Madras High Court
Satish @ Satish Kumar vs State: Rep By Inspector Of Police on 19 February, 2016
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.02.2016 CORAM: THE HON'BLE MR.JUSTICE S.NAGAMUTHU and THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN Criminal Appeal No.490 of 2011 and M.P.No.1 of 2011 1.Satish @ Satish Kumar 2.Karuppuswamy .. Appellants/Accused 1 & 2 Vs. State: Rep by Inspector of Police (M-3), Puzhal Police Station, Chennai. Cr.No.205 of 2007 .. Respondent/Complainant Prayer : Appeal filed under Section 374(2) of the Code of Criminal Procedure against the judgment dated 08.10.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Thiruvallur in S.C.No.220 of 2007 For Appellants : Mr.S.Saravana Kumar For Respondent : Mr.M.Maharaja Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by M.SATHYANARAYANAN, J.) The accused 1 and 2 in S.C.No.220/2007 on the file of the Additional Sessions Judge/FTC, Tiruvallur are the appellants and they were charged for the commission of offences under Sections 376(g) r/w. Section 302 r/w. 34 IPC. The trial Court, vide judgment dated 08.10.2009, has convicted both of them for the offence under Section 376(g) IPC and sentenced them to undergo 10 years rigorous imprisonment with a fine of Rs.1000/- each, in default to undergo 6 months simple imprisonment and convicted them for the offence under Section 302 r/w. 34 IPC and sentenced them to undergo rigorous imprisonment for life with a fine of Rs.1000/- each, in default to undergo one year rigorous imprisonment. The sentences were ordered to run concurrently. The trial Court has granted set off under Section 428 CrPC and aggrieved by the judgment of conviction and sentence passed by the trial Court, the present appeal has been filed.
2. Facts narrated in brief, necessary for the disposal of this appeal are as follows:
2.1. Accused 1 and 2 are close friends and the first accused developed acquaintance with Roja, aged about 14 years, who is the daughter of PWs.1 and 4, under the pretext of loving her. PW1 is eking out his livelihood as a painter and PW4 is eking out her livelihood as a construction worker and after finishing their respective work, they came back to their house at 2.10 p.m. on 21.04.2007 to have lunch along with their daughter Roja and thereafter, they went out for their work. At about 4.30 p.m. on 21.04.2007, PWs.1 and 4, heard the alarm raised by public and they went near a pond and saw the body of their daughter/deceased. Immediately, the persons present there contacted Puzhal Police Station through telephone and police personnel attached to the said police station came to the spot. Thereafter, PW1 went to the police station and lodged a complaint under Ex.P1 narrating the above facts and stated that a person put the stone on the head of his daughter and murdered her and he is a known person and prays for appropriate action.
2.2. PW18, the Sub-Inspector of Police attached to Puzhal Police Station, on receipt of Ex.P1/complaint given by PW1, had registered a case in Crime No.205/2007 for the offences under Section 302 IPC at 5.30 p.m. Ex.P16 is the printed F.I.R and he forwarded the original of the F.I.R to the jurisdictional Magistrate Court and also informed his immediate official, namely the Inspector of Police/PW19.
2.3. PW19, on receipt of F.I.R., commenced the investigation and went to the scene of occurrence at 18.00 hours and in the presence of PW8 and another, prepared Observation Mahazar, marked as Ex.P6 and Rough Sketch, marked as Ex.P7 and also seized M.Os.1 to 4. PW18 recorded the statement of PW8 and another and in the presence of Panchayatdars, prepared the Inquest Report, marked as Ex.P17 and also examined PWs.1, 4, 5, 6 & 7. PW19, after obtaining necessary permission, sent the body for postmortem through PW16, Head constable at the Stanley Government Hospital, Chennai. PW3 was the Assistant Professor, Department of Forensic Medicine, Stanley Government Hospital, Chennai, who, on receipt of the body, commenced the postmortem at about 11.45 p.m. on 21.04.2007 and noted the following features:
External injuries:
1)Brown irregular abrasions:
a)Horizontal 1 x 0.1 c.m. on the front of middle third of right leg.
