Madras High Court
Kannan vs . on 27 August, 2021
Author: P.N.Prakash
Bench: P.N.Prakash, R.N. Manjula
R.T.No.1 of 2021 & Crl.A.No.131 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 11.08.2021
PRONOUNCED ON : 27.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
and
THE HONOURABLE MS. JUSTICE R.N. MANJULA
R.T.No.1 of 2021 and Crl.A.No.131 of 2021
R.T.No.1 of 2021:
State by
The Inspector of Police
V-5 Thirumangalam Police Station
Chennai Complainant
(Cr. No.3111 of 2012)
vs.
Kannan Accused
Crl.A.No.131 of 2021:
Kannan Appellant
vs.
State by
The Inspector of Police
V-5 Thirumangalam Police Station
Chennai
(Cr. No.3111 of 2012) Respondent
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R.T.No.1 of 2021 & Crl.A.No.131 of 2021
R.T.No. 1 of 2021:
Referred Trial under Section 366 Cr.P.C. on the judgment and order dated
03.03.2021 passed in Sessions Case No.291 of 2013 on the file of the IV
Additional Judge, City Civil Court, Chennai.
Crl.A.No.131 of 2021:
Criminal Appeal filed under Section 374(2) Cr.P.C. seeking to set aside the
judgment and order of conviction and sentence dated 03.03.2021 passed in
Sessions Case No.291 of 2013 on the file of the IV Additional Judge, City Civil
Court, Chennai.
For accused/appellant Mr. K. Doraisami, Sr. Counsel
for M/s. Muthumani Doraisami
For State Mr. M. Babu Muthu Meeran
Addl. Public Prosecutor
-----
COMMON JUDGMENT
P.N.PRAKASH, J.
Referred trial (R.T.) No.1 of 2021 is a reference made by the IV Additional Judge, City Civil Court, Chennai (for brevity “the trial Court”) under Section 366 Cr.P.C., for confirmation of the death sentence awarded to the accused in S.C.No.291 of 2013 vide judgment and order dated 03.03.2021. Crl.A.No.131 of 2/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 2021 is an appeal under Section 374(2) Cr.P.C. filed by the accused challenging his conviction and sentence in the aforesaid Sessions Case.
2 The prosecution story runs thus:
2.1 The accused Kannan, M.Sc., M.B.A., Ph.D., aged around 41 years at the time of the incident, was a Professor in the M.B.A. Department of R.M.K. Engineering College in Gummidipoondi. He is a native of Salem District and is the son of Veeri Chettiar (P.W.8). Sometime in 1998, he got married to Mohanambal, who is the deceased in this case. Mohanambal also hailed from Salem District and she was a homemaker. Kannan and Mohanambal were blessed with a daughter, Pooja (P.W.6), who was around 13 years at the time of the incident. Kannan was living with Mohanambal and Pooja (P.W.6) in 18/45D, I Floor, Senthoor Apartments, VI Avenue, Anna Nagar, Chennai 40. Kannan was going to R.M.K. Engineering College in Gummidipoondi from there. Kannan's parents were living in their native village in Salem District. This is all about Kannan's family.3/56
https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 2.2 On 16.12.2012, Kannan took Mohanambal and Pooja (P.W.6) for shopping to T.Nagar from where they had been to the Marina Beach and they returned home after dusk. While they were entering into their apartment around 8.45 p.m., Sudharsan (P.W.14), a resident in the same apartments, saw Mohanambal and casually picked up a conversation with her and at that time, Mohanambal told him that they were returning from the Marina Beach. Thereafter, Kannan's family went into their flat.
2.3 One Rajagopal (P.W.2), aged around 50 years, was a family friend of Kannan and was residing in the second floor of No.257, MIG, II Main Road, Mogappair. Gajavardan (not examined) and his son-in-law Arun Kumar (P.W.1) were tenants under Rajagopal (P.W.2) in the first floor portion of the same house. The house of Rajagopal (P.W.2) should be around 4 - 5 kms. from Kannan's house.
2.4 Post midnight of 16.12.2012, Rajagopal (P.W.2) received a phone call from Kannan who told him that he had committed a mistake and requested him 4/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 (P.W.2) to come to his flat. When Rajagopal (P.W.2) further enquired, Kannan told him that he has murdered his wife Mohanambal; he is going to surrender to the police and requested Rajagopal (P.W.2) to come and take Pooja (P.W.6) to his house. On hearing this information, Rajagopal (P.W.2) became panicky and hence, he approached Gajavardan and Arun Kumar (P.W.1) to accompany him to Kannan's house.
2.5 Accordingly, Arun Kumar (P.W.1), Rajagopal (P.W.2) and Gajavardan went by Gajavardan's car to the house of Kannan. En route, Arun Kumar (P.W.1) called "100" - Police Control Room and shared the information. On seeing the car entering the apartments, Kannan signalled them to come up to his flat. Rajagopal (P.W.2) and Gajavardan remained in the ground floor itself and Arun Kumar (P.W.1) alone went to Kannan's flat.
2.6 When enquired, Kannan told Arun Kumar (P.W.1) as under in Tamil:
"Since marriage, my wife has been quarrelling with me frequently since she hails from an affluent family and I hail from a 5/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 poor family background. She used to speak ill about my family. She would say that, had she got married to someone else, she would have been happier. Today, we went to T.Nagar and beach and returned home. Again, she picked up a quarrel and spoke humiliating words about my family. The quarrel continued till 2.00 a.m. and in the course of the quarrel, she pushed me. So, I beat her and in return, she scratched my cheeks, which act further infuriated me. So, I took a small grinding mortar and hit her on her head. When she fell down, I trampled her two legs firmly with my legs and slit her neck".
(Free English translation from the complaint (Ex.P.1) 2.7 Thereafter, Kannan asked Arun Kumar (P.W.1) to hand over Pooja (P.W.6) to Rajagopal (P.W.2). Arun Kumar (P.W.1) saw the body of Mohanambal lying partly on the cot with her face smashed. While so, Arun Kumar (P.W.1) heard a noise from the adjoining bedroom and when he opened it, he saw Pooja (P.W.6) crying there.
6/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 2.8 In the meanwhile, the patrol police came to Kannan's flat and together, they all went V.5 Thirumangalam Police Station, where, Arun Kumar (P.W.1) gave a written complaint (Ex.P.1), based on which, Sivakumar (P.W.23) (for brevity "the I.O."), Inspector of Police, V.5, Thirumangalam Police Station, registered a case in Cr.No.3111 of 2012 on 16/17.12.2012 at 4.00 a.m. against Kannan under Section 302 IPC and prepared the printed FIR (Ex.P.17).
2.9 The I.O. (P.W.23) placed Kannan under arrest at 4.30 a.m. and recorded his confession statement. Kannan stated that if he is taken to his flat, he would produce the grinding mortar and the knife and this admissible portion of his confession statement was marked as Ex.P.21.
