Madras High Court
N.Anthony Iruthayaraj vs State Rep. By on 18 July, 2013
Bench: V.Dhanapalan, C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.7.2013 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.No.782 of 2011 N.Anthony Iruthayaraj, now confined at Central Prison, Cuddalaore .. Appellant Vs. State Rep. by Inspector of Police, Cuddalore OT Police Station, Cuddalore. .. Respondent Criminal Appeal against the judgment of conviction and sentence, dated 4.10.2011 in S.C.No.326 of 2010 on the file of the Mahila Court-cum-Principal Sessions Court (Full Additional Charge), Cuddalore. For appellant : Mr.C.Sivakumar For respondent : Mr.V.M.R.Rajendran, Addl.P.P. JUDGMENT
(Judgment of the Court was delivered by V.Dhanapalan,J) The appellant/accused has filed this Criminal Appeal challenging the judgment, dated 4.10.2011 in S.C.No.326 of 2010 on the file of the Mahila Court-cum-Principal Sessions Court (Full Additional Charge), Cuddalore, in and by which, he was convicted for the offence under Section 376 IPC and sentenced to undergo ten years' rigorous imprisonment and also convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo fifteen days' simple imprisonment. The trial Court ordered the sentences imposed on the appellant to run concurrently.
2. The case of the prosecution is that on 14.11.2009 at about 7 p.m., the appellant called the deceased over Cell Phone and asked her to come to the cashew grove situated in Pachaiyankuppam. On the requisition made by the appellant, the deceased Indhumathi chose to meet the appellant and as such, she met him in the said place. The appellant told the deceased that he had been cheated by several women and told her not to cheat him. The deceased stated that she is going to marry one Rajkumar and on hearing this, the appellant got angry and molested and raped her and thereafter, committed her murder.
3. The evidence of the prosecution witnesses in a nut-shell is as follows:
(a) P.W.1 Radhakrishnan is the father of the deceased. He deposed that his elder daughter Indhumathi was with him and going for a job in an Export Company situated in SIDCO, Semmandalam; accused Anthony was also working in the said Company; in course of time, intimacy developed between the deceased and accused; after coming to know of the same, P.W.1 reprimanded his daughter and even thereafter, the intimacy between them was being exchanged over the Cell Phone; thereafter, she resigned her job. On 14.11.2009, after completing his work, P.W.1 came back to house and finding that the deceased was not available in the house, asked his second daughter as to where she had gone; she replied that the deceased went to the grove; it was around 7 or 8 p.m., by then, the deceased did not turn up; P.W.1's wife came back to the house from her place of work; finding that the deceased had not turned up at all, P.W.1 along with his wife, went in search of their missing daughter and found the deceased lying down with murmur; they lifted the deceased and on being found injuries on her, they brought her to Krishna Hospital by auto-rickshaw; the Doctor, after checking her, declared her dead; they brought back the body of the deceased to their house; since it was raining on that night, the next day, i.e. on 15.11.2009 at about 7 a.m., they preferred a complaint Ex.P-1 before the Cuddalore O.T. Police Station. P.W.1 identified the signature found in Ex.P-1.
(b) P.W.2 Gowri, the wife of P.W.1, deposed that she was working in a private Company; she stated that she scolded the deceased for moving closely with the accused. P.W.2's evidence is similar to that of P.W.1.
(c) P.W.3 Ilakiya is the second daughter of P.Ws.1 and 2; she deposed that her sister (deceased) was working as a Tailor in Semmandalam; prior to six months from the date of occurrence, accused visited their house, due to which, P.W.1 reprimanded P.W.2 as well as her sister. They heard the accused and her sister conversing with each other over Mobile Phone. P.W.3 narrated with regard to the occurrence on 14.11.2009 and on the next day, her father gave a complaint to the Police.
(d) P.W.4 Nagarajan is a resident of Pachaiyankuppam and a farmer. He deposed that on 14.11.2009, he was talking with one Rathinavel near Salt Office Road and by then, an unfamiliar person crossed them and he was casually referring to the unknown person as to who would be this person going by that way; by 9 p.m., Indhumathi was lying and struggling for life; P.W.4 and others saw the same and thereafter, she was taken to the Hospital. After a week, P.W.4 came to know that the Police secured one Arokiyaraj and he was being kept in the Police Station and thereupon, he went to the Police Station and after seeing that person, he ascertained that it was this person who crossed them on the date of death of the deceased. P.W.4 conveyed this fact to the Police in the Station and identified the accused in the Station, stating that it was he who crossed them on the date of occurrence.