b)Vertically oblique 1.7 x 0.1 c.m. on the back on loqwe part of upper third of left leg.
c)Vertically oblique 1.7 x 0.1 c.m. on the outer aspect of upper third of left leg.
d)1 x 0.5 c.m. on the back of right wrist.
e)2 x 0.6 c.m. on the front of left below.
f)2 x 1 8-0.5 cm. on the lower part of centre of centre of nect 4.5 cm above the suprasternal notch.
g)Horizontally oblique 1.2 x 0.3. c.m. on the middle part of right side of the nect 1.5. c.m. right laternal to the midline.
h)1.5 x 0.2. c.m. on the upper part of the right side of the neck. 1.2. cm right laternal to the midline.
i)Vertically oblique 1.5 x 0.2. c.m. on the upper part of the right side of the nect 2.c.m. right lateral to the midline.
j)Oblique 1.5 x 0.2. c.m. on the lower aspect of right side of the chin 1.5. c.m. on the upper part of right side neck. 2.c.m. Let lkateral to the middline.
k)3.5. x 0.5. 0.2. c.m. on the upper part of left side of the neck, 2.c.m. left lateral to the midline.
l)0.6. x 0.2. c.m. on the middle part of left side of the neck 2.2. c.m. left lateral to the midline.
m)3.5. x 1.4-0.5 cm on the lower part of right cheek
n)10.5. x 6-1.5 cm on the right cheek and the outer half of the upper & lower right eyelids.
o)1.5. x 1-0.5 on the back of right shoulder
p)1.5 x 0.2. c.m. on the lower part of back of right shoulder
q)13.x.2-05 cm on the right side of the upper part of the neck and the adjoining right mastold region of the scalp.
r)2 x 1.8-0.5 cm on the upper part of right ear lobe.
s)1 x 0. cm on the outer aspect of middle third of right side of the back.
t)3 x 1.5. cm on the upper part of back of left shoulder.
u)0.8. x 4-0.2. cm on the upper part of left scapular region of the back
2. Lacerated wound 2.2 x 0.5 x 1.0.5. cm on the middle part of right cheek, 5.c.m. in region front of the lower end of right ear lobe.
3. Lacerated wound 2 x 0.2 x 0.5. c.m. 0.3. on the outer third of right upper eyelid.
4. Lacerated wound 1.5 x 0.2 x 0.3. cm on the outer end of right side of the upper lip.
5. Dark red diffuse brusing of the upper and lower lids of right eye.
6. Lacerated wound 2 x 1.2 x 0.5-0.3 cm on the right temporal region of the scalp 4. c.m. above the upper end of right ear lobe. On reflection of scalp. Dark red scalp deep diffuse brusing on the right fronto tempara parietal regions of the scalp dark red diffuse brusing of the right and left temporial muscles. 12 c.m. oblique fissured fracture on the anterior and upper part of left temporal bone and the outer part of temporo parietal regions of the left parietal bone, on opening the calvarium thin film of dark red extradural haemorrhage on the left cerebral hemisphere of the brain, thin flim of dark red subbural haemorrhage over both the cerabral and the cerebral hemisphere 11 c.m. oblique fissured fracture on the floor of the left antarior cranial fossa, pituitary fossa and the right middle cranial fossa.
7. On dissection of the neck 8 x 1.5-5 x 0.5 x 0.5-02 cm vertically oblique dark red bruising on the subcutaneous soft tissues of the neck overlying the right stemo cliedo mastold muscle is pale 9x2-1x0.05-0.3 cm dark red bruising on the subcutaneous soft tissues on the left side of the neck overlying the outer part of the left sterno cleido Mastoid muscle. On dissection, underlying Sterno Cleido Mastoid muscle is pale. On further dissection Dark red diffuse bruising of the upper part of the right and left sterno thyroid muscles, left lobe of thyroid gland and the lower part of the right lobe of the thyroid gland and the lower part of the right lobe of the thyroid gland; Heart Normal in size c/s All chambers empty Valves, Normal coronaries patent Lungs. Normal in size, C/s congested Larny x & Trachea. Empty.
