Madras High Court
Deepagayathri vs State Represented By on 22 September, 2022
Author: P.N. Prakash
Bench: P.N. Prakash
R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.09.2022 CORAM:
THE HONOURABLE MR. JUSTICE P.N. PRAKASH and THE HONOURABLE MR. JUSTICE RMT. TEEKAA RAMAN R.T. No.3 of 2021and Crl. A. Nos.176 & 285 of 2022 R.T.No.3 of 2021:
State Rep. by The Deputy Superintendent of Police, Tindivanam Sub-Division, Villupuram District.
[Crime No.248 of 2019 on the file of
Tindivanam Police Station) Complainant
v
1 Govardhanan
2 Deepagayathri Accused 1 & 2
Referred Trial under Section 366 Cr.P.C. on the judgement and order dated 26.10.2021 passed in Sessions Case No.2 of 2020 on the file of the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee, Chennai 600 056.
Page 1 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 Crl.A.No.176 of 2022 Deepagayathri Appellant (A2) v State represented by The Deputy Superintendent of Police, Tindivanam Sub-Division, Villupuram District. [Crime No.248 of 2019 on the file of Tindivanam Police Station) Respondent/Complainant Crl.A.No.285 of 2022 Govardhanan Appellant (A1) v State represented by The Deputy Superintendent of Police, Tindivanam Sub-Division, Villupuram District. [Crime No.248 of 2019 on the file of Tindivanam Police Station) Respondent/Complainant
Prayer in Criminal Appeal Nos.176 & 285 of 2022:
Appeals filed under Section 374(2) Cr.P.C. praying to set aside the judgement and order of conviction and sentence dated 26.10.2021 made in S.C.No.2 of 2020 on the file of the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee, Chennai 600 056.
Page 2 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 For accused 1 & 2/ : Mr.V.Gopinath, Sr. Counsel for appellants Mr.Swami Subramanian for appellant in Crl.A.No.176/2022 & A2 in R.T.No.3/2021 and for Mr.L.Mahendran for appellant in Crl.A.No.285 of 2022 and A1 in R.T.No.3 of 2021 For complainant/ : Mr.Hasan Mohamed Jinnah, State respondent Public Prosecutor, assisted by Mr.S.Raja Kumar, Addl. Public Prosecutor and Ms.J.R.Archana ------ COMMON JUDGEMENT [delivered by P.N.PRAKASH.J.,]
While Referred Trial (R.T.) No.3 of 2021 is a reference made by the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee, Chennai 600 056 (for brevity “the Trial Court”) under Section 366 Cr.P.C. for confirmation of the death sentence awarded to the appellants in S.C.No.2 of 2020 by judgement and order of conviction and sentence dated 26.10.2021, Crl.A.Nos.176 and 285 of 2022 are appeals filed under 374(2) Cr.P.C. by Deepagayathri (A2) and Govardhanan (A1), respectively, challenging the conviction and sentence in the aforesaid Sessions Case. Page 3 of 37
https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 2 The appellants have been convicted and sentenced by the trial Court as under:
Provision under which Accused Substantive Sentence and Fine imposed convicted Section 120-B IPC r/w Sentenced to death by hanging until their death 302 IPC Section 302 (3 Counts) Sentenced to death by hanging until their death IPC r/w 34 IPC Section 436 IPC Imprisonment for Life and to pay a fine of Rs.2,00,000/- each in default of payment of fine to suffer rigorous imprisonment for a further period of two years Section 201 IPC r/w 34 Imprisonment for Seven years and to pay a fine IPC of Rs.50,000/- each in default of payment of fine A1 to suffer rigorous imprisonment for a further & period of one year.
A2 Section 3(a) of the Imprisonment for Life and to pay a fine of Explosive Substances Act, Rs.50,000/- each in default of payment of fine to 1908 suffer rigorous imprisonment for one year Section 4(b) of the No Separate sentence imposed in view of the Explosive Substances Act, substantive sentence and fine imposed for the 1908 offence u/s 3(a) of the Explosive Substances Act, 1908 Section 4 of The Tamil No Separate sentence imposed in view of the Nadu Property (Prevention substantive sentence and fine imposed for the of Damage and Loss) Act, similar offence u/s 436 IPC 1992 Sentence of imprisonment for life and other terms of imprisonments imposed on Govardhanan (A1) and Deepagayathri (A2) u/s 436 IPC, 201 r/w 34 IPC and Section 3(a) of the Explosive Substances Act, 1908 were ordered to run concurrently The period of sentences already undergone, if any, were ordered to be set off under Section 428 Cr.P.C.
Page 4 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 3 At the outset, it is necessary to understand the inter se relationship amongst the dramatis personae in this case. Govardhanan (A1) is the husband of Deepagayathri (A2). Raju (D1) and Kalaiselvi (D2) are the parents of the Govardhanan (A1) and parents-in-law of Deepagayathri (A2). Gowthaman (D3) is the younger brother of Govardhanan (A1) and brother- in-law of Deepagayathri (A2). Govardhanan (A1) and Deepagayathri (A2) were living in a joint family along with Raju (D1), Kalaiselvi (D2) and Gowthaman (D3) in D.No.5A, Subbarayan Street, Kaveripakkam, Tindivanam Taluk, Villupuram District. It is an independent house with a small compound and ground plus first floor.