2.10 The I.O. (P.W.23) went to the place of occurrence and prepared an observation mahazar (Ex.P.7) in the presence of witnesses, Sudharsan (P.W.14) and Vijayakumar (P.W.10). In the presence of the same witnesses, the I.O. (P.W.23) seized the following items under the cover of a mahazar (Ex.P.8):
i. A bloodstained small grinding mortar (M.O.4)
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R.T.No.1 of 2021 & Crl.A.No.131 of 2021
ii. A bloodstained broken knife and handle (2 items marked as M.O.5
series)
iii. A bloodstained blue colour pen knife (M.O.6)
iv. A bloodstained blue and white checked lungi (M.O.7)
v. A bloodstained brown colour t-shirt with full sleeves (M.O.8)
vi. White colour Samsung cell phone (not marked)
vii. Maroon colour LG cell phone (not marked)
2.11 From the place of occurrence, the I.O. (P.W.23) collected blood in gauze cloth pieces from the floor and other places and submitted the same to the Magistrate in Form 95 (Ex.P.19).
2.12 The I.O. (P.W.23) also prepared a rough sketch (Ex.P.18) and called the police photographer Ganesan (P.W.11) to photograph the place of occurrence and the photographs were marked as M.O.1 series and M.O.2 and the compact disc containing the photographs was marked as M.O.3.
2.13 At the request of the I.O. (P.W.23), Ramajayam (P.W.12), finger print 8/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 expert, came to the place of occurrence, but, according to him, he was not able to lift any finger print.
2.14 The I.O. (P.W.23) conducted inquest over the body of Mohanambal from 6.45 a.m to 8.00 a.m. and prepared the inquest report which was marked as Ex.P.20. He despatched the body of Mohanambal to Kilpauk Medical College and Hospital for postmortem where Dr. R. Selvakumar (P.W.15) performed autopsy on the body of Mohanambal and issued the postmortem certificate (Ex.P.9). In his evidence as well in the postmortem certificate (Ex.P.9), he has noted the following injuries:
"INJURIES:
1 Face crushed and lacertaed over centre of forehead, upper part of nose and inner aspect of upper part of both eyes over an area of size 7 cm x 6 cm x bone deep.
- Marginal abrasion seen over both sides of nose and centre of nose over an area of size 3 x 2 cm with intervening normal skin in some areas.
- Depressed fracture of both frontal bones and nasal bones seen with surrounding soft tissue bruising.
- Subconjunctival hemorrhage seen in both eyes.
On dissection of head:
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- Bluish black scalp contusion measuring 12 x 4 x 0.5 cm. over both fronto parietal region.
- Bluish black scalp contusion measuring 8 x 6 x 0.5 cm over right parieto temporal region.
- Diffuse sub-dural and sub-arachnoid hemorrhage seen all over brain surface.
- Linear fracture 5 cm long seen in the anterior cranial fossa on the right side.
2 Laceration measuring 1 x 0.5 x 0.5 cm seen over left upper lip close to the midline.
3 Laceration measuring 0.5 x 0.3 x 0.3 cm over right upper lip close to the midline on dissection the underlying tissues found bruised.
4 Two liner abrasions measuring 1.2 x 0.3 and 1.0 and 0.3 cm over left cheek.
5 Incised wound measuring 1.5 x 0.5 x 0.3 cm. over palmar aspect of lower 1/3rd of left to little finger with beveling of skin upwards.
6 Incised wound measuring 1.5 x 0.5 x 0.3 cm over palmar aspect lower 1/3rd of right ring finger.
7 Superficial scratch abrasion measuring 6.5 cm long horizontally placed seen over upper part of front of neck.
8 Oblique incised wound measuring 6 x 1.5 x 2.5 cm. seen over front of middle of neck below the thyroid cartilage. The lower border of the incised wound lies 4.5 cm above the supra sternal notch; the upper border lies 8 cm below the chin. The wound extends to the right side 1.5 cm from the midline to 4 cm to the left to midline.10/56
https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 On dissection: The superficial neck muscles, strap muscles of the neck, cricoid cartilage, superficial veins of front and left side of neck, inner end of left sternomastoid muscle found cut below the injury. The carotid artery found severed on the left side. Extravasation of blood seen in the surrounding soft tissue.
On dissection of thorax:
Heart: Normal in size, c/s Chambers empty Valves: NAD, Coronaries; Patent, great vessels: NAD Both lungs: Normal in size, C/S: Pale On dissection of abdomen:
Stomach: Empty with bloodstain seen. No specific smell, mucosa: Normal, Intestines: distended with gas, Liver, spleen and both kidneys: Normal in size, c/s: Pale. Bladder: empty. Uterus: Normal in size c/s empty, Genitalia: NAD, Pelvis and spinal column: intact. Viscera sent for chemical analysis."
2.15 The samples of the visceral organs of Mohanambal were sent to the Forensic Sciences Department for examination and the viscera report (Ex.P.12) states that poison was not detected in any of them. Dr. Selvakumar (P.W.15) gave his opinion as under:11/56
https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 "Opinion as to cause of death:-
(b) The deceased would appear to have died of shock and hemorrhage due to head and neck injuries."
2.16 The bloodstained apparel of Mohanambal, viz., her nightie, brassiere and panty, were collected from Kilpauk Medical College and Hospital after postmortem, for the purpose of investigation.
2.17 The I.O. (P.W.23) sent Kannan to Kilpauk Medical College and Hospital for treatment for the injuries that were found on him. Dr. Ezhilarasi (P.W.17) examined Kannan on 17.12.2012 at 02.10 p.m. and noted the following in the accident register, copy of which was marked as Ex.P.10:
"Brought by police with memo for treatment. Alleged H/O assault by one known female bitten with teeth @ 2.30 a.m. on 17.12.2012 @ the above address O/E Patient conscious, oriented PR - 88/minute BP - 120/80. RS/CVS NAD. L/E laceration 1 cm x 0.5 x 0.5 cm. Left index finger palmer aspect, punctured wound. Right dorsum of index finger. Multiple superficial abrasion right paranasal left paranasal right shoulder.
Adv. Inj. TT 0.5 cm. IM Duty Assistant Surgeon opinion"
2.18 After medical examination, Kannan was produced before the XIII 12/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 Metropolitan Magistrate, Chennai at 3.50 p.m. on 17.12.2012 itself and was remanded in judicial custody. After remand, Kannan complained of chest pain and so, he was once again taken to Kilpauk Medical College and Hospital where Dr.Ezhilarasi (P.W.17) examined him at 5.00 p.m. on 17.12.2012 and advised taking of ECG vide A.R. copy (Ex.P.11). After medical treatment, he was sent to prison and later, released on bail.
2.19 Form 95 (Ex.P.19) containing the list of items that were seized under the cover of mahazar (Ex.P.8) from Kannan's flat, was submitted to the XIII Metropolitan Magistrate along with the remand application. In Form 95 (Ex.P.19), the Magistrate affixed his initial, date and time as 17.12.2012, 3.50 p.m. At the request of the I.O. (P.W.23), the XIII Metropolitan Magistrate sent the seized items to the Forensic Sciences Department for various examinations.