(e) P.W.5 Durai of Malumiyarpet, Cuddalore, stated that he was running a petty shop and there is a pay-phone with coin box in the shop; on 14.11.2009, the Police came to the shop and enquired him; on the date of murder of the deceased, the assailant talked over the phone in his shop; the Police enquired him as to the identity of the person who talked on that day by 6.30 p.m. over the phone; P.W.5 refreshed his memory and stated that he could not exactly remember the description of the person who talked; thereafter, P.W.5 came to know that the murderer of the deceased was secured by the Police and was kept on the Station; people went and saw him and he also went and saw him; when Police enquired him as to the person who talked over the phone, P.W.5 identified the accused in the Police Station and revealed the fact that it was he who talked in the pay-phone on that day; P.W.5 identified the accused in the Court Hall and stated that the person who talked in the pay-phone on that day is the accused.
(f) P.W.6 Ramalingam is a resident of East Street, Pachaiyankuppam and a Carpenter; he gave evidence to the effect that on 14.11.2009 at about 4.30 or 5 p.m., he went to the boat-yard at Pachaiyankuppam to see a person and was going near the Housing Board; by then, the accused approached him around 5.30 p.m. and enquired him as to the availability of a shop with telephone facility; thereupon, P.W.6 pointed out the shop owned by P.W.5 and indicated the route to the said shop and the accused went to the place straightaway; at that time, it was raining and P.W.6 was standing there; around 6.30 p.m., when the rain stopped and while he was about to go back to the house, a person appearing to be that of the accused, with tension writ large in his face, came near Anna Salai by 7 p.m., and it was the person who enquired about the availability of the phone in the shop; at about 8 p.m., there was a noise emanating from the garden; many were talking that one Indhumathi was lying fainted in the cashew grove; thereafter, he learnt that on 21.11.2009, Police arrested the accused and lodged him in the Police Station; therefore, P.W.6 and his son went to the Police Station and found that the person who crossed them on that day with tension in his face, is the very same person who is none else than the accused; P.W.6 stated these details and identified the accused to the Police.
(g) P.W.7 Murthy is a resident of Middle Street, Pachaiyankuppam and a Weaver. He stated in his evidence that around two years back, on 14th day, he was conversing with one Pandurangam in his shed and at about 6.30 p.m., a person was rushing towards that side, by then, P.W.7 did not know about him. Thereafter, on 21st, he learnt that the Police have arrested the person who committed the murder of Indhumathi and lodged in the Police Station. Thereupon, he went to the Police Station, found the accused therein and informed the Police that it is the said person whom they had seen him on the evening of 14th. P.W.7 identified the accused in the Police Station.
(h) P.W.8 Dr.Natarajan, working in the Radiology Section of the Government Headquarters Hospital, Cuddalore, stated in his evidence that on 26.11.2009, while he was in duty, he received a requisition from the Judicial Magistrate No.2, Cuddalore requesting to take tests for ascertaining the age of one Anthoy Iruthayaraj and upon taking and analysing the x-rays frame, P.W.8 Doctor issued Ex.P-2 Radiology Report stating that he person has completed 20 years and the x-ray frames are M.O.1 series.
(i) P.W.9 Palanivel who is a resident of Middle Street of Pachaiyankuppam and a Coolie, stated in his evidence that on 14.11.2009, when he came back after completing the work, he came to know that one Indhumathi was murdered. Next day, i.e. on 15.11.2009 at about 10 a.m., the Inspector of Cuddalore O.T. Police Station came to the scene of occurrence, inspected the place and prepared Ex.P-3 observation mahazar where the body was lying. P.W.9 and one Ilaiyaraja singed as witnesses. At about 11 a.m., the Inspector of Cuddalore O.T. Police Station inspected the place and prepared Ex.P-4 observation mahazar, where the murder was done. At about 12 noon, from the said place, a Nokia Cell Phone, one pair of ladies Chappel and one umbrella were seized by the Police under the cover of mahazar Ex.P-5, in which, P.W.9 and Ilaiyaraja signed as witnesses. Thereafter, at about 5 p.m., in the house of Radhakrishnan, a Cell Phone, nighty, one in-skirt and an umbrella, were seized under Ex.P-6 mahazar, in which, P.W.9 and Ilaiyaraja signed as witnesses.
