prosecution and the defence and on the very same day he has delivered the judgment, convicting and sentencing the accused as aforesaid. He did not even make an enquiry to find out as to why the police did not send the pillow and saree for chemical examination for lending assurance and for corroborating the confession statement given to the Village Administrative Officer.
[v] The Village Administrative Officer seems to have been part and parcel of the investigation, inasmuch as he was the first informant based on which the FIR was lodged; he had recorded the confession statement of Paulraj [A1] and joined the Investigating Officer in conducting post arrest searches and seizures.
7. We carefully analysed the judgment of the trial Judge to find out the basis on which he has convicted the accused. The trial Judge has accepted the extra-judicial confession given by Paulraj [A1] to Loganathan [P.W.1], without even discussing its voluntariness and truthfulness! Further, he has relied upon the evidence of Mani [P.W.4], who has stated that on 01.08.2009, he saw Paulraj [A1] and Kannadasan [A2] with a girl going to Paulraj's [A1] house. When he asked them who she is, they told him that she is their relative Selvi. That is all. Mathialagan, [P.W.5], in his evidence, stated that on 01.08.2009, around 10.30 p.m., he saw Kannadasan [A2] and Balamurugan [A3], who told him that they are going to Paulraj's [A1] house. Mani [P.W.4] has not stated at what time he saw Paulraj [A1] and Kannadasan [A2] with the lady on 01.08.2009. We have only extracted the chief examinations of Mani [P.W.4] and Mathialagan [P.W.5]. Based on this evidence, the trial Judge has given a finding that the prosecution has proved that Paulraj [A1], Kannadasan [A2] and Balamurugan [A3] were last seen together with the deceased and hence, the burden under Section 106, Evidence Act, is on them to explain everything!! As they have failed to discharge the burden, A1 to A3 were found guilty and sentenced to life imprisonment. Criminal jurisprudence has been re-written by the trial Judge. The evidence of Mani [P.W.4] and Mathialagan [P.W.5] sounds like the cooked up testimony of the two witnesses who gave evidence against Jesus Christ in a sham trial which resulted in His crucifixion (read the Holy Bible, Matthew 26:61) Coming to the extra-judicial confession of Paulraj [A1], that was recorded by Loganathan, [P.W.1], the Village Administrative Officer, though is admissible as held by the Supreme Court in Siva Kumar vs. State (AIR 2006 SC 653), it does not inspire our confidence at all. There is not even general corroboration of it.
8. This appears to be a case of witch hunting. It is a sheer coincidence that this case has arisen from Salem in Tamil Nadu and the expression "which hunt" has its origin from Salem near Massachussets in the U.S.A. where beggars, rag-pickers and destitute women were rounded up during 1692 on the charge that they are witches and after a quick, sham and inquisitional trial, were executed. About 19 were hanged and around 200 perished in jail. Judge Samuel Sewall publicly confessed error and guilt. On January 14, 1697 the General Court ordered a day of fasting and soul searching for the tragedy of Salem. In 1702, the Court declared the trials unlawful. In 1711, the Colony passed a bill restoring the rights and good names of those accused and granted E 600 restitution to their heirs. In 1957, Massachussets formally apologised for what happened in 1692.
9. Here the deceased is a sex worker, the accused are scrap pickers and rickshawallahs. Before they could realise what was happening around them, everything got over. Will this happen to the rich and influential in this Country? This is indeed a text book case for the proposition "Justice hurried is justice buried." Such fast tracking of injustice in the guise of administering justice was deprecated by a Division Bench of this Court in Iruthayaraj vs. State [C.A.842/2005, dated 19.03.2008], despite which the trial Judge has proceeded at such a break neck speed. The entire investigation and trial process is clearly violative of Article 21 of the Constitution of India.
10. Now let us examine the post-trial scenario. After the accused were convicted and sentenced, they resigned themselves to their fate and did not even choose to file any appeal. Perhaps they had lost faith in the judicial system as such. The case of the appellant herein seems to have taken up by Mr.Philip Ravindran Jesudoss pro bono and he has filed this appeal only for Paulraj [A1] with a delay of 893 days, which was condoned by this Court on 26.06.2012. Even thereafter, Paulraj [A1] did not even choose to file any application for suspension of sentence and bail. The accused have been in incarceration since 10.08.2009 for over five years. One of them, Kannadasan [A2] died in the prison and this factor sicks our conscience. Balamurugan [A3] has not even filed any appeal. We extend the benefits of this judgment to him also by relying upon the judgment of the Supreme Court in Dandu Lakshmi Reddy v. State of A.P. [AIR 1999 SC 3255].
"22. The mother of the appellant Narayanamma is languishing in jail at present pursuant to the conviction and sentence awarded to her in this case. Of course her conviction is not before us as she died not file any special Leave Petition. But this Court has set up a judicious precedent for the purpose of averting miscarriage of justice in similar situations. On the evaluation of a case, if this Court reaches the conclusion that no conviction of any accused is possible the benefit of that decision must be extended to his co-accused also though he has not challenged the order by means of an appeal petition to this Court, (vide: Raja Ram and others v. State of M.O. [(1994) 2 SCC 568.]
11. In the result, the appeal is allowed. The conviction and sentence imposed on the appellant by the learned Additional District and Sessions Judge, Fast Track Court No.II, Salem in S.C.No.216 of 2009 on 18.08.2009 are set aside. Paulraj [A1] and Balamurugan [A3] are acquitted of all charges levelled against them and they are directed to be set at liberty forthwith unless their presence is required in connection with any other case.
We place on record our sincere appreciation to the efforts taken by Mr.Philip Ravindran Jesudoss who has served the Lord by rendering this service to the forlorn and indigent. This in our opinion is true legal aid to the poor envisioned in Article 39A of the Constitution of India and Rule 46 of the Standards of Professional Conduct & Etiquette framed by the Bar Council of India, which reads as under:
"46. Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an advocate's economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."
[S.R.,J.] [P.N.P.,J.]
16..09.2014
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Index : Yes
Internet: Yes
To
1. The Inspector of Police
Annadanapatty Police Station
Salem District.
2. Addl. District and Sessions Judge,
Fast Track Court No.II, Salem
3.The Public Prosecutor
High Court, Chennai.
S.RAJESWARAN, J.
AND
P.N.PRAKASH, J.
gms
Pre-delivery judgment in
Crl.A.No.375 of 2012
16.09.2014