Madras High Court
C.Murugesan vs State Represented By on 8 June, 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2016 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Criminal Appeal Nos.424, 435 & 445 of 2014 1. C.Murugesan .. Appellant in Crl.A.No.424/2014 2. Vanitha .. Appellant in Crl.A.No.435/2014 3. Senthilkumar .. Appellant in Crl.A.No.445/2014 vs State represented by Inspector of Police, Kodumudi Police Station, Erode District. Cr.No.182/2012 .. Respondent in all Crl.As Common Prayer in all Criminal Appeals:- These Criminal Appeals have been filed under Section 374 Cr.P.C., to set aside the conviction and sentence imposed against the appellants in S.C.No.72 of 2013 dated 24.07.2014 by the learned II Additional Sessions Judge, Erode. In Crl.A.No.424 of 2014:- For Appellant :Mr.B.Sudhirkumar For Respondent :Mr.M.Maharaja, Additional Public Prosecutor In Crl.A.No.435 of 2014:- For Appellant :Mr.N.Manokaran For Respondent :Mr.M.Maharaja, Additional Public Prosecutor In Crl.A.No.445 of 2014:- For Appellant :Mr.N.Manokaran For Respondent :Mr.M.Maharaja, Additional Public Prosecutor COMMON JUDGMENT
(Common Judgement of the Court was delivered by V.Bharathidasan.J) The appellant in Crl.A.No.424 of 2014 is A-3; the appellant in Crl.A.No.435 of 2014 is A1; the appellant in Crl.A.No.445 of 2014 is A2 in S.C.No.72 of 2013 on the file of the learned II Additional District and Sessions Judge, Erode. Totally, there were five accused in the case. A1 and A2 stood charged for offences under Sections 302 and 201 IPC. A3 to A5 stood charged for an offence under Section 201 IPC. By judgment dated 24.07.2014, the trial Court convicted A1 & A2 under Sections 302 and 201 IPC and sentenced A1 and A2 to undergo Imprisonment for life and to pay a fine of Rs.2,000/- each in default to undergo 3 months Simple Imprisonment for the offence under Section 302 IPC and also convicted and sentenced to undergo 3 years rigorous imprisonment and to pay a fine of Rs. 2000/- in default to undergo 3 months simple imprisonment for the offence under Section 201 IPC and sentenced A3 to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.2,000/- in default to undergo 3 months Simple Imprisonment for the offence under Sections 201 IPC. But, acquitted A4 and A5 from the charge under Section 201 IPC. Challenging the said conviction and sentence, the appellants/A.1 to A.3 are before this Court with these Criminal Appeals.
2.The case of the prosecution, in brief, is as follows:-
The deceased one Sasikumar is the husband of A1 and son of P.W.1. The marriage between A1 and the deceased took place 12 years ago and both of them were living in the parental house of A1. They are having one daughter and one son. The deceased suspected the fidelity of A1, as though she was having illicit intimacy with A2. The deceased used to return home consuming liquour, likewise, on 15.03.2012, at about, 8.00 p.m., the deceased returned home in a drunken mood and picked up quarrel with A1. A1 being unable to bear the harassment of the deceased, on 16.03.2012, at about 1.00 a.m., called A2 to her house and A1 strangulated the deceased with the help of A2 and caused his death. In the early hours of 16.03.2012, somebody informed P.W.1, the mother of the deceased, that her son was not well. Immediately, she rushed to the house of A3, where she found her son dead and she also found a ligature mark in the neck of the deceased. A1 informed her that the deceased died due to enormous consumption of liquor. Thereafter, A3 to A5 along the villagers cremated the dead body and thereby caused disappearance of evidence. After two days, when P.W.1 came out of the house for taking water, she saw A2 standing near a railway track and talking to somebody, in his cellphone. P.W.1 understood that A2 was taking to A1 and she heard A2 saying that if anybody interfere with their love, they would also be murdered as Sasikumar. Then, P.W.1 called Senthilkumar, who is her brother's son and informed the same. Then, the said Senthilkumar written the same, as a complaint and sent it to the Inspector General Police, Western Zone.
3. P.W.2 is the minor daughter of the deceased and A1. On the date of occurrence, she saw the deceased vomitting and A1 cleaning the same. At about 3.00 a.m., A1 informed her that her father is lying unconscious and asked her to call A3. Subsequently, she saw A1 and A2 strangulating her father. Thereafter, A3 to A5 cremated the deadbody along with the villagers. P.W.3 is also a resident of the above village, he also overheard A2 talking to A1 over cellophone that if anybody interfere with their love, they would also be finished off. The complaint sent by P.W.1 was forwarded to Kodumudi Police Station.