(j) P.W.10 Ramu of Periyakattupalayam Village, Cuddalore, engaged in Craftsmanship with tiles, stated in his evidence that on 21.11.2009, he along with his co-worker Vasantharaj were standing at the Periyakattupalayam Bus Stand at about 1 pm in the afternoon and by then, the Inspector was enquiring the accused and the Police ascertained his address and requested him to stand as a witness for the arrest proceedings of the accused and accordingly, he signed the proceedings as a witness. Then, the accused voluntarily gave a confession, stating that if he is taken upto Pachaiyankuppam cashew grove, he will take out a cashew stick from the nearby Channel and produce the same to the Police. Ex.P-7 is the admissible portion of the confession statement, pursuant to which, P.W.10 Ramu, the Inspector of Police and the accused went to Pachaiyankuppam and from the Channel situated on the back side of the cashew grove situated on the back side of Indhumathi's house, the accused took out M.O.8 Cashew Stick and delivered the same to the Inspector who seized the same under a cover of mahazar Ex.P-8.
(k) P.W.11 Vilvendran, who worked as Grade-I Police Constable in Cuddalore O.T. Police Station as on 15.11.2009, adduced in his evidence that pertaining to the death of the deceased, as per the direction of the Inspector of Police, he went to the Government Headquarters Hospital, Cuddalore and identified the body to the Doctor; thereupon Dr.Vijayalakshmi conducted post-mortem on the said body and after completion of the same, he entrusted the body to the relatives.
(l) P.W.12 Selvarani, the then Assistant Director of the Regional Forensic Science Laboratory, Villupuram, deposed that while she was on duty on 6.1.2010, they have received six plastic bottles with seal through Grade-I Police Constable 2092 Thiru.S.Vilvendran in P.M.No.309/2009 in Crime No.653 of 2009 of Cuddalore O.T. Police Station. In the abovesaid six items, they did not detect semen or blood in items 1 or 2 and did not detect saliva in items 3, 4 or 5. Item 6 containing blood, was forwarded to the Director, Forensic Sciences Department (Serology Section), Chennai. Items 1 to 5 were used during analysis. The report Ex.P-9 was sent to the Government Hospital, Cuddalore; thereafter, on 7.1.2010, they have received four items with seal under Letter No.1077/2009, dated 21.11.2009 of Judicial Magistrate No.2, Cuddalore through the above said Police Constable. The abovesaid four items were examined and detected blood on all the four items and semen on items 1 and 2. And the said items were forwarded to the Director, Forensic Sciences Department (Serology Section), Chennai. The remaining items have been returned with report Ex.P-10 to the Judicial Magistrate No.2, Cuddalore; on 6.1.2010, they have received five items with seal from the Government Headquarters Hospital, Cuddalore in P.M.No.309 of 2009, dated 15.11.2009. The abovesaid five items were examined and were not detected alcohol or poison in any of them and the Viscera Report is Ex.P-11. The serologist reports Ex.P-12 to P-14 were received from the Director, Forensic Sciences Department, Chennai.
(m) P.W.13 Dr.Ramalingam of Cuddalore, working as Senior Assistant Civil Surgeon in the Government Headquarters Hospital, Cuddalore, deposed that on 26.11.2009, at about 11.30 a.m., while he was in duty, he received a requisition from the Judicial Magistrate No.2, Cuddalore, requesting to take necessary steps for ascertaining the potentiality of the accused. P.W.13 stated that the accused was well conscious and well developed secondary sexual characters, i.e. presence of moustache, beard, auxiliary hair, chest hair and pubic hair and he has normally developed penis and scortum with erection and ejaculation. P.W.13 Doctor further stated that the semen analysis of the accused, was done and found normal count with 50% active mobile spermatozoa. The sperm preserved and sent through the Head Constable for analysis. X-rays were taken for age estimation and referred to Radiologist's opinion. P.W.13 gave his opinion that the accused is capable of doing sexual intercourse with female and is potent and he issued Ex.P-15 certificate.
(n) P.W.14 Kamaraj, working as Head Constable in Vridhachalam Police Station and previously worked as Head Constable in Cuddalore O.T. Police Station, adduced in his evidence that while he was in duty on 15.11.2009, at about 9 a.m., P.W.1 came to the Police Station and preferred a complaint; P.W.14 registered the case under Crime No.653 of 2009 of Cuddalore O.T. Police Station and Ex.P-16 is the printed FIR. The FIR was sent to the concerned Court and to the higher officials for further action.
