Madras High Court
Masthan vs State Rep. By on 13 April, 2016
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 13..04..2016 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal No.589 of 2013 Masthan ... Appellant -Versus- State Rep. by The Inspector of Police, Tindivanam Police Station, Villupuram District. [Crime No.825 of 2008] ... Respondent Appeal filed under Section 374(2) of the Code of Criminal Procedure against the conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No.I, Tindivanam, Villupuram District, in S.C.No.297 of 2009 dated 28.03.2011. For Appellant : Mr.G.Mohana Krishnan For Respondent : Mr.M.Maharaja, APP JUDGEMENT
[Judgment of the court was delivered by S.NAGAMUTHU.J.,] The appellant is the 2nd Accused in S.C.No.297 of 2009 on the file of the learned Additional Sessions Judge, Fast Track Court No.I, Tindivanam, Villupuram District. Including the appellant there were five accused in the said case. The trial court framed as many as five charges. The first charge was under Section 302 of IPC against A1 and A2; the second charge was under Section 364 of IPC against A1 to A5; the third charge was under Section 302 r/w 34 of IPC against A3, A4 and A5; the fourth charge was under Section 201 r/w 302 of IPC against A1 to A5; and the fifth charge was under Section 120-B of IPC against A1 to A5. The trial court, by judgement dated 28.03.2011, acquitted A3 , A4 and A5 from all the charges, but, convicted A1 and A2 alone. The trial court convicted the appellant/A2 and A1 for offences under Sections 302, 34 r/w 302, 120-B r/w 302, 201 r/w 302 of IPC and sentenced them to undergo imprisonment for life for offence under Section 302 of IPC; and to undergo imprisonment for seven years for offence under Section 201 of IPC. No sentence of fine was imposed for offences under Sections 302 and 201 of IPC. Challenging the above said conviction and sentences, A2 is, now, before this court with the present criminal appeal.
2. We are informed that the appeal in Crl.A.No.556 of 2011, filed by A1 challenging the conviction and sentence imposed on him by the trial court, was allowed by this court by judgement dated 21.06.2013.
3. The case of the prosecution in brief is as follows:- Two persons by name Sri.Jebrudin [hereinafter referred to as "D1"] and Sri.Mujibur Rahman [hereinafter referred to as "D2"] were allegedly murdered by A1 and A2 on 03.09.2008 at 01.30 p.m. It is the case of the prosecution that the wife of A1 was often eve teased by the deceased. Enraged over the same, it is alleged that on 02.09.2008, at about 07.00 p.m. in a TASMAC shop near Rajangkulam in Tindivanam, all the five accused conspired to kill both the deceased. In pursuance of the said conspiracy, it is alleged that A1 engaged D1 to transport a refrigerator from the house of the mother in law of A1 at Kottakkuppam Village to Tindivanam to the house of A1 in a load auto belonging to D1. D2 accompanied D1 in the auto. A1 followed the load auto in his motor cycle. At 10.30 p.m. , P.W.1, the brother-in-law of D1 called D1 over phone and inquired as to where he was. D1 told him that he had come with load auto to Tindivanam and after unloading the refrigerator at Tindivanam, he would return to his village. But, till 01.00 a.m., both the deceased did not return. Thereafter, on the next day, by 11.00 a.m., the load auto belonging to D1 was found parked near Balaji Petrol Station at Tindivanam. P.W.3 came to know about the same and he informed P.W.1. Immediately, P.Ws.1 & 3 went to the said place and found the auto abandoned by the side of the road. Both D1 and D2 were not seen either in the auto or anywhere near the auto. P.W.1, thereafter, went to the police station and informed about the same. But, no case was registered on the said complaint. P.Ws.1 and 3, thereafter, went in search of D1 and D2, but, they could not find them anywhere.
4. On 06.09.2008, at about 04.00 p.m. , P.W.1 came to know that two dead bodies were found near Tindivanam Kidangal Lake in a highly decomposed condition. Immediately, P.Ws.1, 3 and other family members had gone to the place and found that the dead bodies were that of these two deceased. Thereafter, P.W.1 went to Tindivanam Police Station and at 05.00 p.m. he made a complaint [Ex.P.1]. P.W.12, the then Sub Inspector of Police, on receipt of the complaint under Ex.P.1, registered a case in Crime No.825 of 2008 under Section 302 of IPC. Ex.P.15 is the FIR. P.W.12 immediately forwarded both the complaint-Ex.P.1 and the FIR-Ex.P.15 to the court which were received by the learned Jurisdictional Magistrate at 10.30 p.m. on 06.09.2008. In the mean time, P.W.12, handed over the case diary to P.W.13, the Inspector of Police for investigation.