Hyod Bone: Intact.
Stomach. Contained 420 gms of partly digested food material with discernible ridh particles no definite smell. Mucosa, Pale liver. Spleen & Kidneys. Normal in size: C/s Ple intestines, contained brown chims. Urinary Bladder Empty Uterus. Normal in Size, C/s. Empty no evidence of conception endometrium. Pale Both ovaries. Normal in size, C/s Normal Pelvis & Spinal Column intact.
Genmitia, No injuries on the external parts of the genitallia, Hymen. No evidence of any injury only 0.3. 0.2 cm wide hymenal membrane was adherent to the margin of the vaginal orifice, the margins of the hymenal membrance were irregular and the hymenal orifice admitted two fingers easily and measured 2.5. c.m. grayish white discharge was found on the vaginal orifice.
Vaginal swab, vaginal smear and vaginal wash were sent for forensic analysis. PW3, after conclusion of the postmortem, opined that the deceased would appear to have died of head injuries.
2.4. PW19, continued with the investigation and recorded the statements of PWs.1, 6,7, 10, 11, 12 and 14 and also seized the blood stained cloth wore by the deceased, marked as M.Os.5 and 6 and sent them for chemical analysis. PW19 also sent the Vaginal swab, Vaginal swear and Vaginal wash for forensic analysis to PW2 to examine the semen and PW2 sent a report under Ex.P2 opining that no semen was detected. PW19 effected arrest of both accused at 16.00 hours on 26.04.2007 in the presence of PW13 and others. Both the accused voluntarily gave confession statements, which were recorded in the presence of independent witnesses. As per the admissible portion of the confession of the first accused, PW19 recovered blood stained light blue colour jeans pant/M.O.8, under Mahazar Ex.P10 and on the admissible portion of the confession statement of the second accused, PW19 recovered blood stained jeans pant/M.O.9, under Mahazar Ex.P11 and thereafter prepared Alteration Report and submitted the same to the jurisdictional Magistrate and also sent both the accused for judicial custody. PW13 also made arrangements to examine the accused and PW17, after examining both the accused, issued certificates regarding sexual offences, marked as Exs.P12 to P15, stating that there is nothing to suggest that both the accused are impotent and their age is around 19 years.
2.5. PW2, who examined the blood stained cloths of the accused, sent a report under Ex.P3 stating that blood detected on item Nos.1, 3 and 5 to 9 but not on item Nos.2 and 4 and detected semen on item No.7 and not on item Nos.5, 6, 8 and 9. PW19 also examined PWs.2 and 3 and after obtaining reports under Exs.P19 to P23 and on completion of investigation, filed final report/charge sheet, charge sheeting the accused under Sections 376(g) IPC r/w. 302 r/w. 34 IPC on the file of the Court of Judicial Magistrate, Thiruvottiyur, who took it on file in P.R.C.No.31/2007 and issued summons to the accused and furnished them the copies of documents under Section 207 CrPC. The committal Court having found that the case is exclusively triable by the Sessions Court, has committed the same to the Principal Sessions Court, Thiruvallur, which in-turn made over to the Additional Sessions Judge, Fast Track Court, Thiruvallur, who took it on file in S.C.No.220/2007 and on appearance of the accused, framed charges under Sections 376(g) r/w. 302 r/w.34 IPC and questioned them and all the accused pleaded guilty to the charges framed against them.
2.6. The prosecution, in order to sustain their case, had examined PWs.1 to 19 and marked Exs.P1 to P23 and M.Os.1 to 9. All the accused were questioned under Section 313(1)(b) CrPC with regard to incriminating circumstances made out against them in the evidence rendered by the prosecution and they denied it as false. No evidence was let in or documentary evidence was marked on behalf of the accused.
2.7. The trial Court, on consideration of oral and documentary evidence and other materials, has found both the accused guilty in respect of charges framed against them and sentenced them as stated above and aggrieved by the same, the present appeal has been filed.
