Madras High Court
Shankar vs State Rep. By on 18 July, 2019
Equivalent citations: AIRONLINE 2019 MAD 1144
Author: M.Nirmal Kumar
Bench: M.M.Sundresh, M. Nirmal Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 09.07.2019
Pronounced on : 18.07.2019
Coram
The Hon'ble Mr. Justice M.M.SUNDRESH
and
The Hon'ble Mr. Justice M. NIRMAL KUMAR
Crl.A.No. 482 of 2018
1.Shankar
2.Niththiyaraj ...Appellants
-vs-
State Rep. By
The Inspector of Police,
Sri Ramachandra Medical College
Police Station (SRMC),
Thiruvallur District. ... Respondent
Prayer : Criminal Appeal filed under Section 374(2) of the Code of Criminal
Procedure,1973 to set aside the conviction and sentence passed by the III
Additional District and Session Judge, Thiruvallur at Poonamalee in Session
Case No.146 of 2013 dated 19.08.2016.
Mr.C.R.Malarvannan
For Appellants :
for Mr.V.Rajamohan
For Respondent Mr.R.Prathap Kumar
:
Addl. Public Prosecutor
http://www.judis.nic.in
2
JUDGMENT
M.NIRMAL KUMAR, J.
The appellants are A1 and A2, who are charged for the offences punishable under Sections 364, 302 and 201 IPC. The trial Court on conclusion of trial found the appellants guilty and sentenced them to undergo life imprisonment for the offence under Section 302 IPC and to pay a fine of Rs. 1,000/-, in default, to undergo two years rigorous imprisonment and to undergo seven years rigorous imprisonment for the offence under Section 201 IPC and directed the sentences to run concurrently. The appellants were acquitted for the offence punishable under Section 364 IPC.
2. The case of the prosecution is that the deceased Vinoth Kumar was a Mason contractor. The first accused was a tenant in the house of the deceased and due to some bad association between the first accused and the deceased, P.W.1 the wife of the deceased asked the accused to vacate the premises. The accused 1 and 2 are brothers. On 22.04.2011 at 8.30 a.m. P.W.4 (who works under the deceased) met both the accused and deceased near Iyyappanthangal Bus Stop. Thereafter, the deceased http://www.judis.nic.in 3 asked P.W.4 to go for the work and informed him that he will join him by 11.00 a.m. But even after 1.00 p.m. the deceased did not come to the place of work. It is stated that the accused have taken him near the Jayavinayagar Temple at Retteri Lake, Porur. The deceased Vinoth Kumar was attacked by the accused and his head was dashed against the temple wall and thereby caused his death. To conceal the same, the appellants had thrown the body of the deceased in the lake.
3. On 22.04.2011, at about 5.30 p.m., P.W.1, the wife of the deceased, gave the complaint to the respondent police which was marked as Ex.P1, stating that her husband had not returned from the work and despite all her efforts to know about the whereabouts through his acquaints and friends, there was no trace of him. Initially, the respondent/police registered a case in Cr.No.139 of 2011 for man missing. Thereafter, P.W.4 informed P.W.1 that her husband was seen in the company of the appellants in a wine shop at Iyyappanthangal fully drunk and thereafter all the three were seen near the lake at about 12.30 p.m. After sometime, the appellants came to the place of work where P.W.4 was working and claimed that they had assaulted Vinoth Kumar, killed him and threw him in the lake and threatened P.W.4. Fearing about the consequences P.W.4 left his work and thereafter informed P.W.1. P.W.1 along with her mother, brother and http://www.judis.nic.in 4 others went in search of the deceased Vinoth Kumar near the lake and they also informed the fire service and they could not recover the body as it had become dark by then. On the next day i.e., on 23.4.2011 at about 11 a.m., the body of the deceased was seen floating in the lake and thereafter it was informed to the respondent/police. They reached the scene of occurrence and inquired the witnesses, conducted inquest and thereafter the body was sent for post-mortem to the Government Royapettah Hospital, Chennai. P.W.16 the doctor conducted the post-mortem and handed over the body to the relatives. P.W.6 has identified the accused and witnessed the fight between the accused and the deceased. P.W.17 the resident near the lake had seen the deceased drown. The accused were arrested. From the confession, articles were recovered and after recording 164 Cr.P.C. statements, Test Identification Parade was conducted. Thereafter charge sheet was filed against them.
