Madras High Court
Karvendan vs State Represented By on 22 November, 2013
Bench: S. Rajeswaran, P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 22.11.2013 CORAM THE HONOURABLE MR. JUSTICE S. RAJESWARAN AND THE HONOURABLE MR. JUSTICE P.N.PRAKASH CRL.A.No.162 of 2012 Karvendan .. Appellant Versus State represented by The Inspector of Police Kumaratchi Police Station Cuddalore District. Cr.No.157/10 .. Respondent Criminal Appeal filed under section 374 Cr.P.C. against the judgment dated 16.02.2012, passed in S.C.No.43/2011 by the learned Principal Sessions Judge, Full Additional Charge, Mahila Court, Cuddalore and to set aside the conviction and sentence under Section 302 and 201 IPC. For Appellant : Mr.Robert J.Barnabas For Respondent : Mr.V.M.R.Rajendiran Additional Public Prosecutor JUDGMENT
[Judgment of the Court was delivered by P.N.PRAKASH, J] The sole accused before the trial Court, who is the appellant before us, was convicted under Sections 302 and 201 IPC, by judgment dated 16.02.2012 in S.C.No.43 of 2011 by the Mahila Court, Cuddalore and sentenced to undergo life imprisonment and pay a fine of Rs.1,000/-, in default, to undergo fifteen days Simple Imprisonment for the offence under Section 302 IPC and undergo one year Rigorous Imprisonment for the offence under Section 201 IPC.
2. It is the case of the prosecution that the deceased Shanthi, was married to Pazhanisamy (P.W.2) living in Vandiyar Iruppu Village of Kattumannarkoil Taluk. It is alleged that she developed illicit intimacy with the deceased who hailed from Elleri village of the same Taluk. She was frequently borrowing money from the accused. On the fateful day 20.08.2010, the deceased went to the house of her younger brother Mariappan (P.W.1) in Periyarnagar Village and boarded a bus at around 5.00 p.m. to go back to her village. It is alleged that the accused also boarded the same bus and together they alighted at Thirunaraiyur bus stop, from where they went together by cycle towards a Brick Kiln in forest area. After sex, a quarrel over money issues ensued between them, on account of which it is alleged that the accused beheaded her with an iron knife (M.O.13) and discarded the corpse in the nearby canal.
3. Since Shanthi did not return home, her husband Pazhanisamy (P.W.2) started looking out for her and alerted her brother Mariappan (P.W.1). The family members searched for her and ultimately P.W.1 lodged a complaint (Ex.P1) on 22.08.2010, which was registered as "woman missing" in Kumaratchi Police Station Cr.No.157 of 2010 by Babu, the Sub Inspector of Police (P.W.15), who made the FIR (Ex.P19), which was received by the Jurisdictional Magistrate at 12.05 hrs on 25.08.2010. While so, Munusamy (P.W.6) - a Forest Guard, observed a foul smell emanating from the canal area en route Sarvarajanpet forest area at around 1.00 p.m. on 27.08.2010. When he probed into it, he found a headless body in the canal. He sent word to the nearby village, pursuant to which Anusiya (P.W.3) the Village Administrative Officer, in-charge of the Sarvarajanpet village came to the scene along with other villagers. They also found the severed head in the water. P.W.3 appears to have made enquiries with the villagers as to the identity of the body and at that time, Manjula (P.W.7) the daughter of the deceased, appears to have identified the body as that of her mothers on seeing the ear rings, nose ring and anklets on the body. After making this preliminary enquiry, P.W.3 gave a report (Ex.P2) on 27.08.2010 to the Inspector of Police, Kumaratchi Police Station, based on which the Sub Inspector of Police (P.W.15) converted the "woman missing" case in Cr.No.157 of 2010 as one under Section 302 IPC and despatched the same to the Jurisdictional Magistrate on the same day. Subramani (P.W.16) the Inspector of Annamalai Nagar Police Station, who was in additional in-charge of Kumaratchi Police Station, took up the investigation of the case and went to the place where body was found at 16.00 hrs and prepared a Rough Sketch (Ex.P21). He seized the gold ornaments under the cover of Mahazar (Ex.P10) and conducted inquest over the body (Ex.P22) in the presence of the witnesses. He despatched the body to the Government Hospital, Chidambaram for post-mortem, where Dr.Saravanakumar (P.W.14) performed the autopsy and issued a post-mortem certificate (Ex.P18). In his opinion, he has stated that:
"Definitive cause of death could not be given due to decomposed state of the body."