4 The gist of the prosecution case is as under:
4.1 In the wee hours of 15.05.2019, while Govardhanan (A1) and Deepagayathri (D2) were sleeping in their bedroom, they heard a blast and also voices crying for help. When they came out of their bedroom, they saw the rear portion of their house on fire and also smoke billowing out therefrom. When they rushed out to the street, they saw Raju (D1) lying near the entrance gate, within the compound. Kalaiselvi (D2) and Page 5 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 Gowthaman (D3) were caught in the smoke in the rear portion.
Govardhanan (A1) and Kalaiselvi (A2) raised a hue and cry. The smoke and the sounds woke up their neighbours, viz., Deenadayalan (P.W.1), Murali (P.W.2) and Pandurangan (P.W.3), who rushed to the house for help. On receipt of information, the Fire Service personnel rushed to the house and doused the fire. Thereafter, it was found that Raju (D1), Kalaiselvi (D2) and Gowthaman (D3) had died.
4.2 According to the prosecution, on 15.05.2019, Govardhanan (A1) gave a written complaint (Ex.P13) to the police stating, inter alia, that on the night of 14.05.2019, the air-conditioner in the inner bedroom was on; he and his wife went to sleep in the outer bedroom; around 03.30 in the morning of 15.05.2019, a loud sound of something bursting woke him and his wife up; when his wife and he came out of their bedroom, they saw his father, mother and younger brother crying for help saying, “it is burning, burning – save us, save us”; the house was on fire and was engulfed in smoke; so, he (A1) and his wife (A2) tried to douse the fire by pouring water, but, in vain; on hearing the commotion, neighbours also came for help; Fire Service personnel came and doused the fire; thereafter, he found Page 6 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 his father lying dead with burn injuries and injured face and neck, in the verandah of the house; his mother and younger brother were found burnt to death inside the house; the bedroom air conditioner had burst and was burnt; household articles like, television, sofa, bed, etc., were burnt; hence, enquiry may be conducted and appropriate action may be taken.
4.3 On the aforesaid complaint (Ex.P13), Ravichandran (P.W.13), Sub-Inspector of Police, Tindivanam Police Station, registered a case in Crime No.248 of 2019 on 15.05.2019 at 06.00 a.m. under Section 174 Cr.P.C. and prepared the printed FIR (Ex.P14) which reached the jurisdictional Magistrate only on 17.05.2019 at 11.00 a.m., as could be seen from the endorsement thereon.
4.4 The investigation of the case was initially taken over by Seenibabu (P.W.17), Inspector of Police, who claims to have gone to the place of occurrence at 06.30 a.m., prepared the observation mahazar (Ex.P16) and drew two rough sketches (Ex.P17 & Ex.P18) in the presence of witnesses Arumugam (P.W.8) and Paramadayalan (P.W.9). To be noted, Seenibabu (P.W.17) did not effect any seizure from the scene of occurrence. Page 7 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 4.5 At this juncture, it may be pertinent to state here that there is absolutely no shred of evidence to show as to how the three dead bodies got shifted from the place of occurrence to the mortuary of the Government Hospital, Mundiyambakkam. We propose to expatiate on this in the latter part of this judgment.
4.6 Thereafter, what we have is, the evidence of Seenibabu (P.W.17), the first I.O, who conducted inquests over the bodies of Raju (D1) and Kalaiselvi (D2) in the mortuary at the Government Hospital in Mundiyambakkam. The inquest report relating to Raju (D1) was marked as Ex.P19 and the inquest report relating to Kalaiselvi (D2) was marked as Ex.P20. In order to assist Seenibabu (P.W.17), the first I.O., Ravichandran (P.W.16), Sub-Inspector of Police, conducted inquest over the body of Gowthaman (D3) and the inquest report prepared by him was marked as Ex.P15. Post inquest, all the three dead bodies were sent for post-mortem.
4.7 Dr.Madhuvardhana (P.W.12) has testified to the fact that she conducted autopsies on the bodies of Raju (D1), Kalaiselvi (D2) and Gowthaman (D3) one after another and their post-mortem certificates were marked as Ex.P.9, Ex.P10 and Ex.P11, respectively. During post-mortem, Page 8 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 she noted eight cut injuries on the body of Raju (D1) and in the final opinion (Ex.P.23) qua death of Raju (D1), she has opined that “the deceased would appear to have died due to effects of multiple cut injuries sustained”. However, no cut injuries were found on the bodies of Kalaiselvi (D2) and Gowthaman (D3). In the final opinions (Ex.P24 & Ex.P25) qua death of Kalaiselvi (D2) and Gowthaman (D3) respectively, Dr.Madhuvardhana (P.W.12) has opined that “the deceased would appear to have died due to the effect of burn injuries sustained”.