2.20 Human blood was detected in all the 13 items that were examined by Dr. Radhika Balachandran (P.W.19) vide biological report (Ex.P.13) qua bloodstained articles. Serological examination was conducted by Vimali 13/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 Thyagarajan (P.W.22), Assistant Director, Tamil Nadu Forensic Sciences Department, who, in her evidence, as well in her report (Ex.P.15), has stated that human blood of group "A" was detected in the following items:
Item No. Description of articles Origin Group Remarks 1 Stone mortar (M.O.4) Human A --
2 Knife blade (M.O.5) Human A --
Result of
3 Knife handle (M.O.5) Human -- grouping test is
inconclusive
4 Clasp knife (M.O.6) Human A --
5 Lungi (M.O.7) Human A --
6 T-shirt (M.O.8) Human A --
7 Gauze cloth piece Human A --
8 Gauze cloth piece Human A --
9 Gauze cloth piece Human A --
10 Gauze cloth piece Human A --
11 Nightie Human A --
12 Jatti (Panty) Human A --
13 Brassiere Human A --
2.21 The finger nail clippings of Mohanambal were examined by Vimali Thyagarajan (P.W.22) and her report (Ex.P.16) qua nail clippings states that blood found in that belongs to group "A".
2.22 The I.O. (P.W.23) examined several witnesses, collected the various 14/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 reports from the experts, completed the investigation and filed a final report in P.R.C. No.67 of 2013 before the X Metropolitan Magistrate Court, Egmore, Chennai under Section 302 IPC against Kannan.
2.23 On appearance of Kannan, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session, Chennai in S.C. No.291 of 2013 and was made over to the IV Additional Judge, City Civil Court, Chennai, for trial.
2.24 The trial Court framed a charge under Section 302 IPC against Kannan and when questioned, he pleaded "not guilty".
2.25 To prove the case, the prosecution examined 23 witnesses and marked 21 exhibits and 8 material objects.15/56
https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 2.26 When Kannan was questioned under Section 313 Cr.P.C. on 18.08.2015 on the incriminating circumstances appearing against him, he denied the same, but, gave the following explanation:
nfs;tp ,e;j tHf;F rk;ge;jkhf ePh; VnjDk;
Twpf;bfhs;s tpUk;gf
[ pwPuh>
gjpy; ,ut[ 2 kzpf;F uh$nfhghy; nghd; K:ykhf vdJ
kidtp ,we;Jtpl;ljhf vdf;F jfty; Twpdhh;/
ehd; tPl;ow;F te;jnghJ nghyPrhh; vd;id
miHj;J brd;Wtpl;lhh;fs;/ uh$nfhghy; mth;
bra;j bfhiyia f$th;jDld; nrh;e;J nghyPrhh;
K:yk; vd; kPJ Rkj;jptpl;llh;/
Free English Translation
Question Would you like to say anything in connection with this case? Answer In the night at 2.00 p.m., Rajagopal called me over phone and told me that my wife is dead. When I came to my house, the police took me away. For the murder committed by Rajagopal, Gajavardan and the police have falsely implicated me in this case. Therefore, I must be released.
16/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 2.27 Thereafter, the trial Judge observed that Kannan was not examined under Section 313 Cr.P.C. qua the evidence of Pooja (P.W.6) and therefore, he was questioned by the trial Judge under Section 313 Cr.P.C. on 24.02.2021 on the evidence of Pooja (P.W.6). He accepted the evidence of Pooja (P.W.6) and finally stated as under:
nfs;tp ,e;j tHf;F rk;ge;jkhf ePh; VnjDk;
Twpf;bfhs;s tpUk;gf
[ pwPuh>
gjpy; vdJ bgz; brhd;dbjy;yhk; cz;ikjhd;/
vd; kPJ Rkj;jg;gl;lJ bgha;ahd Fw;wk;/ vd;
kPJ bgha; tHf;F/ uh$nfhghy; bra;j
Fw;wj;jpy; vd; kPJ bgha; tHf;F
nghlg;gl;Ls;sJ/
Free English Translation
nfs;tp Would you like to say anything in connection with this case?
gjpy; Whatever my daughter said is true only. A false case has been foisted on me. For the offence committed by Rajagopal, false case has been foisted on me.
2.28 From the side of the defence, two witnesses were examined and five exhibits were marked.
17/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 2.29 After hearing both sides and considering the evidence on record, the trial Court, vide judgment and order dated 03.03.2021 in S.C. No.291 of 2013, has convicted Kannan of the offence under Section 302 IPC and imposed death sentence on him.
2.30 Since death sentence has been imposed on Kannan, the case in R.T. No.1 of 2021 has been sent up to us under Section 366 Cr.P.C. for confirmation of the death sentence. Challenging his conviction and sentence, Kannan has filed Crl.A.No.131 of 2021.
3 We heard Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the State and Mr. K. Doraisami, learned Senior Counsel representing M/s. Muthumani Doraisami, learned counsel on record for Kannan, the accused in this case.
4 The prosecution has proved the following facts beyond a 18/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 peradventure:
a) Kannan is the son of Veeri Chettiar (P.W.8) and he was a Professor in the M.B.A. Department of R.M.K. Engineering College in Gummudipoondi.
b) He got married to Mohanambal sometime in 1998 and the couple is blessed with a girl child Pooja (P.W.6), who was aged around 13 years at the time of the incident.
c) Kannan's family was living in 18/45D, I Floor, Senthoor Apartments, VI Avenue, Anna Nagar, Chennai - 40.
d) On the midnight of 16/17.12.2012, Mohanambal died and her death was neither natural nor suicide but homicide.
5 The short question that falls for the consideration of this Court is who was the perpetrator of the ghastly offence, Kannan or Rajagopal (P.W.2).
6 Before embarking to discuss on the evidence of the prosecution witnesses, we are constrained to place on record a disquieting feature that obtains in this case.
19/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 6.1 The principal prosecution witnesses were examined in chief on particular individual dates, but, they were not cross-examined by the defence on the individual dates they were examined in chief, as could be seen from the following table:
Date of chief Date of cross-
Witness name and rank
examination examination
Arunkumar (P.W.1) 02.09.2013 24.11.2014
Rajagopal (P.W.2) 02.09.2013 08.12.2014
Senthil Kumar (P.W.3) 17.09.2013 22.12.2014
Obulakshmi (P.W.4) 17.09.2013 22.12.2014
Dr.Selvakumar (P.W.15) 09.10.2014 12.12.2014
11.06.2015 &
Sivakumar (P.W.23) 02.07.2015
15.06.2015
6.2 From the trial Court's records, it is further seen that immediately after
the examination-in-chief of the aforesaid witnesses, the defence has sought deferment of cross-examination under Section 231(2) Cr.P.C. In Vinod Kumar vs. State of Punjab1, the Supreme Court has very clearly held that a witness should be cross-examined on the date he is examined in chief and following the said judgment, the Registrar General of this Court has issued a circular in R.O.C. 1 (2015) 3 SCC 220 20/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 No.7808-A/2015/F1/Regr (Judl). dated 18.12.2015 to all the subordinate courts to comply with the direction of the Apex Court in Vinod Kumar (supra), strictly.
