Madras High Court
Natarajan vs State Through Represented By on 25 August, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.08.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
Crl.A(MD)No.334 of 2010
Natarajan .. Appellant/
Sole Accused
Vs.
State through represented by
The Inspector of Police,
Thuvakudi Police Station,
Trichy District.
(Crime No.310 of 2006). .. Respondent/
Complainant
PRAYER
Appeal is filed under Section 374 of the Code of Criminal Procedure
against the Judgment and conviction passed by the learned Additional District
and Sessions Judge, Fast Track Court No.II, Trichy, in S.C.No.210 of 2008,
dated 20.08.2010.
!For Appellant : Mr.S.Lingarasu,
Legal Aid Counsel.
^For Respondent : Mr.A.Ramar
Addl. Public Prosecutor.
:JUDGMENT
(Judgment of the Court was made by S.NAGAMUTHU, J) This is yet another case, which illustrates the perfunct investigation done by the police and the indifferent attitude shown by the prosecution, while conducting the trial, where the stake-holders in the criminal justice delivering system, have failed to discharge their legal obligations in proper manner. We will state our reasons for these opening remarks, a little later.
2.The appellant is the sole accused in S.C.No.210 of 2008, on the file of the learned Additional District and Sessions Judge, Fast Track Court No.II, Trichy. The appellant stood charged for the offence under Sections 302 and 201 I.P.C. By Judgment, dated 20.08.2010, the Trial Court convicted him under both the charges and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months for the offence under Section 302 I.P.C. and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months, for the offence under Section 201 I.P.C. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is before this Court, with this Criminal Appeal.
3.The case of the prosecution, in brief, is as follows:
The accused in this case is a mason by profession. The deceased was one Parvathi. She was a mason helper. She used to go for construction work along with the accused. On 21.12.2006, in the morning, in the usual course, the deceased Parvathi, went for masonry work. But, she did not return. The family members of the deceased were searching for her. But, they could not find her anywhere.
4.While so, on 29.12.2006, at 09.30 a.m., the accused appeared before the then Village Administrative Officer of Valavanthankottai Village in Tiruchirappalli District. On such appearance, he wanted to confess voluntarily before him. Accordingly, he orally confessed, which was reduced to writing by P.W.1. In the said confession, he disclosed that on 21.12.2006, by about 12.00 midnight, he committed the murder of the deceased and buried the body on the bank of Valavanthankottai tank. The accused signed the said statement under Ex.P.1. P.W.1, prepared a Report under Ex.P.2. Then, he took the accused along with Ex.P.1 and Ex.P.2 and produced them before P.W.18.
5.P.W.18 was the then Sub Inspector of Police, attached to Thuvakudi Police Station. On the above report, P.W.18 registered a case in Crime No.310 of 2006 under Sections 302 and 201 I.P.C. Ex.P.19 is the First Information Report. Then, P.W.18 forwarded these documents to the learned Jurisdictional Magistrate and handed over the Case Diary to P.W.19, the then Inspector of Police for investigation.
6.Taking up the case for investigation, on 29.12.2006, at 12.00 noon, when P.W.19 examined the accused, he started voluntarily confessing. That confession was reduced to writing. In the said confession, he disclosed the place, where he had buried a dead body. In the said confession, he also disclosed that he had buried yet another dead body at Udaiyarkadu burial ground. In the same confession, he also disclosed that he had hidden a nose stud, ear rings and a spade in his shed. In pursuance of the said disclosure statement, at 01.00 p.m., the accused took P.W.19 and the witnesses to his shed and produced M.Os.1 to 3. They were all recovered under a mahazer (Ex.P.4). Then, at 02.00 p.m., P.W.19 prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence. (Ex.P.7 and Ex.P.20). Then, he made a request to the Tahsildar, Tiruchirappalli, to exhume both the dead bodies. Accordingly, the Tahsildar came to the spot.
7.On 30.12.2006, at 09.00 a.m., in the presence of witnesses, at the place, which was identified by the accused, the Tahsildar made arrangements for exhumation. When exhumed, it was found that there was a dead body. On the dead body, there were a brown colour half-saree (thavani), sandal colour petticoat and a jacket. The relatives, according to the Investigating Officer, identified the dead body as that of the deceased.
8.Then, P.W.14, Dr.Karthikeyan,, who was summoned to be present at the time of exhumation, conducted autopsy on the body of the deceased and he gave opinion regarding the cause of death. According to P.W.14, the body was in a decomposed condition. He opined that the deceased would have died of manual strangulation. Ex.P.10 is the Postmortem Certificate.