4.8 Thus, it is seen that the death of Raju (D1) was on account of multiple cut injuries as well burn injuries sustained by him. As regards, the cause of death of Kalaiselvi (D2) and Gowthaman (D3), we find that they had died only on account of the effect of burn injuries sustained by them.
4.9 After the postmortem, the dead bodies were handed over to the relatives of the deceased for cremation and the silver and gold ornaments that were worn by Kalaiselvi (D2) were handed over to Seenibabu (P.W.17), the first I.O., which were marked as M.O.1 to M.12 during trial.
4.10 While the police were groping in the dark as to how the occurrence had taken place, it is their case that on 18.05.2019 at 11.00 a.m., Page 9 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 Govardhanan (A1) surrendered before Sadam Pradap (P.W.10), Village Administrative Officer, Kidangal, Tindivanam Taluk and gave an extrajudicial confession (Ex.C1), wherein, he has, inter alia, stated that he was very jealous that his parents were pampering his younger brother Gowthaman (D3); he had run into a loss in his business and was requesting his parents to settle some properties in his favour; his father assured him that he would give him a house property, but did not do so; so, he feared that his father would settle all his properties in favour of his younger brother; on the night of 14.05.2019, he and his wife were restless and sleepless; therefore, they conspired to get rid of all the three by hurling a bottle filled with petrol and make it to look as if there was burst of the air-conditioner; at 03.00 a.m. on 15.05.2019, he took a bottle of petrol, lit it, and threw it into the bedroom where his parents and brother were sleeping, on account of which, they were on flames; he hurled two petrol bombs in the hall; when his father tried to escape, he hacked him to death with a knife; his mother and brother were charred to death; after concealing the knife, he and his wife acted as if it was an accident; in order to avoid any suspicion, he went to the police station and gave a complaint; on 17.05.2019, while he was Page 10 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 watching television, he saw the news relating to this incident and fearing that the police may apprehend him, he was surrendering in order to avoid torture by the police.
4.11 After recording the extrajudicial confession statement (Ex.C1), Sadam Pradap (P.W.10) produced Govardhanan (A1) to Seenibabu (P.W.17), the first I.O., along with a special report (Ex.P3), on the same day. Seenibabu (P.W.17) placed Govardhanan (A1) under arrest.
4.12 Though there is no clear evidence as to when Govardhanan (A1) and Deepagayathri (A2) were arrested, we are able to infer from the evidence of Seenibabu (P.W.17) that they both were placed under arrest on 18.05.2019. Thereafter, Seenibabu (P.W.17), the first I.O., prepared an alteration report (Ex.P22) altering the case from one under Section 174 Cr.P.C. to one under Sections 120-B, 302 (3 counts), 201 and 109 IPC and Section 3 of the Explosive Substances Act.
4.13 Since it was a case of triple murder, the investigation was taken over by Kanageswari (P.W.19), Deputy Superintendent of Police, Tindivanam Sub-Division, who recorded the police confession of Govardhanan (A1) and the admissible portion of it was marked as Ex.P27. Page 11 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 4.14 Thereafter, Kanageswari (P.W.19), D.S.P., went to the place of occurrence and from the hall, seized two mouth portions of beer bottles (M.O.13), of which, one was with a charred wick, charred sofa cotton pieces and burnt bed pieces (M.O.14), charred sofa pieces and part of burnt jeans trousers and part of burnt shirt (M.O.15) under the cover of a mahazar (Ex.P28) in the presence of witnesses Sadam Pradap (P.W.10), V.A.O. and Perumal (P.W.11), Village Assistant.
4.15 It may be pertinent to point out here that two mouth portions of beer bottles (M.O.13) were recovered from the hall of the house and not from the rear bedroom of the house which was fitted with the air conditioner.
4.16 Thereafter, on the showing of Govardhanan (A1), Kanageswari (P.W.19) seized a knife (M.O.16) and a stainless steel vessel (M.O.17) under the cover of a mahazar (Ex.P29) in the presence of Sadam Pratap (P.W.10) and Perumal (P.W.11) from behind the house of Govardhanan (A1) beneath the drainage. M.O.13, M.O.14 and M.O.15 were sent through the Page 12 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 jurisdictional Magistrate to the Forensic Sciences Department for examination and the scientific report (Ex.P30) showed that petrol was detected in the washings of all the three items.
4.17 Apart from this, there is absolutely no scientific evidence to show that there was no burst of air-conditioner and that the deceased were on flames on account of hurling of petrol bombs. Based on the scientific report (Ex.P30) that petrol was detected in M.O.13 to M.O.15, a further alteration report (Ex.P34) was prepared adding provisions of Section 436 IPC, Section 4(a) & 4(b)(i) of the Explosive Substances Act and Section 4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, to the original FIR.
4.18 It appears that at the time of occurrence, Deepagayathri (A2) was six months pregnant and during trial, she delivered a female child.
4.19 After examining various witnesses and collecting the reports of the experts, Kanageswari (P.W.19) completed the investigation and filed a final report in P.R.C.No.14 of 2019 in the Court of the Judicial Magistrate-I, Tindivanam u/s 120-B r/w 302, 302 (3 Counts) r/w 34, 436 and 201 r/w 34 IPC, u/s 3(a) and 4(b) of the Explosive Substances Act, 1908, and u/s 4 of Page 13 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, against Govardhanan (A1) and Deepagayathri (A2).