4. The respondents had examined P.W.1 to P.W.19. Exs. P1 to P25 and M.O.S 1 to 3 have been marked in this case. On the side of the defence, no witness and documents were marked.
5. The trial court on analysis of the evidence – both oral and documentary came to the conclusion that the accused are guilty of the http://www.judis.nic.in 5 offence and convicted them, as stated supra.
6. P.W.1 is the wife of the deceased; P.W.2 is the mother of the deceased; P.W.3 is the brother of the deceased; P.W.4 is the Mason who was working under the deceased; P.W.5 is the Watchman of the building in which the deceased was working; P.W.6 is the passer-by who has seen the fight between the appellants and the deceased Vinoth Kumar; P.W.7 is the witness to the observation mahazar and the rough sketch; P.W.8 is the supervisor of the building; P.W.9 is the witness for arrest and confession, who did not support the case of the prosecution; P.W.10 is the Head Constable who was in-charge of the body; P.W.11 is the Head Constable who handed over the articles for forensic study; P.W.12 is the fire officer from the Fire Service Department; P.W.13 is the Judicial Magistrate who had recorded statements under Section 164 Cr.P.C from P.W.4 and one Karthik and Rajan; P.W.14 is the Judicial Magistrate who conducted Test Identification Parade in which P.W.6 identified the accused; P.W.15 is the Doctor who issued the Accident Register – Ex.P.13; P.W.16 is the Doctor who had conducted post-mortem and issued Exs.P.14 and P.15; P.W.17 is a person residing near the lake; P.W.18 is the Investigating Officer who had received the complaint, registered the case, went to the scene of occurrence, conducted inquest, sent the body for post-mortem and had http://www.judis.nic.in 6 conducted the major part of the investigation. On his transfer, P.W.19 had taken over as Investigating Officer and took up further investigation and filed the charge sheet.
7. P.W.1 the wife of the deceased had stated in her evidence that on 22.04.2011 at about 6.00 a.m. the deceased had gone for his work. At about 2.00 p.m. P.W.4 had informed her that the appellants assaulted her husband, dashed him against the wall of the temple and threw his body into the lake. Thereafter, they demanded money from P.W.4, failing which, he was threatened to suffer the same fate as that of the deceased and fearing the same, he left the work place and had informed P.W.1 about the same. Thereafter, P.W.1 had gone to the lake along with her brother and one Velu and they also informed the Fire Services Department and they are unable to recover the body. On the next day, the body was seen floating and further she had stated that P.W.4 had seen the appellants and the deceased in a drunken state and her husband was forcibly dragged towards the temple and thereafter he was assaulted and thrown in the lake. Prior to it, the first appellant had threatened P.W.1 for forcibly vacating him from her house. Ex.P1 is the complaint given by her.
8. The evidence of P.W.4 is categorical that at about 8.30 a.m. on http://www.judis.nic.in 7 22.04.2011 he saw the deceased and the appellants together. At that time, the deceased had informed P.W.4 that at about 11.00 a.m. he will come and join the work and thereafter he did not turn up. At about 1.00 p.m. the appellants in a drunken state had come and claimed that they had assaulted the deceased and had thrown him in the lake. Further they also threatened P.W.4 and fearing the consequences, P.W.4 and the others who were working there left the place. Thereafter, P.W.4 informed the family members of the deceased by 2.00 p.m. on 22.04.2011.
9. P.W.2, who the mother of the deceased, has stated that her son was doing small contract works and he was addicted to liquor and ganja at the instance of the appellants. On coming to know from P.W.1 that her son was missing, she had gone in search of him along with her. P.W.3 the brother of P.W.1 was informed about the missing of her husband by P.W.1 – Sister.
10. P.W.5 the Watchman of the building where the deceased was working has deposed that on the fateful day, the deceased did not come for work and saw the appellants in a drunken state, threatening the other workers.
http://www.judis.nic.in 8
11. P.W.6 the Electrician, on 22.04.2011, had seen the appellants fighting amongst them. There was a crowd around the lake and when he inquired, he came to know that a person was murdered and thrown into the lake.