4. P.W.12, the then Sub-Inspector of Police, on receipt of Ex.P14, complaint, and after obtaining permission from the Judicial Magistrate, Kodumudi, on 20.05.2012, registered a case in Crime No.182 of 2012 under Section 174 Cr.P.C. Ex.P.15 is the First Information Report. As per the instruction given by the Inspector of Police, P.W.12 commenced investigation. On 21.05.2012, he went to the scene of occurrence and prepared an Observation Mahazar(Ex.P.2) and a Rough sketch(Ex.P.16). He also proceeded to the place, where the body of the deceased was cremated and prepared another Observation Mahazar (Ex.P.3) and a Rough Sketch (Ex.P.17) in the presence of P.W.5 and another witness. He also recorded statements of some witnesses. Since, A1 and A2 were absconding, he gave a paper publication and on 24.06.2012, he altered the First Information Report by including Section 201 IPC along with 174 Cr.P.C and handed over the case to P.W.13. Ex.P.18 is the Alteration Report.
5. P.W.13, the Inspector of respondent police station, took up the case for further investigation and he recorded statements of some other witnesses and sent a request for recording the statements of witnesses P.W.s 1 to 4 under Section 164 Cr.P.C to the Judicial Magistrate, Perundurai. On 11.07.2012, A1 and A2 appeared before P.W.11, Village Administrate Officer, and gave extra judicial confessions before him. P.W.11 produced A1 and A2, along with a report, before P.W.13. Based on the extra judicial confession statements of the accused, P.W.13 arrested A1 and A2. On such arrest, they gave a voluntary confession and based on the disclosure statement, P.W.13 seized a Saree, M.O.1, which was used for the commission of the crime, under a Mahazar (Ex.P.13). Then, P.W.13 altered the Sections of offences to 302 and 201 IPC, instead 176 Cr.P.C and 201 IPC. Thereafter, he sent the accused for judicial custody and also handed over the Material Object to the Court. On completing the investigation, he laid charge sheet against the accused.
6. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment against the accused. The accused denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 13 witnesses were examined and 21 documents were exhibited, besides one Material Object. On the side of the defence, one document , Ex.D.1, was marked.
7. Out of the said witnesses, P.W.1 is the mother of the deceased and she is living separately. She has evidenced that the deceased and A1 were living separately in the house of A3 and in the early hours of 16.03.2012, somebody informed her that her son was not well and immediately she rushed to the house of A3 and saw her son dead and she also found some ligature mark on his neck and thereafter, the body was cremated by the villagers. It is her further evidence that after two days, she overheard the conversation between A1 and A2, wherein, A2 told that they had murdered the deceased and if any one else interfere with their love affair, they would also be finished off and on hearing the same, she called her brother's son, one Senthilkumar and told about it, he reduced the same into a complaint and sent it, through registered post, to the Inspector General of Police, Western Zone.
8. P.W.2, daughter of the deceased and A1, has evidenced that on the date of occurrence, she saw his father vomiting and A1 cleaning it and at about 3.00 p.m., A1 informed her that her father was unconscious and immediately, they informed the same to A3, subsequently, the villagers cremated the body of the deceased. She has also stated that she saw both A1 and A2 strangulating the deceased. P.W.3 is a resident of the same village and he is working as a teacher in Oxford School, Nathakadaiyur. His evidence is that he overheard A2 talking to A1 over cellphone challenging that if anybody interferes with their love affair, they would also be finished off.
9. P.W.4 is a relative of the deceased and she is also residing in the same village. Her evidence is that on 15.03.2012, in the midnight, A1 informed the death of the deceased and ligature mark was found on the neck of the deceased and the body was cremated by the villagers. P.W.5 has spoken about the illicit intimacy between A1 and A2. He is also a witness to the observation Mahazar. P.W.6, who is a House Broker, has made arrangements for a rented house to A1 and A2. P.W.7, Auto Driver, at Mandapam Camp, has stated that he dropped A1 and A2 at Hotel Tamilnadu. P.W.8, the Judicial Magistrate, has spoken about the recording of statements of P.Ws.1 to 4 under Section 164 Cr.P.C. P.W.9 has spoken about the illicit intimacy between A1 and A2. P.W.10 has spoken about the cremation of the body of the deceased by the villagers. He has also stated in his evidence that many of the villagers were present at the time of cremation. P.W.11, Village Administrative Officer, has spoken about the extra judicial confession said to have been given by A1 and A2. He is also a witness to Ex.P.13 Mahazar. P.W.12, the Sub-Inspector of Police, has spoken about the registration of the First Information Report, preparation of Observation Mahazars (Ex.Ps.2 &3) and the Rough Sketchs(Ex.Ps.16 & 17) and the alteration of F.I.R into section 201 IPC. P.W.13, has spoken about the further investigation done by him and filing of charge sheet in this case.
10.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 of the witnesses on their side, but marked Ex.D.1 on their side.
11.Having considered all the above, the trial Court found the accused/A1 to A3 guilty under the charges framed against them and accordingly, sentenced them as detailed in the first paragraph of this judgment. Aggrieved over the same, the accused/appellants are before this Court with these appeals.
