Madras High Court
Viswanath vs State By
Author: P.N.Prakash
Bench: P.N.Prakash, R.Hemalatha
Crl.A.(MD) No.231 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
16.06.2021 14.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
Crl.A.(MD) No.231 of 2019
Viswanath ... Appellant
-vs-
State by
Inspector of Police
Tamil University Police Station
Thanjavur District
Cr.No.177 of 2017 ... Respondent
PRAYER: Appeal filed under Section 374(2) of the Code of Criminal Procedure
against the Judgment dated 22.04.2019, in S.C.No.183 of 2018, on the file of
the I Additional District Judge-cum-PCR Judge, Thanjavur.
For Appellant : Mr.G.Mariappan
for Mr.S.Ramsundarvijayraj
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
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https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.231 of 2019
JUDGMENT
P.N.PRAKASH, J.
This criminal appeal is filed against the Judgment and Order, dated 22.04.2019, in S.C.No.183 of 2018, passed by the learned I Additional District and Sessions Judge (PCR Cases), Thanjavur.
2. The Trial Court framed two charges against the appellant, as detailed below:
Charge Penal Provisions
1 302 I.P.C.
2 201 I.P.C.
3. By Judgment and Order, dated 22.04.2019, the Trial Court convicted the appellant and sentenced him, as detailed below:-
Sentence of Section of Law Fine amount imprisonment Rs.10,000/- in default To undergo to undergo simple 302 I.P.C. imprisonment for imprisonment for one life.
(1) year.
Rs.10,000/- in default To undergo seven (7) to undergo simple 201 I.P.C. years rigorous imprisonment for one imprisonment.
(1) year.
The sentences imposed on the accused were ordered to run concurrently. _______________ Page 2 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019
4. The prosecution case is as under:
4.1. The deceased in this case was a 11-year old boy, Kishore, who was the son of Sivakumar (P.W.1) and Kavitha (P.W.
2) and they were residing at Plot No.4, Pappa Nagar Extension-II, Nanchikottai Road, Thanjavur, within the limits of Tamil University Police Station. Kishore was studying in the sixth standard during the relevant period.
4.2. In the evening of 23.09.2017 between 05.30 p.m. and 06.00 p.m., Kishore was playing hide-and-seek along with his friends Udhaya (P.W.3), Suriya (P.W.4), Hemachandran (P.W.5), Ramu (P.W.6) and Sabari (P.W.7) in a playground near his house. Kishore did not return home that evening and therefore, his mother started searching for him. She enquired with his friends, who told her that Kishore was indeed playing with them, but they did not see him after 6 o'clock as they thought that he had gone home. Since the search proved futile, Sivakumar (P.W.1) lodged a written complaint (Ex.P1), based on which, Sukumaran (P.W.20), Sub Inspector of Police, registered a case in Tamil University Police _______________ Page 3 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 Station Crime No.177 of 2017 on 24.09.2017 at 07.30 a.m. for “boy missing” and prepared the printed First Information Report (Ex.P15). Photograph of Kishore was submitted to the Police along with the complaint (Ex.P1). Everyone, including the Police, were searching for Kishore, but, none could get any clue.
4.3. The breakthrough in this case came, when the appellant surrendered before Thangavel (P.W.12), Village Administrative Officer, at 08.00 a.m., on 26.09.2017 and confessed to the crime. The statement was written by the appellant in his own hand and the same has been marked as Ex.P10. In his confession statement, the appellant has inter alia stated that he is residing with his parents in Door No.41, Pappa Nagar; he has completed his Diploma, but unemployed; on 23.09.2017, while he was smoking under the cover of the compound wall of the playground near his house, Kishore and other children were playing; Kishore came and hid behind him; when he asked Kishore why he was coming and hiding there when he himself was hiding for a smoke, Kishore abused him in a foul language; feeling irritated and infuriated by that, he held Kishore by the back of his _______________ Page 4 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 neck and pressed it; Kishore struggled to get himself free, but soon Kishore fainted and fell down; when he tried to wake up Kishore, he found Kishore lifeless; so, he stealthily carried Kishore to a vacant plot adjacent to his house, dug a pit with a mattock (M.O.
4), buried him in that; thereafter, while his parents were searching for Kishore, he also joined in the search; as Police started making enquiries, he feared that he would be caught and thrashed and therefore, he surrendered before Thangavel (P.W.12).