6.3 We find that this ill is more prevalent in the trial Courts in Chennai rather than in the mofussil. We are afraid that Section 231(1) Cr.P.C., to defer cross-examination of a prosecution witness, is not a carte blanche to send back a witness who has been examined in chief to come back again on another date for the purpose of cross-examination by the defence. The discretionary power under Section 231(2) Cr.P.C. has to be judiciously applied by the Court only for good and sound reasons and not at the mere asking of the defence. Normally, when two witnesses are going to speak about the same fact, the examination of one witness can be deferred by a day or two, so that the prosecution examines the other witness and the defence cross-examines both the witnesses in quick succession. In this case, Senthil Kumar (P.W.3), Mohanambal's brother and Obulakshmi (P.W.4), Mohanambal's mother, were not examined to speak about the foundational facts of the case. Further, it is indeed sorry that as many as five witnesses, viz., Stephen Jeyapal (P.W.5), Sridevi (P.W.7), Veeri Chettiar (P.W.8), Thirupathi (P.W.9) and 21/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 Vijayakumar (P.W.10) have turned hostile.
7 This case is predicated on the extrajudicial confession of Kannan coupled with circumstantial evidence. Mr. K. Doraisami, learned Senior Counsel, placed reliance on the following judgments relating to circumstantial evidence:
S.No. Cause Title
1 Sujit Biswas vs. State of Assam2
2 Majenderan Langeswaran vs. State (NCT of Delhi) &
another3
3 Joita Abhai Maganlal vs. State of Gujarat4 and
4 Subhash Chand vs. State of Rajasthan5
8 With regard to circumstantial evidence, it is profitable to refer to the
following passage from the Constitution Bench judgment of the Supreme Court in Govinda Reddy and another vs. State of Mysore6:
"In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn would 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 2 (2013) 12 SCC 406 3 (2013) 7 SCC 192 4 (2017) 11 SCC 413 5 (2002) 1 SCC 702 6 AIR 1960 SC 29 22/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 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."
9 In the context of circumstantial evidence, it is also useful to refer to the following five classic rules reiterated in Shaik Mustan Vali vs. State of Andhra Pradesh7:
"(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."
10 The prosecution case rests on the evidences of Arun Kumar (P.W.1), Rajagopal (P.W.2) and Pooja (P.W.6).
7 (2007) 9 SCC 342 23/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 10.1 Rajagopal (P.W.2), in his evidence, has stated that he is residing in Mogappair with his family; he knows Kannan; on 16.12.2012, around 2.30 a.m., while he was sleeping, he was woken up by a phone call from Kannan; Kannan asked him to come to his house saying that he (Kannan) had done a mistake; on further enquiry, Kannan told him that he had killed his wife and that he is going to surrender to the police and hence, wanted him (P.W.2) to take custody of his daughter Pooja (P.W.6); so, he (P.W.2) went to the first floor of his house which he had rented out to one Gajavardan (wrongly typed as Gajendran in his deposition, but, correctly typed as Gajavardan in Arun Kumar's deposition); he shared this information with Gajavardan and requested him to accompany him (Rajagopal-P.W.2) to Kannan's house; in turn, Gajavardan called his son-in-law Arun Kumar (P.W.1) who was living with him and all the three went by a car to Kannan's house in No.18/45D, I Floor, Senthoor Apartments, VI Avenue, Anna Nagar, Chennai; Arun Kumar called "100" police en route and alerted them; when they drove into the apartments, Kannan, who was standing in the landing of the staircase, signalled them to come to his flat; since he (Rajagopal-P.W.2) was a 24/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 little nervous, he did not go up and instead, Arun Kumar went; in two or three minutes, Pooja was brought down and she was weeping saying "Amma, Amma"; Kannan told him that he had killed his wife and went back to his flat; he (P.W.2) kept Pooja in his car and waited; soon, the police came and he brought Pooja to his house and kept her there. As stated in the tabular column in paragraph 6.1 (supra), Rajagopal (P.W.2) was not cross-examined on 02.09.2013, but was cross- examined only on 08.12.2014.
10.2 Arun Kumar (P.W.1), in his evidence, has stated that he is residing with his father-in-law Gajavardan who is a tenant in the first floor of Rajagopal's (P.W.2's) house in Mogappair and he is into real estate business; he knows Kannan; on 16.12.2012, around 2.30 a.m., Rajagopal called him over his mobile phone and told him that his friend Kannan had committed a murder and informed him (Rajagopal) over phone; since he (Rajagopal) was scared to go there, he requested him (Arun Kumar) to accompany him; Rajagopal (P.W.2) was living in the second floor and he was living in the first floor with his father-in-law Gajavardan; all the three went to Kannan's house and on the way, he called "100" 25/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 and gave a tip off to the Control Room; they parked the car and on seeing them, Kannan asked them to come up to his flat; he (P.W.1) alone went to Kannan's flat and when he enquired him, Kannan said that his wife has been was quarelling and torturing him by comparing her affluence with his family's poor financial background and hence, speaking ill about his family and also by saying that had she married someone else, she would have been happier and therefore, Kannan got angry with her and hit her with a grinding mortar and slit her neck with a knife; thereafter, when he (Arun Kumar - P.W.1) went inside the house, he saw in the bedroom one part of Mohanambal's body on the bed and the other part below the cot with her face smashed; he also saw a pool of blood on the floor and even on the wardrobe, he saw blood sprinklers; he saw a grinding mortar and two knives near Mohanambal's body; he found the adjacent bedroom latched and he heard the cries of Kannan's daughter Pooja who was banging the door; he opened the latch and saw Pooja crying saying "Amma, Amma"; so, he brought her to the ground floor and handed over her to Rajagopal (P.W.2); soon, policemen came there and took Kannan to the police station along with him; at the police station, he gave a written complaint (Ex.P.1) around 4.00 a.m. to 4.30 a.m. 26/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 11 The learned Senior Counsel appearing for Kannan attacked the evidence of Arun Kumar (P.W.1) and Rajagopal (P.W.2) on the following grounds:
i. Rajagopal (P.W.2) had stated that he had called only Gajavardan, whereas, Arunkumar (P.W.1) had stated that Rajagopal (P.W.2) had called him (Arun Kumar-P.W.1) over mobile phone;
ii. The police had failed to obtain the call detail records of Kannan, Arun Kumar (P.W.1) and Rajagopal (P.W.2);
iii. Gajavardan was not even examined as a witness; and iv. Since Rajagopal (P.W.2) was guilty of murder, he did not come to Kannan's house and they had all planned to fix Kannan falsely for the murder of Mohanambal.
12 To appreciate Mr. Doraisami's contentions, we must have to analyse the trajectory of the case. As stated above, the defence did not choose to cross- examine the principal witnesses, viz., Arun Kumar (P.W.1) and Rajagopal (P.W.2), on the day they were examined in chief, because, they were perhaps waiting for the evidence of Pooja (P.W.6) to come on record. Pooja (P.W.6) was examined in chief on 04.10.2013 and was not cross-examined by the defence. Thereafter, the defence projected a theory that Kannan had left for work on the night of 27/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 16.12.2012; in his absence, Rajagopal (P.W.2) came to his flat and tried to sexually abuse Mohanambal and when she did not yield to his urge, he murdered her, called Kannan and told him that he has murdered her and when Kannan came to the house, the police took him into custody and foisted the case on him. Thus, the anchor sheet of the defence case is that Kannan was away on work on the night of 16.12.2012 and in his absence, Mohanambal was murdered by Rajagopal (P.W.2). In short, Kannan pleaded alibi, which is relevant under Section 11 of the Evidence Act.