5. P.W.13 took up the case for investigation at 05.30 p.m. on 06.09.2008. He proceeded to the place of occurrence at 05.45 p.m. He requested P.W.2, the Village Administrative Officer and the Village Assistant by name Sri.Sivamoorthy to come to the place of occurrence. P.W.6, the elder brother of D2 and P.W.7, the brother-in-law of D2 identified the dead bodies as that of these two deceased. Then, P.W.13 prepared an observation mahazar (Ex.P2) and a rough sketch (Ex.P16) at the place of occurrence in the presence of P.W.2, the Village Administrative Officer and another witness. Then, at 06.30 p.m. on 06.09.2008, he recovered a chappal-black in colour [M.O.2] and a xerox copy of license belonged to D1 under a mahazar (Ex.P.4) in the presence of the same witnesses. He also recovered some blood stained earth and ordinary earth under a mahazar (Ex.P.3) in the presence of the same witnesses. Then, he conducted inquest on the body of the deceased and forwarded the same to the Government Hospital at Tindivanam.
6. P.W.4 Dr.Manimegalai conducted autopsy on the body of D1 at 12.30 p.m. on 07.09.2008. She noticed the following on the dead body of D1:-
"Decomposed body of a male lies on its back with all four limbs extended. Foul smell spreads at the distance of 100 metres from the decomposed body. Maggots seen swarming all over the body. Facial distortion with eyes opened and eyeballs bulged out. Mouth opened and lips swollen. Tongue swollen and within the oral cavity. Both upper central incisors tooth missing and others intact. Blisters seen on both hands and both foot. Skin peeling over abdomen and both thighs and both legs with loosening of nails from fingers and toes. Hairs easily pluckable from scalp. Muscles over the chest wall are decomposed and exposing ribcage outside on both side. Anterior abdominal wall is seen burst open with loops of bowel protruding out. External genitalia were swollen.
External Injuries:-
(1) Cut injury on the neck seen starting from the sterno mastoid muscle on left side running horizontally above the level of thyroid cartilage crossing the midline and ending at the anterior border of sterno mastoid muscle on right side. Sterno mastoid muscle and great vessels of the neck on left side, Trachea in midline and great vessel of the neck on right side are completely cut. Length 17 c.m.; width 4 cm ; depth of the wound is 3.2 cm on left side of the neck and 2.5 cm in midline and 1.5 cm on right side and tapering at the anterior border of sterno mastoid muscle on right side. Margins of the wound well defined and the injury is ante mortem in nature.
Internal Examination:
Head and Neck - No fracture of skull bones. Membrane in tact. Brain - Liquefied. Hyoid bone preserved. Thorax - No fracture of ribs. Lungs were decomposed. Heart - Empty on C/s. Abdomen: Stomach -empty on C/S and decomposed. Liver, Spleen and Kidneys were decomposed. Small and Large Intestines were distended with gas and fecal matter. Bladder - Empty on C/S. Pelvis - Intact."
She preserved the visceral organs for chemical examination. Ex.P.9 is the postmortem certificate. She gave opinion that the deceased would have died due to hemorrhage and irreversible shock due to the injuries to neck vessels and multiple soft tissues.
7. Thereafter, on the same day, at 01.45 p.m. P.W.4-Doctor, conducted autopsy on the body of D2. She noticed the following on the dead body of D2:-
"Decomposed body of a male lies on its back with all four limbs extended. Foul smell spreads at the distance of 100 metres from the decomposed body. Maggots seen swarming all over the body. Facial distortion with eyes opened and eyeballs bulged out. Mouth opened and lips swollen. Tongue swollen and within the oral cavity. Both upper central incisors tooth missing and others intact. Blisters seen on both arms, trunk and legs. Skin peeling over the abdomen, thighs and legs seen. Loosening of nails from fingers and toes. Hairs easily pluckable from scalp. Anterior abdominal wall is seen bursts open with loops of bowel protruding out. Teeth intact. External Genitalia were swollen.