4.4. Thangavel (P.W.12), Village Administrative Officer, took the appellant to Tamil University Police Station and submitted a requisition letter (Ex.P9) along with the extrajudicial confession statement (Ex.P10) of the appellant, at 09.30 a.m., on 26.09.2017. Rajaravi Thangam (P.W.21), Investigating Officer, placed the appellant under arrest and recorded his police confession. Thereafter, the case was altered from one under “boy missing” to Sections 302 and 201 I.P.C., vide Alteration Report (Ex.P17). The extrajudicial confession statement (Ex.P10) and the alteration report (Ex.P17) reached the jurisdictional Magistrate on the very same day, as could be seen from the endorsements thereon. The _______________ Page 5 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 Investigating Officer sent information to Sivakumar (P.W.1), the father of Kishore and asked him to come near the house of the appellant, which is also in the same area. Information was sent to Thanga Prabakaran (P.W.14), Tahsildar of the area, who also came to the spot. The appellant, along with the revenue officials, namely, Thangavel (P.W.12), Village Administrative Officer and Saravanan, Village Assistant, was taken to the spot. The appellant showed an open space (Plot No.42) adjacent to his house and also showed the place where he had buried the body of Kishore. In the presence of the revenue officials and also in the presence of Sivakumar (P.W.1) and others in the locality, like, Balu @ Lakshmanan (P.W.9), the place pointed out by the appellant was dug and the body of Kishore was exhumed. The Investigating Officer prepared an Observation Mahazar (Ex.P7) and Rough Sketch (Ex.P18). The Investigating Officer seized sample soils from the pit under the cover of Mahazar (Ex.P6) and the sample soils were marked as M.Os.5 and 6. The Investigating Officer conducted inquest over the body of Kishore between 01.00 p.m. and 02.30 p.m. and the Inquest Report was marked as Ex.P19. _______________ Page 6 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 4.5. The body of Kishore was sent to the Government Hospital, Tanjore, where Dr.Tamilmani (P.W.16) performed autopsy and issued Postmortem Certificate (Ex.P12) and Final Opinion (Ex.P13). Dr.Tamilmani (P.W.16), in his evidence as well in the Postmortem Report (Ex.P12), has stated that he found the following injuries:
“APPEARANCE FOUND AT THE POST MORTEM:
Moderately nourished body of a male. Finger, toe nails appear – blue. Body of a male child with early stage of decomposition changes with noted all over the body. Both eye ball and tongue found protruded out. Red colour soil adherent over all over the body. Face, chest, abdomen and scrotum found swollen. Turgid penis noted. Peeling of skin noted all over the body. Post mortem blister noted over face, chest and both thigh. Marbling changes noted over chest and both shoulder and thigh regions. Hair and nail comes of easily without resistant. Degloving of skin noted over both hands.
THE FOLLOWING ANTE MORTEM INJURIES
WERE NOTED:
1) Contusion of size 5x3 cm seen over right side of middle of neck.
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2) Contusion of size 3x1 cm and 1x1 cm over left side middle of neck.
3) Contusion of size 2x2 cm seen over middle of front of neck.
4) Linear abrasion of varying size noted over right side of back of neck.
ON BLOODLESS DISSCTION OF NECK Diffuse contusion of size 10x6 cm noted over middle and lower part of both sides of neck muscles, 5x4 cm over upper part of left side of neck. 6X3 cm over right side of upper part of neck.
ON DISSECTION OF CHEST:
Diffuse contusion noted over front of upper part of chest. Sternum and ribs found intact.
OTHER FINDINGS:
Heart: Normal. Coronary vessels: Patent. Larynx glottis & Hyoid bone: Intact. Stomack: Contain 150 gm of partially digested cooked food particles, no specific smell, mucosa-softened. Lungs, Liver, Spleen & Kidneys: Early stage of decomposition changes noted. Small Intestine: Contain 20 ml of bile stained fluid, no specific smell, mucosa – softened. Bladder: Empty. Brain: Liquified. Spinal column: Intact.” _______________ Page 8 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 4.6. After receiving the viscera report, Dr.Tamilmani (P.W.16) gave his final opinion (Ex.P13), which is as under:
“THE DECEASED WOULD APPEAR TO HAVE DIED OF ASPHYXIA DUE TO MANUAL STRANGULATION.” 4.7. After examining various witnesses and collecting the reports from the experts, the Investigating Officer completed the investigation and filed a final report in P.R.C.No.2 of 2018, before the learned Judicial Magistrate No.II, Tanjore, under Sections 302 and 201 I.P.C. against the appellant.
5. On appearance of the accused, the provisions of Section 207 of the Code of Criminal Procedure were complied with and the case was committed to the Court of Session in S.C.No.183 of 2018 and was made over to the I Additional District and Sessions Court, Tanjore.
6. The Trial Court framed charges against the accused, as detailed in Paragraph No.2, supra. When questioned, the accused pleaded "not guilty".