4.20 On appearance of Govardhanan (A1) and Deepagayathri (A2), the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session, Villupuram, in S.C.No.20 of 2020. Thereafter, since the provisions of the Explosive Substances Act were invoked in the case, it was transferred to the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee, Chennai 600 056 for trial where it was renumbered as S.C.No.2 of 2020.
4.21 The trial Court framed charges u/s 120-B r/w 302 and 302 (3 counts) r/w 34, 436 and 201 r/w 34 IPC, u/s 3(a) and 4(b) of the Explosive Substances Act,1908 and u/s 4 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 against Govardhanan (A1) and Deepagayathri (A2) and when questioned, they pleaded "not guilty".
4.22 To prove the case, the prosecution examined 19 witnesses and marked 35 exhibits, besides Ex.C.1, the extrajudicial confession given by Govardhanan (A1) to Sadam Pratap (P.W.10) and 17 material objects. Page 14 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 4.23 When Govardhanan (A1) and Deepagayathri (A2) were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them, they denied the same.
(i) Govardhanan (A1) gave a written statement under Section 313 Cr.P.C., inter alia, stating that his wife and he were staying in the left portion of the house; there is a separate entry to the portion where his parents and his brother were living; on the night of the incident, his wife and he were sleeping in their bedroom; his parents and his brother were sleeping in the middle portion of the house; he heard his parents and brother hollering; his wife and he got up from their bedroom and when they went out, there was smoke everywhere and he did not know what was actually happening; he was in a state of shock; in the morning, he was taken by the police to the station where they obtained his signature in some papers; he did not give any complaint; after performing the funeral rites of his parents, he was once again kept in the police station where his signatures were obtained in several blank papers, but, he did not give any confession to anyone; his mother and his brother were running chit business in which they were very strict; he used to advise them not to run the chit business from Page 15 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 home, but, they did not listen to him; only from the police, he learnt that petrol bombs were thrown into the house and his parents were attacked; and he had nothing to do with the deaths of his parents and brother.
(ii) Deepagayathri (A2), in her written statement under Section 313 Cr.P.C. has, inter alia, stated that while she and her husband were sleeping in their portion, she heard her parents-in- law and brother-in-law shouting for help; she went out along with her husband and found that their house was in fire and smoke was everywhere; she was in a state of shock; after dawn, the police took her husband to the station and thereafter, the case was put against them; she was pregnant at the time of occurrence which she informed to the police also.
4.24 However, no witness was examined nor any document marked from the side of Govardhanan (A1) and Deepagayathri (A2).
4.25 The trial Court, after considering the evidence on record and hearing either side, by judgment and order dated 26.10.2021 in S.C.No.2 of 2020, convicted both Govardhanan (A1) and Deepagayathri (A2) and sentenced them as set out in paragraph 2 (supra). Page 16 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 4.26 The trial Court had chosen not to impose separate sentences for the offence u/s 4(b) of the Explosive Substances Act, 1908, in view of the sentence imposed u/s 3(a) of the Explosive Substances Act, 1908, and u/s 4 of the TNPPDL Act in view of the sentences imposed u/s 436 IPC. The sentences imposed for the offence u/s 436 and 201 r/w 34 IPC and Section 3(a) of the Explosive Substances Act, 1908, were ordered to run concurrently.
4.27 Since both Govardhanan (A1) and Deepagayathri (A2) were sentenced to death, records have been forwarded to this Court for confirmation under Section 366 Cr.P.C. which was taken on file in Referred Trial No.3 of 2021 while the criminal appeals filed by Govardhanan (A1) and Deepagayathri (A2) subsequently, challenging the conviction and sentence, have been numbered as Crl.A.Nos.285 and 176 of 2022 respectively.
5 Heard Mr.Hasan Mohamed Jinnah, learned Public Prosecutor for the State and Mr.V.Gopinath, learned Senior Counsel on behalf of Mr.L.Mahendran, learned counsel on record for Govardhanan (A1)/Appellant in Crl.A.No.285 of 2022 and on behalf of Mr.Swami Page 17 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 Subramanian, learned counsel on record for Deepagayathri (A2)/Appellant in Crl.A.No.176 of 2022.
6 We find from the records that all the important witnesses, including the close relatives of the deceased trio and Sadam Pratap (P.W.10), V.A.O. and Perumal (P.W.11), Village Assistant, before whom Govardhanan (A.1) had allegedly given the extrajudicial confession, had turned hostile. Since Sadam Pratap (P.W.10) and Perumal (P.W.11) had turned hostile, the trial Court Public Prosecutor had not marked the extrajudicial confession of Govardhanan (A.1). This lacuna was filled up by the trial Court by recalling Seenibabu (P.W.17), the first I.O., on 22.10.2021 and marking the extrajudicial confession as Ex.C.1.