4. P.W.16 arranged to collect the viscera from the intestine and also the skull and tissues from the body and despatched the same through the Court to the Forensic Science Department for skull superimposition and other scientific examinations. Further investigation was taken over from P.W.16 by Kodeeswaran (P.W.17) Inspector of Police (Incharge), Kumaratchi Police Station on 22.08.2010. Based on the inputs provided by Mariappan (P.W.1) and Pazhanisamy (P.W.2), the needle of suspicion pointed to the accused who was found to be not available in his village. At 2.00 p.m. on 01.09.2010, P.W.17 arrested the appellant and recorded his confession statement in the presence of Panneerselvam (P.W.4) and Kamaraj (P.W.5). P.W.4 did not support the prosecution case, but P.W.5 supported the case of the prosecution. In the presence of the said witnesses, P.W.17 recovered a gold Thali chain (M.O.8), two golden mango pottu (M.O.9), two golden round coin (M.O.10), a golden Thali (M.O.11) and a pair of golden Thali gundu (M.O.12) under a cover of Mahazar (Ex.P10). Thereafter, P.W.17 recovered the knife (M.O.13) from the house of the accused. The Hercules cycle (M.O.14) allegedly used by the accused was recovered by P.W.17 under the cover of Mahazar (Ex.P13) in the presence of the witnesses P.Ws.4 and 5. The full hand shirt (M.O.15) and dhoti (M.O.16) allegedly worn by the appellant from the date of the incident was seized under the cover of Mahazar (Ex.P14) in the presence of P.Ws.4 and 5. The accused was thereafter sent for judicial custody.
5. P.W.17 handed over the investigation on 26.10.2010 to Raju (P.W.18) the Inspector of Police, Kumaratchi Police Station, to obtain the serology report and other scientific reports. P.W.18 examined the post mortem Doctor and other witnesses and completed the investigation and filed a final report on 07.12.2010 against the appellant for offences under Section 302 IPC and 201 r/w 302 IPC before the Judicial Magistrate II, Chidambaram, who took the same on file in PRC No.1 of 2011. On the appearance of the appellant, the provisions of Section 207 Cr.P.C. were completed with and the case was committed to the Court of Sessions, Cuddalore. The report relating to superimposition of skull (Ex.P24) dated 23.12.2010, given under the hand and seal of the Deputy Director of Anthropology Division, Forensic Science Department, Chennai 4 discloses that the skull sent for examination would possibly be that of the deceased Shanthi. In order to prove the prosecution case, 18 witnesses were examined, 24 exhibits and 16 material objects were marked. No witness was examined by the defence.
6. The entire case of the prosecution hinges on circumstantial evidence. In a case based on circumstantial evidence, it is a settled proposition that the entire chain of circumstances should be established beyond reasonable doubt by the prosecution and cumulatively it should lead to one and only inference, that it was the accused who had committed the offence. With this principle in mind, we have analysed the evidence adduced by the prosecution in this case. In order to prove the case, the prosecution is relying upon the following circumstances:
(i)Motive
(ii)Last seen theory
(iii)Abscondance of the accused
(iv)Recoveries based on the confession of the appellant
7. It was contended by the learned counsel for the appellant that the prosecution had failed to prove that the corpus delicti, namely the dead body was that of Shanthi's. We are unable to agree with the contention of the learned counsel for the appellant for the reason that the prosecution has established the identity beyond reasonable doubt through the evidence of Manjula (P.W.7), the daughter of the deceased, who had identified the body based on the ornaments (M.Os.1 to 4) namely the ear rings and nose ring that were worn by the deceased and were found when the body was fished out of the canal on 27.08.2010 in the presence of Anusiya (P.W.3), the Village Administrative Officer. It is contended by the learned Additional Public Prosecutor that apart from this evidence, the prosecution has established through scientific evidence, namely the Skull superimposition tests, the reports (Exs.P23 and 24) clearly states about the identity of the deceased.