3. The learned counsel appearing for the appellants submits that the case of the prosecution rests upon circumstantial evidence and following are the circumstances projected by the prosecution to connect the accused with the commission of offences:
(a) The first accused had close acquaintance with the deceased, namely Roja, on the pretext of love.
(b) The second accused, being related to the family of the deceased, is also the close friend of the first accused.
(c) Both the accused were near the residence of PW1 and followed the deceased, as spoken to by PWs.9, 10, 11 and 12.
(d) Arrest, confession and recovery of incriminating articles.
(e) Scientific Evidence.
The learned counsel appearing for the appellants would contend that except the testimonies of PWs.9 to 12 regarding Last Seen Theory, no other evidence has been adduced by the prosecution and the prosecution has miserably failed to substantiate their case in the form of any other tenable evidence as to the love affair between the first accused and the deceased and the alleged promise made by the first accused to permit his friend/second accused to have physical relationship with the deceased. It is also contended by the learned counsel appearing for the appellants that the version spoken by PWs.6 and 7 that the second accused came and changed his clothes, which was witnessed by them from their house is totally unbelievable and was highly artificial and untrustworthy. In sum and substance, it is the submission of the learned counsel appearing for the appellants that though the case of the prosecution rests on circumstantial evidence, there are very many glaring holes and inconsistencies in the case projected by the prosecution and further that chain of events pointing out the guilt, connecting the accused on the commission of crime, is not at all complete with many broken links and the trial Court, in any event, ought to have ordered benefit of doubt and acquitted them and prays for Hon'ble acquittal.
4. Per contra, Mr.M.Maharaja, learned Additional Public Prosecutor would contend that PW1 himself has spoken about the accused 1 and 2, in his evidence, as both of them used to come to his house and also identified both of them in the open Court and he was very categorical that both of them raped his daughter and murdered her, which was amply corroborated by the testimony of PW4, mother of the deceased. That apart, both of the accused were seen near a lake and also their habit of following the deceased has been spoken to by PWs.9 to 12. Moreover, the scientific evidence in the form of Biological Report, Postmortem Certificate and Medical Examination Reports of the accused 1 and 2 and their age certificates coupled with Serological reports have confirmed the fact that the deceased died on account of homicidal violence and the accused 1 and 2 alone are responsible for committing the heinous crime of murder and the trial Court, on a proper appreciation of oral and documentary evidence, has rightly reached the conclusion to convict and sentence them and hence, prays for dismissal of this appeal.
5. This Court paid it's best attention and anxious consideration to the rival submissions and also perused the oral and documentary evidence as well as the original documents.
6. The following questions arises for consideration:
(1) Whether the prosecution has proved the commission of the offences on the part of the accused under Sections 376(g) r/w.302 r/w. 34 IPC.
7. PW1 is the father of the deceased and he lodged a complaint under Ex.P1 to PW18, who registered the F.I.R under Ex.P16. The contents of Ex.P1 read that he and PW4 begot five children, of which four are male and one female, namely Roja, aged about 14 years and she did not go to school and many male persons residing in that area used to converse with her freely. PW1 would further state that on 21.04.2007, in connection with his occupation, he went out and during lunch hours, he came back and took his food provided by her daughter and thereafter, went back to job and at 14.45 p.m., he heard about the demise of his daughter and went to the spot and found that somebody put stone on her head and committed murder and it would have been committed by known persons. PW1 in the chief examination has deposed that both the accused used to come to his house frequently and also identified them before the Court and his daughter will not venture out with anybody unless they are known to them and both the accused are known to his daughter and both of them came to his house, made false promise and cheated her and raped her and murdered her. In the cross examination, PW1 would depose that he is an illiterate and Ex.P2 was not written by him and would submit that in Ex.P1, names of the accused have not been given. In the cross examination done on behalf of the second accused, PW1 deposed that he has informed over telephone about the incident at about 4.45 p.m. on 21.04.2007 and at about 5.15 p.m. police came to the spot and they were present in the scene of occurrence within 2 hours and thereafter, he went to the police station and stayed in the police station for one day and returned on the next day. He would further depose that his daughter has no friends.
