Madras High Court
M.Venkatesan vs State Rep. By on 8 June, 2016
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS Judgement Reserved on : 22..04..2016 Judgement Pronounced on : 08..06..2016 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal No.868 of 2012 M.Venkatesan ... Appellant -Versus- State Rep. By The Inspector of Police, Kunnam Police Station, Perambalur District. [Crime No.33 of 2010] ... Respondent Appeal filed under Section 374(2) of the Code of Criminal Procedure against the conviction and sentence passed by the learned Sessions Judge, Mahila Court, Perambalur, Perambalur District in S.C.No.41 of 2011 dated 29.08.2012. For Appellant : Mr.P.Tamilvel For Respondent : Mr.M.Maharaja, APP JUDGEMENT
S.NAGAMUTHU.J., The appellant, the sole accused in S.C.No.41 of 2011 on the file of the learned Sessions Judge, Mahila Court, Perambalur, Perambalur District, has come up with this criminal appeal challenging his conviction under Section 302 of IPC and sentence of imprisonment for life and a fine of Rs.5,000/- in default to suffer rigorous imprisonment for a further period of two years. The trial court has, however, acquitted him from the charge under Section 307 of IPC by giving benefit of doubt.
2.0. The case of the prosecution in brief is as follows:- The deceased in this case was one Mrs.EIakkiya. The appellant/accused is her husband. They have a female child. P.W.1 is the mother of the deceased. She was residing at Asur Village in Kunnam Taluk. The accused hails from Keelapuliyur Village which is a neighbouring village. The deceased and the accused were residing with their child along with P.W.11, the mother of the accused at Keelapuliyur Village. For quite some time, the accused had gone to Tirupur for collie work. At Tirupur, it is alleged that he had developed intimacy with a girl and he wanted to marry her. He informed the same to the deceased. The deceased resisted and did not agree for the accused to marry the girl at Tirupur. The accused was enraged over the same. This is stated to be the motive for the accused.
2.1. It is alleged that to celebrate Pongal festival, during the month of January, 2010, the accused had come to the house of P.W.1 at Asur village along with the deceased and the child. After pongal meal was prepared, P.W.1 had gone to a nearby shop to purchase camphor. At that time, it is alleged that the accused mixed poison in the pongal meal. Having come to know that some poison had been mixed in the meal, they did not eat.
2.2. Thereafter, it is alleged that on 05.02.2010, at about 12.00 noon, the accused again came to the house of P.W.1. The deceased was at the house of P.W.1 along with her child. The deceased had brought a bottle containing mango frooti. He gave it to the deceased and wanted her to drink. She refused. The accused told her that it was good for allergy in her mouth. Therefore, she drank the same. Then, the accused gave the same to the child. The child also drank. At once, the accused went away from the house of P.W.1. Shortly, thereafter, the deceased vomited. She complained of acute abdominal pain. P.W.1 suspected that in the juice given to her, the accused would have mixed poison. Therefore, P.W.1 immediately rushed the deceased and the child to the Government Hospital at Ariyalur.
2.3. P.W.17, Dr.Senthamarai Kannan, the then Assistant Surgeon, Government Hospital, Ariyalur, examined the child-Mahasri at 02.30 p.m. on 05.02.2010. He was told that the deceased would have taken some unknown poison. The child was drowsy. Her blood pressure and pulse rate were normal. He gave first aid treatment to the child and referred her to Tanjavur Government Medical College Hospital. P.W.15 Dr.Rajendran, the then Assistant Surgeon at Thanjavur R.M. Hospital, treated the child-Mahasri. He found no poison in the body of the child. There was no symptom of any poisoning. Therefore, P.W.15 discharged the child on 11.02.2010.
2.4. The Doctor who examined the deceased at Government Hospital at Ariyalur, declared her dead. Therefore, P.W.1 went to Kunnam Police Station and made a complaint [Ex.P.1] at 06.30 p.m. on 05.02.2010. P.W.19, the then Sub Inspector of Police, on receipt of the said complaint, registered a case in Crime No.33 of 2010 under Sections 302 and 307 of IPC against the accused. Ex.P.13 is the FIR. Then, he forwarded both the complaint-Ex.P.1 and the FIR-Ex.P13 to the court which were received by the learned jurisdictional Magistrate at 03.20 a.m. on 06.02.2010. In the mean time, P.W.19, handed over the case diary to the Inspector of Police, Kunnam Police Station, for investigation.