External Injuries:
(1) Cut injury on the neck seen starting from the sterno mastoid muscle on left side running horizontally above the level of thyroid cartilage crossing the mid line and ending at the anterior border of sterno mastoid muscle on right side. Sterno mastoid muscle and great vessels of the neck on left side , Trachea in mid line and great vessels of the neck on right side are completely cut. Length 18 cm ; width 4.5 cm; depth of the wound is 3.5 cm on left side of the neck and 2.8 cm on mide line and 2 cm on right side tappering at the anterior border of sterno mastoid muscle on left side. Margins of the wound well defined and the above said injury is antemortem in nature.
Internal Examination :-
Head and Neck: No fracture of skull bones . Membrane-Intact. Brain - Liquefied. Hyoid bone preserved. Thorax-No fracture of ribs. Lungs were decomposed on C/S. Heart - Empty on C/S. Abdomen: Stomach - empty on C/S and decomposed. Liver, Spleen and Kidneys were decomposed. Small and Large Intestines were distended with gas and fecal matter. Bladder-Empty on C/S."
She preserved the visceral organs for chemical analysis. Ex.P.10 is the postmortem certificate. She opined that the deceased would have died of hemorrhage and irreversible shock due to the injuries to the neck vessels and multiple soft tissues. In both the cases, she opined that the death would have occurred 3-5 days prior to autopsy.
8. During the course of investigation, on 08.09.2008 at 11.30 a.m., at Keevanoor cross road junction, P.W.13, the investigating officer, arrested A1 to A4. On such arrest, A1 and A2 gave independent voluntary confessions one after the other in the presence of P.W.2 and another witness. In pursuance of the same, they took the police and the witnesses to the respective place of hide out and A1 produced a vegetable cutting Knife and a surikathi and A2 produced a motor cycle from the respective place of hideout. P.W.13 recovered the vegetable cutting knife (M.O.4) and Surikathi (M.O.5) under a mahazar (Ex.P.7) and the motor cycle bearing (M.O.6) under a separate mahazar (Ex.P.8) in the presence of the same witnesses. On returning to the police station, P.W.13 forwarded the accused to the court for judicial remand. He sent the material objects also to the court with a request to forward the same for chemical examination. On the orders of the learned Judicial Magistrate, the material objects were sent for chemical analysis. The chemical analysis conducted on the material objects revealed that there were human blood stains on the earth mixed with vegetative matter with dark brown stains which was recovered from the place of occurrence. On completing the investigation, P.W.13, filed the final report against the accused.
9. Based on the above materials, the trial court framed as many as five charges as detailed in the first paragraph of this judgement. The accused denied the same. In order to prove the same, on the side of the prosecution, as many as 13 witnesses were examined, 20 documents and 6 materials objects were marked.
10. Out of the said witnesses, P.W.1, the brother in law and P.W.3, the father respectively of D1 have stated that A1 engaged D1 for transporting a refrigerator from the house of his mother in law in the load auto to the house of A1. D2 accompanied D1 in the load auto. Thereafter, according to P.W.1 and P.W.3, the deceased did not return. They have further stated that on 06.09.2008, at 04.00 p.m. the dead bodies of D1 and D2 were found in a highly decomposed condition. Thereafter, P.W.1 made a complaint to the police. P.W.6 and P.W.7 are the brother and brother-in-law respectively of D2. They have sated that they heard that the dead bodies of D1 and D2 were kept in the mortuary in the Government Hospital at Tindivanam. They identified the dead bodies of D1 and D2.