12. P.W.7 the witness to the Seizure Mahazar and the Observation Mahazar, Exs.P2 and P3. P.W.8 is the Supervisor under whom the deceased and the appellants were working. P.W.17 who was residing near the lake on 24.04.2011 was informed by one Rajam that two persons had forcibly administered liquor, assaulted the person and pushed him in the lake. When she had gone near the lake, she found that a person was struggling for his life in the lake waving his hand. Thereafter, he had sunk and gone under water.
13. P.W.9 is the witness for arrest and confession, through whom Ex.P4 and Ex.P5 were marked. However, his evidence had no support to the case of the prosecution. P.W.10 and P.W.11 are the Head Constables attached to the respondent police station, who were in charge of the body and taken viscera to the forensic study. P.W.12 is the Fireman who had searched the body of the deceased on 22.04.2011, at about 6.30 p.m. http://www.judis.nic.in 9
14. P.W.13 is the Judicial Magistrate who had recorded statements under Section 164 Cr.P.C. of P.W.4 and one Karthik and Rajan and Exs.P6 to P10 have been marked. P.W.14 is the Judicial Magistrate who conducted the Test Identification Parade in which P.W.6 had identified the accused and the report is Ex.P12. P.W.15 and P.W.16 are the Doctors attached to the Government Hospital, Royapettah, who had issued Accident Register and the post-mortem certificates, Exs. P.13 and P.14. P.W.15 had given an opinion that the accused would have died due to head injury.
15. P.W.18 is the Investigating Officer who registered the case, thereafter altered the FIR, examined witnesses, visited scene of occurrence, prepared rough sketch, observation mahazar, seized articles in the scene of occurrence, arrested the accused and thereafter made request for Test Identification Parade and recorded 164 Cr.P.C. Statements. In the meanwhile, P.W.18 was transferred. Thereafter, P.W.19 had taken over as Investigating Officer, recorded the statement of the Doctor, who conducted post-mortem, received post-mortem report, biological report, serologist report and thereafter filed the charge sheet. Thus, according to the prosecution, they proved the case with cogent evidence both oral and documentary and after analyzing the same, the trial Court had convicted http://www.judis.nic.in 10 the accused and their conviction is to be sustained.
16. The contention of the learned counsel for appellants is that it is a case of circumstantial evidence and there is no eye witness to the occurrence and there are inherent contradictions in the evidence of the witnesses. There was animosity between the family members of the deceased namely P.W.1, P.W.2, P.W.3, and the first accused as they were under the presumption that the deceased was consuming alcohol and was taken to bad habits only at the instance of the appellants. Further, there was some dispute with regard to undertaking of painting work between the deceased and the appellants, since the appellants happen to be painters, who are competing for the work.
17. The appellants submitted that P.W.1 in her evidence had categorically admitted that on 22.04.2011 at about 2 p.m. P.W.4 came and informed her that he had seen her husband Vinoth Kumar in the morning hours along with the appellants near Iyyappathangal and the deceased had told him that he would join him in his work at about 11 a.m. but he did not turn up. On the other hand, at about 1.00 p.m., the appellants had come in a drunken state and informed P.W.4 that they had done to death the P.W.1's husband and thrown his body in the lake and threatened him. Out of fear, http://www.judis.nic.in 11 he had fled from the place and informed P.W.1 thereafter. P.W.1 stated that she had gone in search of her husband along with the family members namely P.W.2 and P.W.3 and thereafter she lodged the complaint.
18. P.W.6 further admits that he saw the photograph of the accused shown to him and through that photograph, he had identified the accused. It is also submitted that the appellants have informed P.W.14 that they were identified by the witnesses when they were arrested. Thus, it was submitted that looking from any angle, the prosecution has miserably failed to prove the case against the appellants and hence prayed that the appellants may be acquitted.