8. On a careful scrutiny of the records, we are surprised to note that the final report of this has been filed on 07.12.2010 and the reports of the Forensic Department (Exs.P23 and 24) were received by the Judicial Magistrate only on 18.03.2011. Therefore, it is obvious that the Investigating Officer has shown undue haste in filing the final report without even waiting for the skull superimposition report. This cannot be treated as a casual remiss in the investigation, because undue prejudice has been caused to the accused, inasmuch as he was not furnished with the copies of the reports (Exs.P23 and 24) under Section 207 Cr.P.C during the committal proceedings. The trial Court has also noted this lapse but has strangely refused to give any credence to Exs.P23 and 24 on the ground that these documents were not supplied to the accused. When the trial Court had noticed this from the objections raised by the defense while marking Exs.P23 and 24, it could have atleast furnished the copies of the documents to the accused at that juncture and after giving sufficient time for preparation, the concerned witnesses could have been examined thereafter. Instead, the trial Court has thrown up its hands in despair and has turned a Nelsons eye to Exs.P23 and 24, which cannot be countenanced. If trial Courts are under the impression that a document not supplied to the accused under Section 207 Cr.P.C. or obtained during further investigation of 173(8) Cr.P.C. and not supplied to the accused, cannot be admitted in evidence, they are sadly mistaken. In our criminal justice system, the prosecution is required to adduce the best evidence and if they fail to do so, the Courts are not rendered helpless. The power under Section 311 Cr.P.C. is available to the trial Courts to meet such contingencies. Though Section 311 Cr.P.C. speaks of recalling witnesses and does not speak about filing additional documents, it does not mean that the trial Courts are powerless. To say that a document can be admitted in evidence only if it is summoned under Section 91 Cr.P.C. and that it cannot be duly proved it if comes to the file of the Court through any other means as in this case, would be anachronistic. In Zahira Habibulla H.Sheik and another v. State of Gujarat and others, popularly called 'Best Bakery' case [AIR 2004 SC 3114], the Supreme Could has held:
"43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process."
(emphasis supplied) Further in para 44, the Supreme Court has held :
"The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code."
We are giving emphasise to the word 'material' employed by the Apex Court in the said judgment in order to drive home the point that we would be negating the very foundation of Section 311 Cr.P.C. and Section 165 of the Indian Evidence Act and will be crippling the power of the trial Courts, if we are to hold that only oral evidence can be adduced and no new documents can be admitted in evidence. The expression "evidence" as defined in the Indian Evidence Act includes both oral and documentary. The Supreme Court in Willie (William) Stanley vs. State of Madhya Pradesh [(1955)2 SCR 1140] has said "Like all procedural laws the Code of Criminal Procedure is designed to subserve the ends of justice and not to frustrate them by mere technicalities." After all procedural law is a handmaid of justice. When such a circumstance arises, the trial Court should furnish the copy of the document which it proposes to admit as evidence to the accused and also inform him as to the manner in which the document would be proved. After giving him a reasonable time for preparation, the witness concerned may be called and the document marked through him, so that the accused does not complain of prejudice. We would not have hesitated to invoke our powers under Section 391 Cr.P.C. and take additional evidence in this regard, but for the reason that we are acquitting the appellant on other grounds.
9. The learned counsel for the appellant further submitted that the prosecution had miserably failed to prove the motive for the offence, namely, the alleged intimacy between the appellant and the deceased and last seen theory satisfactorily.
10. Per contra, the learned Additional Public Prosecutor vehemently refuted the arguments and submitted that the prosecution has proved through the evidence of Mariappan (P.W.1), Manimaran (P.W.9) and Chinnasamy (P.W10), that the appellant was last seen with the deceased.
MOTIVE:
11. In a case of circumstantial evidence, motive assumes great significance, because it is considered as a very strong link in the chain of circumstances. On a perusal of the evidences of all the witnesses, we find that no witnesses has stated anything about the intimacy between the appellant and the deceased much less about the alleged financial dealings. Therefore, we hold that the prosecution had failed to prove the motive of the accused to commit the offence in this case.