2.5. P.W.20, the then Inspector of Police, took up the case for investigation. He proceeded to the place of occurrence at 07.30 p.m. on 05.02.2010 and prepared an observation mahazar [Ex.P2] and a rough sketch [Ex.P14] at the place of occurrence in the presence of P.Ws.6 and 7. Then, he recovered in-skirt containing vomit and motion [M.O.1], nighty containing vomit and motion [M.O.2], mango frooti empty bottle [M.O.3], stainless steel tumbler [M.O.4] from the place of occurrence in the presence of the same witnesses under a mahazar [Ex.P3].
2.6. P.W.20, in the course of further investigation, arrested the accused in the presence of P.W.12 and another witnesses at Sithali. On such arrest, the accused gave a voluntary confession in which he disclosed the place where he had hidden an empty container with the traces of endosulfan. In pursuance of the said disclosure statement, he took the police and the witnesses to the place of hideout and produced the empty metal container [M.O.5]. P.W.20 recovered the same in the presence of the same witnesses under a mahazar [Ex.P.4]. Then, he forwarded the accused to the court for judicial remand. After inquest was over, P.W.20 forwarded the body of the deceased for postmortem.
2.7. P.W.13, Dr.Aruna, who was the Assistant Surgeon at Perambalur Government Hospital, conducted autopsy on the body of the deceased. She preserved the visceral organs and forwarded the same for chemical analysis. The chemical analysis report received from the Forensic Lab revealed that there was no poison, more particularly, endosulfan detected in any of the internal organs of the deceased. P.W.13, the Doctor, further gave opinion that the death due to endosulfan poison cannot be ruled out. The chemical analysis conducted on the materials objects recovered from the place of occurrence and the container recovered at the instance of the accused pursuant to his disclosure statement, however, revealed that there was traces of endosulfan poison in all these materials objects. P.W.20 on completing the investigation laid final report against the accused.
3. Based on the above materials, the trial Court framed two charges one under Section 302 of IPC and the other under Section 307 of IPC. The accused denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 20 witnesses were examined and 16 documents were exhibited, besides 7 Material Objects.
4.0. Out of the above said witnesses, P.W.1, is the mother of the deceased. She has stated about the earlier occurrence on the day of pongal festival during which, according to her, the accused, who came to her house, had mixed poison in the pongal meal cooked by her. She has further stated that on the day of occurrence, again the accused came with a bottle containing mango juice and gave the same to the deceased to drink. When the deceased refused to drink, he convinced her that it was good for her allergy. Therefore, she drank. Then, the accused gave the same to the child also. The child also drank the same. According to P.W.1, after the accused left the place of occurrence, within a short while, the deceased vomited and she cried that she had acute abdominal pain. Immediately thereafter, she was taken to the Government Hospital at Perambalur, where she was declared dead. According to P.W.1, the child is survived after being given treatment. P.W.2 is a neighbour of P.W.1. She has stated that on the day of occurrence, around 01.00 p.m., she went to the house of P.W.1. At that time, she was told that the deceased was suffering from acute abdominal pain. She was thereafter taken to the hospital in 108 Ambulance. P.W.3, yet another neighbour has stated that when she went to the house of P.W.1, P.W.1 told her that the accused had given the juice mixed with poison. According to her, the deceased and the child were taken in 108 Ambulance. P.W.4 is the brother of the deceased. He has stated about the earlier occurrence. On the day of occurrence, he was not at home.
4.1. P.W.5 is also a neighbour, who has stated only about the hearsay information. He has not stated anything incriminating against the accused. P.W.6 has spoken about the preparation of the observation mahazar and the rough sketch at the place of occurrence and also the recovery of M.Os.1 to 4 from the place of occurrence under the mahazar-Ex.P3.