13 Now, let us analyse the evidence of Pooja (P.W.6). Pooja was around 14 years of age when she was examined on 04.10.2013. The trial Court posed some preliminary questions to her in order to satisfy itself about her ability to comprehend the questions posed to her. We omit to give that portion of the deposition of Pooja (P.W.6) and give below the free English translation of her deposition:
"I am residing at door No.18/45B, first floor, Senthur Apartment, 6th Avenue, Thangam Colony, Anna Nagar, with my parents. My mother’s name is Moganambal. My father’s name is Kannan. I am studying 9th standard. At present, I am studying in Vidya Mandhir School, 28/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 Salem. Prior to this, I studied in RMK CBSE School, Thiruverkadu, Chennai. In the aforesaid address, myself, my father and mother, all three of us were living. My mother was not employed anywhere. She is a housewife. My father is working as Professor in MBA department of RMK Engineering College, Kavarapettai. My father and mother will be normal at home. On 16.12.2012, my father, mother and I went to T.Nagar, in a two wheeler, for purchasing dress. From there, we went to Marina beach. Thereafter, we returned home. All three of us had dinner only in home. There are 2 rooms in the house, in which I resided. I used to sleep separately in one room. My parents would sleep in another room. On that day, I went to my room for sleeping. After I had gone for sleeping, at 9 pm, my father woke me up and told that he has some urgent work to be attended in the office and left stating that he will go and come back soon. Usually, my father will go to office at 7 am and would return at 6 pm. My father served only as a Professor. When the police enquired me, I had told them the detail of my father having woken me up at 9 pm. Thereafter, I went to sleep. It would be around 6 am., there was some mess in the hall. The hall in our house was found to be noisy. I came out of the room and found several persons gathered in my house. Police, my father, Rajagopal and Arun were standing in the ground. Only on that day, I saw Arun. He was also standing there. My father asked me to go to the home of Rajagopal uncle along with him. I went with Rajagopal uncle to his house at Mogappair, in car. Only after reaching there, Rajagopal uncle informed me that my mother had died. The police enquired me in this regard."
14 Much argument was advanced by Mr. Doraisami on the evidence of Pooja (P.W.6) by submitting that when she was not declared hostile by the prosecution, her evidence is binding on the prosecution and in support of this proposition, he submitted several rulings. He contended that Pooja (P.W.6) has stated that her father left home on 16.12.2012 and this singular evidence establishes alibi.
29/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 15 On the contrary, the learned Additional Public Prosecutor submitted that after the incident, Pooja (P.W.6) was being brought up in Salem by her paternal grandfather [Veeri Chettiar (P.W.8), Kannan's father] and it is natural for her to have a tilt towards her father.
16 We carefully analysed the evidence of Pooja (P.W.6) in the light of the aforesaid submission made by Mr. Doraisami. It is true that Pooja (P.W.6) was studying in Chennai at the time of the incident and after the death of her mother, she was shifted to Salem and Veeri Chettiar (P.W.8) has admitted that she came to the Court to give evidence only from his house. On a careful reading of Pooja's (P.W.6's) evidence, it is seen that she has stated that on 16.12.2012, she went with her parents to T. Nagar for purchasing some dresses and from there, they went to the Marina Beach and returned home and had dinner; there are two rooms in her house; in one room, she would sleep alone and in the other room, her parents would sleep. She has further stated that on that day, she went to bed by 9.00 p.m. and after she slept, her father woke her up and told her that he has got office work and left saying that he would come back.
30/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 17 We read the evidence of Pooja (P.W.6) again and again and we are unable to infer that Kannan went out of the house after telling Pooja (P.W.6). What we are able to infer is that Kannan woke up the sleeping child, told her that he is going to office and left the room saying that he would come back. What really baffles us is that 16.12.2012 was a Sunday. Concededly, Kannan was not working in a factory for going for night shift. He was employed as a Professor in R.M.K. Engineering College which is about 50 kms. away from Anna Nagar in Chennai. We know no educational institution in Chennai and outskirts where Professors conduct classes for students during late nights. That apart, what is the reason for a father to wake up his sleeping child and tell her that he is going out for work, instead of telling his wife and going. The evidence of Pooja (P.W.6) that her father told her that he is going to office and would come back will only prove the fact that Kannan told her so. It will not prove alibi. Alibi is a relevant fact which has to be proved as any other fact in terms of the definition of the word "proved" in Section 3 of the Evidence Act. In other words, Kannan should have placed materials before the Court to show that he was actually not in the house 31/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 when the incident took place in his house at an unearthly hour. Even in the examination under Section 313 Cr.P.C., Kannan had not stated where he was on the fateful night of 16.12.2012. The climax in the evidence of Pooja (P.W.6) is her testimony that she saw Rajagopal (P.W.2) and Arun Kumar (P.W.1) standing in the ground floor with police and that her father asked her to go with Rajagopal uncle (P.W.2) to his house and so, she went with Rajagopal uncle (P.W.2) to his house in Mogappair in car and only after reaching the house, Rajagopal (P.W.2) informed her that her mother had died.
18 In our view, that is why, perhaps, in the trial Court, the Public Prosecutor rightly did not declare Pooja (P.W.6) hostile. The defence did not choose to cross-examine Pooja (P.W.6) on this most vital aspect that she was sent by her father with Rajagopal (P.W.2). When Kannan was examined by the trial Court on 24.02.2021 under Section 313 Cr.P.C. qua the evidence of Pooja (P.W.6), he has clearly stated that her testimony is true. However, Kannan has not stated in his Section 313 Cr.P.C. examination, the time at which he left his house, where he went and at what time, he returned to his house. He has stated that 32/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 Rajagopal (P.W.2) called him and told him about his wife's death at 2.00 a.m. and when he came to his house, the police took him away and foisted this case on him. This explanation sounds absurd. If really Rajagopal (P.W.2) had murdered Mohanambal, would he be a fool to ring up Kannan at 2.00 a.m. and say that he has murdered the latter's wife? On the contrary, Rajagopal (P.W.2) would have tried to flee. It is not Kannan's explanation that after he received information from Rajagopal (P.W.2), he (Kannan) called the police. Therefore, the evidence of Pooja (P.W.6) is incompatible with the explanation offered by Kannan. Finally, if really Rajagopal (P.W.2) was the murderer, no father under the sun would ever dare to send his daughter with his wife's murderer. In Sushil Sharma vs. The State of N.C.T. of Delhi8, the Supreme Court has held that a false defence of alibi will form a vital link in the chain of circumstances. That apart, the explanation given by Kannan in his Section 313 Cr.P.C. examination that Rajagopal (P.W.2) called him over phone and told him that his wife is dead and when he came to his house, he was taken away by the police and this case foisted on him, is also a false explanation and as held by the Supreme Court in Anthony D'souza and others 8 (2014) 4 SCC 317 33/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 vs. State of Karnakata9, such a false explanation will also provide the missing link. Therefore, we agree with Mr. Doraisami that the evidence of Pooja (P.W.6) is binding on the prosecution. However, we hasten to add that her evidence clearly implicates Kannan as set out by us above.