11. P.W.2, the then Village Administrative Officer, Tindivanam, has spoken about the preparation of the observation mahazar and the rough sketch. P.W.4-Doctor has spoken about the autopsy conducted on the dead bodies of D1 and D2 and her final opinion regarding the cause for the death and the time of death. P.W.5, the Chemical Analyst, who examined the internal organs of both the deceased, has stated that no poison was detected on any of the visceral organs of both the deceased. P.W.8 has turned hostile and he did not support the case of the prosecution in any manner. P.W.9 is the star witness for the prosecution. He has stated that on 02.09.2008 at about 07.00 p.m. when he had gone to the TASMAC shop at Rajangkulam near Tindivanam, he found A1 to A4 consuming liquor. It is alleged that at that time A1 told the rest of the accused that since his wife was eve teased by D1 and D2, he would by deceiving D1 and D2 bring them to Tindivanam where all the five should kill them. P.W.10, who was the Scientific Assistant in the Forensic Laboratory, has stated that he found human blood stains in the earth mixed with brown stains which was recovered from the place of occurrence. P.W.11, the Head Constable, has spoken about the fact that he carried the dead bodies to the Government Hospital at Tindivanam for postmortem. P.W.12 has spoken about the registration of the case and handing over of the case dairy to the Inspector of Police. P.W.13 has spoken about the entire investigation done by him and filing of the final report against the accused.
12. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, they denied the same as false. However, they did not choose to examine any witness on their side nor did they mark any document. Their defence was a total denial.
13. Having considered all the above, the trial court acquitted A3 to A5, but, convicted A1 and A2 alone under Sections 302, 34 r/w 302, 120-B r/w 302, 201 r/w 302 of IPC and accordingly punished them as detailed in the first paragraph of this judgement. That is how, A2 is now before this court with this criminal appeal.
14. We have heard the learned counsel for the appellant/A2 and the learned Additional Public Prosecutor appearing for the respondent/State and also perused the records carefully.
15. This is a case based on circumstantial evidence. P.Ws.1 and 3 have stated that D1 and D2 had gone in the load auto for carrying refrigerator from the house of the mother in law of A1 at Kottakkuppam Village to Tindivanam to the house of A1. Thereafter, both the deceased had not returned. The dead bodies of D1 and D2 were found only on 06.09.2008. Thus, the death of the deceased had occurred some time between 11.00 p.m. 03.09.2008 and 05.00 p.m. 06.09.2008. From the evidence of P.W.4-the Doctor, who conducted autopsy, the prosecution has established that the death of D1 and D2 was due to the injuries found on the dead bodies of the deceased and that the injuries would have been caused by violence. Thus, the prosecution has established that the death of both the deceased was due to homicidal violence.
16. Now, the question is, who caused the death of both D1 and D2. To prove the said fact, the prosecution mainly relies on the evidence of P.W.9. P.W.9 is the brother of P.W.1. He has admitted during cross examination that when P.W.1 had gone to the police to make a complaint, he accompanied him. He would further submit that from 03.09.2008 onwards, the deceased were found missing, but, he did not disclose either to his brother namely, P.W.1 or anybody else about the vital information relating to the conspiracy which was allegedly hatched by the A1 to A4 in his presence on 02.09.2008. He has further stated that when all the accused were sitting and consuming liquor in the wine shop, he was sitting at a distance of 20 feet. In our considered view, the conduct of P.W.9 in not disclosing about the above vital fact relating to the alleged conspiracy to kill his brother's brother-in-law would make his evidence unbelievable.
17. Apart from the above, the prosecution relies on the recovery of vegetable cutting knife (M.O.4) and surikathi (M.O.5) on the alleged confession made by A1 and A2, the appellant herein. But, the prosecution has failed to establish any link between the alleged weapons and the crime. Not even any blood stain was found on the alleged weapons. Therefore, the alleged recovery of weapons would not in any manner go to conclusively prove the alleged guilt of the appellant/A2.
18. Except the above two circumstances, the prosecution has not projected any other circumstance against the appellant so as to establish his guilt. Therefore, we are of the view that the prosecution has not proved the case beyond all reasonable doubts and thus, the appellant/A2 is also entitled for acquittal.
19. In the result, the criminal appeal is allowed, the conviction and sentences imposed on the appellant/A2 are hereby set aside and he is acquitted from all the charges. His bail bond shall stand cancelled.
Index : yes. [M.J.,J.] [S.N.,J.]
Internet : yes. 13..04..2016
kmk
To
1.The Additional Sessions Judge, Fast Track Court No.I,
Tindivanam, Villupuram District
2.The Inspector of Police, Tindivanam Police Station,
Villupuram District.
3.The Public Prosecutor, High Court, Madras.
M.JAICHANDREN.,J.
AND
S.NAGAMUTHU.J.
gms / kmk
Criminal Appeal No.589 of 2013
13..04..2016