4.2. P.W.7 was the Vice President of Asur Village. He has stated that on the day of occurrence, he heard that the accused had given poison to the deceased and his child. He immediately went to the house of P.W.1. On seeing him, the accused attempted to escape from the house of P.W.1. He has further stated that he gave a chase, caught him hold, detained him and then informed 108 Ambulance service. He passed on information to Kunnam Police Station. Immediately thereafter, Kunnam police came to the place of occurrence. When the police prepared the observation mahazar and the rough sketch, the accused was in his custody. Then, the accused was taken by the police immediately. P.W.8 is the brother of the deceased. He has stated that when he enquired the deceased, she told him that the accused gave her juice mixed with some tablets. P.W.9 is again a neighbour to P.W.1. She has stated that when she went to the house of P.W.1, she was told that the accused had given poison to the deceased. According to her, the deceased and child were immediately taken to the hospital in 108 Ambulance. P.Ws.10 and 11 have spoken only about the hearsay information. P.W12 has spoken about the arrest of the accused and the recovery of material object, namely, container [M.O.5] on the disclosure statement of the accused. P.W.13 has spoken about the autopsy conducted on the body of the deceased and her final opinion regarding the cause of death. She has stated that the death due to poisoning in this case cannot be ruled out.
4.3. P.W.14 is a constable attached to the respondent police. He has stated that he carried the complaint and the FIR to the court and handed over the same to the court. P.W.15 Doctor has spoken about the treatment given to the child at Government Hospital, Thanjavur. He has stated that there was no symptom of any poisoning on the child. P.W.16 has stated that he was the Junior Assistant Officer in the Regional Forensic Lab at Trichy. He received the visceral organs of the deceased for the purpose of chemical analysis. On thorough examination, he found that there was no endosulfan poisoning found in any of the internal organs. He gave report accordingly under Ex.P.12. P.W.17, the Doctor at Government Hospital, Ariyalur has stated that he examined the child at Government Hospital, Ariyalur at 02.30 p.m. on 05.02.2010 and referred the child to the Government Hospital at Thanjavur. P.W.18 has stated that he took the dead body and handed over the same to the Doctor for postmortem P.W.19 has spoken about the registration of the case. P.W.20 has spoken about the entire investigation done by him in this case and the filing of final report against the accused.
5. When the above incriminating materials were put to the accused, he denied the same as false. However, he did not choose to examine any witness nor he did mark any document in his favour. His defence was a total denial.
6. Having considered all the above, the trial Court convicted the accused for the offence u/s 302 IPC, however, acquitted him from the charge under Section 307 of IPC. Aggrieved over the conviction and sentence, the appellant/accused is now before this Court with this criminal appeal.
7. We have heard the learned counsel appearing for the appellant/accused and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
8. There is no denial of the fact that the accused and his wife namely, the deceased-Mrs.Elakkya and their 1 = years old child Mahasri were all residing at Keelapuliyur village. It is the evidence of P.W.1 that the accused was insisting for consent from the deceased for him to marry a girl at Tirupur with whom, he had fallen in love. Since the deceased did not agree for the same, the accused developed grudges against her and this is stated to be the motive for the occurrence. Assuming that this motive has been proved, it is well known that motive is always a double edged weapon and therefore, solely based on the motive, we cannot rush to the conclusion that the death of the deceased was caused only by this accused. We have to examine the other evidences available on record.
9. P.W.1 has further stated that on the day of occurrence, the deceased was at home along with her child. By about 12.00 noon, the accused came and gave a bottle containing juice. When he wanted the deceased to drink, she refused. The accused persuaded her that it was good for allergy. Therefore, she drank the same. The child also drank. It is the further case of the prosecution that in that juice, the accused had already mixed endosulfan poison.
10. The learned counsel for the appellant would submit that had it been true that endosulfan poison mixed with the juice was given by the accused to the deceased, endosulfan poison should have been found out during chemical examination conducted on the internal organs of the deceased. But, P.W.16, who conducted chemical analysis on the internal organs, had found that there was no endosulfan found in any of the internal organs. According to the learned counsel, this would completely falsify the case of the prosecution that the accused had given endosulfan to the deceased.