(o) P.W.15 Dr.Vijayalakshmi, who resigned her Government service and earlier worked as Assistant Civil Surgeon in the Government Headquarters Hospital, Cuddalore, deposed that on 15.11.2009, when she was in duty at about 4 p.m., a female body was brought to the Hospital through Grade-I Police of Cuddalore O.T. Police Station for post-mortem. After post-mortem, P.W.15 Doctor issued Ex.P-18 post-mortem certificate, which reads as follows:
"Regarding the body of a female aged about 19 years named Indumathi D/o Radhakrishnan Requisition received at 4 a.m./p.m. On 15.11.2009 from the Inspector of Police u/s 174(1) Cr.P.C. Cuddalore O.T. with his letter No.653/09, dated 15.11.2009 Body in charge of Police Constable No.Gr.I.P.C.2092 named Mr.V.Vivendiran Identification and caste marks:
1. ABM over the forehead
2. Scar on the right ankle joint The body was first seen by the undersigned at 4.45 a.m./p.m. on 15.11.2009.
Condition then was cold Post-mortem commenced at 4.40 a.m./p.m. on 15.11.2009 Appearances found at the post-mortem:
A body of moderately nourished female body lies on its back, symmetrical, fair lady body, black hair 1-1/2 feet. External injuries:
Abrasion 2x1 cm around lower lips. Raw area seen around the both sides of nipple. 2X2 cm. Contusion of left arm contusion and abrasion over the neck 3x2 cm. Vulva and Vajina ... Abrasion (+) 1x2 cm 2x7 cm R.M. present in all 4 limbs. P/A mild distension. Scalp intact, eyelids closed. Nose-no bleeding/injury. Mouth injuries around the lower lips. Tongue and teeth-in tact. Ears-normal. Internal Exam:
Abd-distended. Contusion and abrasion over the neck. On cut surface of neck underlying muscle is recrossed. Hyoid bone fracture seen (+) x-ray were taken No.748 S/15/11/09. Ribs-no fracture. Lung and liver and spleads Kidney and intestine-congested. Peritoreal easily-contained 100 ml of clotted blood. Heart-contained clotted blood. Uterus-low end of uterus injured (crushed) very badly 2x2 cm bulky .... cervix-torn very badly. Head and skull and membrane and spinal cord-in tact. Brain-congested. Viscera sent for analysis: 1) Stomach and its content (2) intestine and its ....(3) liver (4)kidney (5) Preservative (6) Hyoid bone (7)control blood for grouping (8) vaginal swab (9) vaginal smear (10) saliva swab from Rt Breast and left breast (12) saliva swab from lower lip. PM concluded at 5.45 p.m. on 15.11.2009.
Opinion reserved for pending chemical analysis.
Tox.H.No.11/10 (1) stomach (2) Intestine .... (3) Liver (4) Kidney (5) preservative. Above five articles were examined but alcohol or other poison was not detected in any of them. Tox No.114/2009 Hyoid bone-report. Inward comprevion fracture of Rt.Horn of hyoid bone seen with surrounding tissue of congestion. Opinion: Rt. Horn of hyoid bone found fractured.
Biol/Vpm/No.1/2010: (1) Vag. Swab (2) Vag. Smear were examined but did not detect semen or blood in items 1 and 2 (3) Saliva gauze lower lip (4) Saliva gauze Rt. Breast (5) Saliva Gauze Lt. Breast (6) control blood for grouping. Opinion: did not detect saliva in items 3, 4 or 5.
on externally vulva & vagina-edematous abrasion 1x1 cm 2x1 cm in vagina. Cervix-torn very badly. On internal examination:
Low end of uterus injured very badly. 2X2 cm bulky uterus around ... sizes because of congestion. Opinion:
Deceased would have died of due to throttling and she was raped by the external injury and internal examination of reproductive front organs."
(p) P.W.16 Elumalai, working as Inspector of Reddychavadi Police Station, stated that he was previously working as Additional Charge of Inspector, Cuddalore O.T. Police Station; on 15.11.2009, he received Ex.P-16 FIR registered by P.W.14 in Crime No.653 of 2009 of Cuddalore O.T. Police Station and took up for investigation of the case by 10 a.m; he went to the house of the deceased Indhumathi and inspected the place where the body was lying in the presence of P.W.9 Palanivel and one Ilaiyaraja and prepared Ex.P-3 observation mahazar and Ex.P-19 rough sketch; on the same day at about 11 a.m., P.W.1 Radhakrishnan identified the scene of occurrence (cashew grove); P.W.16 inspected the place where the murder happened and prepared observation mahazar Ex.P-4 and rough sketch Ex.P-20 and from the said place, he recovered M.Os.2, 3 and 4 under the cover of mahazar before the said witnesses. On the same day at about 1 p.m., in the house of the deceased, he examined witnesses Radhakrishnan (P.W.1), Gowri (P.W.2), Mohankumar, Gunasekaran and Vilvendran (P.W.11) and prepared Ex.P-21 inquest report; P.W.16, through the Grade I Police Constable Vilvendran, sent the body of the deceased to the Government Headquarters Hospital, Cuddalore for conducting the post-mortem; thereupon, at about 3.15 