Madras High Court
Krishnakumari vs State Represented By on 1 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
Crl.A(MD)No.430 of 2010
and Crl.A(MD)No.434 of 2010
Krishnakumari .. Appellant in
Crl.A(MD)No.430 of 2010
Shajahan .. Appellant in
Crl.A(MD)No.434 of 2010
Vs.
State represented by
The Inspector of Police,
Vilathikulam Police Station,
Tuticorin District.
(Crime No.257 of 2009). .. Respondent in
both Crl.As.
PRAYER: Appeals are filed under Section 374(2) of the Code of Criminal
Procedure against the Judgment and conviction passed by the learned
Additional Sessions Judge, Fast Track Court No.I, Thoothukudi, in S.C.No.150
of 2010, dated 02.11.2010.
!For Appellant in : Mr.V.Kathirvelu
Crl.A(MD)No.430 of 2010 Senior Counsel for
Mr.K.Prabhu
For Appellant in : Mr.M.Ajmal Khan,
Crl.A(MD)No.434 of 2010 Senior Counsel for
Mr.A.Velan for
M/s.Ajmal Associates.
^For Respondent in : Mr.C.Mayilvahana Rajendran,
both Crl.As. Addl. Public Prosecutor
assisted by
Mr.C.Muthu Saravanan
:COMMON JUDGMENT
(Common Judgment of the Court was made by S.NAGAMUTHU, J) The appellants are the accused 1 and 2 in S.C.No.150 of 2010, on the file of the learned Additional Sessions Judge, Fast Track Court No.I, Thoothukudi. The accused 1 and 2 stood charged for the offence under Section 120-B read with 302 I.P.C. and the first accused stood charged for yet another offence under Section 302 I.P.C. By Judgment, dated 02.11.2010, the Trial Court convicted them. For the offence under Section 120-B read with 302 I.P.C., the Trial Court sentenced both the accused to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one year and for the offence under Section 302 I.P.C., the Trial Court sentenced the first accused to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one year. Challenging the said conviction and sentence, the appellants are before this Court, with these Criminal Appeals.
2.The case of the prosecution, in brief, is as follows:
The deceased in this case was one Mr.Rajarajan. The second accused is his wife. It is alleged that the second accused had developed illicit intimacy with the first accused. The deceased reprimanded the second accused for the same. Therefore, it is alleged that on 19.09.2009, the accused 1 and 2 had conspired to commit the murder of the deceased. It is further alleged that in pursuance of the said conspiracy, on 21.09.2009, at about 09.15 p.m., the first accused had taken the deceased to the waste land of one Kamal at Ariyanayakipuram, made him to drink brandy mixed with Fanta colour and when the deceased was lying down under the influence of alcohol, the first accused attacked him on his neck with wooden log and caused his death. The occurrence was not witnessed by any one.
3.It is alleged that the dead body of the deceased was found at 07.00 a.m. on 22.09.2009 at the place of occurrence. P.W.1 is the brother of the deceased. He heard about the same from the villagers, rushed to the spot, verified that the deceased was lying dead and proceeded to Vilathikulam Police Station and made a complaint under Ex.P.1. P.W.14 received Ex.P.1 at 09.00 a.m. on 22.09.2009 and registered a case in Crime No.257 of 2009 under Section 302 I.P.C. Ex.P.18 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the Case Diary to the Inspector of Police for investigation.
4.P.W.15, the then Inspector of Police, Vilathikulam Police Station, took up the case for investigation at 09.30 a.m. on 22.09.2009. Immediately, he proceeded to the place of occurrence and at 10.00 a.m. in the presence of P.W.5 and another witness, prepared an Observation Mahazer and a Rough Sketch. He recovered blood stained earth and sample earth from the place of occurrence under a mahazer. Then, in the presence of panchayatdars at 11.00 a.m. to 02.00 p.m. on the same day, he conducted inquest on the body of the deceased. Ex.P.20 is the Inquest Report. In Ex.P.20, he concluded that some unidentified persons had committed the murder of the deceased. Thus, until 02.00 p.m., there was no clue available in respect of the assailants. Then, he forwarded the body for postmortem. P.W.6 Dr.Mangaladevi, conducted autopsy on the body of the deceased on 22.09.2009 at 03.00 p.m. She found the following injuries:
?External injuries (Antemortem): Horizontal split laceration measuring 16 x 4 x 6 cm over the front of neck running along the undersurface of mandible; underlying soft tissues, blood vessels damaged. Larynx contused surrounded by dark red coloured hematome and intact. Extravasation of blood over the hyoid bone too. Hyoid bone intact. Extravasation of blood on the whole anterior surface neck. No bony injuries. Scalp appears intact. There is extravasation of blood on the right temporal region beneath the scalp. Fact is symmetrical. Eyes closed. Nose normal and intact. Ears normal and intact. No discharge from nostrils, ears, mouth.