9.On the same day, in the presence of the Tahsildar, at the place identified by the accused, yet another dead body was also exhumed from Valavanthankottai Udaiyar Mayanam. Postmortem was conducted on the said dead body by P.W.14. The body was completely decomposed and only skeleton remains were found. He opined that the cause of death of the deceased could not be ascertained. It is informed to this Court that in connection with the exhumation of the said dead body, according to the Inspector of Police (P.W.18), a separate case was registered in Crime No.311 of 2006 for woman missing. During investigation, it was also found that the said body was that of one Vijayalakshmi. Strangely, the investigation of the said case was abruptly closed without assigning any reason whatsoever, that too without conducting any investigation.
10.During the course of investigation, the skull was sent for superimposition. But, the superimposition result has not been produced before the Court. The Tibia of the deceased was sent for D.N.A. Examination in order to ascertain the identity of the deceased. But, the D.N.A. examination could not be conducted because, according to the Report submitted by the Forensic Lab, no relative of the deceased was produced to conduct the D.N.A. Examination. The investigation was done subsequently by two other officers, by name Mr.Kathiravan and Mr.Deivasikamani. Finally, P.W.21, laid charge sheet against the accused.
11.Based on the above materials, the Trial Court framed charges under Sections 302 and 201 I.P.C. The accused denied the same.
12.In order to prove the case, on the side of the prosecution, as many as, 21 witnesses were examined and 20 documents were exhibited, besides 4 Material Objects.
13.Out of the said witnesses, P.W.1 is the Village Administrative Officer, in whose presence, the confession was given by the accused. He has vividly spoken about the same and he has also stated that he has produced the accused along with Ex.P.1, Report to P.W.18. P.W.2 and P.W.3 are the witnesses, in whose presence, the accused surrendered before P.W.1 and made the confession. They have also vividly spoken about the same. P.W.4 is a resident of Valavanthankottai Village. He has only spoken about the relationship between the accused and Vijayalakshmi and thus this part of the evidence is not very material for the present case. P.W.5 is also a resident of Valavanthankottai Village and he has also spoken about the relationship between the accused and Vijayalakshmi. His evidence is not very relevant to the present case. P.W.6 is the brother of the deceased Parvathi. He has turned hostile and he has not supported the case of the prosecution. P.W.7 is the cousin of the deceased. He has also turned hostile and he has not supported the case of the prosecution. P.W.8, Jeyakumar, claimed that he is a resident of Keelamangavanam Village. According to him, sometime before he found the accused and the deceased going together in a cycle. This witness has not stated as to when he so saw the accused and the deceased going together. He has further stated that he identified the dead body from and out of the dress materials found on the body. P.W.9 is the relative of the deceased. He has stated about the exhumation of the body of the deceased. He has also stated that he identified the body only from and out of the dress materials found on the dead body. P.W.10 is yet another relative of the deceased. He has also stated that at the time of exhumation, he was present and from and out of the dress materials found on the dead body, he identified the dead body as that of Parvathi. P.W.11 is the father of Vijayalakshmi and his evidence is of no use for the present case, as the same is irrelevant.
14.P.W.12 is a resident of Melamangavanam Village. He claims that he knew the accused. He has stated that he identified the body of the deceased from the facial appearance. P.W.13 has spoken about the identification of the body of Vijayalakshmi and his evidence has got no relevance for the present case. P.W.14 has spoken about the postmortem conducted by him and his final opinion. P.W.15 is the brother of Vijayalakshmi and his evidence is not relevant to the facts of the present case. P.W.16 has turned hostile. He was examined to speak something about Vijayalakshmi only. P.W.17 is the Tahsildar, in whose presence, the dead bodies of Parvathi and Vijayalakshmi were exhumed. P.W.18 is the Sub Inspector of Police, who registered the case on the production of the accused by P.W.1. P.W.19 to P.W.21 have stated about the investigation done.
15.When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness on his side nor to mark any document.
16.Having considered all the above materials, the Trial Court convicted the appellant under both the charges and accordingly punished him. That is how, the appellant is before this Court with this Criminal Appeal.
17.We have heard Mr.S.Lingarasu, the learned counsel appearing for the appellant, who is a Legal Aid Counsel, the learned Additional Public Prosecutor appearing for the State and also perused the records carefully.
18.When this appeal was heard by us in part on 24.08.2015, we noticed lot of infirmities, shortcomings, errors and mistakes committed in the investigation as well as in the matter of trial of the case. Therefore, in order to get information and clarifications on these aspects, we directed the learned Additional Public Prosecutor to ensure the presence of P.W.19 to P.W.21 as well as the present Superintendent of Police, Tiruchirappalli District, before this Court.