_______________ Page 9 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 To prove the case, the prosecution examined 21 witnesses, marked 23 exhibits and 7 material objects. When the accused was questioned under Section 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against him, he simply denied the same and did not come forward to give any plausible explanation. No witness was examined from the side of the accused nor any document marked.
7. The Trial Court, after considering the evidence on record and hearing either side, by Judgment and Order dated 22.04.2019, convicted and sentenced the accused, as detailed in Paragraph No.3 supra. Challenging the above said conviction and sentence, the appellant has filed the present appeal.
8. Heard Mr.G.Mariappan, learned counsel, appearing for Mr.S.Ramsundarvijayraj, learned counsel on record for the appellant and Mr.T.Senthil Kumar, learned Additional Public Prosecutor appearing for the respondent.
9. The following facts are not in dispute:
➢ Kishore was the son of Sivakumar (P.W.1) and Kavitha (P.W.2).
_______________ Page 10 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 ➢ He was a 11 year old school going lad and his playmates in the locality were Udhaya (P.W.3), Suriya (P.W.4), Hemachandran (P.W.5), Ramu (P.W.6) and Sabari (P.W.
7).
➢ Kishore was an 11-year old boy and was residing with his parents in Plot No.4, Pappa Nagar Extension No.II, Nanchikottai Road, Tanjore.
➢ Kishore was a school going boy and he went missing in the evening of 23.09.2017.
➢ The dead body of Kishore was found on 26.09.2017. ➢ The appellant is the son of Kasthuri (P.W.15) and is a resident of Pappa Nagar.
10. Admittedly, this case is based on circumstantial evidence. As rightly contended by the learned counsel for the appellant, it is the duty of the prosecution to prove each circumstance satisfactorily and the proved circumstances should establish the guilt of the accused. At this juncture, it may be worthwhile to refer to the following passages from the Constitution _______________ Page 11 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 Bench Judgment of the Supreme Court in Govinda Reddy vs. State of Mysore [AIR 1960 SC 29]:
“5. The mode of evaluating circumstantial evidence has been stated by this Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh, 1952 AIR(SC) 343, and it is as follows :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
11. Apart from the above, it may also be useful to refer to the following five classic rules qua circumstantial evidence reiterated in Shaik Mustan Vali vs. State of Andhra Pradesh [(2007) 9 SCC 342]:
_______________ Page 12 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
12. The prosecution relies upon the following circumstances:
➢ The appellant was residing in the area where the deceased was residing.
➢ The deceased Kishore went missing in the evening of 23.09.2017 around 06.00 p.m. _______________ Page 13 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 ➢ On 24.09.2017, Sivakumar (P.W.1), father of the deceased, gave a written complaint, based on which the Police registered a “boy missing” F.I.R. (Ex.P15).
➢ The appellant surrendered before Thangavel (P.W.12), Village Administrative Officer, on 26.09.2017 and gave an extrajudicial confession statement (Ex.P10). ➢ The appellant was brought to the Tamil University Police Station, Tanjore, at 09.30 a.m., and was placed under arrest, after which his police confession was recorded. ➢ The appellant not only disclosed, but also pointed out the place where he buried the body, pursuant to which, the body was exhumed.
➢ The appellant displayed a peculiar conduct to Balu @ Lakshmanan (P.W.9) and Magesh (P.W.11) ➢ The appellant made two calls from his mobile No. 8940281587 to the mobile No.9943382059 of Kavitha (P.W.2), mother of the deceased Kishore, at 18.27 hours on 24.09.2017 and 18.28 hours on 25.09.2017.
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13. Mr.G.Mariappan, learned counsel for the appellant, attacked the extrajudicial confession statement (Ex.P10) and also the evidence of Thangavel (P.W.12), Village Administrative Officer. The learned counsel for the appellant contended that Thangavel (P.W.12), in his evidence, has admitted that the appellant was not previously known to him and therefore, the possibility of the appellant going and giving a confession to an unknown person is remote. He also submitted that the signature of the appellant is not available in the first page of the extrajudicial confession statement (Ex.P10). It is the further contention of the learned counsel for the appellant that the requisition letter (Ex.P9) that was submitted by Thangavel (P.W.12) to the Police is addressed to the Inspector of Police, Vallam Circle and not to the Inspector of Police, Tamil University Police Station.