Tongue within the mouth. Jaws clenched; Teeth 8/8 and 8/8 intact; Thorax, external gemtalia appears normal and intact. Hands empty. No collection within peritoneal cavity. Diaphragm appears normal and intact. Both lungs black coloured, intact, surface has multiple haemorrhages. Pericardium, heart appears normal and intact. Stomach, appears pale, intact with digested food materials without any abnormal odour, esophagus, pancreas, lever appears pale and intact. GB distended and intact. Spleen, kidneys, appears pale and intact. Interstine pale intact, distended with gas. On opening skull: Membranes appear normal and intact. Brain appears normal and intact.
Ex.P.9 is the Postmortem Certificate. She gave opinion that the deceased had died of shock and haemorrhage due to blunt injury on the anterior aspect of neck. She further opined that the death would have occurred 12 to 24 hours prior to the autopsy.
5.P.W.15, during the investigation, arrested the first accused on 24.09.2009 at 03.00 p.m. at Ariyanayakipuram Bus Stop in the presence of P.W.5 and another witness. On such arrest, he made a voluntary confession, in which, he disclosed that he would produce M.O.1 (wooden log) and M.O.5 to M.O.13 [Fanta colour lid, empty fanta bottle, use and throw tumbler, empty quarter bottle, plastic carry bag, cell phone, photos of A2, photos of A2 along with her children, photos of A2's daughter]. The same were recorded.
Then, in pursuance of the said disclosure statement, he took P.W.15 and P.W.5 to his house and produced M.O.1 and M.O.5 to M.O.13 and the same were recovered under a mahazer. Then, on returning to the Police Station, P.W.15 forwarded the first accused to the Court for judicial remand and handed over the material objects to the Court. At 06.30 p.m., he arrested the second accused in the presence of P.W.5 and another witness. On such arrest, in the disclosure statement, he said that he would produce a shirt and that was recovered under a mahazer (M.O.4). On returning to the Police Station, he forwarded the second accused to the Court for judicial remand. Then, he made a request to the Court for sending the material objects for chemical examination. According to the Analyst Report, human blood was found on earth, T-shirt, lungi, banian and stick, all belonging to 'A' group. P.W.15 examined the Doctor, collected the Postmortem Certificate and on completing the investigation, he laid charge sheet against the accused.
6.Based on the above materials, the Trial Court framed charges. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as, 15 witnesses were examined and 20 documents were exhibited, besides 17 Material Objects.
7.Out of the said witnesses, P.W.1 is the brother of the deceased, who has stated that the dead body was found at 07.00 a.m. on 22.09.2009. He has further stated about the complaint made by him to the police. P.W.2 has not stated anything about the accused. He has only stated about the illicit relationship between the accused. P.W.3 is an important witness for the prosecution. He has stated that on 21.09.2009, he found the accused and the deceased sitting together at the place of occurrence at about 09.00 p.m. He found that there were liquor bottles before them. P.W.4 is yet another important witness for the prosecution. He has stated that at 10.30 p.m. on 21.09.2009, he found the accused alone leaving Muthaiahpuram Vilakku with wooden log in his hands. He further stated that when he enquired, he said nothing. At that time, according to this witness, the shirt worn by the accused, had blood stain. P.W.5 is the Village Administrative Officer, in whose presence, the accused 1 and 2 were arrested and consequently disclosure statements were made. P.W.6 has spoken about the postmortem conducted by her and her final opinion. P.W.7 has spoken about the Hyoid Bone examination. According to him, there was no fracture in the hyoid bone. P.W.8 has spoken about the chemical analysis done by him and his report. P.W.9, the Head Clerk of the Judicial Magistrate's Court, has spoken about the fact that he forwarded the material objects to the Forensic Lab for Chemical Examination. P.W.10 is the Police Constable, who carried the First Information Report from the Police Station to the Court and handed over the same to the learned Judicial Magistrate at 02.00 p.m. on 22.09.2009. P.W.11 has spoken about the fact that he handed over the dead body to the doctor for postmortem. P.W.12 is yet another important witness for the prosecution. According to him, on 21.09.2009 at 09.15 p.m., he found the first accused taking the deceased from Reddiyapatti Road. He has further stated that when he asked the first accused as to where he was taking the deceased, he said that he was taking him for Ramjan party. P.W.13 is the Chemical Analyst, who has spoken about the same. P.W.14, the Sub Inspector of Police, has spoken about the fact that he registered the First Information Report, on the complaint of P.W.1. P.W.15 has spoken about the investigation done and the final report filed.
8.When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witness on their side nor to mark any document. The defence was a total denial.
9.Having considered all the above materials, the Trial Court convicted the appellants, as detailed in the first paragraph of this Judgment, and sentenced them accordingly. That is how, the appellants are before this Court with these Criminal Appeals.