19.Today when the matter was taken up, the present Superintendent of Police, Mrs.S.Rajeswari, made appearance. P.W.19 to P.W.21 have not made appearance. The learned Additional Public Prosecutor had explanation to offer for their absence. According to him, P.W.19 is under suspension and therefore he has not made appearance; P.W.20 has gone to Principal Seat in connection with some other case and P.W.21, is on bandobust duty and therefore he is not able to appear. We have recorded the same. According to the present Superintendent of Police, she has gone through the records.
20.The learned counsel for the appellant would submit that absolutely there is no evidence let in to prove that Parvathi is no more and that the dead body exhumed was that of Parvathi. The learned counsel would further submit that there was no superimposition examination conducted, to identify the dead body and there was no D.N.A. examination conducted, to identify the dead body and there is no evidence to show that the dress materials recovered allegedly from the body of the deceased were worn by the deceased and that no witness has identified the dress materials in the Court. The learned counsel would state that even the photograph taken at the time of exhumation of the body, has not been produced. But, the Superintendent of Police, would submit that no photograph whatsoever was taken at the time of exhumation of the body, according to the Case Diary available. Therefore, the learned counsel would submit that based on the extra judicial confession, said to have been given to P.W.1 alone, there cannot be conviction in the absence of any proof beyond reasonable doubts that Parvathi is no more.
21.The learned Additional Public Prosecutor would oppose this appeal. According to him, the skull was preserved for superimposition examination by the Forensic Lab. But, the photo collected was not sufficient to conduct superimposition examination. Secondly, according to the learned Additional Public Prosecutor, the Tibia of the deceased was sent for D.N.A. examination. But, the mother of the deceased was not willing to come forward for D.N.A. examination and therefore D.N.A. examination could not be conducted. He would further submit that so far as the dress materials found on the dead body are concerned, they were seized under a mahazer and they were all forwarded to the Court. But, they were not marked in evidence before the Trial Court, for which, the learned Additional Public Prosecutor has stated that due to inadvertence on the part of the Public Prosecutor, who conducted the case before the Trial Court, they were not marked in evidence. He would further submit that it is not clear from the records that any videograph was taken at the time of exhumation or not. However, photograph of the dead body was not taken. The learned Additional Public Prosecutor would submit that on the disclosure statement of the accused, M.Os.1 to 3 were recovered, namely, a pair of ear studs, one nose screw, a spade and a wooden plank. The learned Additional Public Prosecutor would further submit that P.W.6 has stated that during investigation, before the police, he identified the properties. For the flaws, infirmities and shortcomings in the investigation, the learned Additional Public Prosecutor, has no explanation to offer.
22.We have considered the above submissions.
23.Very recently, when one of us [Mr.Justice S.Nagamuthu] was sitting single, in a different case, an issue arose like this. A woman was found missing, a dead body was found, it was identified as that of the deceased, the accused were prosecuted, trial was conducted, the Court found that the dead body was that of the missing woman and however acquitted the accused for want of sufficient evidence to prove that the accused committed the murder of the missing woman. But, after two years of the said Judgment, the woman, who was said to have been murdered, appeared before this Court and took everyone by surprise and shock and this Court had to order for D.N.A. examination and finally this Court found that the woman is still alive and the dead body was that of somebody else. In yet another case, when the trial was going on in a murder case before a Sessions Court at Madurai, the so-called deceased by name one Pandiyammal suddenly emerged in Court and claimed that she was alive and she was not murdered. In this background, we feel that it is absolutely necessary to analyse that in the instant case, whether the dead body, which was exhumed, was that of Parvathi or not. To prove that, the prosecution has not conducted any superimposition examination. The Investigating Officer had not chosen to even send one of the relatives of the deceased, like mother, to the Forensic Lab for completing D.N.A. Examination. Thus, neither superimposition examination, nor D.N.A. Examination was conducted to identify the dead body.