p.m., he seized M.Os.5 to 7 under a seizure mahazar and recorded the statements of P.W.9 Palanivel and Ilaiyaraja. After autopsy, he examined P.W.15 Dr.Vijayalakshmi and recorded her statement; on 16.11.2009, he examined P.W.4 Nagarajan, Rathinam, Veerappan, P.W.3 Ilakkiya and P.W.11 Vilvendran, Grade I Police Constable and recorded their statements; on the same day, at about 10 a.m., he prepared Ex.P-22 alteration report from Section 174(1) Cr.P.C. to Sections 376 and 302 IPC and sent it to concerned Court; on 20.11.2009, the internal organs and hyoid bone gathered during the post-mortem and blood stained cloth, were sent to the Forensic Sciences Department; on 21.11.2009, at about 4.30 p.m., near Periyakattupalayam Bus Stand, P.W.16 arrested the accused who had been arrested in other case and the accused came forward to give a confession, which was recorded in the presence of P.W.10 Ramu and Vasantharaja, in which, the accused stated that if he is taken to Pachaiyankuppam cashew grove, he would take out a cashew stick and produce the same to the Police, pursuant to which, P.W.16, P.W.10, Vasantharaja and the accused went to Pachaiyankuppam and from the Channel, the accused took out the cashew stick and the Police seized the same under a cover of mahazar and thereafter, the accused was remanded; the accused was identified by P.W.5 Durai, P.W.6 Ramalingam, Anandavelan, Sekar, P.W.7 Murthy and Pandurangam; P.W.16 examined the witnesses Veerappan, Rathinam and P.W.4 Nagarajan and recorded their further statements; on 23.11.2009, he sent a requisition for medical examination of the accused; on 30.11.2009, he handed over the investigation to the Inspector of Police, Cuddalore O.T. Police Station.
(q) P.W.17 Kannan (since retired) worked as Additional Charge of Inspector of Police, Cuddalore O.T. Police Station and he stated that on 8.2.2010, he took up this case for further investigation and went to the Regional Forensic Science Laboratory, Villupuram and examined Tmt.V.K.Selvarani (P.W.12), Assistant Director of the Regional Forensic Science Laboratory, Villupuram, who issued viscera and serologist report and recorded her statement; subsequently, on 13.2.2010, he went to Chengalpattu Medical College Hospital and examined Tmt.Parasakthi, Police Surgeon and Professor of Chengalpattu Medical College Hospital, who issued hyoid bone report and recorded her statement; due to transfer, on 27.2.2010, he handed over the investigation to the Inspector of Police, Cuddalore O.T. Police Station.
(r) P.W.18 Gopal, who worked as Inspector of Police, Cuddalore O.T. Police Station, stated in his evidence that on 17.3.2010, he took up the case for further investigation and examined Dr.Vijayalakshmi (P.W.15) who conducted post-mortem on the body of the deceased, Dr.Ramalingam (P.W.13) and Dr.Natarajan (P.W.8) and recorded their statements; on 3.4.2010, he examined Scientific Assistant-Jayanthi Chandrasekaran and obtained report from her and recorded her statement; when he examined the other witnesses, it was found that they have repeated the same statement given to the previous investigating officer and hence, he did not choose to record the statement of those witnesses and after completion of the investigation, he obtained the draft opinion from the Deputy Director of Prosecution and on 10.11.2010, he filed the final report against the accused.
(s) During the course of trial, P.Ws.1 to 18 were examined, Exs.P-1 to P-22 were filed and M.Os.1 to 8 were marked. No oral or documentary evidence was adduced on the side of accused.
(t) When the accused was examined under Section 313 Cr.P.C. with reference to incriminating materials against him, he denied his complicity in the crime and stated that he had been falsely implicated in the case.
(u) The trial Court, on an analysis of the oral and documentary evidence, convicted the appellant/accused and sentenced him thereunder, as stated above. Challenging the said conviction and sentence, this Criminal Appeal is filed by the appellant/accused.
4. Mr.C.Sivakumar, learned counsel for the appellant/accused contended that the entire prosecution case rests upon the circumstantial evidence. He further submitted that there are lot of contradictions in the prosecution case. He mainly focussed on the vital question, namely that the prosecution registered Ex.P-16 FIR on 15.11.2009 at about 9 a.m. in respect of the occurrence which took place on 14.11.2009 and the time shown in the FIR indicates that initially, it was noted as 17.30 hours to 21 hours, but the time has been altered to 19.30 hours to 21 hours; the FIR reached the Court only on 16.11.2009 at 4.30 p.m. with inordinate delay. These vital contradictions have not been noticed by the trial Court.