11. The learned Additional Public Prosecutor would, however, submit that it is in the evidence of P.W.1 that after consuming the juice given by the accused, within a short while, the deceased vomited and she also passed motion. The vomit and motion were there in her in-skirt and other dress materials. They were all recovered by P.W.20, the investigating officer, when he prepared the observation mahazar on his visit to the place of occurrence. These material objects were sent for chemical analysis which revealed that there was endosulfan poison in the same. According to the learned Additional Public Prosecutor, since there was poison in these material objects, it should be inferred that what was consumed by the deceased was poison. So far as the absence of endosulfan in the internal organs is concerned, the learned Additional Public Prosecutor would submit that due to some chemical process in the internal organs, the endosulfan poison would have disappeared. The learned Additional Public Prosecutor would refer to the evidence of P.W.13, the Doctor, who conducted autopsy wherein the Doctor has stated that in this case, death due to poisoning cannot be ruled out. Thus, according to the learned Additional Public Prosecutor, the death was caused only by the accused.
12. It is true, that in the material objects recovered from the place of occurrence, chemical analyst had found endosulfan poison. But, there is some mystery or doubt regarding the same. According to P.W.7, the Vice President of the occurrence village, when he went to the house of P.W.1 on hearing about the alleged occurrence, the accused was very much available. On seeing the crowd of people, he took to his heels. Further, according to P.W.7, he gave a chase, caught him hold, brought him back to the house of P.W.1 and detained him. Then, he gave information to Kunnam Police where from the police came and took the accused into their custody around 02.30 p.m. on 05.02.2010. Simultaneously, the deceased and the child were taken in an 108 Ambulance to the hospital after the arrival of the police. P.W.1 has also stated that around 03.00 to 03.30 p.m. when the police came to the place of occurrence, the accused was very much available at her house. She has further stated the accused on his own came to her house after the occurrence. She has further stated that police came to the place of occurrence between 03.00 and03.30 p.m., interrogated the accused and took him to the police station. At about 05.00 p.m. when she went to the police station, police made the accused to stand with only a jatti on his body and attacked him. The police also had tied his hands. Thus, according to P.W.1 also, the accused was very much available in the custody of the police from 03.00 p.m. on 05.02.2010.
13. P.W.6, yet another witness, who has spoken about the preparation of the observation mahazar and the rough sketch, also stated that when the police visited the place of occurrence around 04.00 to 04.30 p.m. the accused was very much available at the house of P.W.1. The police arrested the accused, took him to their custody immediately and took him to the police station. From these evidences, it is crystal clear that the accused was very much in the custody of the police on 05.02.2010 and his conduct in being present at the place of occurrence is inconsistent with the alleged guilt of the accused.
14. But, according to P.W.19, P.W.1 appeared at the police station and made a complaint only at 06.30 p.m. on 05.02.2010. If that is so, what was the earliest information that was received by the police which made them to visit the place of occurrence at 02.30 p.m. to 03.00 p.m. itself and secure the custody of the accused. That earliest information has been suppressed.
15. It is in the evidence of P.W.20 that he arrested the accused only on 07.02.2010 at 12.00 noon at Sithalai in the presence of P.W.12 and another witnesses. This story propounded by the police cannot be believed in view of the fact as spoken by three witnesses namely, P.Ws.1, 6 and 7 that the accused was very much available at the place of occurrence and he was taken into custody by the police around 03,00 p.m. on 05.02.201 itself. Thus, the alleged confession of the accused made on 07.02.2010 and the consequential recovery of the endosulfan container [M.O.5] cannot be believed. We have got reasons to doubt the story that the endosulfan container was recovered on the alleged disclosure statement of the accused.
16. In the light of the above fact, now, we have to examine whether any weightage could be given to the presence of endosulfan trances on the material objects recovered from the place of occurrence. The chemical analyst, who conducted chemical analysis, has not been examined. The chemical analysis report alone has been marked. A perusal of the said report [Ex.P.12] would go to show that endosulfan was detected in the washings of the tumbler, plastic container having label Frooti, in-skirt and nighty. There is no clear evidence whether endosulfan was detected in the vomit of the deceased. The chemical analysis report revealed that the endosulfan was detected only in the dress material and in the washings of the tumbler and also in the frooti container. If the prosecution has proved that the vomit of the deceased found on the dress materials contains endosulfan, then, there may not be much difficulty in giving weightage for the same and to come to the conclusion that what was given by the accused to the deceased was juice mixed with endosulfan poison. But, there is no such clear evidence. The chemical analysis report revealed that endosulfan traces were noticed only on the dress materials, in the container and in the washings of the tumbler. Since we have already concluded that endosulfan container itself had been planted by the police and we have disbelieved the arrest and the alleged recovery of the plastic frooti container at the instance of the accused, it is also possible that endosulfan would have been sprayed by the police on the material objects. This is only an assumption and we do not give much weightage for this assumption as a legal presumption. This assumption creates only a doubt in the case of the prosecution and nothing more.