19 Coming to the submission of Mr. Doraisami with regard to the discrepancies in the evidences of Arun Kumar (P.W.1) and Rajagopal (P.W.2) as to who was contacted first by Rajagopal (P.W.2), i.e., whether it was Arun Kumar (P.W.1) or Gajavardan, we find that this discrepancy is not seriously material, especially in the light of the answers given by the witnesses in their cross- examination. In the cross-examination, Arun Kumar (P.W.1) has clearly stated that Rajagopal (P.W.2) contacted his father-in-law Gajavardan and thereafter, Gajavardan woke him (Arun Kumar-P.W.1) up. He has further stated in the cross- examination that Rajagopal (P.W.2) did not directly call him in his mobile, but, he has called his father-in-law Gajavardan in his mobile phone.
20 We posed the following question to ourselves. Why should Kannan 9 (2003) 1 SCC 259 34/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 telephone Rajagopal (P.W.2) and ask him to come? The answer to this we got from the cross-examination of Rajagopal (P.W.2), who has stated that he knows the family of Mohanambal for the last 18 years since Mohanambal’s father was his family friend. He has further stated in the cross-examination that he has attended the house warming ceremony of Kannan with his wife; he has gone to Kannan’s house with his daughter to see Pooja (P.W.6) twice; Kannan had come to his house twice or thrice with his wife and daughter. These answers were elicited by the defence in the cross-examination of Rajagopal (P.W.2), which answers fortify the close relationship between the two families. That is why, Pooja (P.W.6) refers to Rajagopal (P.W.2) as "uncle". That apart, in the cross-examination of Rajagopal (P.W.2), he has admitted that Mohanambal’s brother Senthil Kumar (P.W.3) also called him in his mobile phone while he was going with Arun Kumar (P.W.1) to Kannan’s house, desperately.
21 Senthil Kumar (P.W.3), Mohanambal’s brother, was residing in Salem District with his parents, viz., Chandrasekar, father and Obulakshmi (P.W.4) mother. Obulakshmi (P.W.4) has stated that around 3.00 a.m. on 16th night/17th 35/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 morning of December 2012, a call came to her husband’s mobile phone from her Sammandhi (Kannan's father); she attended the call and at that time, her Sammandhi (Kannan's father) said that Mohanambal had died; when she asked him further, he said that Kannan told him that Mohanambal is dead; after hearing this news, she woke up her husband and everyone started immediately by road from Salem to Chennai. Thus, even around 3.00 a.m., the news of Mohanambal’s death had reached her parents' ears and that is why, Senthil Kumar (P.W.3) has telephoned Rajagopal (P.W.2) and asked him as to what had happened to his sister Mohanambal. The defence has not cross-examined Senthil Kumar (P.W.3) and Obulakshmi (P.W.4) on this aspect at all. It is true that Veeri Chettiar (P.W.8), Kannan's father, turned hostile and naturally, one cannot expect him to support the prosecution case and say that Kannan called him and told him about Mohanambal’s death, which he intimated to Mohanambal’s parents. We have no reasons to disbelieve the evidence of Rajagopal (P.W.2), Senthil Kumar (P.W.3) and Obulakshmi (P.W.4) on this aspect. Kannan knew that all his close relatives were in Salem and were not in Chennai. Thus, Kannan was left with only one close family friend in Chennai, viz., Rajagopal (P.W.2) and that is why, he has 36/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 called Rajagopal (P.W.2) for help. He was initially penitent and decided to surrender to the police. Before that, he wanted a safe place for his daughter Pooja (P.W.6) and hence, he has called Rajagopal (P.W.2) for help. The initial remorse faded away as time passed by and the survival instinct appears to have taken him into its clutches and had emboldened him to take a defence that while he had gone away on 16.12.2012, Rajagopal (P.W.2) had come to his house and tried to abuse Mohanambal sexually and due to her resistance, he had murdered her.
22 We now proceed to address the other ancillary arguments of Mr.Doraisami.
23 Taking this Court through the charge sheet and the complaint (Ex.P.1), Mr. Doraisami submitted that the prosecution has come up with two different versions with regard to the genesis of the case. Be it noted that a charge sheet (final report) is not substantive evidence. It is only the opinion of the Investigating Officer based on the materials collected by him during investigation. It can be used only for the limited purpose of taking congizance of the offence by 37/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 the Magistrate under Section 190 Cr.P.C. and nothing more than that. However, we carefully read the charge sheet and the complaint (Ex.P.1) and we do not find any great contradiction with regard to the crux of the prosecution case. The crux of the prosecution case is that Mohanambal was in the habit of demeaning her husband Kannan and his family and when she did that on the fateful night, Kannan felt humiliated and consequently, hit her with a grinding mortar and thereafter, ripped her neck with a knife. In the charge that was framed by the trial Court, there is absolutely no scope for any misdirection and the prosecution has adduced evidence only with reference to the charge framed. Therefore, the opinion of the I.O. (P.W.23) in the final report has no legal sanctity at all. In fact, the Court can even reject his opinion in a given case.
24 Mr. Doraisami contended that the prosecution has failed to prove the motive, which is essential in a case that rests on circumstantial evidence. It is true that in a case based on circumstantial evidence, motive assumes importance. However, this rule cannot be applied blindly and stretched to an illogical extent. In this case, Mohanambal's homicide was in Kannan's apartment. 38/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 Incontrovertibly, there were only three persons living in that apartment, viz., Kannan, Mohanambal and Pooja (P.W.6). According to Pooja (P.W.6), she was sleeping in a separate room and her parents were sleeping in another room. When Arun Kumar (P.W.1) met Kannan, the latter confessed to the former that he had murdered his wife, because, she was humiliating him and his family. We find it hard to understand as to what more proof of motive is required in this case.
25 The learned Senior Counsel argued that there are contradictions with regard to the time of occurrence and therefore, the benefit of the same should be given to Kannan. In this case, none had worked with clock precision. Rajagopal (P.W.2) and Arun Kumar (P.W.1) came to Kannan's house at the instance of Kannan and Arun Kumar (P.W.1) found the dead body of Mohanambal in Kannan's bedroom. Therefore, how could he (Arun Kumar - P.W.1) have stated in his evidence about the exact time of the death of Mohanambal? If anyone who could say about this, could only be Kannan and not even Pooja (P.W.6), because, she was sleeping in the adjacent room.
26 Mr. Doraisami contended that non examination of Gajavardan is fatal 39/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 to the prosecution case. He also contended that in the complaint (Ex.P.1), there is no reference to Gajavardan. Gajavardan is the father-in-law of Arun Kumar (P.W.1) and was living in the first floor portion of the house that belonged to Rajagopal (P.W.2), who himself was living in the second floor. After receiving the phone call from Kannan, Rajagopal (P.W.2) felt jittery and sought the help of his tenant Gajavardan, who, in turn, called his son-in-law, Arun Kumar (P.W.1), to accompany them. The mere absence of reference to the name of Gajavardan in the complaint (Ex.P.1) and the consequential failure of the prosecution to examine him as a witness can, by no stretch of imagination, have the effect of vitiating the prosecution case.
