Madras High Court
Periyasamy vs State Rep. By on 1 August, 2012
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.10 of 2004
1.Periyasamy
2.Kolanji
3.Rajavelu
4.Vellakundu .. Appellants/Accused 1 to 4
v.
State rep. by
Inspector of Police
Karuveppilankurichi police station .. Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., against the judgment of conviction and sentence dated 31.12.2003, made in S.C.No.171 of 2002 on the file of the Additional District Court, Fast Track Court No.III, Vridhachalam.
For Appellants : Mr.S.Ashok Kumar, senior counsel
for Mrs.P.V.Rajeswari and
Mrs.Vedavalli Kumar
For Respondent : Mr.C.Emalias
Government Advocate (crl.side)
J U D G M E N T
The criminal appeal arises out of the judgment of conviction and sentence, dated 31.12.2003, made in S.C.No.171 of 2002 on the file of the Additional District Court, Fast Track Court No.III, Vridhachalam, whereby A1 to A4 were convicted for the offence under Section 304(i) r/w 34 IPC and sentenced to undergo seven years rigorous imprisonment each and imposed a fine of Rs.3,000/- each in default in payment to undergo six months rigorous imprisonment. A1 to A4 were convicted for the offence under Sections 201 r/w 34 IPC and sentenced to undergo rigorous imprisonment for 2 = years each and also to pay a fine of Rs.1,000/- each, in default in payment to undergo rigorous imprisonment for six months each.
2. The respondent has filed a charge sheet against the appellants/accused stating that on 11.05.2001, the accused persons 1 to 5 questioned the deceased Thangaraj in connection with the theft taken place in the house of A1 at Kilimangalam and also the accused ill-treated the deceased in many ways and means and tied deceased with a rope in the Othiyam tree situated near A6's Motor pump shed and assaulted him and also caused hurt by means of fire stick and with an intention to murder the deceased, gave electric shock. Since the deceased died on the spot due to electrocution, with an intention of screening the commission of offence, the accused persons 1 to 3 approached A6 and on the instigation of A6, they buried the body of the deceased Thangaraj in the Kilimangalam Vellaru River. Thereby A1 to A5 committed the offence under Sections 302 r/w 34 IPC; A1 to A3 committed the offence under Sections 201 r/w 34 IPC; A6 committed the offence under Sections 201 r/w 109 and 202 IPC.
3.The case of the prosecution is as follows:
(i) The deceased Thangaraj is the second son of P.W.1/Somasundaram. P.W.2/Sivasankaran is an another son of P.W.1. P.W.1 stated that his son Thangaraj was missing from 11.05.2001. When he made an enquiry, P.W.3/Ramasamy intimated that his son was assaulted by some persons in A6/Nadanam Pillai's Motor pump shed and he did not know those persons. Then, P.W.1 asked P.W.4/Kolanji to enquire about the same and get the information. P.W.4 returned back and informed to him that at 4 o' clock, his son was relieved and he went on western side. Thereafter, P.W.1 intimated the same to his son P.W.2, who was in Vridhachalam. When P.W.1 and P.W.2 came to know that the deceased Thangaraj was assaulted by A1 to A5 at Motor pump shed of A6, they went to Karuveppilankurichi police station and gave Ex.P1 complaint on 19.05.2001, at 8.00 p.m.
(ii) P.W.11/Sheik Liyakath Ali, who was working as Head Constable in Karuveppilankurichi police station, received Ex.P1 complaint from P.W.1 and registered a case in Crime No.54 of 2001 under Section 302 IPC and prepared printed F.I.R. Ex.P7.
(iii) P.W.12/Mathiyarasu, who was working as Circle Inspector of Vridhachalam, took up the matter for investigation. He went to Kilimangalam Village on 19.05.2001, at 21.30 hours and made discrete enquiry and came to the conclusion that the incident was actually occurred.
(iv) On 20.05.2001, at 4.00 a.m., he arrested A1 and A2 and recorded the confession of A1 in the presence of the witnesses P.W.7/Krishnasamy and one Paramasivam. The admitted portion of confession of A1 was marked as Ex.P8. P.W.12 rushed to the place of occurrence at 6.30 a.m. and prepared Ex.P2 observation mahazar and drew Ex.P9 rough sketch. Then he recovered M.O.1/Karuvai stick, M.O.2/black coloured electric wire and M.O.3/coir under Ex.P3 seizure mahazar, at 7.00 a.m., in the presence of P.W.5/Poorasamy and one Rajamanickam. Then he rushed to Kilimangalam Vellaru at 7.15 a.m., along with A1, who identified the place, where the body of the deceased Thangaraj was buried. To exhume the dead body, he gave a requisition to P.W.9/Kandasamy, Tahsildar of Thittakudi. P.W.12 also sent requisition to the Doctor of Vridhachalam Government Hospital to conduct an autopsy in the place, where the body was buried.