17. Now, the Doctor who conducted autopsy on the body of the deceased, has stated that there was no poison detected in the internal organs. However, the Doctor has stated that it cannot be said that the death was not due to poison. The Doctor has not given any explanation or foundation for the said conclusion. According to the witnesses, admittedly, the deceased complained of severe abdominal pain. In case of this nature, it is possible to infer that the death could have occurred even due to shock due to pain. Unless the prosecution proves the cause of death beyond reasonable doubt, it is not safe to hold that it was this accused who caused the death of the deceased by poisoning. Here, in the instant case, the Doctor has only opined that it cannot be said that death was not due to poison. The Doctor has not stated that the death was only due to poison. Thus, death due to other natural causes also cannot be ruled out. In such circumstances, we are of the considered view that the prosecution has failed to prove the cause of death beyond all reasonable doubts.
18. So far as the juice allegedly given to the child is concerned, the Doctors have given opinion that there was no trace of endosulfan poison on the child. The child was treated only for cold and cough. The trial court has accepted the said medical evidence and has acquitted the accused from the charge under Section 307 of IPC. According to the counsel for the appellant/accused, the same yardstick should have been applied in respect of the other charge under Section 302 of IPC also. But, the trial court has given much weightage for few answers elicited from P.W.13, who has stated that poison from the internal organs would have disappeared due to vomiting or diarrhea or evaporation. In our considered view, this opinion of the Doctor is difficult to be accepted inasmuch as it is not possible for the poison which was absorbed into the internal organs to evaporate. No doubt, by means of vomit or diarrhea, residues of the poison in the stomach alone can vanish away because by means of vomiting, but not in the intestines cannot be vanished away. By means of diarrhea the contents of intestines and bowl could excrete, but, not the contents of other organs like liver, spleen and kidneys.
19. It is the scientific truth that as soon as absorption of endosulfan takes place in the body, due to metabolism, the two stereo isomeric forms (alpha and beta) can be converted to endosulfan sulfate and endosulfan diol, which can be further metabolized to endosulfan lactone, hydroxyether and ether. Based on animal data, endosulfan and endosulfan sulfate are believed to be the cause of toxicity. Therefore, if the death is caused due to toxicity, it is on account of endosulfan and endosulfan sulfate which is the product of metabolism in the body. In chemical analysis, endosulfan and endosulfan sulfate would, certainly, be detected, if really that was the cause for the death.
20. The learned Additional Public Prosecutor had the services of one Smt.P.Kalarani, Director [In charge], Forensic Sciences Department, Chennai and Sri.S.S.Rajendran, Junior Scientific Officer, Regional Forensic Science Laboratory, Trichy to assist him during arguments. He submitted that as per the standard book authored by Dr.Dinesh Rao titled as Forensic Pathology, possible explanations of negative findings in the visceral organs are as follows:-
(1) Poison may have been eliminated by vomiting / diarrhea.
(2) The whole of the poison has disappeared from the lungs by evaporation / oxidation. (3) The poison after absorption may be detoxified, conjugated and eliminated from the system. (4) Some organic poisons cannot be detected chemically due to long lapse of time. (5) Wrong / insufficient material may have been sent for analysis.
21.0. Relying on the above statements in the Text Book, the learned Additional Public Prosecutor would submit that in the instant case, the absence of endosulfan poison in the internal organs, may be , due to any one of these reasons stated by Dr.Dinesh Rao. But, we find it difficult to accept the said explanation for more than one reason.