5. Secondly, learned counsel for the appellant pointed out that P.W.6 in his evidence deposed the time of occurrence to be about 7 p.m. and the distance between the house of the deceased and the place of occurrence is about 150 metres; on the other hand, P.W.9, who is the neighbour of P.W.1, informed that he heard the death of the deceased by 6.30 p.m. This contradiction also has not been explained by the prosecution before the trial Court.
6. Thirdly, learned counsel contended that the name of one Rajkumar, who closely moved with the deceased, has been mentioned in Clause XI-(a) of the inquest report (Ex.P-21), in which, the names of persons whom the prosecution suspected are indicated as: (i) appellant/accused Anthony Iruthayaraj and (ii) Rajkumar, but the prosecution has not examined the said Rajkumar, which is fatal to the prosecution case. In this regard, learned counsel also relied on the evidence of P.W.18 investigating officer, who in his cross-examination, admitted that P.Ws.1 to 6 informed that either the accused or one Ranjithkumar could have been the cause for the death of the deceased and thus, they could not inform the definite position. P.W.18 investigating officer also admitted that he has not examined the said Ranjithkumar and in the evidence, his name has been mentioned as Ranjith Kumar and subsequently, it is stated that the said Ranjith Kumar (sic) {i.e. Rajkumar} committed suicide.
7. Fourthly, learned counsel submitted that P.W.3, the sister of the deceased, deposed that she has seen her sister (deceased) accompanying the accused at 7 p.m., and further, P.W.6 stated that it was 7 p.m. and the distance between the place of occurrence and the house of the deceased is 150 metres, and this is in conflict with the evidence of P.W.9 who is the neighbour of the deceased, who stated that he heard the information about the death of the deceased at about 6.30 p.m.
8. Lastly, learned counsel vehemently contended that the last seen person was P.W.3, the sister of the deceased and she had spoken about the movement of the deceased from the house, and the deceased has not informed P.W.1, her father about the call of the accused and the deceased leaving the house. Therefore, according to the learned counsel, for all these reasons, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and therefore, prayed that 'benefit of doubt' may be shown in favour of the appellant/accused.
9. On the other hand, Mr.V.M.R.Rajendran, learned Additional Public Prosecutor appearing for the respondent-State submitted that the prosecution with cogent materials, linked the circumstances of the case from the framing of charges till it is concluded with the filing of final report, as also recording the evidence of witnesses and marking documents, and there is no gap in the chain linking the circumstances in the case of the prosecution and it cannot be doubted and the technical flaw in the FIR and the statement of the witnesses about the time of occurrence, may not defeat the prosecution case in proving the guilt of the accused. It is his further contention that mere non-examination of the person suspected in the inquest, cannot be a factor to disprove the guilt of the accused, and thereby, 'benefit of doubt' could not be given to the accused. By pointing out the recovery made by prosecution relating to umbrella (M.O.2) and Nokia Cell Phone (M.O.7), he submitted that these will clinchingly prove that they are the clear link to the guilt of the accused, and therefore, the trial Court has come to the correct conclusion supported by supplementary evidence let in by P.W.4 Nagaraj, P.W.5 Durai and P.W.6 Ramalingam, and particularly, P.W.4 Nagaraj stated that he has seen the accused proceeding in the Salt Office Road on 14.11.2009 and he identified the accused in the Police Station; P.W.5 who is the owner of a petty shop having pay-phone facility, stated that before commission of the crime, the accused contacted over Cell Phone in the house of the deceased through pay-phone and P.W.5 identified the accused as the person who talked in the pay-phone on the evening of the commission of the crime, which evidence is proving the guilt of the accused, and therefore, there is no failure on the part of the prosecution in linking the accused with the crime; the trial Court took into account all the evidence and incriminating materials against the accused and the oral and documentary evidence gives a clear case of the offence having been committed by the appellant/accused, and hence, the conviction and sentence imposed on him by the trial Court, are no way legally infirmed and prayed for confirming the judgment of conviction and sentence imposed on the appellant by the trial Court.
10. We have considered the submissions made by learned counsel appearing for the parties and perused the material documents available on record, including the records and the judgment of the trial Court.