7 We wanted to find out on what basis the trial Court had convicted and sentenced the accused to death and hence, we pored over the trial Court judgment. To our chagrin, we found that the trial Judge has heavily relied upon the extrajudicial confession (Ex.C.1) for convicting and sentencing the accused, apart from invoking Section 106 of the Evidence Act.
Page 18 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 8 We propose to keep the extrajudicial confession (Ex.C.1) aside for the time being and examine the very veracity of the prosecution case. The fact that the Fire Service personnel came to the place of occurrence and doused the fire is not in doubt. The question is, why did the police burk this important fact? Likewise, as adverted to by us in paragraph 4.5, supra, why did the police fail to place any material before the Court to show as to how the three bodies got shifted from the place of occurrence to the Government Hospital, Mundiambakkam? Why was inquest not conducted at the place of occurrence, when neighbours being panchayatdars, had already assembled there?
9 At this juncture, it is apropos to point out that whenever Fire Service personnel go to a place for fire fighting, they are required to submit a report in Form No.37 to the Director General of Fire Service. In this regard, it will be useful to extract paragraph 236 of the Tamil Nadu Fire Service Manual:
“236. Fire Reports -- Instructions for the preparation of.-- In respect of every fire attended, a report in Form No.37 should be prepared. Consecutive serial numbers should be given for fire reports every calendar year. This number should be noted against the appropriate entry in the respective forms. When any special services such as emergency calls, rescue calls, etc., are attended to, a report Page 19 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 should be drawn up in the form specified in Order No.243 and should be given separate annual serial numbers.
All the entries in the form are self-explanatory and therefore, there should be no difficulty in filling up the form correctly.........”
10 Surprisingly, the two I.Os. had not cared to collect the fire report and submit the same to the Court. Therefore, in order to satisfy our judicial conscience, we summoned the fire report from the District Fire Office, Villupuram. A reading of the fire report shows that Govardhanan (A1) has made a phone call from his mobile number 98400 28507 to “108”, which call has been registered in the Control Room at Chennai at 03.55 hrs. on 15.05.2019. Immediately, a message has been sent to the District Fire Office, Villupuram, pursuant to which, the Fire Service personnel had gone to the house at 03.58 hrs. since the house was hardly 2 kms. from the fire station. The fire report says that the Fire Service personnel doused the fire and found three dead bodies in the house, which were handed over to Seenibabu (P.W.17), Inspector, Tindivanam Police Station.
11 Ravichandran (P.W.16), Sub Inspector of Police, who registered the FIR in this case at 6.00 a.m. on 15.05.2019, has admitted in the cross- examination that the police had also gone to the place of occurrence after receiving information from the Fire Department at 5.00 a.m. Page 20 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 12 The police have suppressed the following facts for which there is no satisfactory explanation at all:
a. It was Govardhanan (A1) who had called “108” Control Room from his mobile no.98400 28507, pursuant to which, the Fire Service personnel reached the spot in five minutes.
b. The coming of the police to the place of occurrence even much before the registration of the FIR (which was of course divulged by Ravichandran (P.W.16) only in the cross- examination).
c. The handing over of the three dead bodies by the Fire Service personnel specifically to Seenibabu (P.W.17), Inspector of Police.
d. How did the three bodies reach the Government Hospital, Mundiambakkam?
e. Why were the inquests not conducted at the place of occurrence and instead, conducted at the Government Hospital?
f. According to the police, Govardhanan (A1) gave a written complaint (Ex.P.13), in which, it is stated that the body of his father Raju (D1) was found in the verandah with injuries on the face and neck, besides burn injuries. Why was a case under Section 174 Cr.P.C. registered and not a case under Section 302 IPC?
g. The FIR in this case which was registered at 6.00 a.m. on 15.05.2019 has reached the jurisdictional Magistrate only at 11.00 a.m. on 17.05.2019.Page 21 of 37
https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 13 We are prepared to condone all the above as mere remissness in investigation and extend the benefit of doubts that arise in our mind to the police. But, we are afraid, we are unable to do so because of the following glaring facts that stare at our face and which cannot be that easily swept under the carpet.
14 According to the police, Govardhanan (A1) and his wife Deepagayathri (A2) conspired to eliminate Raju (D1), Kalaiselvi (A2) and Gowthaman (D3), pursuant to which, Govardhanan (A1) manufactured petrol bombs by filling petrol in beer bottles, fixing wicks to them and lighting the wicks and threw the said bombs into the bedroom where the others were sleeping; in order to cover it up, he gave the complaint (Ex.P.13) stating that the fire was on account of bursting of the air conditioner in the bedroom on the rear side of the house of the house.
15 Be it noted, no person of even minimum common sense would resort to such a convoluted plan to get rid of three persons by hurling beer bottles with petrol filled in them, as the probability of all the three dying at the same time would be remote. It is not the police case that Govardhanan (A1) hurled the petrol bombs into the rear bedroom, locked it from outside Page 22 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 and thereby ensured that all the three die of burns. On the contrary, Raju (D1) was found dead in the verandah of the house near the entrance gate and Kalaiselvi (D2) and Gowthaman (D3) were found dead in the rear bedroom of the house. That apart, would not have Govardhanan (A1) visualised that the police would easily find out from the glass remnants of the crude petrol bombs manufactured with beer bottles that the fire was not on account of bursting of the air conditioner?