8. PW4, mother of the deceased, would depose that he is a construction worker and knows both the accused and also identified them and during investigation, she told the police that both the accused used to come to her house and had conversation with her daughter and as and when her daughter goes outside, they used to follow them and her daughter will not venture out with any person unless she is having acquaintance or knows them. In the cross examination, PW4 deposed that on the date of occurrence, her husband directly went to the police station and after lodging a complaint, came back about 6.30 p.m. Admittedly in Ex.P1/complaint, PW1 did not reveal the names of the accused, but has stated that the murder was committed by a known person, however, in the chief examination made improvements as pointed out above. In the cross examination, PW1 has deposed that he talked to the police through telephone on 04.45 p.m. on 21.04.2007 and at about 5.15 p.m. police came and went to the scene of occurrence and they were present for about 2 hours and thereafter, he went to the police station and was in the police station for one day and returned on the next day. However, his wife PW4 would depose that her husband directly went to the police station and lodged the complaint and thereafter, he returned about 6.30 p.m. on 21.04.2007.
9. PW18 was the Sub-Inspector of Police at the Puzhal Police Station at the relevant point of time and according to him, at about 5.30 p.m. on 21.04.2007, PW1 has lodged a written complaint, which was marked as Ex.P1 and in the cross examination, deposed that he was not aware as to the persons who has written Ex.P1 and he was waiting for = an hour in the police station and after registration of the F.I.R., he went out. Admittedly PW1 is an illiterate and it is not clear as to the person who has prepared Ex.P1/complaint.
10. PW19/Investigating Officer would depose that after receipt of F.I.R, he went to the spot at about 18.00 hours and commenced the investigation. PW1 made improvements from that of the complaint/Ex.P1 by naming two persons as the accused who committed the murder and that apart, prior to the lodging of the complaint, already informed over telephone to the police and the fate of the said complaint which was made at the earliest point of time even prior to Ex.P1 is not made known to the prosecution.
11. The prosecution placed heavy reliance upon the testimonies of PWs.5,6, 7, 9 to 12. PW5 would depose that one week prior to the occurrence, both the accused had followed the deceased and teased her. In the cross examination, PW5 would state that in his Company, he has signed the said statement and on 22.04.2007, he was summoned to the police station and he was present there for about one hour and he has also subscribed his signature. It is pertinent to point out at this juncture that even according to the prosecution, the first accused was having close acquaintance with the deceased on the pretext of love affair and the second accused is the relative of the deceased. Therefore, PW5's testimony that both of them had followed her has not lead to the presumption that they have decided to rape and murder her. PWs.6 and 7 are the younger sisters of PW1 and according to PW6, after finishing her construction work, she came back to her house at about 4.00 p.m. on 21.04.2007 and he saw the second accused coming back to his house wearing black colour shirt and jeans pant and thereafter, he changed his cloths and went away and some time thereafter, he became aware that his younger sister's daughter was murdered. Merely because the second accused came back and changed his cloth and the absence of any blood stains etc., in no way supports the case of the prosecution as to the acts of rape and murder. PW6 would depose that both the accused regularly used to follow the deceased and both of them cheated her and murdered her. In the cross examination, he would admit that he did not state during the course of investigation that the first accused raped and murdered his brother's daughter and so also teasing her and admitted that the second accused is also related to him.
12. This Court, while discussing the evidence of PW5, has held that merely because both the accused followed the deceased would not lead to the presumption that both of them had decided to do away with the life of the deceased after raping her. Since PWs.6 and 7 had deposed on similar lines coupled with the improvements made during the course of oral evidence, it is not safe to rely on their evidence.
13. The prosecution had examined PWs.9, 10, 11 and 12 to speak about the fact that the first accused and the deceased/Roja were conversing with each other near a lake and the second accused was standing at some distance. The chemical analysis done on the cloth of the deceased did not revel the presence of Semen and so also the report of PW2 under Exs.P2 and P3. Even PW3, who conducted autopsy and issued Ex.P4/postmortem certificate, did not specifically state as to the rape of the deceased prior to her murder and thus the prosecution has failed to prove the charge under Section 376(g) against both the accused.