12. We have heard Mr.B.Sudhirkumar, learned counsel for the appellant in Crl.A.No.424 of 2014; Mr.N.Manokaran, learned counsel for the appellants in Crl.A.Nos.435 of 2014 and 445 of 2014 and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
13. The learned counsel for the appellants would submit that there is an enormous delay in lodging the complaint. According to him, eventhough the occurrence said to have taken place on 16.03.2012, in the early hours, P.W.1 did not chose to lodge any complaint before the Kodumudi police station, instead, she sent a complaint to the Inspector General of Police, Western Zone, which in turn, was sent to the respondent police. P.W.12, the Sub-Inspector of respondent police, on 15.12.2012, sought permission from the Judicial Magistrate, Kodumudi, for registration of the case and thereafter, he has registered the complaint on 20.05.2012 and hence, there is a long delay in lodging the complaint which vitiate the prosecution case. Further, it is their submission that there is no eye-witness to the occurrence. They elaborated the said submission stating that eventhough P.W.2, the daughter of the deceased, who is a minor child, stated that she saw her father was vomiting and her mother was cleaning, but, subsequently, she changed her version and stated that A1 and A2 strangulated her father and therefore, it is an improved statement and she has not stated so before the police or in the statement before the Magistrate under Section 164 Cr.P.C., hence, the above evidence cannot be relied upon. Apart from that, there is no witness, except the extra judicial confession given by the accused, learned counsel contend. Eventhough P.W.1 and other witnesses were present during the cremation, they did not raise any doubt and the body was cremated with their consent and further submitted that the prosecution did not prove the case beyond any reasonable doubt, is the their submission.
14.Per contra, the learned Additional Public Prosecutor would submit that P.W.2, minor daughter of the deceased and A1, has stated in her evidence that she saw both A1 and A2 strangulating the deceased and apart from that, in the extra judicial confession given by A1 and A2, they have clearly admitted their guilt and hence, the prosecution has proved its case beyond any reasonable doubt and sought for dismissal of the appeals.
15. We have considered the above submissions.
16. According to the prosecution, the occurrence said to have taken place on 16.03.2012, in the early hours. P.W.1, the mother of the deceased, who is living separately, on hearing the news that her son was not well, reached A-3's house, where A1 and the deceased were living, and saw her son dead. According to her, she also found some ligature mark on her son's neck. But, she did not prefer any complaint to the police, instead, she even permitted the villagers to cremate the body. Even according to her, after two days, she overheard A2 speaking to A1 and then only, she came to know that her son was murdered. In such a circumstance, the natural conduct of P.W.1, being the mother would have been giving a written complaint to the police, immediately. But, instead of that, she sent a complaint through registered post to the Inspector General of Police, Western Zone. She has not stated any reason for not giving complaint, immediately, to the nearby police. Hence, the conduct of P.W.1 is highly doubtful. P.W.2, the daughter of the deceased, who has given a statement before the Judicial Magistrate under Section 164 Cr.P.C, has only stated that she saw her father vomiting and her mother cleaning that. But, when she gave evidence before the Court, she had improved her statement by stating that she saw both A1 and A2 strangulating the deceased. P.W.2 is a minor child witness and the latest statement is only an improved statement. Hence, it cannot be relied upon to convict the accused.
17. The next circumstance is the extra judicial confession said to have given by A1 and A2, before P.W.11. It is settled principle of law that extra judicial confession is a very weak piece of evidence and without any corroboration, it cannot be relied upon to prove the guilt of the accused. In the instant case, the body was cremated and the cause of death was also not known. Merely because A1 and A2 have eloped from the village after one month of the occurrence and they lived together at Mandapam, it cannot be presumed that they have committed the murder of the deceased and absconded. Taking into consideration the totality of circumstances, it is highly unsafe to convict the accused only on the basis of the evidence of P.W.2 and the extra judicial confession said to have been given by the accused, in the absence of any other corroborative evidence. Hence, the appellants are entitled for acquittal under Section 302 IPC.
18. So far as conviction under Section 201 IPC is concerned, it is not the accused, alone cremated the body of the deceased. It is the consistent evidence of all the witnesses that all the villagers assembled and took the body for cremation, and P.W.1, the mother of the deceased, was also present at the time of cremation, therefore, there is no question of causing disappearance of evidence. Hence, the provision of 201 IPC is also not attracted in this case. Hence, the appellants/accused are also entitled for acquittal for the charge under Section 201 IPC. In the said circumstances, the appellants are entitled for acquittal. Hence, the judgment of the court below is set aside and the appellants are acquitted.
19. In the result, these Criminal Appeals are allowed and the conviction and sentence imposed on the appellants/A1 to A3 by the learned Ii Additional District and Sessions Judge, Erode, in S.C.No.72 of 2013, by the judgment dated 24.07.2014 are hereby set aside. The appellants/A1 to A3 are acquitted of the charges levelled against them and they are directed to be set at liberty, forthwith, unless their presence is otherwise required in connection with any other case. Fine amount, if any, paid by the accused, shall be refunded to them. Bail bond, if any, shall stand discharged.
(S.N.J.,) & (V.B.D.J.,)
mrp 08.06.2016
Index: Yes/No
To
1.The II Additional District and Sessions Judge,
Erode.
2.The Public Prosecutor,
High Court, Madras.
S.NAGAMUTHU.J
AND
V.BHARATHIDASAN.J.,
mrp
Crl.A.Nos.424, 435 & 445 of 2014
08.06.2016
http://www.judis.nic.in