(v) On 20.05.2001, at 9.00 a.m., the dead body was exhumed in the presence of P.W.9/Tahsildar. Since the body was decomposed, it was identified by P.W.1 and P.W.2 only on the basis of black coloured inner wear worn by the deceased. At 10.00 a.m., P.W.12 conducted inquest on the body in the presence of Panchayatdhar and the inquest report was marked as Ex.P10. He examined the witnesses and recorded their statements. At 12.00 noon, P.W.10/Dr.Subramanian, conducted spot post-mortem and gave Ex.P5 post-mortem certificate and sent the viscera and skull of the dead body for chemical analysis and super imposition respectively.
(vi) P.W.13/Jayaprakash, Assistant Director, Anthropology Forensic Science Department, conducted super imposition and issued Ex.P6 Anthropology report and deposed that the skull and the photograph of the deceased Thangaraj were fitted well.
(vii) On 23.05.2001, P.W.12 arrested A3/Rajavelu and recorded his confession. On 27.05.2001, at 5.00 a.m., he arrested A4 and A5 and sent them to judicial custody. He arrested A6 on 09.07.2001, at 8.00 a.m. and sent him to judicial custody. He examined other witnesses and recorded their statements. After completing investigation, he filed a charge sheet against A1 to A5 for the offence under Sections 302 r/w 34 IPC and against A1 to A3 under Sections 201 r/w 34 IPC and against A6 under Sections 201 r/w 109 and 202 IPC.
4.The learned trial Judge after following the procedure framed necessary charges against the accused. Since the accused pleaded not guilty, the trial Court examined P.W.1 to P.W.13 and marked Exs.P1 to P12 and M.O.1 to M.O.3. The trial Court placed the incriminating evidence before the accused and the accused denied the same in toto. On the side of the defence, no witness was examined and no documentary evidence was marked. On considering the oral and documentary evidence, the trial Court acquitted A5 and A6 and convicted and sentenced A1 to A4 as stated above.
5.Challenging the conviction and sentence passed by the trial Court, Mr.S.Ashok Kumar, learned senior counsel for the appellants would make the following submissions.
(i)Evidence of P.W.3 and P.W.4 is not sufficient to convict the appellant, since the case is based on the circumstantial evidence.
(ii) There is no evidence to show that the body exhumed is the body of Thangaraj.
(iii) No evidence to show that the death is a homicidal one.
(iv) Last seen theory has not been proved.
(v) Since the case is based on circumstantial evidence, motive is played vital role, but motive has not been proved by prosecution.
(vi)Attitude of P.W.1 itself shows that the evidence of P.W.1 and P.W.2 is not reliable.
The trial Court has not considered all the above aspects. The prosecution has not proved the guilt of the accused in each and every hypothesis of genesis without break in chain. Hence, he prayed for allowing of this appeal.
6.Resisting the same, Mr.C.Emalias, the learned Government Advocate (Crl. Side) submitted that P.W.4 deposed about that the deceased was last seen along with A1 to A4. Further, as per the evidence of P.W.12 and Ex.P6, it would prove that body was exhumed from the place, on the basis of the confession given by A1 and the body was identified by P.W.1 and P.W.2. It is further submitted that as per the evidence of P.W.1, motive for cause of death has also been proved. Merely because the cause of death was not given, it is not the ground for setting aside the conviction. Hence, he prayed for dismissal of the appeal.
7.Considered the rival submissions made on both sides and the materials available on record.
8.Since the case is based on circumstantial evidence, this Court has to decide as to whether each and every hypothesis of genesis has been proved by the prosecution beyond reasonable doubt without any break in chain. The following points of hypothesis of genesis to be proved by the prosecution.
(i)Motive.
(ii)Whether the body exhumed is the body of Thangaraj.
(iii)Whether the death of the deceased is homicidal.
(iv)Last seen theory
(v)Whether the complaint is true and it was preferred on 19.05.2001.