14. It is the version of the witnesses who spoke about the Last Seen Theory that they loaded the earth in the bullock cart and unloaded the same and while doing so, they have seen the first accused conversing with the deceased. PWs.9 and 10, during investigation, did not say anything about loading of the earth and did not see the place in which earth was unloaded and also number of loads transported by them and would further admit that all the slum dwellers are related to the deceased. In the light of the said admission, the presence of PWs.9 and 10 near the place of occurrence is highly doubtful and therefore, their testimonies cannot be relied upon to substantiate the Last Seen Theory projected by the prosecution.
15. Insofar as PW11 is concerned, he would depose that the accused 1 and 2 were conversing with the deceased near her house and sometime thereafter, the second accused went away and used to paint the barricades used by police. PW12 would depose that he saw the second accused proceeding towards the lake with the company of the deceased and he is also related to the deceased. It is also the case of the prosecution that the first accused had acquaintance with the deceased on the pretext of loving her and used to have physical relationship and he promised the second accused that he can also have physical relationship with her and after having physical relationship, the first accused put a stone on her head and murdered.
16. The place in which the murder was committed is also said to have been on the higher side and admittedly there was no eye witness to the said occurrence. This Court, in the earlier paragraphs, has held that there is absolutely no evidence as to the commission of offence under Section 376(g) IPC as the scientific evidence did not support the case of the prosecution, as it was a case of rape and then murder and since the deceased stated that she would reveal the same in public, she was murdered. In the considered opinion of the Court, the prosecution has miserably failed to prove the motive for the commission of the offences.
17. In the light of the reasons assigned above, the prosecution has miserably failed to prove the motive aspect and that apart, even as per the evidence of PW1, there was a prior complaint even before Ex.P1, but the prosecution was unable to explain as to the nature of disposal/action taken on the basis of the said complaint. The case of the prosecution hinges upon Last Seen Theory and in the absence of any definite evidence that the appellants and the deceased were last seen together and when the time gap is so long, it would be highly dangerous to reach the conclusion that the appellants are responsible for the murder and where time gap is long, it would be unsafe to base the conviction on the last Seen Theory and it is safer to look for corroboration from other circumstances on the evidence adduced by the prosecution. The scientific evidence also did not come to the aid of the prosecution.
18. It is a well settled position of law laid down by the Hon'ble Supreme Court in a catena of decisions that where the conviction is based on circumstantial evidence, it must fulfill the following:
(a) the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established;
(b) All the facts so established should be consistent only with hypothesis of the guilt of the accused;
(c) They should be such as to exclude every possible hypothesis, except the one proposed to be proved;
(d) There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and
(e) It must be such as to show that within all human probability act must have been done by the accused.
19. This Court, on an independent application of mind and on careful scrutiny, appreciation and analysis of the entire materials placed before it, is of the considered view that the circumstances projected by the prosecution are not complete and there are very many missing links and as a consequence, it is unsafe to convict the accused and the appellants are entitled to the benefit of doubt and are to be acquitted.
20. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the appellants/accused for the offences under Sections 376(g) r/w. 302 r/w. 34 IPC, vide Judgment dated 08.10.2009 made in S.C.No.220 of 2007 by the learned Additional Sessions Judge (F.T.C.) Thiruvallur are hereby set aside and the appellants/accused are acquitted of the charges levelled against them and the appellants are set at liberty forthwith, unless their presence is required in connection with any other case. Fine amount, if any paid, shall be refunded to the appellant.
(S.N.J.,) (M.S.N., J.)
19.02.2016
Index : Yes / No
Internet : Yes / No
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To
1.Additional Sessions Judge (F.T.C.)
Thiruvallur
2.The Inspector of Police
(M-3), Puzhal Police Station,
Chennai.
3. The Public Prosecutor,
Madras High Court, Chennai.
S.NAGAMUTHU, J.,
and
M.SATHYANARAYANAN, J.
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Judgment in
Criminal Appeal No.490 of 2011
19.02.2016