16 According to Seenibabu (P.W.17), the first I.O., he went to the place of occurrence and prepared the observation mahazar (Ex.P.16) and two rough sketches (Exs.P.17 and 18), which are relevant under Section 7 of the Evidence Act. In the observation mahazar (Ex.P.16), it is clearly stated that the indoor LG air conditioner was found hanging in a melted condition. The relevant portion in vernacular is extracted below:
““miwapy; ,Ue;j ,z;nlhh; LG AC cUfp
bjh';fpa[k;. miw jPapy; fUfp fiu goe;J
fhzg;gl;Lk; ////// fhzg;gl;lJ/”
The observation mahazar (Ex.P.16) does not show the presence of the two mouth portions of beer bottles with wick (M.O.13). This question has been put specifically by the defence in the cross-examination of Kanageswarai Page 23 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 (P.W.19), D.S.P. It is pertinent to state here that the two mouth portions of beer bottles (M.O.13), of which, one is with a wick, was not recovered by Seenibabu (P.W.17) on 15.05.2019, but, was allegedly recovered by Kanageswari (P.W.19) on 18.05.2019. The two mahazar witnesses, viz., Sadam Pratap (P.W.10) and Perumal (P.W.11) turned hostile. Of course, though the mahazar witnesses turned hostile, still, the evidence of Kanageswari (P.W.19) can be accepted if it inspires our confidence. In this case, when the earliest documents, viz., observation mahazar (Ex.P.16) and rough sketches (Exs.P.17 and 18) that were prepared on 15.05.2019 by Seenibabu (P.W.17) do not mention anything about the presence of the two broken beer bottles, with one having a cloth wick in it, in the hall of the house, their sudden discovery by Kanageswari (P.W.19) on 18.05.2019 makes us reject the seizure outrightly. According to the extrajudicial confession (Ex.P.13), Govardhanan (A1) had hurled one petrol bomb in the rear bedroom where his parents and brother were sleeping and two petrol bombs in the hall. Whereas there was no seizure of any broken beer bottle from the rear bedroom. We have referred to about this in paragraph 4.15, supra.
Page 24 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 17 We posed the following questions to Mr. Hasan Mohamed Jinnah, learned Public Prosecutor, by whose side, Kanageswari (P.W.19) and Seenibabu (P.W.17) were present during the hearing for giving instructions.
a. Why did the police not seek the help of experts from the mobile unit of the Forensic Science Department to collect the clue materials from the place of occurrence?
b. When the police wanted to contradict the version of Govardhanan (A1) by establishing that the fire was not on account of bursting of air conditioner, why did they not seize the air conditioner and send the same to the Forensic Sciences Department for expert opinion, especially to examine the air conditioner which has been shown in the observation mahazar (Ex.P.16) as melted and hanging?
18 After getting instructions, the learned Public Prosecutor stated that, during investigation, some of the neighbours stated that the air conditioner was in operation while the house was in flames and that is why, both the I.Os. did not take steps to either requisition the services of the experts to come to the place of occurrence to examine the air conditioner or seize the air conditioner and send it to the Forensic Sciences Department for examination and opinion. The learned Public Prosecutor submitted that unfortunately, those neighbours turned hostile and therefore, the prosecution Page 25 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 has been left high and dry without any evidence to prove that the fire was not on account of bursting of the air conditioner.
19 In our opinion, this explanation given by the two I.Os. defies credulity. We say so because, in a case of triple death, the two I.Os. out of whom, one is in the rank of a Deputy Superintendent of Police, chose to rely upon human perception of a fact in lieu of establishing it scientifically. It is not their case that forensic science has not developed so far, as to detect whether an air conditioner had burst or not. On the contrary, there is enough scientific literature to show that fire due to bursting of electrical appliances can be easily detected (for reference, see Kirk’s Fire Investigation, Sixth Edition by John D.DeHaan). In fact, the Fire Service Department produced several fire reports wherein they themselves have attributed the cause of the fires to bursting of air conditioners. Of course, in this case, the fire report does not say anything about the cause of the fire as the firemen found three persons dead in the house and therefore, they have recorded in the fire report “to be investigated by the police.” 20 Now, let us examine the aforesaid stance of Kanageswari (P.W.19) from another dimension. The fire broke out around 3.30 a.m. on Page 26 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 15.05.2019, during which time, the neighbours would have been in sound sleep. They would have woken up from slumber on hearing the commotion from the house of the appellants. When Rome was burning, i.e., in such a charged atmosphere, we are unable to fathom as to how the neighbours could and would have noticed that the air conditioner which is located in the rear bedroom of the house, was functioning.