I.Motive
9.The prosecution has to prove each and every hypothesis of genesis without break in chain. In the case of circumstantial evidence, motive plays vital role to prove the guilt of accused. As per the evidence of P.W.1, there was a dispute between A1 and his son Thangaraj in respect of the path way in the ridge and A1 also taken his cattle through the ridge. While perusing Ex.P1 complaint, P.W.1 never mentioned anything about the dispute and motive. Hence, I am of the view, the prosecution has miserably failed to prove the motive beyond all reasonable doubt.
II. Whether the body exhumed is the body of Thangaraj?
10.On perusal of record, it is seen that P.W.1/Somasundaram is the father of deceased Thangaraj and Thangaraj was missing from 11.05.2001. Now this Court has to decide as to whether the body exhumed from the river namely, Vellaru is the body of Thangaraj. P.W.1 in his evidence deposed that the body, which was exhumed from Vellaru was decomposed, hence they are unable to identify the same. But only on the basis of dress worn by the deceased, he identified him. P.W.2 in his evidence deposed that he identified his brother Thangaraj on the basis of the dress worn by him. P.W.9/Tahsildar, Thittakudi, in his cross-examination deposed that P.W.1 identified the exhumed body as his son Thangaraj, only on the basis of black coloured inner wear (jetty) worn by him. As per the evidence of P.W.13/Jayaprakash, who was working as Assistant Director, Anthropology Forensic Science Department, conducted super imposition and issued Ex.P6 chemical report and opined that the skull Item 1 belongs to an adult male and the skull Item 2 could very well have belonged to the male individual seen in the photograph item 2.
III. Whether the death of deceased is homicidal?
11.Now this Court has to decide whether prosecution proved the death of deceased Thangaraj is homicidal? P.W.10/Dr.Subramanian, deposed that since the body was decomposed, he was not in a position to give his opinion. He further deposed that he was not in a position to state as to whether the deceased died due to electrocution or any injuries or whether he was buried alive or dead. In such circumstances, there is no evidence to show that Thangaraj was subjected to electrocution or he was sustained fatal injury, which lead to death.
12.At this juncture, it is appropriate to consider the material evidence M.O.1/Karuvai stick, M.O.2/black coloured electric wire and M.O.3/coir, which were seized under Ex.P3/Seizure mahazar. While considering the evidence of P.W.5/Poorasamy, V.A.O. of Kilimangalam, deposed that he was an attestor of seizure mahazar. In his cross-examination, he deposed that there is a distance of 10 feet between Othiyam tree and the motor pump shed of A6. When they went to the place, the motor shed was destroyed by fire. Since the shed was fully destroyed, they are unable to find out the entrance of the shed. P.W.5 admitted that he does not know as to how the shed got fire. Othiyam tree was situated in the eastern side of the shed and half of the wall was remained in the shed. The distance between the tree and the electric box was about 10 feet. But M.O.2/electric wire was about four feet length. So it is impossible to take electricity from the electric box to electrocute the person, who was tied with the tree. P.W.5 further deposed that the grave yard was situated = furlong away from the place, where the body was exhumed. In my opinion, there is no reason for discarding his evidence. Hence, I am of the view, seizure of M.O.1 to M.O.3 is no way help the case of prosecution, since the prosecution miserably failed to prove that the deceased was died due to electrocution. Further, the prosecution has not proved the death of the deceased is homicidal, since the Doctor is not in a position to give opinion for cause of death.
IV.Whether the complaint is true and it was preferred on 19.05.2001.
13. P.W.1 and P.W.2 are father and brother of the deceased Thangaraj. P.W.1 in his evidence stated that his son was missing from 11.05.2001 and he did not return back even on the next day. P.W.3/Ramasamy intimated to him that his son was assaulted by some body in the motor pump shed of A6 and he does not know those persons. So he asked P.W.4/Kolanji to enquire the same. He said that Thangaraj was relieved at 4.00 p.m. and he left out the place and went on western side. P.W.1 in his cross-examination deposed that P.W.3/Ramasamy stated on the third day after his son was missing, Thangaraj was assaulted by some body in the shed of A6. In his cross-examination, he fairly conceded that on that date only, he gave a complaint. In Ex.P1 complaint, P.W.1 was stated that his son was missing from 11.05.2001 onwards and he left the house at 9.00 a.m. and went to the field, but he did not return back till night. Even though he made an enquiry in his relative's house, he could not find him for the past nine days. Thereafter, he preferred Ex.P1 complaint before the Karuveppilankurichi police station on 19.05.2001, at 20.00 hours and it reached the Court at 21.00 hours. It shows that P.W.1 did not give complaint immediately. He gave complaint only on 19.05.2001 (i.e.) only on the nineth day after his son was missing. Once the son is missing, it is the duty of the father to give complaint before police station immediately. After three days from the date on which, Thangaraj was missing, even though P.W.1 received information that his son was beaten by A1 to A4, he had not taken any steps to enquire them and to prefer a complaint, is un-believable. A prudent man immediately made an enquiry and gave complaint, as his son was missing and did not return to home for the past three days. In such circumstances, the complaint itself is suspicious. P.W.1 in his chief examination deposed that after getting information from P.W.4, he intimated the same to his son P.W.2 and thereafter, gave complaint. In his cross-examination, he stated that P.W.3 and P.W.4 intimated the fact after two days, (i.e.) on the third day, his son was missing. But in the complaint, P.W.1 stated that after nine days only, when he enquired P.W.3/Ramasamy, he intimated the fact that his son was assaulted by A1 and A2 and other accused, which is contradictory to the oral evidence of P.W.1. So the evidence of P.W.1 and the complaint in Ex.P1 creates doubt in the minds of this Court that the complaint has been given after conducting post-mortem of the deceased Thangaraj. Hence, I am of the view, Ex.P1 complaint has been received after conducting post-mortem.