21.1. So far as the vomiting or diarrhea are concerned, it is needless to point out that poison residues in the stomach may be vomited and thus, there may not be poison in the content of the stomach. In the instant case, the contents of the stomach were not sent for chemical analysis.
21.2. Secondly, from lungs due to evaporation of poison, it may disappear in general. But, it is not in evidence in this case, whether the endosulfan poison after reaching lungs would evaporate. It is not every liquid that will evaporate. Unless it is proved that endosulfan has got the character of evaporation, this explanation is also difficult to be accepted.
21.3. Thirdly, according to Dr.Dinesh Rao's Text Book namely Forensic Pathology , the poison after absorption may be detoxified, conjugated and eliminated from the system. But, in the instant case, there is no such opinion that endosulfan has got the character of detoxification after absorption. According to the standard books of Forensic Pathology, it is an undisputed scientific fact that after absorption, the endosulfan metabolized into endosulfan sulfate and endosulfan sulfate is toxic in nature. In this case, there is no evidence that the endosulfan sulfate, which is a toxic compound, will get detoxified or conjugated from the system. We therefore cannot go by the general observations made by Dr.Dinesh Rao in his book Forensic Pathology wherein he has stated that poison after absorption may be detoxified, conjugated ad eliminated from the system.
21.4. Further, it is stated in the said text book that some organic poisons cannot be detected chemically due to long lapse of time. In the instant case, there was no long lapse of time and it is not the opinion of the Doctor also. Similarly, it is not the case that the materials sent were insufficient.
22. In order to satisfy our judicial conscience , in open court, in the presence of the learned counsel for the appellant/accused and the learned counsel for the respondent/state, we wanted Dr.Kalarani to explain to us as to how and why in the instant case endosulfan sulfate could not be traced from the internal organs. She explained to us the method by which extraction is made from the internal organs in the lab and how it is tested. She also stated that in the absence of blood samples collected from the dead body, it is, in general, difficult to conduct the analysis to give almost a correct opinion about the presence or absence of poison. She further told us that to make it possible to give a definite opinion, apart from sending the internal organs, it is absolutely necessary to send blood samples taken from the dead body which may contain the absorbed poison with which the analysis could be done precisely. But, in the instant case, since blood samples were not sent along with the internal organs, it was difficult to give an opinion which is almost near perfection.
23. From the foregoing discussion, it is crystal clear that in this case the prosecution has only succeeded in establishing a suspicion that the deceased would have died of endosulfan poison, but any amount of such suspicion, under our criminal justice administration system, shall not take the place of proof. In the adversarial system of criminal justice administration, the guilt of the accused is to be proved beyond reasonable doubts and not by establishing mere suspicion. In such view of the matter, we find it difficult to sustain the conviction and sentence imposed by the trial court on the appellant/accused and so he is entitled for acquittal.
24. Before parting with this judgement, in the light of the submissions made before us by Dr.Kalarani, Director (In charge), Tamil Nadu Forensic Sciences Laboratory, Chennai,we deem it appropriate to issue a direction to the Director General of Police and the Director of Medical Services to issue necessary circulars to the subordinate police officers and the Doctors, who conduct autopsy, as the case may be, that while forwarding the internal organs for chemical examination, they should ensure that blood samples extracted from the dead body are also forwarded to enable the Forensic Sciences Laboratory to conduct analysis with precision.
25. In the result, the criminal appeal is allowed. The conviction and sentence imposed by the trial court on the appellant/accused are set aside and he is acquitted of the charge under Section 302 of IPC. Fine amount paid, if any, shall be refunded to him. His bail bond shall stand terminated.
Index : yes. [M.J.,J.] [S.N.,J.]
Internet : yes. 08..06..2016
kmk
To
1.The Sessions Judge, Mahila Court, Perambalur, Perambalur
District.
2.The Inspector of Police, Kunnam Police Station, Perambalur
District.
3.The Public Prosecutor, High Court, Madras.
4.The Director General of Police, Tamil Nadu, Chennai.
5.The Director, Tamil Nadu Forensic Sciences Laboratory,
Chennai.
M.JAICHANDREN.J,.
AND
S.NAGAMUTHU.J,.
kmk
Pre Delivery Judgment
in
Criminal Appeal No.868 of 2012
08..06..2016
*****