27 The learned Senior Counsel took us meticulously through the evidence of the I.O. (P.W.23) and pointed out certain remissness in the investigation. He contended that the I.O. (P.W.23) should have collected the call detail records of Kannan, Rajagopal (P.W.2), Arun Kumar (P.W.1) and Gajavardan and the failure to do so, makes the prosecution case suspect. In our opinion, it is not necessary for an Investigating Officer to collect evidence with the idea of stumping the defence of the accused. The conduct of Rajagopal 40/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 (P.W.2) and Arun Kumar (P.W.1) does not show any abnormality. Arun Kumar (P.W.1), en route to Kannan's house, alerted "100", due to which, the patrol police also came there within a short time. Therefore, the non collection of call detail records of Kannan, Rajagopal (P.W.2), Arun Kumar (P.W.1) and Gajavardan is not fatal to the prosecution case.
28 Next, taking us through the evidence of Ramajayam (P.W.12), finger print expert, the learned Senior Counsel submitted that the finger print expert had come to the place of occurrence at 2.00 a.m. itself when the offence is alleged to have been committed only around 2.00 a.m. and therefore, the prosecution case is doubtful. It is true that Ramajayam (P.W.12), in his evidence, has stated that he went to the place of occurrence at 2.00 a.m. and he has further stated that he was not able to lift any finger print. However, the evidences of Arun Kumar (P.W.1) and Rajagopal (P.W.2) are to the effect that they all left for Kannan's house only around 2.30 a.m. On the particular aspect of time, we are inclined to believe the testimonies of Arun Kumar (P.W.1) and Rajagopal (P.W.2) rather than the testimony of Ramajayam (P.W.12).
29 Mr. Doraisami submitted that there is an inordinate delay in the FIR 41/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 (Ex.P.17) reaching the Court and that was because the police had to manufacture evidence against Kannan. In support of his contention that there should not be any delay in the FIR reaching the Court, he placed reliance on several judgments. In this case, the FIR (Ex.P.17) was registered at 4.00 a.m. on 17.12.2012, based on the complaint (Ex.P.1) given by Arun Kumar (P.W.1). Arun Kumar (P.W.1) and Kannan were taken to V.5, Thirumangalam Police Station by the patrol police. Kannan was placed under arrest at 4.30 a.m. On the same day, the I.O. (P.W.23) completed the preparation of observation mahazar (Ex.P.7), recovery mahazar (Ex.P.8) and inquest report (Ex.P.20), after which, he sent Mohanambal's body for postmortem. Kannan was produced before Dr. Ezhilarasi (P.W.17) for the injuries that were found on his body at 2.10 p.m. on 17.12.2012 vide copy of the accident register (Ex.P.10). After medical examination, the I.O. (P.W.23) sent the FIR (Ex.P.17), along with the remand application, to the XIII Metropolitan Magistrate who has received all these papers at 3.50 p.m. on 17.12.2012.
30 As narrated above, on 17.12.2012, from 4.00 a.m. to 3.50 p.m., the 42/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 I.O. (P.W.23) had been busy with the various facets of investigation, including recovery of various objects from the place of crime, etc. Therefore, in our considered opinion, it cannot be stated that there is a delay, much less any inordinate delay, in the sending of the FIR to the Magistrate, in the facts and circumstances of this case.
31 Coming to the reliance placed by the learned Senior Counsel on the judgments in support of the above contention, be it noted that in Ravinder Kumar and another vs. State of Punjab10, the Supreme Court has categorically held that a delayed FIR is not illegal and in fact, has also gone to the extent of holding that even an FIR registered with promptitude and dispatch is not an unreserved guarantee for it being genuine. The relevant passage from the said judgment reads as under:
"13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation 10 (2001) 7 SCC 690 43/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein." (emphasis supplied)
32 Next, Mr. Doraisami attacked the evidence of Dr. Ezhilarasi (P.W.17) by contending that she was not cited as a prosecution witness in the memo of evidence that was filed along with the charge sheet, but was examined as a witness on the prosecution filing an application under Section 311 Cr.P.C. In this regard, the defence has marked the application filed by the prosecution under Section 311 Cr.P.C. as Ex.D.5. A reading of Ex.D.5 shows that the Public Prosecutor in charge of the case has filed an application under Section 311 Cr.P.C. stating that he had inadvertently left out her name in the memo of evidence. The trial Court has heard the prosecution and the defence and has allowed the said application, pursuant to which, Dr. Ezhilarasi was examined as P.W.17. Dr. Ezhilarasi (P.W.17), in her evidence, has found injuries on the person of Kannan, which sufficiently show that Mohanambal had scratched his cheeks and had also bitten his index fingers. It is stated in the accident register copy (Ex.P.10) as "History of assault by one known female bitten with teeth at 2.30 a.m. on 17.12.2012 at the 44/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 above address". After Kannan was remanded by the XIII Metropolitan Magistrate, he had complained of chest pain and therefore, he was taken once again to Kilpauk Medical College and Hospital, where, he was examined by Dr.Ezhilarasi (P.W.17) vide accident register copy (Ex.P.11) and was advised to take ECG. What is the good reason for Dr. Ezhilarasi (P.W.17), a Government doctor, to give evidence in favour of the prosecution and against Kannan?
33 Mr. Doraisami attacked the police confession and submitted that when one of the witnesses to the seizure mahazar (Ex.P.8), viz., Vijayakumar (P.W.10), had turned hostile, the recovery under the said seizure mahazar (Ex.P.8) becomes suspect. In this case, the admissible portion of the police confession which led to the discovery of a fact has been marked as Ex.P.21. Be it noted that law does not require the presence of a witness for recording a police confession, because, a police confession is, per se, hit by Section 25 of the Evidence Act. What is relevant is the discovery of a fact pursuant to the information given by the accused and nothing else.