14. This Court carefully considered the evidence of Thangavel (P.W.12), Village Administrative Officer. Thangavel (P.W.12), in his evidence, has stated that while he and the Village Assistant Saravanan were in the office, the appellant came around 8 o'clock on 26.09.2017 and confessed to the crime; therefore, he asked the appellant to put it down in writing and give it to him; accordingly, the appellant himself wrote the extrajudicial confession statement (Ex.P10), wherein he has stated the entire sequence of events _______________ Page 15 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 leading to the death of Kishore and the subsequent burial of the body of Kishore in the plot adjacent to his house. It is true that in the first page of the extrajudicial confession statement (Ex.P10), the signature of the appellant is not available. However, a perusal of the extrajudicial confession statement (Ex.P10) shows that it has been continuously written in the same handwritting and in the second page, the signature of the appellant and the date, on which it was written, find a place. Beneath that, Thangavel (P.W.12) has endorsed that “Received on 26.09.2017 at 09.00 AM”. Thangavel (P.W.12) has affixed his signature and seal in the extrajudicial confession statement (Ex.P10). The extrajudicial confession statement (Ex.P10) reached the jurisdictional Magistratre on the very same day i.e. 26.09.2017, as could be seen from the endorsement of the learned Judicial Magistrate thereon.
15. With regard to the requisition letter (Ex.P9) sent by Thangavel (P.W.12) to the Inspector of Police, Vallam Circle, Thangavel (P.W.12), in his evidence, has clearly stated that after obtaining the extrajudicial confession statement (Ex.P10) from the appellant, he took the appellant to Tamil University Police Station and not to Vallam Police Station. He has further stated that the requisition letter (Ex.P9) was first written by hand and thereafter, it was typed in the Police Station in their computer. The evidence _______________ Page 16 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 of the Investigating Officer Rajaravi Thangam (P.W.21) shows that he was the Inspector of Vallam Police Circle and was in-charge of Tamil University Police Station, Tanjore, at the relevant period and that Thangavel (P.W.12) came to Tamil University Police Station in connection with this case and produced the appellant along with his requisition letter (Ex.P9) and the extrajudicial confession statement (Ex.P10) given by the appellant. Be it noted, just because, the requisition letter (Ex.P9) has been addressed to the Inspector of Police, Vallam Circle, it cannot be stated that the extrajudicial confession statement (Ex.P10) would stand vitiated. At the risk of repetition, at that relevant point of time, Rajaravi Thangam (P.W.21) was holding charge of both Vallam Police Circle and Tamil University Police Station. Under such circumstances, we do not find any infirmity in Thangavel (P.W.12) addressing his requisition letter (Ex.P9) to the Inspector of Police, Vallam Circle. In fact, Tamil University Police Station comes within the limits of Vallam Circle.
16. As regards the contention of the defence that since Thangavel (P.W.12) was not previously known to the appellant, he (the appellant) would not have confided in the former, the same is without substance. There is no rule of law that a person should confess only to a person known him previously. In fact, in Sivakumar vs. State [(2006) 1 SCC 714], the Supreme _______________ Page 17 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 Court, in no uncertain terms, has held that the extrajudicial confession given to the Village Administrative Officer is admissible.
17. The learned counsel for the appellant further contended that in the extrajudicial confession statement (Ex.P10), the place, where the body was buried, has not been properly described and therefore, the discovery of place has become suspect.
18. We perused the extrajudicial confession statement (Ex.P10), wherein the appellant has clearly stated, “I have buried the body in the vacant plot near my house”. The Rough Sketch (Ex.P18) clearly shows the vacant plot, wherefrom the body was exhumed and it is lying adjacent to the house of the accused. In the Rough Sketch (Ex.P18), the house of the accused has been shown as Item No.4 and the place, wherefrom the body was exhumed has been shown as Item No.1. The playground, where the deceased was playing, has also been shown in the Rough Sketches (Ex.P16 and P18). To be noted, the Rough Sketch (Ex.P16) was prepared immediately after the “boy missing” F.I.R. was registered.
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19. The learned counsel for the appellant further contended that the presence of Thanga Prabhakaran (P.W.14), Tahsildar, in the place of occurrence, is indeed doubtful, because he had not signed in any of the records. Thangavel (P.W.12), Village Administrative Officer, in his evidence, has stated that after recording the confession statement of the appellant, he informed Thanga Prabhakaran (P.W.14), Tahsildar, about the incident and proceeded to the Police Station. Thanga Prabhakaran (P.W.14), Tahsildar, in his evidence, has stated that Thangavel (P.W.12) informed him about the incident and that he had also received a requisition from the Inspector of Police of Tamil University Police Station to come over to Pappa Nagar. Tahsildar is the Head of the Revenue Circle, under whom, the Deputy Tahsildars, Revenue Inspectors, Village Administrative Officers and Village Assistants of the Circle work. It may be pertinent to state here that the body was not exhumed based on the directions of the Tahsildar, but it was exhumed during the course of Police investigation based on the confession given by the appellant, who was also taken, along with the revenue officials, to the place where the body was buried. When a body was lawfully buried, then, such a body can be exhumed only on the directions of the Executive Magistrate-cum-Tahsildar and in such cases, the Executive Magistrate-cum- _______________ Page 19 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 Tahsildar would draw proceedings. This is not such a case. The appellant stated to the Village Administrative Officer Thangavel (P.W.12) and the Investigating Officer Rajaravi Thangam (P.W.21) that he has buried the body in a particular place and volunteered to show the place. To give authenticity to the whole operation, the services of the Tahsildar, Thanga Prabhakaran (P.W.14) was also requisitioned and only in that circumstance, the Tahsildar Thanga Prabhakaran (P.W.14) was present at the place along with others, including Sivakumar (P.W.1), father of the deceased.