24.Now, the prosecution is trying to establish the identity of the deceased only from and out of the dress materials found on the dead body, since the body was highly decomposed. But, unfortunately, the dress materials, which were recovered at the time of exhumation, have not been marked in evidence. No witness was called upon during trial to identify the dress materials found on the body, so as to test whether the dead body was that of the deceased or not. It is not explained, as to why the dress materials were not even marked in evidence. Apart from that there is no other evidence let in, except the confession given by the accused to P.W.1. The confession of the accused to the Village Administrative Officer is a substantive evidence. There is no doubt about it. But, when there are flaws in the case of the prosecution regarding identity of dead body, the question is whether to rely only on the extra judicial confession said to have been given to the Village Administrative Officer. Further, regarding the photos, the Superintendent of Police, would submit that in the Case Diary, there is no photograph available and there is no videograph taken. But, P.W.13 has stated that the entire exhumation was videographed. If that is so, it is not explained as to why the same was not produced in evidence. Because of these defects in the investigation and the trial conducted before the Trial Court, we were forced to make our opening remarks in this Judgment that the investigation was not done properly and the trial was also not done meticulously with adequate care. This will surely result in miscarriage of justice.
25.When these defects were pointed out, the learned Additional Public Prosecutor submitted that an opportunity may be given to the prosecution to adduce sufficient evidence so as to prove the guilt of the accused. But, the learned counsel for the appellant would submit that this would amount to filling up the lacuna in the case of the prosecution, which is not maintainable in law. We are of the view that this would not amount to filling up the lacuna, because what is going to be produced before the Trial Court is only the scientific evidence and also the materials which were already collected and marked in evidence. Therefore, we are of the view that it would be in the interest of justice, to set aside the conviction and sentence imposed by the Trial Court and remand the matter back to the Trial Court for fresh disposal in accordance with law, after allowing the prosecution to get the opinion of D.N.A. examination, the superimposition examination, if possible. The prosecution will be at liberty to mark the dress materials found on the body of the deceased and prove the same. If any photograph or videograph taken at the time of exhumation is found, that may also be produced. The accused will be provided sufficient opportunity by supplying copies of all the documents to him well in advance and an opportunity will be afforded to him to cross-examine the witnesses, if any. The jewels recovered allegedly on the disclosure statement made by the accused, may also be proved, in accordance with law.
26.During the course of hearing of this appeal, we posed a question to the Superintendent of Police as to what had happened to the case relating to the alleged murder of Vijayalakshmi, which was registered in Crime No.311 of 2006. She would state that the case has been closed. We are unable to comprehend as to how a case of this nature could be closed without conducting investigation for more than nine years. We are really pained to know this fact. But, for the appearance of the Superintendent of Police today before this Court, in connection with the present case, this fact would not have come to our knowledge at all. Under the Constitution, we have got an obligation to see that justice is done to the parties and we cannot close our eyes, when miscarriage of Justice is caused. We are hopeful that the present Superintendent of Police will ensure that the investigation in the said case is taken up by a Competent Officer and final report is filed in that case also.
27.In the result, the appeal is allowed. The conviction and sentence imposed on the appellant is set aside and the case in S.C.No.210 of 2008 is remanded back to the Trial Court for fresh disposal in accordance with law. We also issue the following directions:
(i)The prosecution is at liberty to get superimposition test results, and D.N.A. examination opinion and file necessary documents before the Trial Court and after serving copies to the accused well in advance, prove the same by examining the necessary witnesses.
(ii)The prosecution is at liberty to re-examine any witness, who were examined already and prove the jewels said to have been recovered on the disclosure statement made by the accused and also the dress materials found on the body of the deceased. The accused shall be afforded sufficient opportunity to cross-examine the said witnesses.
(iii)The prosecution is at liberty to produce the photograph or videograph, if any, taken at the time of exhumation of the body and prove the same in accordance with law, in which case, the accused will be given sufficient opportunity to challenge the same.
(iv)The prosecution is at liberty to summon any witness afresh and examine and the accused will be given opportunity to cross-examine the said witnesses. The accused is given liberty to examine any witness or to mark any document on his side.
(v)The trial shall be completed by the Trial Court within a period of six months and the case shall be disposed of by the Trial Court within the said time stipulated.
(vi)As requested by the learned Additional Public Prosecutor, the Director of Forensic Lab, Chennai is directed to give priority to this case, if any request is made to conduct superimposition test of the skull or the D.N.A. examination.
28.Before parting with this case, we express our pain and anguish about the way in which the case was investigated and trial was conducted. We only record our hope that we may not have any more occasion like this to notice such kind of shortcomings, errors and mistakes in the matters of both investigation and the trial, resulting in failure of justice. We are hopeful that all the stake-holders in the criminal justice delivery system, such as, Police, Prosecutors and the witnesses shall extend fullest cooperation to see that justice is done to the victims.
To
1.The Additional District and Sessions Judge, Fast Track Court No.II, Trichy.
2.The Inspector of Police, Thuvakudi Police Station, Trichy District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..