34 Let us assume for the sake of Mr. Doraisami that Kannan did not give 45/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 any confession leading to any discovery. However, the I.O. (P.W.23), in the presence of Vijayakumar (P.W.10) and Sudharsan (P.W.14), had recovered under the cover of mahazar (Ex.P.8), a whole lot of things, including a bloodstained lungi (M.O.7) and a T-shirt with full sleeves (M.O.8). These two items are indubitably men's wear and not women's wear. It was not suggested to Rajagopal (P.W.2) that the bloodstained lungi (M.O.7) and the T-shirt with full sleeves (M.O.8) belong to him. Thus, the recovery of the bloodstained lungi (M.O.7) and the T-shirt with full sleeves (M.O.8) with bloodstains in the bedroom of Kannan's house can justifiably lead to the inference that they belong to Kannan. The serology report (Ex.P.15) which has been set out in paragraph 2.20, supra, shows that the blood found in the items that were recovered from Kannan's bedroom belong to group "A", which is the blood group of Mohanambal. What the defence had done in this case is, they have subjected Kannan to blood test and has examined one G. Kumar as D.W.1 to prove that Kannan's blood group was O+ve via Ex.D.3. We are at a loss to understand as to why the defence had to commit this hara-kiri. When the prosecution itself had failed to prove Kannan's blood group, the defence has gone all out of its way to show that Kannan's blood group 46/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 is O+ve. Therefore, the presence of blood group "A" in Kannan's apparel, viz., bloodstained lungi (M.O.7) and T-shirt with full sleeves (M.O.8) only further implicates him in the offence, thereby, making the prosecution case stronger. At this juncture, we are constrained to record our consternation to a surreal procedure that obtains in the investigations of murder crimes. We have rarely come across a situation where the police obtain the blood group of the deceased and the accused and try to crack the mystery. When the postmortem doctor sends the samples of the visceral organs for chemical examination, nothing prevents him from sending the blood sample of the deceased also. Likewise, when the medical examination of the accused is conducted, nothing prevents the Investigating Officer to make a request to the examining doctor to collect the blood sample of the accused and send it for serological examination. It is indeed intriguing as to why these simple procedures which are very much prevalent in other countries are not followed by our police.
35 The next contention of Mr. Doraisami is that the prosecution has not adduced any evidence to show that the bloodstained lungi (M.O.7) and the T-shirt 47/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 with full sleeves (M.O.8) belong to Kannan. As stated by us above, the fact that these two items were recovered from Kannan's bedroom would, by itself, lead a prudent man to draw an inference that they belong to Kannan, more so, in the light of the admitted fact that there was no male other than Kannan in his apartment.
36 Mr. Doraisami drew the attention of this Court to certain discrepancies in the evidences of Arun Kumar (P.W.l) and the I.O. (P.W.23) as to in which vehicle, they went to the police station from Kannan's apartment, etc. He also pointed out some discrepancies in the evidences of Sudharsan (P.W.14), Vijayakumar (P.W.10) and the I.O. (P.W.23). These submissions can be answered by citing the following sapient passages from the judgment of the Supreme Court in State of Haryana vs. Bhagirath and others11:
"7. ....... Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused.
11 (1999) 5 SCC 96 48/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021
8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression “reasonable doubt” is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge." (emphasis supplied) Applying the above test, we conscientiously and reasonably do not entertain any doubt regarding the guilt of Kannan.
37 We do not intend to make this judgment prolix by referring to all the citations referred to by Mr. Doraisami, by garnering support from the judgment of the Supreme Court in Sayarabano vs. State of Maharashtra12, wherein, it was held as under:
"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 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 12 (2007) 12 SCC 562 49/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 to be set aside." (emphasis supplied) That is why, 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.
38 Finally, as stated already, the offence in this case has taken place in Kannan's apartment, in which, apart from him, there were only two persons, viz., Mohanambal and Pooja (P.W.6). When the prosecution has discharged its burden of adducing satisfactory evidence incriminating Kannan in the offence, the onus shifts on Kannan to prove the facts that are within his exclusive knowledge in terms of Section 106 of the Evidence Act, which he had not only failed to do, but had also given false explanation about which we have discussed in detail above.
39 In view of the foregoing discussion, we hold that there is no illegality in the conviction of Kannan for the offence under Section 302 IPC by the trial Court, warranting interference and accordingly, we confirm the conviction of Kannan for the offence under Section 302 IPC.
50/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 40 Coming to the question of sentence, we are convinced that this case does not come within the category of “rarest of rare cases” for awarding capital punishment, by applying the principles laid down by the Supreme Court in Bachan Singh vs. State of Punjab13. As alluded to by us in paragraph 21, supra, Kannan was initially repentant and that is why, he told Rajagopal (P.W.2) that he is going to surrender to the police. He did not run away from the place of occurrence after the incident but stayed put. With passage of time, the remorse in him faded and the desire to avoid pain by undergoing the punishment prescribed by law must have prompted him to shift the blame on Rajagopal (P.W.2). This conduct of Kannan has also weighed in the mind of the trial Judge as could be seen from paragraph 375 of the trial Court judgment, wherein, the trial Judge has observed "He also murdered the good friendship of Rajagopal." We agree with the said observation of the trial Judge and supplement it by quoting the following couplet from the Thirukkural:
(mjpfhuk; 11. Fws; 10) 13 (1980) 2 SCC 684 51/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 Meaning:
There may be excuse to those committing worst blunder, but, no escape at all for an ungrateful person.
(Chapter 11, Couplet 10)
41 What nagged us was, why did a highly qualified person like Kannan resort to such a perfidy? We found an answer to this, in the conversation between Sage Suka and King Parikshit in Srimad Bhagavatham, Book 12, Discourse II, Verse 1:
Meaning:
Thenceforward, day after day, by force of the all- powerful Time, O King, righteousness, veracity, purity (of mind and body), forgiveness, compassion, length of life, bodily strength and keenness of memory will decline.
42 The plight of Rajagopal (P.W.2) who suffered calumny at the hands of Kannan can be best described via the following passage from the IV Report of 52/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 the National Police Commission (1980), in which, a letter of a senior Sessions Judge to the Commission has been quoted with approval:
“A prisoner suffers for some act or omission but a witness suffers for no fault of his own. All his troubles arise because he is unfortunate enough to be on the spot when the crime is being committed and at the same time ‘foolish’ enough to remain there till the arrival of the police. It is for these reasons that people do not take the victim of a road accident to hospital or come to the help of a lady whose purse or gold chain is being snatched in front of her eyes. If some person offers help in such cases he is to appear as a witness in a court and has to suffer not only indignities and inconveniences but also has to spend time and money for doing so. Sometimes the witnesses incur the wrath of hardened criminals and are deprived of their lives or limbs.”
43 Despite all the above, we still feel that this is yet another run-of-the- mill case and not a case falling under the category of "rarest of rare cases" for sending Kannan to the gallows, for, it has not been demonstrated to us that Kannan is addicted to crime and that he is a menace to society, thereby ruling out any possibility of reformation.
44 In view of the above reasoning, in the facts and circumstances of the case, interests of justice will be subserved if the death sentence imposed on 53/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 Kannan is reduced to imprisonment for life, with a fine of Rs.5,000/-, in default to undergo three months simple imprisonment and it is ordered accordingly.
To sum up, the criminal appeal preferred by Kannan in Crl.A. No.131 of 2021 is partly allowed and the reference under Section 366 Cr.P.C. in R.T. No.1 of 2021 is answered in terms of paragraph 44, supra.
[P.N.P., J.] [R.N.M.,J.] 27.08.2021 cad 54/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 To 1 The Inspector of Police V-5 Thirumangalam Police Station Chennai 2 The IV Additional Judge City Civil Court, Chennai 3 The Public Prosecutor High Court, Madras - 600 104 55/56 https://www.mhc.tn.gov.in/judis/ R.T.No.1 of 2021 & Crl.A.No.131 of 2021 P.N.PRAKASH, J.
and R.N. MANJULA, J.
cad Common judgment R.T.No.1 of 2021 and Crl.A.No.131 of 2021 27.08.2021 56/56 https://www.mhc.tn.gov.in/judis/