20. The learned counsel for the appellant attacked the seizure of Mattock (M.O.4) by contending that the Mattock (M.O.4), that was used by the appellant to dig the pit, was seized by the Investigating Officer Rajaravi Thangam (P.W.21) only at 03.00 p.m. on 26.09.2017, pursuant to the alleged disclosure of the appellant. Whereas, Balu @ Lakshmanan (P.W.9), in his evidence, has stated that the Mattock (M.O.4) was used for digging the place, where the body was buried. Balu @ Lakshmanan (P.W.9) is the father of Udhaya (P.W.3) and Suriya (P.W.4), who were playing with Kishore on the fateful day. He has stated that on 26.09.2017, he heard the news that the appellant had murdered Kishore, buried his body near the temple ground and so, he went there, where Police were there along with the appellant and _______________ Page 20 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 photographer; on the appellant showing the place where the body was buried, he dug it by using the Mattock (M.O.4). This, in our opinion, is a mishandling by the Trial Court's Public Prosecutor, because, the Trial Court's Public Prosecutor took the Mattock, that was available in the Court, showed it to Balu @ Lakshmanan (P.W.9) and asked him as to whether that Mattock was used for digging the place where the body of the deceased was buried. For this question, Balu @ Lakshmanan (P.W.9), a lay witness, has stated in the affirmative. Mattock is a common agricultural implement used for digging. Therefore, Balu @ Lakshmanan (P.W.9), being a lay witness, has stated so.
21. The seizure of Mattock (M.O.4) at 03.00 p.m., on 26.09.2017, after the body was exhumed, has been established through the evidence of the Investigating Officer Rajaravi Thangam (P.W.21) and Thangavel (P.W.12), Village Administrative Officer, who were the signatories to the Recovery Mahazar (Ex.P8). Even assuming for a moment that on account of the aforesaid statement of Balu @ Lakshmanan (P.W.9), if the seizure of the Mattock (M.O.4) at 03.00 p.m., is disbelieved, that by itself, would not mean that the exhumation of the dead body from the place shown by the appellant should also be disbelieved.
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22. The learned counsel for the appellant, taking us through the evidence of Rajaravi Thangam (P.W.21), who has stated, in the examination- in-chief, that he went to the place of occurrence along with the appellant and others, prepared an Observation Mahazar (Ex.P7) and Rough Sketch (Ex.P18), contended that a reading of the Observation Mahazar (Ex.P7) shows that it was prepared after the body was exhumed. It is true that the Observation Mahazar (Ex.P7) reads as if it was prepared only after the body was exhumed. Dictates of commonsense would state that till the place is dug and the body is exhumed, there cannot be any affirmative action. The evidence of Thangavel (P.W.12) is to the effect that only after the body was exhumed, the Observation Mahazar (Ex.P7) was prepared, in which he signed along with the Village Assistant Saravanan.
23. More than the Observation Mahazar (Ex.P7), what is important is the Seizure Mahazar (Ex.P6). The Investigating Officer Rajaravi Thangam (P.W.21) and Thangavel (P.W.12), Village Administrative Officer, in their evidence, have stated that after the body was exhumed, the soil above it and below it, namely, M.Os.5 and 6 were seized at 12.45 p.m., on 26.09.2017 under the cover of Mahzar (Ex.P6). Therefore, the stray statement of the Investigating Officer Rajaravi Thangam (P.W.21) that the Observation Mahazar _______________ Page 22 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 (Ex.P7) and Rough Sketch (Ex.P18) were prepared even before the body was exhumed militates against not only the averments made in the Observation Mahazar (Ex.P7), but also is not inconsonance with the evidence of Thangavel (P.W.12) and the seizure of soil under the cover of the Seizure Mahazar (Ex.P6).