(v)Last seen theory
14. It is the duty of the prosecution to prove that the deceased was last seen along with the accused, since the case is based on the circumstantial evidence. Even though P.W.3 and P.W.4 were examined to prove the last seen theory, P.W.3 turned hostile during trial. As per the evidence of P.W.3/Ramasamy, he deposed that A3/Rajavelu told him that they had assaulted Thangaraj, as he ate idly in the shed of A6. P.W.3 told him that as to why they assaulted Thangaraj and they can intimate the same to P.W.1 and P.W.2. It shows that the evidence of P.W.3 falsifies the case of P.W.1. As per the evidence of P.W.4/Kolanji, he deposed that he witnessed that Thangaraj was assaulted by A3/Rajavelu, A4/Vellakundu and four to five others and he does not know others. The occurrence was taken place at A6's shed. He advised to Thangaraj that if he stole the things such as foreign watch, torch light, he may hand over the same. At 5.00 p.m., he came to know that A3/Rajavelu and his brother A1 gave electric shock to Thangaraj, but he did not say the truth and hence, they ran away from the place. Thereafter, P.W.4 intimated the fact to P.W.1. In his cross-examination, P.W.4 stated that he did not witness the electric shock given to Thangaraj and he did not intimate the same to P.W.1. So the evidence of P.W.4 also not corroborated the evidence of P.W.1. In such circumstances, I am of the opinion, the prosecution has not proved that the deceased Thangaraj was last seen along with the accused persons A1 to A4.
15.At this juncture, it is appropriate to consider the argument advanced by the learned Government Advocate (Crl. Side). He submitted that only on the basis of confession of A1 and the place shown by him, the body of Thangaraj has been exhumed and it would prove that the appellants alone committed murder upon the deceased and buried him.
16.As per the evidence of P.W.5/V.A.O., he deposed that A1 identified the place where the body was buried. In his cross-examination, P.W.5 fairly conceded that usually the persons who died in Kilimangalam were buried in the burial ground of Vellaru. He could not identify the body, which was exhumed, as Thangaraj. In such circumstances, merely because the body exhumed from Vellaru is no way fasten the criminal liability upon A1. Since the case is based on circumstantial evidence and the hypothesis of genesis of last seen theory, motive, the cause of death has not been proved. In such circumstances, the prosecution has miserably failed to prove the motive, last seen theory, cause of death and complaint is true, beyond all reasonable doubt. Hence, the benefit of doubt is given in favour of the appellant and acquitted from the charges levelled against them. So the conviction and sentence passed by the trial Court under Sections 304(i) r/w 34 IPC and 201 r/w 34 IPC are unsustainable. Therefore, the judgment of conviction and sentence passed by the trial Court is hereby set aside.
17. In fine, The Criminal Appeal is allowed.
Judgment of conviction and sentence passed by the trial Court under Sections 304(i) r/w 34 IPC and 201 r/w 34 IPC is hereby set aside.
Bail bond, if executed by the appellants/accused 1 to 4 shall stand cancelled.
The fine amount, if paid by the accused shall be refunded to them.
01.08.2012 Index:Yes Internet:Yes kj R.MALA,J.
kj To
1.The Additional District Court Fast Track Court No.III Vridhachalam.
2.Inspector of Police Karuveppilankurichi police station.
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras.
Pre-delivery judgment made in Criminal Appeal No.10 of 2004 ikr 01.08.2012