LAST SEEN THEORY:
12. P.W.1 in his evidence has stated that his elder sister, the deceased came to his house on 20.08.2010 and in the evening he accompanied her to the bus stop to bid farewell. When the bus halted at the village bus stop around 7.00 pm, his sister boarded the bus through the front entry and he saw the accused boarding the bus through the back entry. Nothing in favour of the prosecution turns out from this piece of evidence. It is not the version of the witness that he saw his sister and the appellant together. Manimaran (P.W.9) who works in the Thirunaraiyur bus stop in his evidence stated that he would wait at the Thirunaraiyur bus stop every day to pick up his school going daughter on her return from school, but on 20.08.2010, according to P.W.9, his daughter did not return by the 6.00 pm bus and therefore, he had to wait till 7.30 p.m. At that time, when a bus halted, he saw the appellant and a lady getting down from the bus and walking towards Sarvarajanpet Canal. Thereafter, on 27.08.2010 when the decomposed body was fished out from the canal, P.W.9 has stated that he went there out of curiosity and identified the body as that of the person, who had accompanied the appellant seven days earlier. Chinnasamy (P.W.10), who works in Brick Kiln in Thirunaraiyur village has made a parrot like repetition of P.W.9s evidence on the aspect of last seen theory. We are unable to persuade ourselves to give judicial credence to the testimonies of these two witnesses for the following reasons:
(i) From the evidence of Mariappan (P.W.1) the brother of the deceased, Pazhanisamy (P.W.2) husband of the deceased and Manjula (P.W.7), daughter of the deceased, it is crystal clear that the torso and head were in decomposed state and they themselves were not able to identify it. P.W.7 was able to identify only from the ornaments on the body.
(ii) Even in the Post Mortem Certificate, the Doctor was not able to give any opinion on account of acute decomposition of the body. When that is so, it is unbelievable for P.Ws.9 and 10 who had allegedly seen the deceased with the accused around 7.30 p.m. seven days earlier, to have identified from the dead body that it is that of the lady who had accompanied the accused. Had these witnesses identified the body as deposed by them in the Court, at least the names of these two witnesses would have found place in column 4 of the Inquest Report (Ex.P22), which relates to the name of the person who had last seen the deceased. In column 4 of the Inquest Report, the name of the Mariappan (P.W.1) figures and not that of P.Ws.9 and 10. Their statements were recorded by the police only on 02.09.2010 and they were sent to the Court only on 28.09.2010.
Since we disbelieve P.W.9 and P.W.10 in the light of the material discrepancies stated above, we hold that the prosecution has not proved the last seen theory satisfactorily.
ABSCONDANCE OF THE ACCUSED:
13. The appellant in this case admittedly belongs to Elleri village in Kattumannarkoil Taluk, whereas the deceased Shanthi, is married to Pazhanisamy (P.W.2), who lives in Vandiar Iruppu village. After giving the complaint on 22.08.2010, P.W.1 and P.W.2 went in search of the appellant to Elleri village where they found that his house was locked. Except this piece of evidence, there is no other material to show that the accused was absconding. The prosecution has not examined any person from Elleri village to show that the appellant was not available during the relevant period and was absconding. If abscondance had been satisfactorily established through evidence, then it can be considered as a powerful piece of evidence not in isolation, but with other evidences.
14. In S.K.YUSUF V. STATE OF WEST BENGAL [(2012) 1 MLJ Crl 127 (SC)], the Apex Court has held that a person may abscond fearing the police and therefore, abscondance by itself is not a serious circumstance. While that is so, the factum of abscondance having not been proved satisfactorily, we cannot put this as an incriminating circumstance against the accused.
RECOVERY BASED ON THE CONFESSION OF THE APPELANT:
15. According to the Inspector of Police (P.W.17), he arrested the appellant in Chidambaram on 01.09.2010 at 2.00 p.m. and recorded the confession statement. From the appellant, gold ornaments M.Os.8 to 12 were recovered under the cover of Mahazar (Ex.P10) in the presence of witnesses P.Ws.4 and 5, of whom P.W.4 turned hostile. There is no evidence to show that M.Os.8 to 12 belong to the deceased. These ornaments were not even shown to her brother (P.W.1), her husband (P.W.2) and her daughter (P.W.7). In the absence of this link, we cannot infer that M.Os.8 to 12 belong to the deceased.
In fine, the prosecution has not proved any of the circumstances catalogued above and therefore, the appeal is allowed and the appellant is acquitted of all charges levelled against him and he is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
[S.R., J.] [P.N.P., J.]
22.11.2013
Index : Yes/No
Internet : Yes/No
To
1.The Principal Sessions Judge,
Full Additional Charge,
Mahila Court, cuddalore.
2.The Inspector of Police
Kumaratchi Police Station
Cuddalore District.
3.The Public Prosecutor
High Court, Madras.
S.RAJESWARAN, J.
AND
P.N.PRAKASH, J.,
gms
Crl.A.No.162 of 2012
22.11.2013