24. Then, we have the evidence of Magesh (P.W.11), a close friend of the appellant. Magesh (P.W.11), in his evidence, has stated that he is doing his final year engineering course in Anjalaiammal Mahalingam Engineering College; he knows the appellant and the prosecution witnesses 1 to 10; the appellant is his friend; Kishore was also known to him; on 23.09.2017, while he was returning home in his Motorcycle, he saw the appellant near the compound wall of the playground and little away from him, Kishore and Ramu (P.W.6) were there; thereafter, in the evening, Kishore's mother came in search of her son Kishore and he also joined the search; when Police started searching for the boy, he asked the appellant where Kishore was, as he had seen Kishore with him on the previous day, for which the appellant replied that Kishore had gone home; thereafter, the appellant is said to have told him that he was little nervous, for which he (P.W.11) said: “you need not worry at all, if you are innocent”. In the cross-examination, Magesh (P.W.11) has _______________ Page 23 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 stated that he informed this event to Kishore's mother on 23.09.2017. Magesh (P.W.11) denied the suggestion that Kishore's family was his neighbour, so he was testifying in their favour.
25. With regard to the Cellphone calls alleged to have been made by the appellant to Kavitha (P.W.2), Kishore's mother, it is seen that Kavitha (P.W.2), in her evidence, has stated that she received two calls from 8940281587 and when she attended them, the person on the other side did not speak. According to the Investigating Officer, a notice was issued to Kasthuri (P.W.15), mother of the appellant, asking her to produce the mobile phone of her son (appellant) and accordingly, she produced the mobile phone of the appellant on 15.11.2017 and the same has been marked as M.O.7. Kasthuri (P.W.15), however, turned hostile and did not support the prosecution case.
26. Though Gokulnath, P.W.17, Nodal Officer, was examined and the call details report of the appellant's mobile number has been marked as Ex.P14 to show that two calls have been made from the appellant's mobile No. 8940281587 to the mobile No.9943382059 of Kavitha (P.W.2) on 24.09.2017 and 25.09.2017, yet, the records show that the mobile connection of _______________ Page 24 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 8940281587 is in the name of one Sivabalu. In the absence of any evidence to show that the appellant was using the mobile of Sivabalu, we cannot place much reliance on this circumstance.
27. Finally, the learned counsel for the appellant took us through the evidence of Dr.Tamilmani (P.W.16) and the Postmortem Certificate (Ex.P12) and contended that when throttling takes place, larynx and trachea would suffer a fracture, whereas, in this case, there is no such fracture. He took us to the following passages from Modi's “Medical Jurisprudence and Toxicology” (23rd Edition), published by LexisNexis Butterworths, in support of his contentions:
(B) If fingers are used (throttling), marks of pressure by the thumb and the fingertips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards, and one below the other.
However, the marks are sometimes found clustered together, so that they cannot be distinguished separately. These fingertip bruises, each disc-shaped and 1-2 cm in diameter, look like red bruises (six penny bruises) if examined soon after death, but they look brown, dry and parchment-like sometimes after death. One should refrain _______________ Page 25 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 from drawing inference from the direction of curved abrasion, as to how the hand of the assailant might have been applied to the neck of victim. The inherent quality of the victim's skin, the shape and length of the fingernails of the assailant render such inferences extremely tenuous [HA Shapiro et al. The Significance of Fingernail Abrasions of the Skin, JFM, 1962, 9, 17.]. This linear or crescentic marks produced by the fingernails are occasionally present, if the fingertips are pressed deeply into the soft tissues of the neck. A body, which is wet, may not reveal fingernail marks until drying of the skin of the body. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found on either side of the throat. Sometimes, both thumb marks are found on one side and several finger marks on the opposite side. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck, as well as on its back.
...
...
(ii) Internal Appearance The neck and its structures should be examined after removing the brain and the chest organs, thus _______________ Page 26 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 allowing blood to drain from the neck to the blood vessels. There is extravasation of blood into the sub-cutaneous tissues under the ligature mark or finger marks, as well as in the adjacent muscles of the neck, which are usually lacerated. Sometimes, there is laceration of the sheath of the carotid arteries, as also their internal coats with effusion of blood into their walls. The cornua of the hyoid bone may be fractured also the superior cornua of thyroid cartilage but fracture of the cervical vertebrae is extremely rare. These should be carefully dissected in situ as they are difficult to distinguish from dissection artefacts in the neck.
A Hindu male, aged, 40 years, of Budayun District, was murdered by applying violent pressure on the neck and the chest. Among several injuries inflicted on the body, there was an extensive bruising of the larynx and trachea with fracture of the right cornua of the hyoid bone. [KE v Premsing and Mohansing Allahabad High Court, Cr App No.796/1923].
The hyoid bone was fractured in the case of a boy, five years old, who was strangulated with a piece of cloth tied round the neck with two knots, for the sake of gold and silver ornaments [KE v Shiamlal, Allahabad, High Court, Cr App No.175/1923].