11. It is seen that with regard to registration of Ex.P-16 FIR, when the complaint was received by the Cuddalore Town Police Station, the time and date of occurrence were noted as 14.11.2009 (Saturday), 19.30 to 21 hours, and the place of occurrence from the Police Station has been shown as 3 km. East. On the basis of the complaint given by P.W.1, the father of the deceased, P.W.16 Inspector of Police (investigating officer) conducted the investigation of the case and proceeded in the matter. It is the foremost contention of the learned counsel for the appellant that there is alteration in Ex.P-16 FIR with regard to the time of occurrence and the time taken by Police to send the FIR to the Court. Our conscious attention has been drawn to Ex.P-16 and on verification of the original records, particularly, Ex.P-16 FIR, it is seen that the time of occurrence has been initially shown as 17.30 hours to 21 hours, which has been subsequently altered to 19.30 hours to 21 hours. It is further seen that the date of occurrence is noted as 14.11.2009, but the complaint has been received only on 15.11.2009 at about 9 a.m., and thereafter, the FIR had been registered and sent to Court only on 16.11.2009 at 4.30 p.m. Therefore, it is clinchingly evident that there is inordinate delay in sending the FIR to the jurisdictional Magistrate Court, and hence, this gives a clear suspicion on the veracity and the testimony of the prosecution case. This delay is fatal to the case of the prosecution case.
12. As regards delay in lodging complaint, from the evidence of P.W.1 Radhakrishnan, the father of the deceased, it is clear that after taking the deceased to Krishna Hospital and after the Doctor declared her dead and as it was raining, they returned home and this is the reason for not lodging the complaint immediately in the Police Station. The said reason given by P.W.1 in his evidence, could not be believed, that too, when such an occurrence like murder has taken place in a crucial manner; naturally, he should have rushed to the jurisdictional Police Station, and when such a course has not been adopted by P.W.1, the same would render the prosecution case unbelievable.
13. With regard to the time of occurrence, it is to be noticed that P.W.3, the sister of the deceased, in her testimony, stated that when she was in the house, the accused made a call around 6 p.m. over Cell Phone M.O.7, which has been picked up by P.W.3 and the accused identified himself in the phone and enquired about the deceased; P.W.3 answered that her sister (deceased) has gone out; around 7 p.m., when P.W.3's sister came back to the house, she informed that she would be going to garden and since it was drizzling, she sought an umbrella, and when the same was about to be handed over to her, P.W.3 found that the accused was with her deceased sister and both of them went to garden. This fact has not been informed to her father P.W.1, who has not spoken thereto about P.W.3's version and hence, there is no corroboration of P.W.3's version with P.W.1. This also gives a room of suspicion when such an incident of murder has taken place and when there was conversation in the Mobile M.O.7 and M.O.2 umbrella was sought for by the deceased, and thus, the guilt has not been proved by the prosecution. The trial Court did not properly analyse these aspects, thereby, the prosecution case fails.
14. With regard to the contradictions in the statement of witnesses in respect of the time of occurrence, it is seen that P.W.3 deposed that she has seen the accused going with her sister (deceased) around 6 p.m., and around 7 p.m., she came to know about the incident that her sister was done to death. P.W.6 says that it was by 7 p.m., he has seen the accused crossing him with the deceased, within 150 metres of distance; on the other hand, P.W.9 who is the neighbour of the place close to the house of the deceased, deposed that he had information about the death of the deceased by 5.30 p.m. and he has seen the deceased in the residence of P.W.1 by 6.30 p.m. The abovesaid contradictions in the evidence, namely, the evidence of P.W.3 sister of the deceased, P.W.9 neighbour and P.W.6, show that the prosecution case is not cogent and convincing and has no proper link to prove the guilt of the accused and these contradictions definitely give a suspicion to the case of the prosecution and 'benefit of doubt' has to be given in favour of the accused.
15. Lastly, with regard to non-examination of an important witness who has been suspected to have been involved in the case, it it seen that in Ex.P-21 inquest report in Clause XI-a(2), one of the persons suspected is shown as Rajkumar. In this regard, P.W.18 has been examined, who in his cross-examination stated that P.Ws.1 to 6 informed that either the accused or one Ranjithkumar (sic) (Rajkumar) could have been the cause for the death of the deceased and thus, they could not inform the definite position. P.W.18 investigating officer also admitted that he has not examined the said Ranjithkumar; in P.W.18's evidence, Rajkumar's name has been mentioned as Ranjith Kumar (sic). From the deposition of P.W.18, it is clear that there is suspicion about two persons and one person's name has been shown as accused, i.e. the appellant herein, and he has been convicted, but another person, by name, Rajkumar, has not even been examined and it is also reported by learned counsel for the appellant that the said Rajkumar has committed suicide. The non-examination of the said vital and vulnerable witness, for proving the person who has committed the offence on the deceased and caused her death, is fatal to the prosecution case, particularly, when suspicion is created by prosecution in Ex.P-21 inquest report, and such lethargic attitude made by the investigating officer in non-examining the said Rajkumar, would defeat the very purpose of the prosecution case. Further, it is seen that in the statement recorded under Section 161(3) Cr.P.C., P.W.1 stated that he objected to his daughter (deceased) having any relationship with the said Rajkumar. For these reasons, this Court has no other option except to come to a conclusion that the prosecution has not made out the case in conspicuous terms and therefore, 'benefit of doubt' should be given in favour of the appellant/accused.