19. According to the prosecution, P.W.1, P.W.4, P.W.5 and P.W.8 stated that between 1.30 p.m. and 3.00 p.m. the accused/appellants are said to have come in drunken state claiming that they had done to death the deceased and thrown him in the lake which is obviously false. It is also pertinent to note that it is the categorical evidence of P.W.17 that she was informed by Rajam that one person was being forcibly administered liquor, thrown in the lake and that when she went there, she saw the person was drowning and struggling for his life and drowning to death. On the contrary, P.W.16, the doctor who conducted post-mortem has categorically stated that http://www.judis.nic.in 12 there was no diatom. Further, it is submitted that the evidence of P.W.6 is that the appellants along with the deceased were in drunken state and were fighting, further P.W.4 saw the appellants dragging the deceased in a drunken state. The case of the prosecution itself is that the appellants and the deceased consumed alcohol and they were in a drunken state, and thereafter the appellants had assaulted the deceased and thrown his body into the lake.
20. On considering the rival submissions and perusing the materials available on record, this Court finds that the witnesses are contrary to each other and unbelievable. P.W.1 admits that she was informed by P.W.4 that her husband was thrown in the lake at about 1.00 p.m. and also states that she was informed about the same at about 2.30 p.m. by P.W.4. It is seen that Ex.P1 the complaint was lodged at 5.30 p.m. Further, P.W.2 and P.W.3 has stated that they came to know about the incident only through P.W.1. Hence, the genesis of the case itself has become highly doubtful.
21. It is seen that as per Ex.P1, the complaint came to be registered at about 5.30 p.m, that her husband was missing, and thereupon a man missing case was registered at 5.30 p.m. However, it is the case of the prosecution that P.W.1 was informed by P.W.4 at about 2.00 p.m. about her http://www.judis.nic.in 13 husband being assaulted and thrown in the lake by the appellants and if that version of P.W.4 informing P.W.1 is true, then Ex.P1, the genesis of the case is false.
22. P.W.4 to P.W.6 and P.W.8 are all very certain that the accused and the appellants were in drunken state and taking advantage of the drunkenness of the deceased, he was done to death, and his body was thrown in the lake. But in the viscera report and the post-mortem certificate it is stated that alcohol is not present in the body of the deceased. The evidence of P.W.16, the doctor who conducted post-mortem and the forensic report Ex.P.15, it is seen that there is no presence of alcohol in the viscera of the deceased and P.W.16 has certified that no alcoholic smell was found. Thus, the fulcrum of the prosecution case falls like Pack of Cards.
23. P.W.17 though states that she had seen the person drowning in the lake, waving his hand seeking help but got drowned himself. P.W.16 the post-mortem doctor is categorical that there is no presence of diatom on the deceased. Hence, her statement cannot be believed. Recording 164 Cr.P.C. statements, conducting Test Identification Parade in this case are no way helpful to the prosecution. The chain of events are not inter connected http://www.judis.nic.in 14 and does not inspire to place reliance on the evidence available. In a case based on circumstantial evidence, there has to be cogent evidence to connect the accused that it is the accused person who has committed the crime and none else. The circumstances should lead to the sole inference that the accused is guilty of the offence. However, in the case on hand, the circumstantial evidence let in is inconsistent. The evidence of the prosecution cannot be said to be reliable evidence. The appeal deserves to be accepted and the appellant is entitled for acquittal.
24. For the foregoing reasons, the conviction and sentence imposed upon the appellants/accused in S.C.No.146 of 2013 is set aside and the appeal is allowed. The appellants/accused are acquitted of all the charges. The appellants shall be released from prison forthwith, unless their presence is necessary in connection with any other case. The fine amount, if any, paid by the appellants shall be refunded.
[M.M.S.,J.] [M.N.K.,J.]
18.07.2019
Index : Yes / No
ssm
http://www.judis.nic.in
15
To
1. The Inspector of Police,
Sri Ramachandra Medical College Police Station (SRMC), Thiruvallur District.
2.The III Additional District and Sessions Judge, Thiruvallur, Poonamallee.
3. The Public Prosecutor, Madras High Court.
http://www.judis.nic.in 16 M.M.SUNDRESH, J.
and M. NIRMAL KUMAR, J.
(ssm) Pre-delivery judgment in Crl.A.No. 482 of 2018 18.07.2019 http://www.judis.nic.in