_______________ Page 27 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 In a case of strangulation, Modi found a fracture and dislocation of the first and second cervical vertebrae together with the usual cord- mark. In addition to these injuries, the right humerus, the left femur, and the first and second ribs of both the sides were fractured. The fracture-dislocation of the spine was either caused by forcibly twisting the neck during the act of strangulation, or by a violent blow with a blunt weapon across the nape of the neck.
In another case, a man was murdered by application of pressure on his neck with a stout lathi, the hyoid bone was fractured and the first and second cervical vertebrae were fractured and dislocated [Allahabad High Court, Criminal Appeal No.281/1923].
The larynx and trachea are congested, and contains frothy mucus. The cartilages of the larynx or the rings of the trachea may be fractured, when considerable force is used. A fist or karate blow to the neck may result in fractures of superior cornuae of thyroid cartilage with vertical fracturing of the thyroid cartilage, besides vertical tears in the carotid arteries [FE Camps, The case of Emmett Dune, MJ (Camb) 1959, 27, 156]” _______________ Page 28 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019
28. The learned counsel for the appellant also placed reliance on the Division Bench Judgment of this Court in Shanmugam vs. State [2019 (2) MWN (Cr.) 300 (DB)], wherein, in Paragraph No.23, it has been held as follows:
“23. When the victim is throttled, air supply to the lungs will be disconnected and that will result in petechial haemorrhage on the surface of the heart and lungs and other parts of the body. Whereas, no recording has been made about petechial haemorrhage in the post-mortem report. Similarly, during throttling, the soft tissues around the hyoid bone would suffer contusion, which will be observable during post-mortem even in a case where the body is burnt after death. No recording of this condition has been noted either in the post mortem report or in the bone case report. When a person suffers intense burning, it is possible for the hyoid bone to become brittle and get fractured even with mild blunt force. Therefore, in the absence of any aforesaid symptoms, the mere fracture of the left side of the hyoid bone without anything more to substantiate throttling, cannot lead us to infer that the appellant had throttled the deceased to death and, thereafter, burnt her body, especially in the light of the evidence of the ocular witnesses that _______________ Page 29 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 they saw Manimekalai on her legs when she was ablaze. Had she died immediately after she was throttled, where is the question of the eyewitnesses seeing her standing with fire on her?
29. In this case, the deceased was a boy of 11 years, whose bones would be very supple. His body was decomposed and mud was found over his body during postmortem. Dr.Tamilmani (P.W.16), in his evidence, has clearly stated that if a person's neck is throttled on its backside, the cervical bones would not suffer a fracture. He has further inter alia stated that if a person is throttled from the front side, there is a possibility of larynx fracture, but the possibility of such a fracture is very remote, where the victim is a young person. He has further stated that ordinarily, if the back neck of a young boy is throttled, the possibility of cervical bones (C1 to C7) getting fractured is remote. He has denied the suggestion that if a person is throttled on the back of neck, no death would occur. The Postmortem Report (Ex.P12) shows two contusions on both right side and left side of the neck, apart from a contusion over the middle front side of the neck. The photograph of Kishore submitted along with the complaint (Ex.P1) shows that he is a boy with a slim structure. Therefore, if his neck is throttled from behind, the thumb and fore fingers would cause the contusions, as noted in the Postmortem Certificate (Ex.P12). _______________ Page 30 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 The passages extracted above do not say that there would be a fracture of cartilages of the larynx or the rings of the trachea in all cases and it only says that “it may be fractured”. Dr.Tamilmani (P.W.16), Postmortem Doctor, explained that since the victim was a small boy, the possibility of he suffering fracture on account of throttling is remote.
30. Coming to the decision of Shanmugam supra, that was a case where the allegation against the appellant therein was that he throttled the neck of his wife, caused her death and thereafter set fire on her body by pouring kerosene. The postmortem in that case was done immediately. In Paragraph No.20, the following observations find a place:
“20. Mrs.Thilaga Balasubramanian, learned counsel appearing for the appellant drew the attention of this Court to the specific answer given by Dr.Renukadevi (P.W.25), who gave the Bone Case Report (Ex.P-10), who, in the cross- examination has stated that she has not given any reason in her report for saying that the fracture of the hyoid bone was ante-mortem in nature. We went through the evidence of Dr.Renukadevi (P.W.
25) and found that even in the chief examination, she has not given any reasons in support of her opinion that the fracture of the hyoid bone was _______________ Page 31 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 ante-mortem in nature. Reasons are essential to justify the opinion of an expert whose evidence is relevant under Section 45 of the Evidence Act.” Therefore, in those facts and circumstances, the prosecution story that the appellant throttled his wife's neck, murdered her and thereafter, burnt her was disbelieved. Hence, Shanmugam (supra) would be of no avail to the appellant herein.