16. The cardinal principle involved in criminal jurisprudence in a case of circumstantial evidence is that the Court below has to find out the incriminating chain of circumstances against the accused, his conduct and explanation, evidence relating to the injuries on the person of the deceased, etc. The further principle enunciated in analysing the evidence, as laid down time and again by the Apex Court and this Court, is with regard to the corroboration of the evidence in proving the guilt of the accused.
17. In the decision of the Supreme Court reported in 1973 (2) SCC 808 (Kali Ram Vs. State of H.P), it is held as follows:
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt...."
18. In the case of Krishnan Vs. State, reported in 2008 (15) SCC 430 = 2008 (4) Supreme 25, the Apex Court held as follows:
"15. ... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ..."
19. In a recent decision reported in 2013 (5) SCC 722 (Raj Kumar Singh Vs. State of Rajasthan), the Apex Court held as follows:
"43. In the instant case, there have been major contradictions / improvements / embellishments in the deposition of witnesses which cannot be ignored when they are examined in the correct perspective. The chain of links connecting the appellant with the crime appears inconclusive. It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular, in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused. (Vide: Bihari Nath Goswami vs. Shiv Kumar Singh (2004) 9 SCC 186 (SCC p.192, para 9); Vijay Vs. State of Madhya Pradesh, (2010) 8 SCC 191 and Sampath Kumar Vs. Inspector of Police, AIR 2012 SC 1249).
44. In Kehar Singh Vs. State (Delhi Admn.), AIR 1988 SC 1883, this Court has held that if the discrepancies are material it would be safer to err in acquitting than in convicting the accused.
45. In Subhash Vs. State of Haryana, AIR 2011 SC 349, this Court has held that a significant omission in the statement of a witness recorded under Section 161 Cr.P.C. May amount to a major contradiction. However, it may depend upon the facts of case and in case of a material contradiction the accused becomes entitled for benefit of doubt and thus acquittal.
46. Thus, we find force in the submissions advanced by Ms.Makhija, learned Amicus Curiae, that evidence produced by the prosecution had been very shaky and the chain of links connecting the appellant with the crime appears inconclusive. The circumstantial evidence is completely wanting in this respect. To accept the description of the evidence collected as flimsy, or no evidence would be too short for convicting the appellant for the offence, as many issues/circumstances virtually remained unexplained.
47. In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the appellant are set aside. The appellant be released forthwith unless wanted in some other case."
20. All the above principles underline the concept of criminal jurisprudence relating to circumstantial evidence and indicates the method to analyse and appreciate evidence to arrive at a conclusion to prove the guilt of the accused and in case the evidence is contradictory and the depositions of witnesses are conflicting and when there is inordinate delay in making necessary information and report, the Court must take into consideration the entirety of the situation and while appreciating the evidence, the Court must not not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version; the discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation; after exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the Court must determine whether the residuary evidence is sufficient to convict the accused.
21. Keeping in mind the above principles and applying the same to the facts of the present case, it is seen that the contradictions cannot be termed as minor and it could only be vital, which definitely shatters the prosecution case in proving the guilt of the accused beyond reasonable doubt, and there is missing link in the circumstances of the case with no cogent materials made by the prosecution. Such conflicting and contradictory evidence, as pointed out by the learned counsel for the appellant/accused, gives an unambiguous position to this Court that "benefit of doubt" should be given in favour of the appellant/accused and it is inferred that the prosecution has not proved the guilt of the accused beyond reasonable doubt.
22. For all the above reasons and discussions, we find there is substantial doubt in the prosecution case and accordingly, giving the 'benefit of doubt' in favour of the appellant/accused, as the prosecution has not proved the guilt of the accused beyond reasonable doubt, we allow this appeal.
23. Accordingly, the appeal is allowed. The conviction and sentence imposed on the appellant/accused by the trial Court, are set aside. He is acquitted of the charges. He is directed to be set at liberty forthwith, unless his custody is required in connection with any other case. The bail bond(s) if any executed by him shall stand cancelled. The fine amount, if paid by him, shall be refunded.
cs To
1. The Principal Sessions Judge, Mahila Court, Cuddalore.
2. The Inspector of Police, Cuddalore OT Police Station, Cuddalore.
3. The Director General of Police, Mylapore, Chennai.
4. The District Collector, Cuddalore.
5. The Superintendent, Central Prison, Cuddalore.
6. The Public Prosecutor, High Court Madras