21 Now, let us see how the trial Judge has dealt with this aspect. In paragraph 38 of the impugned judgment and order, he has stated as under:
“Even though it is stated in the complaint that the fire was originally emanated from the air conditioner, it is pertinent to note that the said air conditioner was not seized or collected from the scene of occurrence either by the P.W.17 and P.W.19 or by the defence side. The learned defence counsel has not raised any question during the cross examination from P.W.17 and P.W.19 with regard to the noncollection of the said air conditioner and he cleverly avoided such questions. Apart from that, the A1, A2 have not taken any positive steps from the date of their arrest to preserve the said air conditioner or to forward the same to the Forensic Science Department to prove the fact that the fire was originated from the said air conditioner. If it is true that the fire was originated from the air conditioner and they might have filed a negative final report in this case based on the report received from the forensic science department and they might not have collected the M.O.13 to M.O.15.”
22 To be noted, no defence lawyer worth his salt would ask the Investigating Officer as to why he did not send the air conditioner for expert Page 27 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 opinion, because, the onus to debunk the theory of the accused is on the police. Asking the accused to preserve the air conditioner and send the same for expert opinion is tantamount to permitting the conduct of a parallel private investigation, which is unheard of in our criminal jurisprudence. Even according to the police, Govardhanan (A1) and Deepagayathri (A2) were arrested and remanded on 18.05.2019. The scene of crime was under
police control. Would the Forensic Sciences Department come forward to examine the air conditioner at the asking of the accused when police investigation is ongoing, are fundamental questions which the trial Judge failed to pose to himself.
Extrajudicial confession (Ex.C.1):
23 As alluded to above, the trial Court has convicted and sentenced the accused to death by essentially relying upon the extrajudicial confession (Ex.C.1). It is the case of the prosecution that on 18.05.2019, Govardhanan (A1) appeared before Sadam Pratap (P.W.10), V.A.O. and Perumal, (P.W.11), Village Assistant, and gave an extrajudicial confession, the contents of which, we have adverted to in paragraph 4.10 (supra). Page 28 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 24 Sadam Pratap (P.W.10) and Perumal (P.W.11) have stated in their evidence that on 18.05.2019, they were called to the police station where Govardhanan (A1) was already there and his (A1’s) statement was recorded. Therefore, the said statement (Ex.C.1) is hit by Section 25 of the Evidence Act. That apart, the extrajudicial confession (Ex.C.1) does not inspire our confidence at all for many a reason. The motive for the offence, on the face of it, appears to be very puerile. To cap it all, the extrajudicial confession (Ex.C.1) does not even bear the signature of Govardhanan (A1). Of course, this Court is not unaware of the legal position that an oral extrajudicial confession would also be relevant and admissible. But, when an extrajudicial confession is in the form of a written record, as in this case, the absence of the signature or thumb impression of the confessor would indubitably make it suspect. Even a Judicial Magistrate recording a judicial confession under Section 164 Cr.P.C. is required to obtain the signature of the confessor.
25 Govardhanan (A1), in his statement under Section 313 Cr.P.C., has stated that all the records, including the complaint (Ex.P.13) and the extrajudicial confession (Ex.C.1), were manufactured in the police station Page 29 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 after he was taken into custody on 15.05.2019 itself. There appears to be some force in his version, because, as stated above, the FIR in this case, which was allegedly registered at 6.00 a.m. on 15.05.2019, had reached the jurisdictional Magistrate only on 17.05.2019 at 11.00 a.m. Superadded, in page 3 of the extrajudicial confession (Ex.C.1), it has been recorded as follows:
“”,d;W 17/05/2019Mk; njjp fhiyapy;
T.V.apy; ,e;j tprak; gw;wp bra;jp
XoajpypUe;J nghyPrhh; vd;id
fz;Lgpoj;J ifJ bra;J
moj;JtpLthh;fnsh vd nghyprhUf;F
gae;J j';fsplk; ruzilfpnwd;/
ruzile;J ele;j tpraj;ij j';fsplk;
brhd;ndd;/ jh';fs; gjpt[
bra;Jf;bfhz;Oh;fs;/””
Whereas Sadam Pratap (P.W.10) has affixed his signature in the extrajudicial confession (Ex.C.1) and entered the date as 18.05.2019. Of course, all these lapses pale into insignificance in the light of the categorical statement of Sadam Pratap (P.W.10) that it was recorded in the police station and not in their office.
26 In our experience, a serving V.A.O. and his Village Assistant seldom turn hostile to the case of the prosecution fearing adverse Page 30 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 consequences departmentally. Of course, we have seen retired V.A.Os. turning hostile very frequently. In this case, Sadam Pratap (P.W.10) was 30 years old and Perumal (P.W.11) was 45 years old when they deposed in the Court. They have a long official career, despite which, they did not support the police. Even the brother of Kalaiselvi (D2), viz., Selvam (P.W.6) and other close relatives did not support the police case.
27 Even on a demurrer, with the aid of the extrajudicial confession (Ex.C.1) of Govardhanan (A1), Deepagayathri (A2) could not have been convicted at all as the same is not a substantive piece of evidence against her, but can, at the most, be used only in terms of Section 30 of the Evidence Act. Thus, looked at from any angle, this is not a case in which the accused could have been convicted at all, much less awarded death sentence. We are not extending the benefit of doubt to the accused at all, but, we are constrained to record their acquittal for absence of evidence coupled with the rank failure on the part of the police to apply common sense in collecting evidence and for burking evidence.