31. The learned counsel for the appellant further contended that motive assumes more significance in a case based on circumstantial evidence, but, in this case, the motive appears to be very frail. In this case, the appellant did not have any previous motive against the deceased. While the appellant was smoking cigarette near his house under the cover of the compound wall of the playground, the deceased came there and hit behind him. When the appellant tried to drive him away, the deceased is said to have abused him in a foul language. Feeling irritated and infuriated at that, the appellant had throttled his neck from behind, which proved fatal. Thereafter, in order to cover it up, the appellant buried the body in the vacant plot near his house and joined the search of the boy along with the others. _______________ Page 32 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019
32. The learned counsel for the appellant placed strong reliance on the Judgment of the Supreme Court in Anwar Ali and another vs. State of Himachal Pradesh [(2020) 10 SCC 166], wherein the appellant was acquitted by the Trial Court, but the High Court reversed the findings of the Trial Court by relying upon the recovery of photographs, mobile phone, knife and rope at the instance of the appellant therein. In this case, the dead body of the boy has been recovered pursuant to the disclosure of the appellant and therefore, the facts of Anwar Ali (supra) may not come to the aid of the appellant herein.
33. Similarly, the learned counsel for the appellant placed much reliance on the decision of the Supreme Court in Kuldip Singh and another vs. State of Punjab [2002 SCC (Crl) 1534] for the proposition that extrajudicial confession statement is a weak type of evidence.
34. In Anwar Ali (supra), as could be seen from Paragraph Nos.16 and 17 therein, the Apex Court disbelieved the extrajudicial confession statement on the ground that the evidence of the person to whom it was given did not inspire confidence. In this case, we have no good reasons to disbelieve _______________ Page 33 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 the evidence of Thangavel (P.W.12), the Village Administrative Officer, to whom the appellant had given the extrajudicial confession statement (Ex.P10). The appellant has not suggested any motive to the prosecution witnesses for falsely implicating him in this case, nor he has stated anything in his statement under Section 313 of the Code of Criminal Procedure in this regard. When the body of the boy has been exhumed from the place that was pointed out by the appellant, then under Section 106 of the Evidence Act, the onus is on the appellant to show how he knew that the body was buried there.
35. Before winding up, we would like to allude to the Judgment of the Supreme Court in Sayarabano vs. State of Maharashtra [(2007) 12 SCC 562], wherein in Paragraph No.16, it has been held as follows:
"16. In our opinion, criminal cases are decided on facts and on evidence rather than on case law and precedents. In the case on hand, there is ample evidence to show that even prior to the incident in question, the appellant used to beat the deceased and ill-treat her. It is in the light of the said fact that other evidence requires to be considered. In our view, both the courts were right in relying upon the second dying declaration of the deceased treating it as true disclosure of facts by the deceased Halimabi. In the light of the _______________ Page 34 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 evidence of parents of the deceased (PW 2 and PW 3), Dr. Kishore (PW 6) and Special Judicial Magistrate (PW
5), it cannot be said that the courts below had committed any error and the conviction deserves to be set aside."
(emphasis supplied) In fact, in the definition of the word "proved" in Section 3 of the Evidence Act, the expression "under the circumstances of the particular case" has been carefully employed, which means that each case has to be determined based on the evidence adduced therein and the law of precedents would have little application in criminal cases.
36. For all the aforesaid reasons, we find no merits in this appeal and the conviction and sentence recorded by the Trial Court warrant no interference.
In the result, ➢ The criminal appeal is dismissed.
➢ The Judgment and Order dated 22.04.2019, in S.C.No. 183 of 2018, passed by the learned I Additional District and Sessions Judge (PCR Cases), Thanjavur, is upheld. _______________ Page 35 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 ➢ Suspension of sentence granted by this Court on 19.03.2021 in Crl.M.P.(MD) No.1279 of 2021 stands cancelled.
➢ Since the appellant is on bail, it is directed that the Trial Court shall take steps to secure him and to commit him to prison to serve out the period of sentence.
[P.N.P., J.] [R.H., J.]
14.07.2022
Index : Yes / No
Internet : Yes / No
krk
To:
1.The I Additional District Judge-cum-PCR Judge, Thanjavur.
2.The Inspector of Police, Tamil University Police Station, Thanjavur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, Vernacular Records Section, Madurai Bench of Madras High Court, Madurai.
_______________ Page 36 of 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.231 of 2019 P.N.PRAKASH, J.
and R.HEMALATHA, J.
krk JUDGMENT IN Crl.A.(MD) No.231 of 2019 14.07.2022 _______________ Page 37 of 37 https://www.mhc.tn.gov.in/judis