10.We have heard Mr.V.Kathirvelu, the learned senior counsel appearing for the appellant in Crl.A(MD)No.430 of 2010, Mr.M.Ajmal Khan, the learned senior counsel appearing for the appellant in Crl.A(MD)No.434 of 2010, Mr.C.Mayilvahana Rajendran, the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
11.This is a case, based on circumstantial evidence. P.W.3, P.W.4 and P.W.12 are the important witnesses for the prosecution. P.W.3 has stated that at 09.00 p.m. on 21.09.2009, he found the deceased and the accused sitting together somewhere near the place of occurrence. During cross- examination, he has stated that on 22.09.2009, at 10.00 a.m. itself, he came to know that the deceased was done to death by somebody. He was very much present at the time, when the police arrived at the scene of occurrence and they were interrogating the witnesses. He has also admitted that at that time, he did not disclose anything about the fact to anybody, including the police. It was only on 23.09.2009 at 11.00 a.m, when the police came to him, suddenly he disclosed about the said occurrence. Similarly, P.W.4 has stated that at 10.30 a.m. on 21.09.2009, he found the first accused proceeding with a wooden log at Muthiahpuram Vilakku. At that time, there was blood stain on his shirt. He has also admitted during corss-examination that on 22.09.2009, at 11.00 a.m. itself he came to know that the deceased had been done to death by somebody. He was present at the time, when the police arrived at the scene of occurrence. He has admitted that however he did not disclose about the same to anybody. He disclosed about the said fact for the first time only at 11.00 a.m. on 23.09.2009. He has not offered any explanation as to why he did not disclose the fact to anybody till 23.09.2009. Similarly, P.W.12 has stated that at 09.15 p.m. on 21.09.2009, he found the first accused taking the deceased towards Reddiapatti Road. He has also stated that on the next day, that was, on 22.09.2009, he came to know that the deceased had been done to death by somebody. He was present at the place of occurrence. But, he did not disclose about the said fact to anybody. He disclosed about the above facts for the first time only at 03.00 a.m. on 23.09.2009. He has also not offered any explanation as to why he did not choose to disclose about the said fact for such a long time. In our considered view, the evidences of all the three witnesses are highly unbelievable for the simple reason that though they were present at the time of inquest held by the Inspector of Police and though they mingled with the family members of the deceased, they did not disclose about the facts known to them, until 23.09.2009. Absolutely, there is no explanation for the same. Therefore, it is difficult to believe these three witnesses. We have got every reason to believe that these witnesses have been planted only to strengthen the case of the prosecution. Yet another reason to disbelieve P.W.12 is that he has stated during cross-examination that on 21.09.2009, he had gone to the house of his brother, had dinner at 07.00 p.m. and slept there itself for the whole night. If that be so, there could be no truth in his evidence that he saw the accused and the deceased together at 09.15 p.m. on 21.09.2009 at a different place. Thus, we reject the evidences of these three witnesses.
12.The only other evidence available is the discovery of certain material objects on the arrest of the first accused. Unfortunately, the connection between these material objects and the crime has not been established at all by the prosecution. It is needless to point out that it is not every discovery of a fact, out of the disclosure statement, that makes the disclosure statement admissible. As per Section 27 of the Indian Evidence Act, 1872, it is only the discovery of a relevant fact, which makes the disclosure statement, leading to the discovery of the said fact, admissible in evidence. Here, in this case, the connection between the material objects recovered at the instance of the first accused and the crime has not been established at all by the prosecution. Therefore, the so-called disclosure statement made by the first accused itself is not admissible. Similarly, the recovery of these material objects on being produced by the first accused have got no relevance. It is alleged that a shirt was discovered on the disclosure statement made by the second accused. The connection between the recovered shirt at the instance of the second accused and the crime has also not been established. Therefore, the production of the shirt by the second accused also is irrelevant. The prosecution has of- course proved through the medical evidence that the deceased had been killed by using sharp edged object. But, the prosecution has failed to prove as to who caused the said fatal blow on the deceased.
13.In a case based on circumstantial evidence, the prosecution is bound to prove the circumstances beyond reasonable doubts and such proved circumstances should form a close link with each other, thereby making out a complete chain unerringly pointing to the guilt of the accused and there should not be any other hypothesis which will be inconsistent with the guilt of the accused. In the instant case, except proving that the death of the deceased was homicide, the prosecution has not proved any other circumstances incriminating the accused. Thus, the prosecution has failed to prove the case beyond reasonable doubts. The accused are therefore entitled for acquittal.
14.In the result, the Criminal Appeals are allowed; the conviction and sentence imposed on the appellants by the learned Additional Sessions Judge, Fast Track Court No.I, Thoothukudi, made in S.C.No.150 of 2010, dated 02.11.2010, is set aside and the appellants/accused are acquitted of all the charges. The fine amount, if any, paid by them, shall be refunded to them.
To
1.The Additional Sessions Judge, Fast Track Court No.I, Thoothukudi.
2.The Inspector of Police, Vilathikulam Police Station, Tuticorin District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.