28 The next question we pose to ourselves is, whether the conviction of Govardhanan (A1) and Deepagayathri (A2) be sustained by Page 31 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 invoking Section 106 of the Evidence Act on the ground that they were in the same house with the deceased trio on the fateful night and were the only survivors. We would have unhesitatingly invoked Section 106, ibid., had the foundational theory propounded by the prosecution been established. We have demonstrated above that there is falsity in each and every segment of the foundational facts proffered by the prosecution. At the risk of repetition, according to the police, in the complaint (Ex.P.13), Govardhanan (A1) had stated that the fire broke out owing to bursting of the air conditioner in the rear bedroom where the deceased trio was sleeping. Had the prosecution established that the fire was not due to bursting of the air conditioner in the rear bedroom, we would have had no other option but to sustain the conviction with the aid of Section 106, ibid., by simply holding that Govardhanan (A1) had given a false explanation for the cause of fire. On the contrary, the police wanted to establish through the extrajudicial confession (Ex.C.1) and the seizure effected on 18.05.2019 that Govardhanan (A1) had made two crude petrol bombs using two beer bottles, thrown them into the rear bedroom, caused the fire and also hacked his father Raju (D1) to death in the verandah of his house. This theory of the Page 32 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 prosecution was not established at all as all the witnesses turned hostile and the glass remnants of the crude petrol bombs, viz., two broken beer bottles were not found either by the firemen or by Seenibabu (P.W.17) on 15.05.2019. Their sudden appearance in the front hall and not in the rear bedroom on 18.05.2019 after the arrest of Govardhanan (A1), on the face of it, appears contrived. Since we are doubting the very seizure of the two mouth portions of beer bottles (M.O.13), we are not placing any reliance on the scientific report (Ex.P.30) of the Forensic Sciences Department stating that petrol was detected in the washings of the mouth portions of beer bottles (M.O.13).
29 The learned State Public Prosecutor submitted that when Govardhanan (A1) has disowned the complaint (Ex.P.13) in his statement under Section 313 Cr.P.C. by stating that he had never given any complaint, he cannot now fall back upon the complaint (Ex.P.13). Though this submission of the learned State Public Prosecutor may seemingly appear to be appealing, nevertheless, in our jurisprudence, an accused is entitled to take conflicting defences and that cannot be used to bolster the case of the prosecution. The prosecution has to stand on its own legs and cannot use the Page 33 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 weakness of the defence as a crutch. At the risk of repetition, it may be pertinent to state here that Selvam (P.W.6), the own younger brother of Kalaiselvi (D2) and Paramasivam (P.W.7), co-brother of Raju (D1), also did not support the prosecution case. Thus, in the absence of any legal evidence, the conviction of the accused cannot be confirmed, much less the confirmation of their death sentence. The enormity and gravity of the offence can never be a good reason to hold a person guilty sans legal evidence.
30 The trial Court, in paragraph 93 of the impugned judgement and order, has issued a direction to the District Collector, Villupuram, to initiate departmental action against Sadam Pratap (P.W.10), V.A.O and Perumal (P.W.11), Village Assistant.
31 In the facts and circumstances of the present case, when there is so much of burking of facts by the prosecution, the direction given by the trial Court to the District Collector, Villupuram, cannot be allowed to stand and is accordingly set aside. In fact, this Court is of the opinion that, the trial Court should have directed the Director General of Police to initiate departmental action against Seenibabu (P.W.17) and Kanageswari (P.W.19) Page 34 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 for the shoddy investigation of the case, either wantonly or otherwise, in which, three persons have lost their lives.
In the result, both the criminal appeals are allowed and the impugned judgement and order of conviction and sentence is set aside. As a sequel, Govardhanan (A1) and Deepagayathri (A2) are acquitted of all the charges. They are directed to be released forthwith, unless their presence is required in connection with any other case. The reference under Section 366 of Cr.P.C. is answered accordingly in the negative.
[P.N.P., J.] [TKR, J.]
22..09..2022
kmk/cad
Page 35 of 37
https://www.mhc.tn.gov.in/judis
R.T.No.3 of 2021 and
Crl.A.Nos.176 & 285 of 2022
To
1 The Sessions Judge
Sessions Court for Exclusive Trial of Bomb Blast Cases Chennai at Poonamallee Chennai 600 056.
2 The District Collector Villupuram District 3 The Superintendent of Police Villupuram District 4 The Deputy Superintendent of Police Tindivanam Sub-Division Villupuram District 5 The Inspector of Police Tindivanam Police Station Villupuram District.
6 The Superintendent Central Prison-I Puzhal Chennai 600 066 7 The Superintendent Special Prison for Women (Central Prison-III) Puzhal Chennai - 600 066 8 The Public Prosecutor High Court Madras Page 36 of 37 https://www.mhc.tn.gov.in/judis R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 P.N.PRAKASH.J., and RMT. TEEKAA RAMAN.J., kmk / cad Common order in R.T.No.3 of 2021 and Crl.A.Nos.176 & 285 of 2022 22.09.2022 Page 37 of 37 https://www.mhc.tn.gov.in/judis